Author Archives: Pei Wang

AdvocateDaily.com Published: Final Report Suggests Mentality Change Needed

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Final Report of the Family Justice Working Group: Mentality Change Needed

The final report of the family justice working group, commissioned by the the Chief Justice of the Supreme Court of Canada was published last month. The report noted that there have been much discussions and proposals on family law justice in the past decades, however, not many recommendations have been implemented. Keeping the prior efforts in mind, the final report suggested that incremental reforms will not aid the delivery of justice in family law, but swift changes in mentality are needed.

The report started by lamenting that although family law matters (divorce, separation and related items) are permeated in everyday life for most people, the subject matter is generally less high-profile than major civil law suits and notorious criminal charges. As such, family justice is often seen as an after thought and is given less funding and resources. The government, the law school, and the private bar all contribute to the present difficulties.

Besides the lack of support, the report also critized the ills of the adversarial system to family law matters. Traditionally, the common law system pits the parties in dispute against each other. The court examines evidence produced by the parties and renders a decision. Although the adversarial system may be effective in criminal law and civil disputes, it doesn’t work well for family law matters.

For one, family law cases are often very emotional and stressful. Non-legal problems such as emotional well-being, interpersonal relationships often add fuel to the already blazing fire and complicate the matter further.

What’s more, relationships in family law cases are not severed at the end of the proceedings, unlike civil litigation and criminal law matters. Parents must still raise their children. Spouses need to re-negotiate legal obligations as personal and financial circumstances change.

The report thus recommended a large scale change in the public’s mentality on family law matters. The public needs to be aware of other options to resolve their family law matters. To that end, the report suggested funding be put to advocate front-end, multidisciplinary services, including mediation, partial representation, duty consul, self-help guides, and other non-legal services.

In particular, the report emphasized on the role of consensual dispute resolution (CDR). CDR is not confined in any particular method of conflict resolution. Rather, it is a client-centred perspective to approach the issues under guiding principles of minimizing conflict, collaboration, empowering family, fairness, and accessibility. Rather than the adversarial system, the report called for a “problem-solving” framework.

While I applaud the efforts of the family justice working group, I don’t believe the recommendations would be the silver bullet to the ills of family justice. Unless people have a swift change in mentality approaching family law matters to resolve their difficulties rather than to litigate the legal issues, I won’t be surprised to see another report from another working group in a few years.

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

 

FAQ: Matrimonial Home

Toronto Family Law Lawyer | Divorce Lawyer

Pei-Shing B. Wang, Toronto Family Law Lawyer

Q: We have been living together for a long time but are not married. Is our home a matrimonial home?

A: Under the Family Law Act, only married people can have matrimonial homes. If you aren’t married, your home may be considered as your principal residence, but it would not be considered a matrimonial home.

Q: If I get married and we move into my house, do I lose half of my equity to my newly-wed spouse?

A: If you eventually decide to separate, the matrimonial home will not be deductible from your net family properties, unless the two of you have agreed otherwise.

Depending on what other properties the two of you own, you may end up forking out a good portion of the equity of the home you owned before the marriage. However, the amount may not be exactly half.

Q: My spouse told me to move out of our home. Do I have to?

A: Legally you have the same right to occupy the matrimonial home as your spouse, although if your spouse tells you to move out and you don’t, he/she will likely make your life miserable.

Q: My spouse won’t leave the matrimonial home. What can I do?

A: You have two options: (1) move out yourself, or (2) apply to the court for a court order that you may have exclusive possession of the home. Either of these solutions will be costly.

Q: Now my spouse is gone. Who pays for the mortgage?

A: Whoever is registered under the mortgage has the legal obligation to make the mortgage payments. However, even if you are not legally liable to pay, since you live in the home, it may be wise to contribute to the mortgage payment to preserve the marital assets.

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

Published on AdvocateDaily.com: Don’t Vilify Your Ex

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Read the article at AdvocateDaily.com

Wisdom from the Bench: Settling Difficult Family Law Cases

 

Toronto Family Law Lawyer | Divorce Lawyer

Pei-Shing B. Wang, Toronto Family Law Lawyer

Toronto Family Law Lawyer Pei-Shing B. Wang

Yesterday I had the privilege to be in the audience at a seminar organized by  Collaborative Practice Toronto. It featured three distinguished judges from the Greater Toronto Area – Justice Czutrin, Justice Nelson, and Justice Rowsell – speaking about how to settle difficult family law cases. It was an insightful discussion, with many useful tips gleaned from the judges’ years of dedication on the bench. I’d like to share some of these tips with you.

  • Represented parties are likely to settle early.

This observation appears counterintuitive because the stereotypical lawyer may seem determined to drag a case on and on. However, properly represented parties are thoroughly advised of their legal options and the likely outcome of their case. Armed with this information, they can make informed decisions earlier than those who do not have the assistance of a lawyer.

  • People settle when they come together at the table (or in the same room).

