“Brief Note” Series

Lunar New Year Office Closure: January 31, 2011

Posted in: "All, "Brief Note" Series, In the News, Site Updates by Pei Wang | No Comments Wednesday, January 5, 2011

Although we have just celebrated the solar new year according to the Gregorian calendar, the lunar new year (often known, politically incorrectly, as the Chinese New Year) is yet to come. In many cultures, including the one of this office, the lunar new year signifies renewal, reflection, and the reunion of families. This year, the lunar new year falls on Thursday, February 4, 2011.

For scheduling reasons, we have chosen to observe the occasion on Monday, January 31, 2011. Accordingly, our office will be closed on that day.

FAQ: Obtaining a Legal Opinion Letter on a Foreign Divorce for the Purposes of Getting Remarried in Ontario from Overseas

Posted in: "All, "Brief Note" Series, Family Law by Pei Wang | No Comments Thursday, December 9, 2010

Today’s blog presents frequently asked questions and their answers regarding obtaining a legal opinion letter on a foreign divorce for the purpose of getting remarried in Ontario from overseas.

Q. 1: Do we have to be present at the lawyer’s office when the opinion is rendered?

No, the opinion letter can be rendered remotely without the parties attending the lawyer’s office.

Q. 2: What do we need to prepare before we contact a lawyer’s office?

You need to have the original or a certified divorce decree, and a statement from one of the parties to the divorce that he or she has resided in that jurisdiction for at least one year prior to the start of the divorce proceeding.

Q. 3: The divorce decree is in a language other than English or French. How should I proceed?

For the purposes of applying for a marriage licence, a divorce decree not written in English or French must be accompanied by a translated copy with an affidavit sworn by a certified translator.

Typically I recommend that the translation be done in the jurisdiction that granted the decree because translation services are usually more expensive in Canada. If you can’t find a certified translator, most law firms are able to assist you in getting the document properly translated.

Q. 4: We live in Hong Kong. How do the logistics work?

First, you will have to retain a lawyer by credit card or wire transfer. Once the funds are received, the lawyer can start working on your file.

At PSWLaw, I usually ask the clients to scan all their documents and email them to me first, so I can start working on the case.

I still need to see the originals for verification purposes. Once they are verified as identical to the scanned copies, I will sign the letter and have it delivered back to the client.

Q. 5: How long does it take?

The opinion letter can usually be rendered within 1 business day after the original documents arrive at our office.

However, at the Office of the Registrar General it may take 2 to 3 months before you receive the authorization.

Q. 6: We are in a hurry. Can you assist us in forwarding our package along with the opinion letter?

Yes. You need to provide our firm with written consent from both parties for us to act on your behalf.

If you send me the rest of the application package, we will be glad to expedite the matter by shipping the package along with the opinion letter to the Registrar General.

We will forward the package with the opinion letter to the Registrar General by Xpresspost.

Q. 7: If you forward the package on our behalf, will you hold the authorization for us after it’s been issued?

The Office of the Registrar General usually sends the authorization directly to the parties’ addresses as stated in the application. If the authorization arrives at our office, you will be immediately notified. We’ll be glad to hold onto it if you instruct us to do so.

Q. : How much does all this cost?

It depends on whether you would like us to act as your agent in Canada in sending and receiving the application package.

Please inquire by telephone at 416-433-5531, or email us.

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A Brief Note on Immigration Marriages in Family Law

Posted in: "All, "Brief Note" Series, Family Law by Pei Wang | No Comments Wednesday, December 8, 2010

Family law lawyers may come across cases where a client frankly admits that he/she entered into a marriage solely for immigration purposes. Now the client has successfully “beat the system,” he/she wants to undo the marriage.

Immigration fraud is illegal and a serious offence. Lawyers are officers of the court and can never consult or facilitate the commission of a crime. Lawyers are similarly prohibited from knowingly deceiving or misleading the judiciary and tribunals.

However, after an immigration fraud has been successfully perpetuated, there’s not much a lawyer can do about it. Family lawyers can only do their best to control the damage and get their clients out of the marriage.

There are two ways out of a marriage: annulment and divorce.

