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‘Tis the Season for Holiday Scams

Posted in: "All, Business Development, Case Digest/Comments, In the News, Lawyer Talk by Pei Wang | No Comments Thursday, December 1, 2011

Yesterday we had our first snowfall in Toronto for the season. Undoubtedly, the holidays are coming.

People are either preoccupied with the coming holidays (Christmas, Kwanza, Hanukkah, Ashura, Boxing Day, New Year’s Day … take your pick) or are looking forward to taking time off work. No doubt, major financial institutions will also be closed for a few days, thereby delaying the clearing of cheques.

While people are otherwise occupied, scammers and fraudsters are taking  advantage of the combination of bank closures and holiday distractions to defraud their victims.

Dan Pennington of LawPRO has said that bad cheque scams are on the rise and warned lawyers taking large sums of trust funds to be vigilant.* He said the scams are becoming more and more sophisticated. Some of the bad cheques could even fool bank tellers.

According to Pennington, a lawyer from St. Catharines was recently suspended for misappropriating trust funds after he was defrauded with fake cheques. The funds from the fake cheques did not clear and resulted in a shortfall in his trust account. The lawyer tried to cover the loss with other clients’ money held in trust. But the shortfall soon became too large, and the lawyer became the subject of an investigation.

In addition to bad cheque scams, “Oklahoma frauds” are resurfacing, according to Jeffrey W. Lem, a partner in the real estate group at Miller Thomson LLP.^ A recent lawsuit was brought alleging $6.5 million in damages as a result of mortgage frauds.

Lem explained in a nutshell how an Oklahoma fraud operates. A fraudster buys a piece of land for a small amount, say $10,000, in an otherwise legitimate transaction. The fraudster then flips the property to an accomplice for a grossly inflated price, say $500,000. The accomplice then goes to the lender for a mortgage against the inflated property value. Typically, the fraudsters rapidly target a single mortgage lender several times before they take off with the proceeds. The lender then is left with collateral properties worth a fraction of the mortgaged value.

*Michael McKiernan, “St. Catharines case shows pitfalls of fake cheques” Law Times (28 November 2011) 13

^Jeffrey W. Lem, “Oklahoma frauds return as scam of choice” Law Times (28 November 2011) 7

This blog is provided for your reference only and is not a substitute for the law. This article is not legal advice and should not be regarded as such.

Lakehead University Update: Seeking Founding Dean for Its New Law School

Posted in: "All, In the News, Lawyer Talk by Pei Wang | No Comments Wednesday, November 30, 2011

A while ago I reported that a new law school is coming to Lakehead University at its Thunder Bay campus in Ontario. Step by step, the new law school is becoming a reality.

The new school has now received full approval from the governing authorities, including those of the Federation of Law Societies of Canada and the Lakehead University Senate, to establish a J.D. program.

The school will be the first new law degree program in Ontario in 42 years to offer eligibility for bar admission. The new school will focus on issues relevant to the resource-based Northern Ontario economy, including aboriginal, northern, and rural issues.

Lakehead is now looking for the founding dean for its new school, to be on the job as soon as possible and no later than summer 2012. The first class of 55 students will enrol in 2013 and (hopefully) graduate in 2016.

Ironically, for a new institution that is supposedly going to be focused on northern and rural issues, the university’s search consultant is a firm located at 1 Yonge Street in Toronto, some 1,398 km or 18 hours away by car.

Annulment of Marriages in Ontario

Posted in: "All, Case Digest/Comments, Family Law, Legalese Dictionary by Pei Wang | 1 Comment Thursday, November 24, 2011

Annulment of marriage in law is quite rare in Ontario. As opposed to a divorce, which dissolves a valid marriage, an annulment has the same effect as the marriage’s having never taken place.

Annulment of marriages finds its statutory authority from the Annulment of Marriages Act (Ontario).* The statute is short, containing only 3 paragraphs. It merely states that the part of the law of England that pertains to the annulment of marriage on July 15, 1870, is continued in Ontario in so far as it has not been repealed or changed.

Needless to say, the content of the statute doesn’t provide much insight to readers (lawyers and judges alike) who are not historians of the state of British law on July 15, 1870. Rather, lawyers and judges rely on case law to decide whether a particular marriage should be annulled.

In the recent decision Sahibalzubaidi v. Bahjat of the Ontario Superior Court, the judge heard an application brought by the wife seeking to have the marriage annulled. She alleged non-completion of the ceremony, fraud, and non-consummation of marriage.^

The marriage was to take place in Malaysia according to the Islamic tradition. They had a civil ceremony and the marriage was registered with the local authority. However, the wife felt still unmarried until the religious ceremonies were performed and would not engage in sexual intercourse until then.