The judges were initially surprised to learn that most litigants, represented or not, have never spoken to each other about how they might resolve their issues. (Perhaps some of them don’t want to resolve the issues.) However, many issues are easier to deal with once everyone involved is at the table, or even just in the same room. For example, child pick-up and drop-off schedules shouldn’t cost two hours of your lawyer’s time spent in letter-writing. Pick up the phone and be respectful. You may be surprised how much you can achieve.

  • Be psychologically prepared.

People who are psychologically prepared to deal with the issues are more likely to settle their cases easily. Often, litigants show up at a settlement conference fixated on the wrongs of the relationship. People in that frame of mind are blind to solutions.

Individuals who are psychologically prepared to move on are willing at least to agree on what needs to be discussed and to produce the necessary documents. They focus on what should happen next and not on what has happened in the past.

  • Call your first witness.

There are cases that will never settle at a conference table. Perhaps the parties’ positions are too far apart, or maybe they refuse to consider all the available options. For this reason, scheduling a trial date may be the best incentive for these folks to accept a resolution, in order to avoid the mounting costs of litigation. Often, matters are settled on the eve of the trial or within the first day because the urgency to conclude the matter and the uncertainty of the outcome become unbearable to many, forcing them to take the next best option available: a settlement.

This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. 

 

 

Published on AdvocateDaily.com: Domestic partners as “co-venturers” in financial disputes

Toronto Family Law Lawyer Pei-Shing B. Wang

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New on CanLII: Commentaries and Other Initiatives

 

The Canadian Legal Information Institute

Toronto Family Law Lawyer Pei-Shing B. Wang

There was a time not so long ago that access to electronic case laws cost money. The publishers of journals and case reports have long compiled the cases electronically and charged users with fees. Then CanLII, the Canadian Legal Information Institute, came along and changed the landscape for Canadian legal research. Users from across the world can now access comprehensive Canadian jurisprudence for free. Started as a pilot project, CanLII is now permanently funded by the Law Societies in Canada. Its scope rivals major commercial publishers.

Now CanLII is expanding its services again. The latest new feature on the website is commentaries. This feature allows users to have access to insights to important decisions authored by experts in the field.

Because the publication of commentaries often involves copyright licensing, CanLII us starting out with a few items that are already published by government agencies, such as the Canadian Charter of Rights Decisions Digest (provided by the Department of Justice) and The Supreme Court of Canada on s. 24(2) of the Charter (provided by CanLII). There is also an e-text on Wrongful Dismissal and Employment Law, which is essentially a textbook available, free of charge, in electronic form.

While two out of three of the posted commentaries are already available to the public free of charge, it’s exciting that now there is a central location where these treatises are available online, saving users valuable time that would otherwise be spent visiting separate sites to get the same information.

Beyond the typical government publications and licensing from commercial sources, I think there’s also a great potential for CanLII to work with other NGOs in the field, such as Legal Aid Ontario and the Women’s Legal Education and Action Fund (LEAF), to bring useful contents to the users at one central location.

Besides the new commentary feature, CanLII is also working tirelessly behind the scenes to make other improvements. For one thing, it is now working with the Montreal Translation Agency to ensure major decisions are available in both English and French.

I applaud CanLII’s efforts to further its services to the public. Bravo, CanLII! Well done.

 

Fresh Evidence in Family Law Appeal in Ontario

Toronto Family Law Lawyer Pei-Shing B. Wang

After a trial, if either of the parties has good reason to believe that the trial judge has made a mistake, they are free to appeal to a higher court. Often, the appellant seeks to introduce fresh evidence. Today’s article provides a discussion of when fresh evidence may be allowed in a family-law appeal in Ontario.

Toronto Family Lawyer - Files

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Under the law, an appellate court may receive further evidence in a proper case.* What constitutes “a proper case” is much contested by the parties. The basis for allowing fresh evidence by an appellate court is well-established from decisions rendered decades ago. The appellate court will do so when (1) the tendered evidence is credible, (2) it could not have been reasonably obtained prior to trial, (3) the evidence is relevant, and (4) the evidence, if admitted, will likely be conclusive of an issue in the appeal.^

Typically, the evidence in question existed prior to trial, but for some reason other than lack of diligence, it was not tendered. However, if the evidence did not exist at trial, it becomes a problem because such evidence could not have influenced the outcome of the trial.

Would admitting fresh evidence that did not exist at trial erode the finality of the trial? At the same time, would not admitting evidence that did not exist at trial result in gross injustice, offending the principle of fairness and common sense?

This dilemma is particularly acute in cases concerning children. In child welfare cases, as time goes by, the needs of the children change. On the one hand, in an appeal, it’s important for the court to have current and accurate information about the child. On the other hand, the legal process must not be used as a strategy for a parent to “buy” a second kick at the can by seeking to admit fresh evidence in an appeal.

In family law matters, the best interests of the child must prevail. The legislation, in this regard, provides a flexible rule where an accurate assessment of the present situation is of crucial importance.#

If the criteria listed above for allowing fresh evidence are met, a court is likely to admit the fresh evidence in question so it may assess the present needs of the child and make the appropriate decision in accordance with the best interests of the child.