In Ontario the courts have adopted a narrow interpretation of the laws of annulment. Even in cases where one party has been duped into a marriage, the courts have been reluctant to annul the marriage.

For example, in Iantsis (Papatheodorou) v. Papatheodorou,* the Court of Appeal stated that only in limited circumstances might a fraud vitiate the consent necessary for a valid marriage, including one entered into for the purposes of obtaining immigration status.

In other words, in Ontario, so long as the parties knew what they were getting into (a marriage), the marriage remains valid.

If an annulment isn’t an option to undo the marriage, what about a divorce?

The difference between annulling a marriage and divorcing a spouse is that in the former, the marriage is deemed to have never happened. On the other hand, in the latter, the spouses are subject to the entitlements and liabilities under the law, including support obligations and property division rights.

Therefore, dissolving an immigration marriage through divorce can be just as expensive and as stressful as dissolving a marriage where the spouses are constantly at each other’s throats.

Further, under the Divorce Act,+ the court must satisfy itself that there is no collusion in relation to the application for a divorce and dismiss the application if it finds that there was collusion in presenting it.

For example, in Kaur v. Brar,^ the application for divorce was denied where the wife had married the husband solely to allow him to immigrate to Canada, and the wife sought the divorce to marry another man who was in Canada illegally.

Unfortunately, once a divorce application is dismissed, the parties are barred from bringing further applications before the court, unless the court orders otherwise.

So… stay clear of immigration marriages!

*(2010), 75 R.F.L. (6th) 433 (Ont. S.C.J.)

+ss. 11(a)

^ (2003) 35 R.F.L. (5th) 380 (Ont. S.C.J.)

A Brief Note on the Health Services Appeal and Review Board (HSARB)

Posted in: "All, "Brief Note" Series, Administrative Law by Admin | No Comments Wednesday, August 18, 2010

Yesterday I wrote a blog regarding the Health Professions Appeal and Review Board (HPARB). Today I’d like to discuss another tribunal which is similarly named but concerns different aspects of the health-care system in Ontario: the Health Services Appeal and Review Board (HSARB).

The HSARB is established under the Ministry of Health and Long-Term Care Appeal and Review Boards Act,* 1998, to conduct appeals and reviews under several statutes, including the following:

  • Ambulance Act
  • Charitable Institutions Act
  • Commitment to the Future of Medicare Act
  • Healing Arts Radiation Protection Act
  • Health Facilities Special Orders Act
  • Health Insurance Act
  • Regulation 552 (General), to the Health Insurance Act
  • Health Protection and Promotion Act
  • Homes for the Aged and Rest Homes Act
  • Immunization of School Pupils Act
  • Independent Health Facilities Act
  • Laboratory and Specimen Collection Centre Licensing Act
  • Long Term Care Act
  • Nursing Homes Act
  • Private Hospitals Act
In my experience, the most common claims to the HSARB are appeals against the decisions made by the General Manager of the Ontario Health Insurance Plan (OHIP). The HSARB is independent of OHIP or any part of the Ontario Ministry of Health and Long-Term Care. The Board members are not government employees. read more…
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A Brief Note on the Health Professions Appeal and Review Board (HPARB)

Posted in: "All, "Brief Note" Series, Administrative Law, Business Development by Admin | No Comments Tuesday, August 17, 2010

The Health Professions Appeal and Review Board (HPARB) is an administrative tribunal established under the provincial Regulated Health Profession Act,* 1991, and the Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998.^ It has jurisdiction to conduct complaint and registration reviews and hearings. Self-regulated health professions in Ontario are subject to the oversight of the HPARB:

    • Audiology and Speech-Language Pathology • Medicine
    • Chiropody • Midwifery
    • Chiropractic • Nursing
    • Dental Hygiene • Occupational Therapy
    • Dental Technology • Opticianry
    • Dentistry • Optometry
    • Denturism • Pharmacy
    • Dietetics • Physiotherapy
    • Massage Therapy • Psychology
    • Medical Laboratory Technology • Registered Practical Nursing
    • Medical Radiation Technology • Respiratory Therapy
     
    		• Veterinary Medicine

While each of the the self-regulated professions above has its own college, the HPARB monitors the activities of the Colleges Complaints Committee and the Registration and Accreditation committees. For example, disputes regarding individual applicants’ admission to the profession may be appealed to the HPARB.

