Monthly Archives: June 2009

Happy Canada Day 2009

Posted in: "All by Admin | No Comments Tuesday, June 30, 2009

PSWLaw wishes you a happy and safe Canada Day on July 1, 2009.

Did you know…

Canada Day was formally known as “Dominion Day,” which marked the joining of the British colonies Nova Scotia, New Brunswick, Upper Canada (now Ontario), and Lower Canada (now Quebec) on July 1, 1867.

Canada was primarily considered a part of the British Empire, rather than an independent nation, during the late 19th and the early 20th century. It’s only after World War II that the federal government started actively promoting the occasion of Canada’s birthday.

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Changing Your Name: Unmarried or Common-Law Couples

Posted in: "All, Administrative Law, Family Law by Admin | No Comments Tuesday, June 30, 2009

Yesterday I wrote about Changing Your Name After Getting Married. Interestingly in Canada, unlike many civil law jurisdictions, you may change your name even if you aren’t formally married.

In general, the procedure of name changing is similar to changing your name after getting married, with some modifications detailed below.

How do I prove that I’m in a conjugal (common law) relationship?

While it’s true that you won’t have a marriage certificate to prove your relationship, you may file a Joint Declaration of Conjugal Relationship. This form is available from the Office of the Registrar General.

After you have filed the joint declaration, you may take the copy of the declaration to the appropriate institutions to change your name by assuming your spouse’s surname or a hyphenated surname consisting of your own and your spouse’s surnames.

Alternatively, you may formally change your name by filing an Election to Change Surname form with the Registrar General, once your joint declaration has been filed.

For more information, please contact the Office of the Registrar General toll free at 1-800-461-2156 or in Toronto at 416-325-8305.

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Changing Your Name After Getting Married

Posted in: "All, Administrative Law, Family Law by Admin | No Comments Monday, June 29, 2009

Summer is wedding season!

Many couples choose to celebrate their love and commitment by getting married . In Canada, it’s quite common for one spouse to adopt the other’s last name (surname), or for both spouses to adopt a hyphenated name (hyphenated surname).

So how do you do it?

If you’re married to your spouse, you have two options:

1. You can simply assume your spouse’s name, or assume a hyphenated name consisting of your own and your spouse’s.

This is fairly easy to do. All you need is to bring your marriage certificate to the appropriate institutions (e.g., the DMV for your driver’s licence, the bank for your bank statements, Service Ontario for your health card). You may need to bring a piece of photo ID to identify yourself.

There’s generally no charge for the name change.

2. You can elect to change your surname.

This involves formally changing your name on your birth certificate. You will need to complete an Election to Change Surname form and send it to the Registrar General. This will result the publication of your new name in the Ontario Gazette, unless the Attorney General decides otherwise.*

When your name is legally changed under this method, you will be issued a change of name certificate indicating your new legal name(s).  A new birth certificate will be issued if you were born in Ontario. You then can take the certificate to change your name wherever necessary.

For more information, please visit the Government of Ontario website.

*Change of Name Act, R.S.O. 1990, c. C4

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PSWLaw Blogs Now Open for Comments

Posted in: "All by Admin | No Comments Monday, June 29, 2009

I’m pleased to announce that readers can now leave feedbacks on the coming blogs on this site.

To leave a comment, simply fill out the forms at the bottom of each blog page.

Comments are moderated. Contents deemed offensive by our moderators will be removed without notice to the user.

PSWLaw is a Toronto-based law firm focusing on Family Law, Administrative Appeals (ODSP / OW, Human Rights Tribunal, Landlord and Tenant Board) , and Civil Litigation.

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Copyright Succession

Posted in: "All, Copyright and Trademarks by Admin | 1 Comment Friday, June 26, 2009

The untimely death of Michael Jackson yesterday sent a ripple through the world. With his passing, Michael Jackson left not only an artistic legacy for his fans but also a legal battle for his heirs. Today I’d like to discuss the succession of copyright.

In one sentence, copyright is a “right” distinctive and separate from the actual work where the right subsists.

When the well-known writer Charles Dickens passed away nearly a century and half ago, he left manuscripts all his “private papers whatsoever and wheresoever” to his sister-in-law. Upon her death, a previously unpublished manuscript “Life of Christ” was given to Dickens’ daughter-in-law. The daughter-in-law sought to publish the manuscript, but the holder of the copyright for Dickens’ works objected and sued.

