Monthly Archives: March 2012

Separation Agreements, Prenuptial Agreements (and Other Domestic Contracts) Made Outside Ontario

Posted in: "All, Family Law, Legalese Dictionary by Pei Wang | No Comments Wednesday, March 28, 2012

A contract is governed by the laws of wherever it is that the contract was formed. The validity of domestic contracts, including separation agreements, cohabitation agreements, and prenuptial agreements, is subject to the laws of the land where the contract in question was made. Thus, a domestic contract made in Germany must comply with German law for it to be recognized as valid and enforceable in Ontario.

However, to discourage “forum shopping” – i.e., Ontario residents travelling to another jurisdiction where the laws are more favourable to their circumstances – the Ontario Family Law Act* includes specific provisions to set limits on the validity and enforceability of domestic contracts made outside Ontario.

Specifically, domestic contracts must be compliant with Ontario’s internal law to be recognized as valid and enforceable. For example, a provision in a marriage contract or a cohabitation agreement regarding the right to custody of or access to children would not be enforceable.

Even if the domestic contracts made outside Ontario are recognized as valid and enforceable, a spouse nonetheless has the right to apply to the courts in Ontario to set aside the contract in dispute.

*R.S.O. 1990, c.F3

This blog is provided for educational purposes. It is not legal advice and should not be regarded as such. The law may have changed since the publication of this article.

Legalese Dictionary: “Deductions” and “Exclusions” When Calculating Net Family Property

Posted in: "All, Family Law, Just for Laughs, Lawyer Talk, Legalese Dictionary by Pei Wang | No Comments Tuesday, March 27, 2012

By law, the process of dividing the properties in a marriage is called the “equalization process.” Both spouses tabulate their net worth, and whoever ends up with less is entitled to half of the difference.

In most cases the matter of which properties are owned by each spouse is not in dispute. However, the issue of whether each specific property should be included in the net family property is often fraught with contention.

It turns out that the law allows, in limited circumstances, for a spouse to exclude or to deduct specific types of properties. While the words “deduction” and “exclusion” are often used interchangeably in everyday use, they have very different meanings under the law for the purposes of dividing properties in a divorce or separation.

“Deductions“ under the Family Law Act* refers to the subtraction of the value of certain properties at a specific date, usually the date of marriage. “Exclusions,” however, refers to omitting the properties from the net family property entirely.

For example, if a painting was worth $10,000 at the date of marriage and $50,000 at the valuation date, to deduct the painting as of the date of marriage would be to include the painting in the owner’s net family property at $40,000 (the current worth of $50,000 less $10,000 at the date of marriage). However, if the owner gets to exclude the painting entirely, then the painting would not be included in the owner’s net family property at all.

Generally speaking, exclusions are rare. Examples include gifts or inheritances acquired during the marriage (but not necessarily income generated from the gifts or inheritances), damages awarded, life insurance policy proceeds, and items agreed to in a separation agreement.

*R.S.O. 1990, c. F3

This blog is provided for educational purposes. It is not legal advice and should not be regarded as such. The law may have changed since the publication of this article.

Planning a Summer Wedding? A Few Legal Things to Keep in Mind

Posted in: "All, Family Law, Lawyer Talk, Legalese Dictionary by Pei Wang | No Comments Wednesday, March 21, 2012
(Photo courtesy sxc.hu, all rights reserved).

(Photo courtesy sxc.hu, all rights reserved).

With New Year’s Eve and the holidays over, wedding season will quickly be upon us.

As a family law lawyer, I’d like to remind spouses-to-be that sometime before the knot is tied – amid all the cake tasting and gown fitting – there are a few legal things to think about. This is especially true if either or both of the spouses has been married before.

First and foremost, if either spouse-to-be has had a divorce outside Ontario, he or she must obtain a legal opinion letter (usually referred to as a “foreign divorce opinion letter“) from a lawyer stating whether that divorce should be recognized in Canada. Without the opinion letter and the authorization from the Office of the Registrar General, the couple won’t be able to obtain a marriage licence and cannot get married.

If either of the spouses-to-be has any children, he or she should consider entering into a marriage agreement (marriage contract) that specifies the other spouse’s rights with respect to the children and obligations to support them.

Merely being a step-parent doesn’t mean being obliged to support the kids financially, especially if the kids are older. However, if, say, a step-dad takes the kids in as if they were his own and supports them through the marriage, he may be required to continue his support even if the marriage fails.