In addition to reviewing decisions made by the self-regulated health professions, the Board also has jurisdiction under the Public Hospitals Act# to review appointments or reappointments to the medical staff of a hospital, or grievances of members of a hospital medical staff relating to the revoking and/or suspending of their appointments.

The HPARB, like other administrative tribunals in Ontario, is independent of the government. The Board members are not allowed to have ever worked in a regulated health profession or college. read more…

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A Brief Note on Dealing with Harassing Phone Calls

Posted in: "All, "Brief Note" Series by Admin | No Comments Saturday, July 31, 2010

A friend of mine had been receiving harassing phone calls demanding his personal information two or three times a day for the past few weeks. He suggested that I write a blog about combating harassing phone calls. Here are a few tips to help you deal with these calls effectively.

First, identify the nature of the calls. Are they traceable to a particular source? Perhaps an individual or a call centre?

Once you have identified who has been calling you, you can take actions against them. You may report the incidents to the police or Crime Stopper. While it’s unlikely that your single incident report will lead to a major investigation, if a great number of individuals complain against the same callers, perhaps something will be done by the authorities.

Depending on you perceive the calls as threatening, you may want to consult a lawyer. If you decide to retain one, you should stop dealing with the caller immediately and refer the caller to your lawyer.

In my experience, once you’ve referred the calls to your lawyer, they stop calling you promptly. If the callers have legitimate reasons for calling you, your lawyer will be able to deal with it more effectively.

Potential remedies against harassing phone calls include criminal prosecution and civil action. Hiring a lawyer will assist you in deciding whether to pursue the matter further.

Because many seemingly innocent questions are in fact used as security features for online or telephone transactions, unless there’s a legitimate reason for it, you should never give out your personal information. This information may include: your full name, address, email address, date of birth, your mother’s maiden name, social insurance number, credit card numbers, and so on.

Do not give in to the caller’s pressing demands. They can’t hurt you over the phone.

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A Brief Note on Family Arbitration Agreements in Ontario

Posted in: "All, "Brief Note" Series, Family Law by Admin | No Comments Thursday, July 29, 2010

Today I’d like to discuss the pertinent points of family arbitration agreement in Ontario.

Family arbitration is an alternative dispute resolution process involving a private third-party arbitrator to decide on the disputes between the parties under their consent. There may be more than one arbitrator in a proceeding.

The Ontario Family Law Act* expressly defines family arbitrations, agreements and awards. The decision and any award rendered by the arbitrator under a family arbitration agreement are binding and enforceable under the laws in Ontario, subject to certain limitations.

First and foremost, the agreement must be in writing and meet the formal requirements of the Arbitration Act# and its regulations. Failure to observe these conditions will render the agreement and any subsequent decision and award unenforceable.

Second, a family arbitration agreement is unenforceable unless the agreement is entered into after the dispute in question has arisen. In other words, parties are unable to agree to family arbitration in advance of the dispute in question.

Further, the family arbitration must be conducted exclusively in accordance with the laws of Ontario or of another Canadian jurisdiction. If it is not, then the process is not recognized as family arbitration and the decision is not a family arbitration award and has not legal effect.

The parties are not allowed to vary or exclude the restrictions imposed by law.

Any award made under the family arbitration may be enforced or set aside in the same way as a domestic contract. For example, if the parties did not receive independent legal advice, the award will become unenforceable and be set aside.

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

*R.S.O. 1990, c. F.3.

#S.O. 1997, c. 17

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A Brief Note on Participating in a Telephone Hearing

Posted in: "All, "Brief Note" Series, Administrative Law by Admin | No Comments Tuesday, April 20, 2010

In administrative law, hearing before most administrative tribunals (such as the Landlord and Tenant Board, the Social Benefits Tribunal, and the Human Rights Tribunal, just to name a few,) can take place by telephone if requested by one of the parties. The tribunals generally are willing to grant such a request if a party has a disability that requires accommodation.

Telephone hearings proceed as regular hearings do. After the preliminary issues are dealt with, the witnesses are sworn in to give evidence. After the witness has given evidence, the opposing party has the opportunity to cross-examine the witness to test the accuracy of the testimony given. When the witnesses finish testifying, the parties make submissions to the tribunal before a decision is rendered.

