Legal Q&A with David Hollingsworth

OTTAWA -- Lawyer David Hollingsworth regularly answers viewers’ questions about the law on CTV News at Noon. One of these questions may apply to you.

Q: Is eating considered distracted driving? And is it true someone can be charged for eating while driving, the same as if they were texting?

A: “No, eating is not distracted driving, say the way texting is. However, if you are distracted because you’re eating and you either caused an incident, or a police officer or somebody observes you being distracted, because you’re eating, you can be charged with careless driving or reckless driving as the case may be.”

Q: Is it mandatory for kids to wear helmets on City of Ottawa outdoor rinks?

A: “It’s not mandatory in the outdoor rinks, perhaps it should be. For indoor rinks, children 10 and under, it’s mandatory and it has to be a CSA approved helmet. Not in the outdoor rinks. But now, of course, masks are mandatory around the outside of outdoor rinks.”

Q: My son has been going to the ODR (outdoor rink) and I’m the one encouraging him to do so. Apparently, other kids are getting tickets and warnings from bylaw. Do we have a leg to stand on if we fight these tickets?

A: “This is changing daily as you know. I haven’t heard of tickets being handed out in Ottawa. They’ve been handed out elsewhere as we’ve seen in Calgary and places like that. What I saw recently was an announcement that they’re going to focus on ‘the education of individuals’, as opposed to ticketing. Although ticketing is still a tool in their arsenal. If somebody isn’t respecting the 2 metre rule, or wearing masks around the outside of the rink. I think now there’s a maximum of 25 people at these outdoor gatherings. To the extent, if somebody’s not following that, authorities come in and if they feel the appropriate remedy is a ticket, and they have that in their arsenal, then they can do that. Who knows if you’ll be successful challenging it.”

Q: Wondering what the process is when it comes to wills. Will I be notified if I am in a will? If so, is there a certain time frame that needs to be met? 

A: “A will itself is a private document. If you’re the estate trustee, otherwise known as the executor, you should know that in advance. But if you feel you might be, go find the will, go find who the lawyer was. If you wonder if you’re a beneficiary in the will, the estate trust will get in touch with you, hopefully immediately, but certainly within six months you should hear from the estate trustee. If you don’t hear, and you feel you may be left out of the will but you feel you should be in the will, the will becomes a public document when the estate trustee goes to get probate. You can get your hands on that and you may want to take it to a lawyer for some advice.”

Q: My husband wants to take our kids to Cuba at March break. Technically, it is his week to have them. I don’t feel comfortable with this with COVID-19 cases on the rise. Can I do anything to stop him from taking them? 

A: “Tough situation there. The courts have grappled with this type of issue already. The general rule is that the courts want to maintain the ‘status quo’. For example, if it’s a ‘week on, week off’ arrangement, they want to keep that the same, as much as possible. There are all sorts of issues that arise. If one of the parents is a front-line worker, and additionally exposed, and the other parent says, “I don’t think it’s safe for the kids to be with that parent” and such. The courts essentially say if you can establish what is being done is legal, and reasonably safe, the courts don’t want to interfere. If you think it’s not reasonably safe, you can make an application to the court. But these days the courts are so limited, and things are done for the most part on Zoom. The message from the court says that they want people to work things out on their own and act reasonably.”

Q: I’m in the process of separating from my husband. I’m wondering if a mediation agreement is binding or can changes still be made? 

A: “If it’s in agreement, if it’s a signed document and it’s become a contract, then in theory it’s binding. If there are some loose ends, or else there is a change in circumstances, that would change sort of the assumptions that you came to in the contract maybe it can be amended. A contract is a contract.”

Q: Does my car insurance company have to give me warning if they are increasing my premiums or can they just send me a bill that is almost 20% higher than previous year? I haven’t been in an accident and have a clean driving record. 

A: “They don’t have to write you a letter saying they are going to increase your premiums. They have to advise you of an increase in premiums but they can do that when they send you their invoice. If you want to know more about it, the financial services commission of Ontario, or FSCO, there is a website and it sets out how the rates are increased and I think it will even set out which insurance companies are increasing by how much. You can get that bill and if you don’t like it you can shop it around.”

Q: Can I ensure a child’s inheritance does not get divided up in the event they divorce their spouse? 

A: “Inheritance is something that falls outside of the ‘net family property’. If you get an inheritance it’s yours and it’s not to be shared with your spouse, or doesn’t have to be shared with your spouse. A lot of wills specify that. This inheritance is to go to my child and if they want to share it with their spouse and their family, that’s great, but they don’t have to. The issues arise if you get that inheritance and you use it for some common purpose like you pay off a mortgage, or you buy a car that you share. Then you would lose that right to sort of carve that out from the net family property.”

Q: If I’m not married but have been with my partner for 5 years, will he have to pay spousal support if we break up? 

A: “Under the Family Law Act if you’ve co-habited for a long enough period of time, you’ve become a spouse and they would have to pay you just like you were married.”

If you have a legal question for lawyer, David Hollingsworth send it to [e-mail]

If selected, your question may be answered on the CTV News at Noon.