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A Spouse’s Right to Possession of the Matrimonial Home

Posted in: "All, Family Law, Lawyer Talk, Legalese Dictionary by Pei Wang | No Comments Monday, October 17, 2011

The Ontario Family Law Act has an entire section devoted to dealings with respect to matrimonial homes, although it is only applicable to married couples.* Readers are reminded that this article is not meant to be an exhaustive list of rights and obligations attached to a matrimonial home.

Unsurprising to most, under the law both spouses have an equal right to live at the matrimonial home. (In legal parlance, we call it “a right to possession.”) If only one of the spouses has an interest in a matrimonial home, the other spouse’s right of possession ends when the two cease to be spouses, unless a separation agreement or court order provides otherwise.

A matrimonial home is defined as “every property in which a person has an interest that is ordinarily occupied by the person and the spouse as their family residence.” The definition is wide and includes a residential unit owned by a corporation of which one spouse is a shareholder.

The right to possession of a matrimonial home is a personal right apart from any property interest. It does not create an interest in the mortgage or against third-party creditors.+

To cure the potential hazard of third-party creditors enforcing existing security agreements (e.g., foreclosure or power of sale) and thereby interfering with a person’s right to live at the matrimonial home, the spouse who does not have a legal interest in the home is entitled to notice and has the right of redemption.^

Finally, the law does allow a spouse to apply for exclusive possession of the matrimonial home under certain circumstances. In other words, the court has the authority to abrogate the other spouse’s right to possession.

*R.S.O. 1990, c. F.3, as am, Part II

+See e.g. Miller v. Miller (1996) R.F.L. (4th) 191 (Ont. C.A.); Manufacturers Life Insurance Co. v. Riviera Farm Holdings (1998), 39 R.F.L. (4th) 1 (Ont. C.A.); and Royal Bank v. King (1991), 35 R.F.L. (3d) 325 (Ont. Gen. Div.)

^Family Law Act, supra, s. 22

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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On Ontario Courts’ Jurisdiction in Custody and Access Matters

Posted in: "All, Family Law by Pei Wang | No Comments Thursday, October 6, 2011

The Children’s Law Reform Act sets out strict requirements on an Ontario court’s jurisdiction to make an order for custody of or access to a child.* An Ontario court would ordinarily have the power to make such an order only if the child is habitually resident in Ontario at the commencement of the proceedings.

If the child is not habitually resident in Ontario, before the court could exercise jurisdiction to make an order on custody and access issues, the court would have to satisfy itself that

  1. the child is physically present in Ontario at the commencement of the proceeding;
  2. substantial evidence concerning the best interests of the child is available in Ontario;
  3. no application for custody or access is pending before an extra-provincial tribunal at the child’s habitual residence;
  4. no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario;
  5. the child has a real and substantial connection to Ontario; and
  6. on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

A child’s habitual residence is the place where the child resides with both parents. Where the parents are separated, the habitual residence lies with one parent under a separation agreement or with the consent, implied consent, or acquiescence of the other or under a court order.

If the child does not live with a parent, the child’s habitual residence is where the child lives with a person on a permanent basis for a significant period of time.

For greater certainty, the unlawful removal or withholding of a child (i.e., abduction) does not alter the habitual residence of the child, subject to very limited exceptions.

Where a child goes on vacation with one parent with the limited consent of the other and the travelling parent has unilaterally decided to stay in Ontario and commence a proceeding for the custody of the child, the Ontario court has no jurisdiction over the matter.^

On the other hand, where a parent has unilaterally removed the child from Ontario to another jurisdiction and commenced a proceeding in that jurisdiction seeking custody of the child, the child is considered habitually resident in Ontario for the purposes of the Children’s Law Reform Act. The Ontario court in this matter has proper jurisdiction to order that the child be returned to Ontario.#

Finally, where the child has not been habitually resident in Canada and does not meet the legislative requirements, the Ontario court cannot rely on its parens patriae power to assume jurisdiction with respect to custody and access issues, even if there is a real and substantial connection between the child and Canada.%

*R.S.O. 1990, c. C.12, s. 22

^see e.g., Turner v. Viau (2002), 26 R.F.L. (5th) 440 (Ont. C.A.); Taylor v. Taylor (1986), 4 R.F.L. (3d) 39 (Ont. Prov. Ct.)

