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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>

On Publication Bans and Sealing Orders in Family Law: The Partial Publication Ban on Russell Williams’s Divorce

Posted in: "All, Family Law, In the News by Pei Wang | 1 Comment Wednesday, August 17, 2011

On April 12, 2011, Justice Mackinnon of the Superior Court of Justice granted the wife of convicted murderer Russell Williams, now identified as M.E.H., an anonymity order and a partial publication ban on the details of their divorce.*

By motion, the wife sought to have the entire matrimonial proceeding sealed to protect her fragile mental health as a result of Mr. Williams’s convictions for first-degree murder, sexual assault, and forcible confinement and the ensuing public and media attention. The motion was opposed by a number of media intervenors.

It’s said that a sealing order is a blunt tool. It will adversely affect a democratic society’s reliance on a transparent and open judiciary. Therefore, a complete sealing order is rare, except in a handful of areas, such as when dealing with young offenders.

In fact, the Supreme Court of Canada has long taken the open court principle very seriously. In 1989, the Supreme Court of Canada struck down provisions in Alberta’s Judicature Act prohibiting publication of most details of matrimonial proceedings.^

More recently, the Supreme Court of Canada restated the importance of the open court principle in Canadian Broadcasting Corp. v. Canada (A.G.).+ Justice Deschamps stated that the open court principle “ensures that citizens have access to the courts and can, as a result, comment on how courts operate and on proceedings that take place in them.”

At the same time, the open court principle also mandates access to justice by citizens. The proper administration of justice must allow litigants access to the court to obtain relief that they are lawfully entitled to without sacrificing their mental and physical health by doing so. For example, victims of sexual assault should be afforded protection of anonymity, lest one more deterrent discourage such victims from coming forward.#

In the present case, the judge found that the wife had demonstrated she would face real risks to her mental health (e.g., beyond personal embarrassment and discomfort) if a privacy order were not granted. At the same time, a sweeping sealing order keeping the entire file from the public was seen to be unjustified as it would have too great an impact on the open court principle.

In striking the delicate balance of the public interest and the real risks of harm to the wife, the judge deemed it appropriate to place a partial publication ban on information that serves to identify the name, address, or contact information of the wife. Sensitive information, such as medical reports, social insurance number, date and place of the wife’s birth, and certain financial transfers were also banned from publication.

*H.(M.E.) v. Williams (2011), 105 O.R. (3d) 344 (Sup. Ct.)

^Edmonton Journal v. Alberta (A.G.), [1989] 2 S.C.R. 1326, S.C.J. No. 124

+[2011] S.C.J. No. 2, 2011 SCC 2

#T.(S.) v. Stubbs (1998) 38 O.R. (3d) 788 (Gen. Div.)

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.

Legalese Dictionary: What Makes a Matrimonial Home?

Posted in: "All, Family Law, Lawyer Talk, Legalese Dictionary by Pei Wang | No Comments Tuesday, August 16, 2011

In family law cases, the term “matrimonial home” seems to be cropping up left, right, and centre. What makes a matrimonial home? Today’s blog provides readers with a brief overview of the legal definition of a matrimonial home in Ontario.

Under Ontario’s Family Law Act,* the matrimonial home is defined as (1) every property in which at least one of the spouses has an interest and (2) every property that the spouses ordinarily occupy as their family residence or that was so occupied at the time of separation.

The legal definition above is further subject to two additional rules: (a) there is a deemed interest where the residence is owned by a corporation and occupied by the corporation’s owner or shareholder, and (b) in a residence on a piece of property that is normally used for non-residential purposes, the matrimonial home is limited to the part of the property used for residential purposes.

To explain these two rules a bit:

(a) Deemed interest

Where the residence ordinarily occupied by the spouses is owned by a corporation of which a spouse owns shares, the spouse owning the shares is deemed to have an interest in the unit, and that unit would then qualify as the matrimonial home.

In other words, legal control over the corporation amounts to legal control over the residence for the purposes of the matrimonial provisions. If a company has passed a resolution entitling its owner to reside in the home, it would be a matrimonial home.^

(b) Matrimonial home on non-residential property

If the property that includes a matrimonial home is normally used for a purpose other than residential (say, for farming), the matrimonial home is only the part that may reasonably be regarded as necessary to the use and enjoyment of the residence.

For example, where 75% of the house was used for a commercial boarding operation, the matrimonial home was only deemed to be the 25% used for non-commercial purposes.+

In another example at the opposite end of the spectrum, where the matrimonial home was situated on a piece of farmland that was not economically viable, but the farmland was necessary for the enjoyment of a rural residence, the entire farm was deemed a matrimonial home.**

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

^Debora v. Debora [2006] O.J. No. 4826 (C.A.)

+Kozlowski v. Kozlowski (1984) 39 R.F.L. (2d) 34 (Ont. H.C.J.)

**Sample v. Sample (1985) 44 R.F.L. (2d) 167 (Ont. H.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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