Ruling on the case, the British Court of Appeal held that copyright is “an incorporeal right of property giving to the author the fullest rights not only of exclusion, but also of actual enjoyment.“*

In other words, the copyright does not pass with the physical transfer of the manuscript. Rather, the copyright is passed through assignment under contracts or through succession law. The owner of the unpublished manuscript, Dickens’ daughter-in-law, therefore did not have the right to publish.

To draw an analogy from Charles Dickens’ works and the incorporeal copyright subsisted, the copyright of Michael Jackson’s songs will belong to assignees (if it’s already assigned) or the heirs under the will, and not the holder of the master recordings.

May he rest in peace.

* In Re Dickens [1935] 1 Ch 267 (U.K.C.A.)

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Same-Sex Divorce

Posted in: "All, Family Law, Legalese Dictionary by Admin | No Comments Thursday, June 25, 2009

In keeping with the spirit of Pride, today I’d like to discuss the problems of same-sex divorce.

Since the proclamation of the Civil Marriage Act*, same-sex marriage has been legal throughout Canada. As Canada has little or no residency restriction for applying for a marriage licence, a growing number of foreign same-sex couples (especially Americans) come to Canada to get married.

However, as most states of the U.S. do not recognize same-sex marriage, these couples can’t get a divorce in their home state when the relationship breaks down. To get a same-sex divorce, they must travel to a jurisdiction that recognizes same-sex marriage.

Alas, Canada has burdensome restrictions on getting a divorce. Under the Divorce Act,^ applicants must be  “ordinarily resident” of the jurisdiction for at least one year immediately prior to the proceeding. Most foreign residents who don’t ordinarily reside in Canada are therefore ineligible to apply for a divorce in Canada.

This can lead to interesting complications. For instance, what if one of the foreign residents, let’s say John, has successfully divorced his same-sex spouse else where, and now seeks to marry someone else in Canada?

For a foreign divorce to be recognized in Canada, the Divorce Act stipulates that one of the parties must reside in the jurisdiction for at least one year immediately prior to the proceeding.# If John has just travelled to a third jurisdiction to get a divorce over the weekend, his divorce will not be recognized in Canada, and John will be ineligible to marry his new partner in Canada.

In other words, John may be stuck with the spouse he married in Canada for a long, long time. This may make succession and estate planning a legal convulsion.

Until the day when same-sex marriage (and divorce) is recognized throughout the world, same-sex couples seeking to get married in Canada should consider the possible awkward consequences of getting hitched and being unable to divorce.

*S.C. 2005, c. 33

^R.S., 1985, c. 3 (2nd Supp.), s. 3

#s. 22, see my earlier post Remarriage & Foreign Divorce in Ontario

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Haw Far We’ve Come… Happy Pride 2009!

Posted in: "All, Administrative Law, Family Law by Admin | 1 Comment Wednesday, June 24, 2009

PSWLaw wishes the readers a happy and safe Pride 2009.

The theme for Pride Toronto 2009 is Can’t Stop Won’t Stop. Pride Toronto is a not-for-profit organization which exists to celebrate the history, courage, diversity and future of Toronto’s LGBTTIQQ2S* communities.

At this moment of celebration, we’re reminded that it hasn’t always been this way for sexual minorities in our society.

  • In 1969, during the final weekend in June, drag queens and queer street kids rioted at the Stonewall Inn in New York City. This incident is generally accepted as the beginning of modern queer movement.
  • In the early 1970’s Gay Days picnics were held at Hanlon’s Point.
  • In 1981 police raids of various bathhouses that motivated gays and queers and their supporters to organize a major demonstration held at Yonge Street and Wellesley the following day. This event raised public awareness of queer issues.
  • In 1987 sexual orientation was included in the Ontario Human Rights Code.
  • In 1991 the Toronto City Council proclaimed Pride Day for the first time.
  • In 1995 the Supreme Court of Canada established sexual orientation as a prohibited ground for discrimination under the Constitution.#
  • In 1998 the Supreme Court of Canada ruled the deliberate legislative exclusion of sexual orientation under the Alberta Human Rights Code unconstitutional.+
  • In 2003 the Ontario Court of Appeal^ ruled the common law definition of marriage “between a man and a woman” unconstitutional. Ontario became the first jurisdiction in North America to allow same-sex couples to marry.
  • In 2005 the Parliament passed the Civil Marriage Act, legalizing same-sex marriage.