#Hamilton v. Hamilton (1989), 23 R.F.L. (3d) 154 (Ont. H.C.J.)

%Johnson v. Athimootil (2007), 49 R.F.L. (6th) 106 (Ont. S.C.J.)

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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On Certificates of Pending Litigation in Family Law

Posted in: "All, Case Digest/Comments, Family Law, Lawyer Talk, Legalese Dictionary by Pei Wang | No Comments Wednesday, October 5, 2011

A certificate of pending litigation (in legalese, also referred to as lis pendens) is a notice to third parties that interests in a piece of land are currently in dispute before the courts.

The certificate of pending litigation may only be issued under a court order and is only effective in Ontario once properly registered.* Although in theory the certificate does not prohibit individuals from further dealings with the real property in dispute, in effect few purchasers will consider buying a piece of land that comes with questionable ownership.

Although they are generally considered a temporary relief in the context of civil litigation, certificates of pending litigation are available in family law if the legal requirements are met.^ More specifically, the applicant must demonstrate to the court, on the balance of probabilities, that he or she has an interest in the land in dispute.

A claim for issuing a certificate of pending litigation may be made by motion without notice to the respondents (or, in legalese, on an ex parte basis).

To prevent abuse of motions made without reasonable grounds, the Courts of Justice Act stipulates that a party who registers a certificate of pending litigation without a reasonable claim is liable for any damages by any person as a result of its registration.

In practice, the moving party seeking a certificate of pending litigation is required to file an undertaking as to damages. The person seeking the relief will have to undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate.#

*Courts of Justice Act, R.S.O. 1990, C. C.43, s.103, see also Rules of Civil Procedure, R.R.O 1990, Reg. 194, R. 40.

^Reicher v. Reicher (1980), 20 R.F.L. (2d) 213

#Rules of Civil Procedure, supra, R. 40.03

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.

On Freezing Assets and Preservation Orders in Family Law

Posted in: "All, Case Digest/Comments, Family Law, Lawyer Talk by Pei Wang | No Comments Wednesday, September 21, 2011

A spouse may not transfer away his or her properties in contemplation of death or separation. To do so offends the law.+

If there are grounds to believe that one spouse may deplete his or her assets in an effort to defeat the other’s entitlement under the Ontario Family Law Act, the court may make a temporary or final preservation order to preserve the assets. In common parlance, this is typically referred to as a “freezing” order.*

The purpose of the preservation order is to ensure that there are sufficient assets to satisfy the final payment for property division when it is eventually ordered.^

Besides the ability to restrain the spouse from depleting his or her own assets, the court may also order the possession, delivering, and safekeeping of the property.

For example, sometimes the parties cannot agree on their respective entitlements to the matrimonial home when it is sold (it happens more often than you might think). In such a case, the court may order that the proceeds of the sale be held in trust in the real estate lawyer’s account until the matter is resolved, either by agreement or by trial.

The provision in the Family Law Act is not exhaustive. It does not exclude a spouse from invoking other pieces of legislation concurrently to recover properties when a preservation order is not sufficient.

*s. 12

+Stone v. Stone (1999), 46 O.R. (3d) 31 (S.C.J.), aff’d (2001), 55 O.R. (3d) 491

^Lasch v. Lasch (1988), 13 R.F.L. (3d) 434 (Ont. H.C.J.), see also Bronfman v. Bronfman (2000), 51 O.R. (3d) 366 (S.C.J.)

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.

Opening of the Courts and Divine Interfaith Service – September 13, 2011

Posted in: "All, In the News by Pei Wang | No Comments Monday, September 12, 2011

Members of the judiciary, lawyers, and paralegals are invited to attend a Special Divine Interfaith Service to mark the Opening of the Courts on September 13, 2011.

The Divine Interfaith Service will be held at the Church of the Holy Trinity at 10 Trinity Square, Toronto, by the Eaton Centre, at 10:00 am.

The traditional Opening of the Courts of Ontario ceremony will be held at Courtroom 6-1, Toronto Court House, 361 University Ave., at 3:30 pm.

At the conclusion of the Opening of the Courts, the Law Society of Upper Canada will host a reception for members of the judiciary, lawyers, and paralegals in the Convocation Hall at Osgoode Hall, 130 Queen St. W., Toronto, at 4:30 pm. Guests should enter the building through the main doors on the east side of Osgoode Hall.