For example, if there are substantiated allegations of child abuse on the part of the custodial parent after the trial, the evidence supporting such allegations would likely meet the tests above and be admitted.

Conversely, if the fresh evidence is no more than repeated bald assertions that were in existence at trial, the court will likely rule the fresh evidence in question a guise to re-litigate issues that have been properly concluded at trial and deny the admission of it.

*Courts of Justice Act, R.S.O. c. C43, s. 134(4)(b)

^R. Palmer, [1990] 1 S.C.R. 759

#Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.) [1994] 2 S.C.R. 165

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

Lump-Sum Spousal Support Revisited

 

Money Issues - Toronto Family Law Lawyer

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Toronto Family Law Lawyer Pei-Shing B. Wang

Under the law in Ontario, child support payments are always periodic (except for amounts owed in arrears), while spousal support payments may be made periodically or by lump sum, or both. Today’s blog discusses when lump-sum spousal support might be appropriate.

There is a fundamental difference between spousal support paid periodically and spousal support paid by lump sum, from the point of view of taxes.

Periodical or recurring spousal support payments are tax-deductible for the payor and tax-payable by the recipient because the payments are treated as taxable income. Lump-sum support payments, however, are seen as capital in nature and are not taxable. That may mean the recipient doesn’t need to pay tax on lump-sum support paid, but it also means that the payor cannot deduct the amount.

The relevant case history of lump-sum spousal support has until recently indicated that lump sum payments should be made only in very unusual circumstances.

In recent years, however, there has been a shift in jurisprudence. In the recent case of David v. Crawford, the Ontario Court of Appeal undertook to re-examine the principles of spousal support and could not find supporting legislative provisions to justify the restrictions imposed on lump-sum support payments in earlier cases.* The Court of Appeal explicitly rejected the notion of limiting lump-sum spousal support to “very unusual circumstances,” as had previously been done.

According the Court of Appeal, a lump-sum support order should not be made to redistribute the assets owned by the parties because the governing legislation does not recognize redistribution of assets as one of the purposes of a spousal support award. At the same time, a lump-sum support order may be made to relieve financial hardship.

In determining whether a lump-sum support is appropriate in any given case, in addition to considering the payor’s ability to make such a payment, the court must weigh the advantages against any presenting disadvantages.

On the plus side, lump-sum payments can afford the parties a clean break, can facilitate the delivery of capital to meet an immediate need of the recipient, and can preclude any possible future non-payment of periodic support. On the negative side, lump-sum spousal payments may not address a future material change in circumstances, are ineligible for future review, and may present special challenges when it comes to calculating the appropriate amount.

After weighing the pros and cons of making a lump-sum support order, the trial judge should provide a clear explanation of the basis and the rationale of his/her decision in the particular case. What’s more, judges awarding lump-sum spousal support should consider how the amount awarded compares with the periodic payments that would otherwise have been made.

*2011 ONCA 294 (CanLII)

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

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Sorry, No More Support Payments. I Found My Dream Job Flipping Burgers – Intentional Under-Employment in Family Law

 

Money Issues - Toronto Family Law Lawyer

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Toronto Family Law Lawyer Pei-Shing B. Wang

When it comes to child support and spousal support payments, people react differently. Many honourable payors cut back on other expenses in order to make ends meet, while some others simply quit their jobs and claim inability to pay.

In Ontario, the table child support payments under the Child Support Guidelines are calculated exclusively according to the payor’s income, whereas spousal support obligations depend largely on the gap between the income levels of the payor and the recipient.  In other words, the more you earn, the more you pay. Conversely, the less you earn, the less you are supposed to pay.

Therefore, it’s not unheard of that a payor would intentionally quit his or her job or switch to a lower-paying position voluntarily in a bid to reduce support payable. At times I’ve seen a payor’s six-figure salary reduced to social assistance payments, purportedly because of the “economic downturn.”

Thankfully, under the law, if the court is of the opinion that a payor is intentionally unemployed or underemployed, it can impute income and fix the support amount accordingly.*

In deciding whether income should be imputed, the court must ask whether the payor chooses to earn less than what he or she is capable of earning, or whether the reduction is involuntary and reasonable.

Of course, no litigant will state to the court that his or her income has been intentionally reduced in an effort to evade support obligations. The Ontario Court of Appeal ruled in Drygala v. Pauli that there is no need to find a specific intent to evade support obligations before income is imputed.^ As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. If the payor chooses to earn less than what he or she is capable of earning, income may be imputed. A finding of “bad faith” is not required.

When imputing income, the court must determine whether the reduction of income is voluntary or involuntary, and reasonable or unreasonable. The factors include the age, education, experience, skills and health of the payor parent. The court may also look at the support payor’s financial circumstances and the history of payment or non-payment. Available job opportunities may also be relevant.

*The same principle regarding imputation of income applies both to child support and spousal support. See, e.g., Rilli v. Rilli, 2006 CanLII 24451 (ONSC)

^ (2002), 61 O.R. (3d) 711 (C.A.)

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

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