It is also a good idea to enter into a marriage contract if either of the spouses-to-be expects an inheritance or a substantial amount of gifts, or if one of them will be moving into the other’s home.

The reason for the caution is that the law treats gifts or inheritances acquired after the marriage and the matrimonial home brought into the marriage as special species of properties. That’s why these items are often a source of regret if the marriage doesn’t work out.

If your bride or groom is expected to receive an inheritance or gifts after the marriage, or to move into your home, you should discuss the legal ramifications with your lawyer before the wedding bell tolls.

This blog is provided for educational purposes. It is not legal advice and should not be regarded as such. The law may have changed since the publication of this article.

It’s Your Right to Live and Remain in the Matrimonial Home

Posted in: "All, Family Law, Legalese Dictionary by Pei Wang | No Comments Tuesday, March 20, 2012

Leave the keys and get out? Not so fast. (Photo courtesy of stock.xchng, all rights reserved).

Imagine this: A couple has a big argument. In the heat of the moment, the wife tells the husband, “GET OUT!” Does the husband have to go?

The short answer is no. The husband doesn’t have to go anywhere, as a matter of fact. The home is his castle as much as it’s hers, and he can’t be forced out without good reason.

Under the law, the right to live and remain in the matrimonial home is a personal right against the other spouse. It cannot be waived by either party. The spouses can voluntarily decide to separate and live in different households, but no one spouse can force the other to move out.

In other words, a wife, no matter how angry she is, cannot legally throw her husband (or her wife, if she so chose) to the curb, no matter how angry she is, at least without a court order.

Usually, if things are bad enough, one of the spouses will end up leaving the matrimonial home just for his or her own sanity. However, if this doesn’t happen and yet the situation has become intolerable, or there is domestic violence, a spouse can apply to the court and ask for exclusive possession of the matrimonial home.

An order for exclusive possession of the matrimonial home isn’t one that is granted lightly. If the order is granted, the person who violates the order may be arrested without warrant and become subject to penalties under the Family Law Act.*

*R.S.O. 1990 c. F.3, as am., s. 24

This blog is provided for educational purposes. It is not legal advice and should not be regarded as such. The law may have changed since the publication of this article.

CanLII Hits 1 Million Mark

Posted in: "All, In the News, Lawyer Talk by Pei Wang | No Comments Friday, March 16, 2012

On February 17, 2012, the Canadian Legal Information Institute, or CanLII, added its one-millionth decision – appropriately for the occasion, a decision from the Supreme Court of Canada.

There are now more than a million Canadian court and tribunal decisions available on CanLII’s website, free of charge. According to the institute, it has taken 12 years to reach the historical one million milestone.

CanLII is an initiative of the Federation of Law Societies of Canada, the national umbrella group for Canada’s 14 regulators of the legal profession. It was launched in 2000 as a pilot project to provide free access to judicial decisions and legislative documents on the internet. In 2001 CanLII was formally established as an ongoing, not-for-profit service to support the legal profession.

CanLII is funded by all members of the Canadian legal profession through their law societies’ dues. At the same time, CanLII has also received contributions from federal, provincial, and territorial governments and their official publishers.

Access to the CanLII service is available at www.canlii.org.

*The CanLII logo is the property of CanLII, all rights reserved.

Mediate393 – Free On-Site Family Law Mediation at Toronto Superior Court Now Available

Posted in: "All, Family Law, In the News by Pei Wang | No Comments Thursday, March 8, 2012

Something new is happening in the family law section of Toronto’s Superior Court of Justice. In an effort to encourage alternative dispute resolution and to reduce the backlog of cases at the Superior Court, a group called Mediate393 Inc. is providing free family law mediation on-site.

Mediators are offering their services to the public on the 9th floor of 393 University Ave., Toronto, where family law matters are usually heard on weekdays. The mediators take only cases that are on the court docket of the day, including motions, trials, case conferences, and settlement conferences. Cases are accepted on a first-come, first served basis. For matters that can be addressed in two hours or less, no fee is charged for the service.

When a case is complicated and likely to require more than two hours of mediation,  clients are referred to off-site mediation.

Off-site mediation provided by Mediate393 gives the clients up to eight hours of subsidized mediation services. Fees charged are in relation to each person’s income.