Tornadoes, Hurricanes, Tsunamis, and Earthquakes: Creating an Emergency Plan for Your Pets

Posted in: "All, Animal Welfare by Pei Wang | No Comments Friday, August 26, 2011

Let’s face it: natural disasters are a fact of life. In Toronto, we are blessed with geological and geographical advantages. Toronto rests on a piece of more-or-less stable land mass and is far inland from the coastlines, perched on the edge of Lake Ontario. In comparison with other major North American cities - like Oklahoma City (tornadoes), New Orleans (hurricanes), Honolulu (tsunamis), and Los Angeles (earthquakes) – we suffer much less.

That being said, Toronto does occasionally suffer from major snowstorms in the winter and thunderstorms and tornadoes in the summer. Blackouts are not uncommon after natural disasters strike.

As a result of recent high-profile disasters such as hurricane Katrina, the South Asian tsunami, and earthquakes in Japan and Haiti, more and more citizens are aware of the importance of emergency contingency plans. Such plans generally include access to clean water, food, flashlights, batteries, radios, etc. However, for pet parents, the work doesn’t stop there. Pet parents need emergency plans for their pets as well.

Below are some tips for creating a contingency plan for your pets when disasters strike, as suggested by the World Society for the Protection of Animals (WSPA) Canada:*

  • water – enough water for your animals for at least 72 hours
  • food – enough food for 72 hours; a manual can opener if you are packing canned food
  • vaccinations kept up to date and medical records packed for emergencies
  • plastic bags and absorbent towels
  • reflective collar and lease; a muzzle
  • current photo in case your pet gets lost
  • animal carrier, preferably with wheels
  • first-aid kits
  • spare name tags to identify your animals

In case of evacuation, bringing your pets with you can be challenging as many human shelters don’t allow animals. If you’re forced to leave your pets behind, don’t tie them up. Leave plenty of clean water and food throughout your residence, including on tabletops and countertops. (If your residence becomes flooded, at least some clean water and food may be preserved.) Leave signs and stickers outside so rescuers know there is an animal inside.

*”When Disaster Strikes, Are You Prepared?” World Society for the Protection of Animals (29 June 2011) online: WSPA <http://www.wspa.ca/latestnews/2011/When_disaster_strikes_are_you_prepared.aspx>

California Budget Cutbacks Cut Deep into Family Law Courts; Litigants Face Long Delays

Posted in: "All, Family Law, In the News by Pei Wang | No Comments Thursday, August 25, 2011

Alas, no one gets a quick divorce in California anymore. The state of California, on the brink of fiscal disaster, is axing funding to the administration of civil justice. That means longer delays in getting anything done, including a divorce.*

In San Francisco alone, 25 courtrooms will be closed and more than 175 employees will be laid off this fall. Presiding judge Katherine Feinstein of San Francisco Superior Court estimated that the average time for a divorce would be at least 18 months. All other civil matters, including small claims, civil and class-action lawsuits, probate, and bit-money complex cases, will take longer.

However, San Francisco isn’t alone when it comes to budget cuts. Judge Steve White of the Superior Court in Sacramento, the state capital, said that their service windows have been reduced from 10 to 2, leading to waits of five or six hours. People now bring lawn chairs and arrive before the counters are open.

In Ontario, the average wait time for an uncontested divorce in Toronto is 4 to 6 months.+

* Jesse McKinley, “As Budgets Continue to Shrink, The Lines Will Grow in California Civil Courts,” The New York Times (24 August 2011), online: The New York Times <http://www.nytimes.com/2011/08/24/us/24courts.html?_r=1&pagewanted=1#>

+This is my personal estimate. The actual wait time will vary.

PSWLaw Presents Free Family Law Seminar Tomorrow in Chinese Mandarin

Posted in: "All, Family Law, Site Updates by Pei Wang | No Comments Friday, August 19, 2011

This is a friendly reminder that I will be making a presentation on common issues in family law in Chinese Mandarin at the Taiwanese Canadian Community Service Association (TCCSA) from 11:00 am to 12:30 pm. The seminar is free of charge.

The TCCSA is located on the second floor of Metro Square, 3636 Steeles Ave. E., Unit 219, Markham, Ontario, L3R 1K9. The TCCSA is a registered charitable organization.