Shortly after the civil marriage, the wife sponsored the husband for immigration to Canada.

Upon his arrival in Canada, the husband turned out to be abusive and threatening. The religious ceremonies were never performed, and hence the wife never consummated the marriage because, in her mind, she had not been properly married.

In deciding whether to grant the annulment, the presiding judge considered at length the case Torfehnejad v. Salimi, affirmed by the Court of Appeal.+

The judge dismissed the part of the application based on non-completion of ceremony and fraud, citing that there was insufficient evidence to vitiate the marriage.

In particular, the judge noted that to allow a marriage to be annulled based on fraud, the alleged fraud must have induced an operative mistake to the marriage, such as one’s identity.# Mere misrepresentation of one’s character isn’t enough. (I suspect many would rush to apply for annulment if such a ground were available.)

Although the first two bases of the application were dismissed for want of evidence, the judge accepted the wife’s evidence that the marriage was never consummated. Following an Alberta decision of Jomha v. Jomha, the court held that

an annulment may be granted where the marriage is not consummated by reasons of an invincible repugnance or impossibility in the mind of at least one of the parties, akin to a psychological abhorrence, to engage in sexual intercourse with the marriage partner.&

Given that the wife’s strongly held religious beliefs prevented her from consummating the marriage prior to the religious ceremonies that never happened, the court granted the annulment on that basis.

*R.S.C. 1970 c. A-14

^ (2011), 107 O.R. (3d) 53; 2011 ONSC 4075

+[2006] O.J. No. 4633 (Ont. S.C.J.), aff’d [2008] O.J. No. 3165, 2008 ONCA 583

# Iantsis v. Papatheodorou, [1971] 1 O.R. 245, O.J. No. 1642 (C.A.)

& [2010] A.J. No. 219, 2010 ABQB 135

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

Important Changes to the Federal Child Support Guidelines Coming into Effect December 31, 2011

Posted in: "All, Family Law, In the News by Pei Wang | No Comments Wednesday, November 23, 2011

The Department of Justice announced on November 17, 2011, that it will be updating the Federal Child Support Guidelines with a new child support calculation table for each province. The changes will take effect on December 31, 2011.

Depending on the province, the income level, and the number of children, each new Guidelines table amount may be bigger or smaller than the old one. In other words, it may not be an increase to all payors of child support.

Before the amended Guidelines take effect, child support payable will be calculated according to the 2006 table amount. When the new table amounts come into force, the support obligation will be calculated on a forward-going basis.

With child support amounts being changed, it is likely that spousal support amounts may change as well under the “with child support” and “custodial payor” formulas.

It’s important to note that the new table won’t change existing court orders on either child support or spousal support automatically. If you wish to change the amount payable, you will need to ask the court to make the change. Depending on your individual circumstances, it may or may not be worthwhile. Better to consult a lawyer before you rush to the court to have the child support amount changed.

The last update took place in 2006. The Department updates the Guidelines approximately every five years to reflect changes in provincial and federal tax rules.

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

Check Out Our New Sign!

Posted in: "All, Site Updates by Pei Wang | No Comments Wednesday, November 16, 2011

It’s been 18 months since we relocated to LuCliff Place. I am pleased to announce that we have finally got a sign by the door. With the sign, new clients will know when they’ve arrived at the right place.

Ex-Lovers’ Quarrel: Was It a Gift or a Loan?

Posted in: "All, Business Development, Case Digest/Comments, In the News, Lawyer Talk by Pei Wang | No Comments Tuesday, November 15, 2011

Here’s a classic dispute between former lovers.

The boyfriend gave the girlfriend money to buy a car. The two broke up. The girlfriend sold the car. The boyfriend wanted his money back. He said it was a loan; she said it was a gift.

Who was right?

In the recent decision of Devries Financial Group Inc. v. Duggan, the judge held that it was neither a loan nor a gift.* Rather, it was a resulting trust.

In Devries, the boyfriend sued in the capacity of a corporation. (I suspect that the plaintiff wanted to distance his former relationship with the defendant, but this is only my speculation.) However, the judge found that the plaintiff corporation and its sole director and shareholder, Mr. Devries, were indistinguishable for the purposes of deciding the lawsuit.