Today Pride Toronto has become an international attraction. Literally millions of people flock to the city for the celebration and festivities. Pride Toronto’s parade is billed as one of Toronto’s largest annual parades, along with the Stanta Claus Parade and Caribana.

PSWLaw is proud to be an advocate for equality, diversity, and tolerance. PSWLaw is a equal-opportunity employer.
* Lesbian, gay, bisexual, transsexual, transgender, intersex, queer/questioning, two-spirited

#Egan v. Canada, [1995] 2 S.C.R. 513

+Vriend v. Alberta, [1998] 1 S.C.R. 493

^Halpern v. Canada (2003), 65 O.R. (3d) 161, O.J. No. 2268 (C.A.)

Photo courtesy of stock.xchng, all rights reserved.

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Translation and Notarization of Documents

Posted in: "All, Administrative Law by Admin | No Comments Saturday, June 20, 2009

Because I’m bilingual, I’m often asked to translate and notarize legal documents.

However, translating and notarizing the same documents, although technically permissible in law, may nonetheless raise some eyebrows because of the appearance of a conflict of interests.

The problem is this: many of the notarized documents are destined for use in foreign jurisdictions. You never know what the officials in a foreign jurisdiction might have to say about a document translated and notarized by the same person.

On the one hand, as a translator I’m required to translate each document accurately. On the other, as a notary public I exercise the statutory power of “drawing, passing, keeping and issuing all deeds and contracts, charter-parties and other mercantile transactions in Ontario, and also of attesting all commercial instruments” that may be brought before me for public protestation.

Therefore, I always tell my clients to hire someone else for the translation before bringing the document to my office for the notarization. Better safe than sorry.

If the translator is a professional (i.e., court-registered and/or approved by the Attorney-General), he or she should certify that the translation is truthful and accurate and provide his or her name, company name, and contact information.

If the translator is someone who is fluent in both languages but is not a professional (e.g., a friend), the translator should swear or affirm an affidavit that he or she understands both languages and has translated the documents truthfully and accurately. The affidavit must be sworn or affirmed before a lawyer, notary public, or commissioner of taking affidavits.

If you require notarization, please call me at 416-433-5531 for an appointment.

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Landmark Copyright Verdict: Woman Ordered to Pay $1.92M for (Illegally) Sharing 24 Songs Online

Posted in: "All, Business Development, Copyright and Trademarks by Admin | No Comments Friday, June 19, 2009

Yesterday, The New York Times reported this story, that a 32 year-old American woman was ordered to pay $80,000 for each of the 24 songs that were posted on a website so others could download them.

Several years ago when illegal music-sharing on the internet was a new phenomenon, the music industry targeted website operators like Napster, and was largely successful.

However, as music-sharing websites were shut down by court orders, illegal music sharing turned underground via peer-to-peer sharing (“P2P”) programs. The industry for a while then turned to suing individual users for copyright infringement before changing its policy again in December 2008. The defendant in the present case is so far the only one successfully sued by the music labels.

The lawyer for the defendant said that she may appeal the verdict.

However, I believe that realistically the verdict will be more symbolic than compensatory to the music industry as collection of the award is unlikely.

An analyst from Computerworld, a computer-technology website, has indicated that the massive award could actually hurt  the industry, as it demonstrates how “out of synch” and “unreasonable” the music industry is on copyright infringement claims. The disproportional size of the verdict ($80,000 per song) versus the retail value ($.99 to $1.29) may well raise some legal arguments on constitutional grounds, said New York  copyright lawyer Ray Beckerman.

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Resulting Trust in Family Law

Posted in: "All, Family Law, Legalese Dictionary by Admin | No Comments Thursday, June 18, 2009

Yesterday I wrote about the doctrine of constructive trust and its application in property division between unmarried couples. Today I’d like to discuss the doctrine of resulting trust, another type of trust that is also applicable to unmarried spouses when dealing with property division.

A resulting trust arises when one person purchases property in the name of another, or in the names of the purchaser and another. This situation is commonly seen in transactions involving closely-related individuals, for example, two spouses.

Imagine this situation. Spouses Andy and Cindy decide to buy a home together, each contributing half of the purchase price. However, because of tax or other considerations, they decide to put the house under Cindy’s name only.

Although by law Cindy is the sole owner of the house as per the title registration, Andy is considered a beneficial owner of the property in equity. If the spouses decide to separate, Andy may claim that Cindy is a trustee of his regarding his interests in the house. In other words, if Cindy sells the house, Andy is entitled to half of the proceeds.

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