I generally advise against requesting a telephone hearing unless it’s absolutely necessary. For example, it may be reasonable to request a telephone hearing if the disabled person is confined to a bed, while an in-person hearing is preferred if the party in question is able to walk with a cane.

From a lawyer’s perspective, telephone hearings have a few shortcomings.

First and foremost, the adjudicator cannot observe the demeanor of the witnesses. Therefore, credibility is difficult to establish.

Second, there are practical difficulties in presenting evidence. All evidence, be it documents or photographs, would have to be coordinated by the parties in advance. The question of admissibility of certain evidence will likely arise.

Third, in complicated matters, it may be difficult to keep track of the proceeding while excluding witnesses from hearing other witnesses’ testimony.

Fourth, participants calling from their cellular phones create static noise, which can greatly frustrate the progress of the hearings. Calls from cellular phones can even drop unexpectedly, causing undue delays of the hearing.

Therefore, if you can make it to the tribunal, it’s best to participate in person.

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A Brief Note on the Missing Spouse and Substituted Service in Family Law

Posted in: "All, "Brief Note" Series, Family Law by Admin | No Comments Friday, April 9, 2010

It’s not unheard of for a spouse to suddenly move away, never to be heard from again. When this happens, the sudden disappearance can create major hurdles for the remaining spouse if he or she wants to claim support or seek divorce.

One of the fundamental principles of the common law system is that parties ought to have meaningful opportunity to participate in the process; often this means notice. When proper notice is not given to a party, the fairness of the proceeding is greatly tainted.

Readers can appreciate that if the wife or the husband moves out of the matrimonial home and vanishes, the one remaining may have trouble finding the former partner and giving him or her the proper notice required under the law.

The law requires that the remaining party exercise reasonable efforts to locate the one who ran away. If the whereabouts of the disappeared can be ascertained, he or she must be served according to the rules.

A lawyer’s office can help with the task of locating the missing person, having access to searches that are generally not available to the public. An MTO or driver’s licence search may be conducted if the lawyer undertakes not to use the results for purposes other than the anticipated litigation.

If the husband or wife cannot be found directly, the court may permit substituted service through a friend or relative who remains in contact with the disappeared.

If all else fails, the court may consider an order dispensing with service if it’s satisfied that all reasonable efforts have been exercised and the other side is intentionally evading service. However, dispensing with service is hardly a solution to the problem. Because ex-parte (without notice) litigation violates the principles of procedural fairness, once the other side becomes aware of the proceeding, he or she may be entitled to move to set the results of any ex-parte proceeding aside and start afresh.

PSWLaw in Toronto is your family law advocate.

Call 416-433-5531 for an appointment today.

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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A Brief Note on Bars to Divorce

Posted in: "All, "Brief Note" Series, Family Law by Admin | No Comments Monday, March 22, 2010

Since the instalment of the “no fault” divorce regime, divorce is available in Canada virtually on demand. However, it continues to be a judicial process, even when the parties are in agreement. (Certain civil law countries allow divorce to be granted administratively.)

The current Divorce Act* retains several bars to the granting of divorce, namely collusion, connivance, and condonation.

Collusion refers to  “agreement or conspiracy … for the purpose of subverting the administration of justice, and includes any agreement … to fabricate or suppress evidence or to deceive the court.” For example, it will be considered collusion if the parties claim that they have been separated when in fact they have not.

Connivance typically relates to a spouse who promoted or encouraged, even passively, adultery of the other spouse, while condonation refers to the resumption of cohabitation of a spouse after being forgiven by the innocent spouse, after an act of adultery.

While collusion appears to be an absolute bar, where there is evidence of condonation or connivance, the court may exercise its discretion in granting divorce where in the public interest.

Other bars to divorce include: where the parties fail to satisfy the court that reasonable arrangements for the support of the children has been provided; where one spouse refuses to remove religious barriers to the remarriage of the other.

Finally, in addition to the above bars to divorce, lawyers have a duty to discuss with the spouse the possibility of reconciliation. Judges are similarly obliged to make the same inquiry.^

read more…

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