Mr. Devries, a sophisticated licensed financial adviser, advanced the funds to the defendant (then-girlfriend) Ms. Duggan to buy a car. Soon after, the relationship turned sour and the two broke up.

Ms. Duggan decided that she could no longer afford the car after the breakup and sold the car for a significant loss. Mr. Devries wanted to recover the funds from her.

The judge found that Mr. Devries couldn’t establish the transfer of the funds as a loan in the face of Ms. Duggan’s denial. The judge reasoned that, given Mr. Devries’s profession (a licensed financial adviser), it was unlikely that he would have advanced funds without proper instruments if the transaction were a loan.

Rather, the judge reasoned that the advancement of funds for the purchase of a car created a rebuttable presumption of result trust. When the transaction is challenged, the onus is on the transferee to establish that a gift was intended.

In this case, the judge reasoned that it was unlikely the funds were transferred as a gift given the short duration of the relationship.

In the absence of additional evidence supporting the transfer of the funds as a gift, the defendant was declared as a trustee of the car and ordered to repay the funds, after deducting her financial loss, depreciation, and unpaid services in the amount of $8,000.

* 2011 ONSC 3773, 106 O.R. (3d) 682 (sm. cl. ct.)

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

PSWLaw, Patron of the Arts

Posted in: "All, Site Updates by Pei Wang | No Comments Thursday, November 10, 2011

I’m pleased to announce that on behalf of PSWLaw I have joined the Young Patrons’ Circle at the Royal Ontario Museum as a “discoverer.”

The Royal Ontario Museum is a world-class museum and research facility. Created in 1912 and opened in 1914, the ROM is now a leader in natural history and world culture.

The ROM’s collection on East Asian artifacts is my favourite. The quality of the collection is top-notch, comparable to the world-famous British Museum in London, UK, and the Palace Museum in Taipei, Taiwan.

Go for a visit this fall. You won’t be disappointed.

* ROM Logo is a trademark of the Royal Ontario Museum and is used under license. All rights are reserved by the trademark owner. I am not an employee of the Royal Ontario Museum, and this blog does not represent the opinion of the ROM.

Can “Too Much” Medical Care Amount to Child Abuse?

Posted in: "All, Case Digest/Comments, Family Law, In the News, Lawyer Talk by Pei Wang | No Comments Friday, November 4, 2011

When most people think of child abuse and neglect, a certain grim picture comes to mind. The neglected or abused child may be malnourished or suffering from psychological, physical, or sexual abuse.

The recent case involving a family featured on the popular reality TV series Extreme Makeover: Home Edition raises an issue not commonly seen in child protection proceedings: unnecessary and excessive medical treatment that amounts to child abuse.

The Cerda family, living in Las Vegas at the time, pleaded with the producers of the show for rescue from their mould-filled house. The toxic environment was making life very difficult for the mother and the two daughters, who suffered from serious immune disorders.

The Cerdas’ story seemed to have struck a chord with the producers of the show.

The producers paid to demolish the Cerda family’s old house and built, from the ground up, an opulent new home equipped with a top-grade air filtration system, an elevator, a solar-heated swimming pool, and a gourmet kitchen, to name just a few of the highlights.

Alas, because of “the increased cost” of operating the home, the family put up their new-and-improved place for sale and moved to Oregon.

But as fate would have it, after the move, the Cerda family’s high profile attracted the attention of the child welfare agencies. Several doctors and social workers began to question the mother’s insistence on the chronic medical conditions of her daughters in the face of contradictory lab results.

In February 2011, the State of Oregon took temporary custody of the two children. In the legal proceeding that ensued, six doctors testified on the State’s behalf that the two children did not live in constant medical peril as claimed by the mother.*

The court was told by one expert witness, called by the State, that the children suffered from medical abuse, namely excessive and unnecessary medical interventions that could result in psychological and emotional harm.

The family’s lawyer called the mother to testify about the medical history of the children. However, no doctors were called by the defense.

Judge Norby of the Clackamas County Circuit Court in Oregon found the mother unconvincing. She called the mother’s conduct “excessive and unjustifiable.” Nevertheless, the judge ruled that the father was a capable parent and could take care of the children’s medical needs. She ordered that the two children be returned to the parents.

This case took place in Oregon and not Ontario; therefore, it may or may not be relevant to Ontario cases. However, it reminds us that abuse can take many forms, including too much medical care.

* Citation currently unavailable.