本事務所提醒貴賓們明天（8月19日）上午11點30分王沛翔律師將於臺灣僑民社區服務中心（台僑中心）提供中文免費家事法講座，主題為安省離婚家事法淺談。

台僑中心位於大都會廣場2樓，3636 Steeles Ave. E., Unit 219, Markham, Ontario, L3R 1K9。台僑中心為加國國稅局註冊的慈善機構。

Matrimonial Revenge Served Piping Hot… and Backfiring

Posted in: "All, Family Law, In the News, Lawyer Talk by Pei Wang | No Comments Friday, August 19, 2011

The Globe and Mail published an article on “divorce pranks” today.* They include the following:

  • Ex-husband dumped a 20-ton rock on ex-wife’s driveway, spray-painted “Bonne Fete” (happy birthday) and topped with a pink bow. The explanation: “She never had a rock big enough.”
  • Wine collector husband left the matrimonial home. Wife went to the wine cellar, steam-peeled the labels off, and then mixed the bottles up.
  • Wife poured the husband’s wine collection down the sewer.
  • Wife disabled the husband’s car when it was discovered in a compromising position, parked in front of the mistress’s house.
  • Wife went on a shopping spree on the husband’s secondary credit card before it was cancelled.
  • Husband stapled a spider to his cheque for spousal support, which the wife must endorse to cash it.

Readers are warned not to try any of these acts of revenge (and stupidity) because they almost always backfire. In fact, I’ve never come across one that hasn’t. These pranks inevitably will be submitted into evidence, which makes the judge wonder, “What else is this person capable of doing?”

Divorce is a traumatic experience. Don’t let the emotions take over the better part of you. Do what’s rational and logical, and try to resolve the situation. We’re here to help.

*Zosia Bielski, “Divorce Pranks: You Might Think It’s Funny, but the Judge Won’t Laugh,” The Globe and Mail (19 August 2011) Online: The Globe and Mail <http://www.theglobeandmail.com/life/relationships/love/divorce/divorce-pranks-you-might-think-its-funny-but-the-judge-wont-laugh/article2134193/>

Major Pet Store Chain Announces End of Puppy Sales: The Evils of Puppy Mills

Posted in: "All, Animal Welfare, In the News, Lawyer Talk by Pei Wang | No Comments Thursday, August 18, 2011

Major pet store chain PJ’s Pets has announced that its stores will stop selling puppies on September 1, 2011, reports The Toronto Star.+ Rather than sell puppies, the chain will promote pet adoption from animal shelters or humane societies.

I applaud this decision. Puppies available for sale at retailers are often purchased from brokers that provide the retailers with puppies that are competitively priced but of questionable origins.

Many puppies sold at retail stores are from “puppy mills,” where mother dogs are constantly impregnated without regard to their health. The environment of puppy mills is typically unsanitary and overcrowded.

The mother dogs are typically confined in small cages without exercise or adequate care. They may spend their days in their own feces and urine. Some are put in stacked cages with wire flooring that injures their paws and legs. Some spend their entire useful life outdoors without shelter from the elements. Serious medical conditions that are common at puppy mills include malnutrition, parasites, urine burns, rotten teeth, severely overgrown nails, matted fur, skin diseases, blindness, ear infections, wire cuts and open wounds, and overall weakness.

Once the breeding dog has gone beyond its prime (usually at 4 years of age), it is often discarded, abandoned, or killed. The lucky ones are shot; the unlucky ones are starved to death.

The misery isn’t confined to the mother dogs. Upon their arrival at the retailer, the puppies are left in the display windows for prolonged periods of time without adequate care, socialization, or exercise. Prolonged isolation, inadequate care, and lack of socialization are detrimental to a puppy’s overall development. Because of the mistreatment of mother dogs, store-bought puppies are often born with defects that lead to a lifetime of poor health.

At times, new pet parents discover serious health problems in their new pets shortly after the purchase. When this happens, the new pet owner faces a grim dilemma of either putting the pet down or facing substantial veterinary expenses. (Most retailers do not accept returns.) Perhaps a handful of owners sue in small claims court for damages, with limited success.

Such are the evils of puppy mills.

+Vanessa Lu, “PJ’s Pets Ends Puppy Sales” The Toronto Star (16 August 2011) online: <http://www.thestar.com/business/article/1040266>

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