Unlike on-site mediation, which is available only for matters on the court docket of the day, off-site mediation is available to anyone in the GTA who wishes to try mediation, regardless of whether they have started a court case or not.

If you’re interested in learning more about Mediate393, you may contact them at 416-593-5393 or read more online at mediate393.ca.

This blog is provided for your information and reference only and does not imply the author’s endorsement.

PSWLaw Launches Advertising Campaign in World Journal, North America’s Premier Chinese-Language Newspaper

Posted in: "All, Site Updates by Pei Wang | No Comments Friday, March 2, 2012

We at PSWLaw are excited to announce the launch of our new advertising campaign in World Journal, the premier Chinese-language newspaper in North America. The current campaign will run for one year.

Take a sneak peek below:

Pei-Shing B. Wang, Lawyer

Diligently handles divorce, separation, and related issues.

Direct Line: 416 433 5531

Web: www.pswlaw.ca

7000 Bay St., Unit 405

(At Gerrard St.)

Toronto, ON M5G 1Z6

Update on Same-Sex Marriage in the U.S.

Posted in: "All, In the News, Site Updates by Pei Wang | No Comments Thursday, March 1, 2012

The right to be married regardless of the spouses’ sex is a universal one in Canada. Persons of the same sex have been able to marry each other since 2002 in Ontario, when the Ontario Superior Court declared the legal stipulation that marriage be between a man and a woman to be unconstitutional. In 2003 the Superior Court’s decision was affirmed by the Ontario Court of Appeal.*

In 2005 the Canadian Parliament passed the Civil Marriage Act, defining marriage as a union between “two persons,” as opposed to “a man and a woman.” It received royal assent the day after it was passed and was promptly proclaimed into law.^

South of the border in the U.S., things are quite different. The federal government doesn’t recognize same-sex marriage, but 8 states permit marriage between persons of the same sex. There are also a few states that allow civil union for same-sex couples but don’t recognize same-sex marriage. The remaining states prohibit marriage between persons of the same sex.

Below is a summary update on what’s happening in the U.S. on this topic.

Maryland and Washington State Legalize Same-Sex Marriage

Governor Martin O’Malley signed the bill allowing same-sex marriage in the state of Maryland into law today. The law will take effect in January 2013, making Maryland the 8th state to allow same-sex marriage in the U.S.

Earlier last month, the governor of Washington state, Chris Gregoire, signed a bill allowing same-sex marriage into law on February 14, Valentine’s Day. That law will take effect in June 2012.

N.J. Governor Vows to Veto Same-Sex Marriage Bill

The signing of the two bills in Maryland and Washington  proved to be a bittersweet victory to those supporting same-sex marriage. In New Jersey, a bill that would permit same-sex marriage was passed in the state legislature on February 13, but the state governor vowed to veto the bill.

Legal Dispute over Ban on Same-Sex Marriage Takes a Turn

The legal battle over same-sex marriage recently took a turn in favour of the supporters of same-sex marriage. In 2010 the California ballot proposition known as “Proposition 8″ was passed by voters in the state, amending the state constitution to ban same-sex marriage. Then, in early February 2012, a federal appeal court panel of judges ruled that the ban on same-sex marriage was unconstitutional, affirming a lower court’s ruling.

Judge Reinhardt wrote the majority opinion, relying on the Supreme Court’s 1996 decision Romer v. Evans, which forbids the government from singling out a class of individuals (in this case, same-sex couples) for “disfavored legal status” without sufficient grounds.+

The judge noted that Proposition 8 wrongly took away legal rights that had already been conferred to same-sex couples, whose marriage licences had been duly issued by the government.

Judge Reinhardt found the arguments of opponents of same-sex marriage insufficient to meet the Romer test.

The case may proceed to a review by the full 9th circuit court, or it may head directly to the U.S. Supreme Court.

*Halpern et al. v. Canada, (2003) 25 O.R. (3d) 161, 2003 CanLII 26403, 172 ONCA 276; aff’g (2002) 60 O.R. (3d) 321 (Div. Ct.)

^S.C. 2005, c. 33

+517 U.S. 620 (1996)

This blog is provided for news summary reporting purposes. It is not legal advice and should not be regarded as such. The law may have changed since the publication of this article. The writer is licensed to practise law in Ontario and not in any other jurisdiction, including those mentioned in this blog.