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

Assessing the Risks of a Defendant Dissipating Assets for a Mareva Injunction

Posted in: "All, Lawyer Talk, Legalese Dictionary by Pei Wang | No Comments Wednesday, October 26, 2011

Today’s blog discusses a fine point of law regarding the required evidence in cases involving allegations of fraud before a Mareva injunction (or, in common parlance, a freezing order) can be granted.

The legal prerequisites of a Mareva injunction are well-established:

a) The plaintiff must make full and frank disclosure of all material matters within his or her knowledge.

b) The plaintiff must give particulars of the claim against the defendant.

c) The plaintiff must give grounds for believing that the defendant has assets in the jurisdiction.

d) The plaintiff must give grounds for believing that there is a real risk of the assets being removed from the jurisdiction, disposed of within the jurisdiction, or otherwise dealt with so that the plaintiff will be unable to satisfy a judgment awarded.

e) The plaintiff must give an undertaking as to damages.

In the recently published case Sibley & Associates LP v. Ross,* the plaintiff alleged that the defendant, a former employee in the accounting department, had been making periodic unauthorized payments to his mother amounting to at least $310,160.32.

The plaintiff satisfied all criteria above but one. There was no evidence of a real risk that the defendant might dissipate his assets.

The Ontario Superior Court was thus confronted with the question of whether an injunction may be issued in absence of clear evidence that the defendant will likely dissipate his assets where there is allegation of fraud.

Unfortunately, the existing jurisprudence isn’t clear on the point.

One school of jurists takes the position that there should be a “fraud exception.” These jurists believe that if there is allegation of fraud, a Mareva injunction ought to be issued regardless of whether there is a risk that the assets will be dissipated.+

Another school of jurists disagrees, insisting that a Mareva injunction is akin to “execution before judgment” (a matter to be taken very seriously).# Therefore, these jurists hold, such an injunction should not be granted unless all five elements above are satisfied, except under very limited circumstances, regardless of whether fraud is alleged.^

It appeared to the court that both schools have had their own supporters in decisions on this matter. However, at present, there is no definitive answer as to whether a “fraud exception” categorically exists in contemporary Canadian law.

The court declined to carve out an “exception” for fraud. Rather, the judge adopted a programmatic approach, stating that the risk of removal or dissipation can be established not only from direct evidence, but also by inference from surrounding circumstances, including the circumstances of the fraud itself.

In the end, the judge concluded that the evidence of fraud was so strong that, coupled with the surrounding circumstances, it gave rise to an inference of a real risk of dissipation or removal of assets.

*[2011] ONSC 2951; (2011) 106 O.R. (3d) 494

+see e.g. Campbell v. Campbell [1881] O.J. No. 201 (Ct. Ch.); Mills v. Petrovic (1980), 30 O.R. (2d) 238 (H.C.J.)

#Lister & Co. v. Stubbs (1890), 45 Ch. D. 1

^see e.g. Cital v. Rothbart (1982), 39 O.R. (2d) 513



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

Non-Custodial (Access) Parents’ Rights

Posted in: "All, Family Law, Lawyer Talk, Legalese Dictionary by Pei Wang | No Comments Friday, October 21, 2011

What are the rights of the non-custodial parent after separation or divorce?

In Ontario, the non-custodial parent has certain fundamental rights and obligations under the law. Unfortunately, there seems to be a great deal of confusion about them.

There are actually two types of non-custodial parents: those who have joint or shared custody but do not live with the children, and those who do not have legal custody.

If a parent shares the custody but does not live with the children, that parent is nonetheless entitled to make major decisions on behalf of the children, jointly with the other parent.

If the parent does not have legal custody of the children, the non-custodial parent typically will have access to the child. The right to access to a child includes the right to visit with and be visited by the child and the same rights as a custodial parent to make inquiries and to be given information about the health, education, and welfare of the children, unless a court order or a domestic agreement provides otherwise.*

For example, the non-custodial or access parent’s right may include these rights:

  • the right to receive information from the other parent about the children’s health, education, and well-being, and to be informed about upcoming decisions concerning the children;
  • the right to talk to the children’s doctors, dentists, psychologists, teachers, and school staff, and to have access to the children’s records;
  • the right to attend the children’s school activities;
  • the right to be promptly notified of any emergencies concerning the children;
  • in emergencies, where the custodial parent cannot be located within a reasonable time, the right to give consent to medical, dental, or surgical treatment if the child’s health or safety is in danger.

Readers are cautioned that the list above is not exhaustive. For questions regarding your specific circumstances, you should speak to a licensed lawyer for legal advise.

*Children’s Law Reform Act, s. 20(5)(7)

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

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