Family Law

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.

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.

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/>

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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