Lawyer Talk

Mother’s Day, Father’s Day, Labour Day … (You Get the Idea) and Separation

Posted in: "All, Collaborative Practice, Family Law, Lawyer Talk by Pei Wang | No Comments Thursday, May 10, 2012

Separation is painful enough for most, especially when there are children involved. These difficulties are often made worse by special occasions, such as Mother’s Day, which is this Sunday, May 13, 2012.

Reasonable family law lawyers observe the Unwritten Rules when it comes to special occasions in separated households and advise their clients accordingly. Although the Unwritten Rules vary from region to region, it larges boils down to these two words: be fair.

Based on my experience as a family law lawyer practising in Toronto, I give a few examples here, although they by no means cover all the Rules:

1. Children should be able to spend time with their moms on Mother’s Day and with their dads on Father’s Day.

2. Both parents should have the opportunity to celebrate the child’s birthday with the child, on or near the actual date of the child’s birthday.

3. Religious and cultural observances are trickier.

  • If the parents are of different faiths or cultures, things are easier to manage. The children will spend approximately the same amount of time during the year with each parent in cultural or religious observances.

For example, say Mom has a Chinese heritage and Dad has an American heritage, it’s fair if the child spends the Chinese New Year with Mom and Thanksgiving with Dad.

  • If the parents belong to the same faith and/or culture, I recommend alternate scheduling. For example, one year the children will be with the father during the significant days, and the next year they’ll be with the mother.

Alternatively, when the significant days are longer (as with Easter) and if the schedule allows, the children may spend a portion of the holy days with one parent and the remaining with the other. The following year the parents will reverse the order.

4. Secular observances, such as New Year’s Day and Labour Day, are open for discussion. While most parents alternate the schedule from year to year, some prefer a fixed schedule.

  • For example, if Mom works as an accountant, the spring break – which falls at tax-preparation time for her – may not be a convenient time for her to take off work. If Dad is a teacher, then the Labour Day long weekend will probably be busy for him.

Remember, children are not bargaining chips. It’s not their fault that the marriage or relationship hasn’t worked out. They should have as much quality time as possible with both parents.

This blog is provided for educational purposes. It is not legal advice and should not be regarded as such. The law may have changed since the publication of this article.

Marriage and Cohabitation: What’s the Difference?

Posted in: "All, Family Law, Lawyer Talk, Legalese Dictionary by Pei Wang | No Comments Tuesday, May 8, 2012

Ever wondered about the legal difference between marriage and cohabitation?

In a nutshell, the difference is that a marriage cannot be legally undone by the parties. Once two persons are married, they are spouses of each other until the marriage is dissolved by a court order or by death.

Even for people who have been separated from their spouses for many years, without a divorce order (or the death of the other spouse), they are considered married and cannot legally remarry under the current law.

In other words, “Once you’re married, you’re married.” There’s no undoing a marriage on your own – at least not in Canada.

Cohabitation, on the other hand, is largely based on a mutual desire to live together. If one day you decide to leave the relationship, it’s perfectly legal for you to walk straight into another one (or even get married). Stories about how a guy broke up with his long-time girlfriend and got married with another woman days later are not unheard of.

Of course, when you look at the fine print, couples who have lived together for a long time still have legal rights and responsibilities similar to those between married spouses. As for the details of the similarities and differences, I leave those for another day.

This blog is provided for educational purposes. It is not legal advice and should not be regarded as such. The law may have changed since the publication of this article.

An Alternative to Restraining Orders

Posted in: "All, Family Law, Lawyer Talk by Pei Wang | No Comments Monday, May 7, 2012

Previously I blogged about restraining orders in family law. While they may be effective, some judges see them as a draconian measure  and prefer a less restrictive alternative.

In Ontario, under the Children’s Law Reform Act, the court has a variety of powers to impose terms and conditions as it sees fit to protect the children whose custody is in dispute.*

For example, the court can make an order limiting the duration, frequency, manner or location of contact or communication between the parties. If one parent is concerned about confrontation during pick-up and drop-off of the children, for instance, he or she can ask the court to order that the exchange take place in a public place, and that the parents may only communicate through emails or text messaging.

The court also has the power to impose conditions on a parent’s access while he or she is  caring for the children or in their presence. Conditions are often imposed if there are concerns of drug or excessive alcohol consumption.

Of course, the court’s powers are not limited to the two discussed above. If you have questions regarding custody and access, please consult a licensed lawyer in your jurisdiction.

*R.S.O. 1990, c.C.12 as am.

This blog is provided for educational purposes. It is not legal advice and should not be regarded as such. The law may have changed since the publication of this article.

Toronto Law Blogger/Tweeter Meet-up Next Monday

Posted in: "All, In the News, Lawyer Talk by Pei Wang | No Comments Friday, May 4, 2012

My dear colleague and blawgger Gary J. Wise is organizing a meet-up next Monday. If you write, tweet, or blog about law-related stuff, you are welcome to attend.

Date: Monday, May 7, 2012

Time: 7:00 pm

Place: The Keg, 175 York St.

Please RSVP @wiselaw via the Twitter universe. I will be attendance.

Separation Agreements, Prenuptial Agreements (and Other Domestic Contracts) Made Outside Ontario

Posted in: "All, Family Law, Legalese Dictionary by Pei Wang | No Comments Wednesday, March 28, 2012

A contract is governed by the laws of wherever it is that the contract was formed. The validity of domestic contracts, including separation agreements, cohabitation agreements, and prenuptial agreements, is subject to the laws of the land where the contract in question was made. Thus, a domestic contract made in Germany must comply with German law for it to be recognized as valid and enforceable in Ontario.

However, to discourage “forum shopping” – i.e., Ontario residents travelling to another jurisdiction where the laws are more favourable to their circumstances – the Ontario Family Law Act* includes specific provisions to set limits on the validity and enforceability of domestic contracts made outside Ontario.

Specifically, domestic contracts must be compliant with Ontario’s internal law to be recognized as valid and enforceable. For example, a provision in a marriage contract or a cohabitation agreement regarding the right to custody of or access to children would not be enforceable.

Even if the domestic contracts made outside Ontario are recognized as valid and enforceable, a spouse nonetheless has the right to apply to the courts in Ontario to set aside the contract in dispute.

*R.S.O. 1990, c.F3

This blog is provided for educational purposes. It is not legal advice and should not be regarded as such. The law may have changed since the publication of this article.

Legalese Dictionary: “Deductions” and “Exclusions” When Calculating Net Family Property

Posted in: "All, Family Law, Just for Laughs, Lawyer Talk, Legalese Dictionary by Pei Wang | No Comments Tuesday, March 27, 2012

By law, the process of dividing the properties in a marriage is called the “equalization process.” Both spouses tabulate their net worth, and whoever ends up with less is entitled to half of the difference.

In most cases the matter of which properties are owned by each spouse is not in dispute. However, the issue of whether each specific property should be included in the net family property is often fraught with contention.

It turns out that the law allows, in limited circumstances, for a spouse to exclude or to deduct specific types of properties. While the words “deduction” and “exclusion” are often used interchangeably in everyday use, they have very different meanings under the law for the purposes of dividing properties in a divorce or separation.

“Deductions“ under the Family Law Act* refers to the subtraction of the value of certain properties at a specific date, usually the date of marriage. “Exclusions,” however, refers to omitting the properties from the net family property entirely.

For example, if a painting was worth $10,000 at the date of marriage and $50,000 at the valuation date, to deduct the painting as of the date of marriage would be to include the painting in the owner’s net family property at $40,000 (the current worth of $50,000 less $10,000 at the date of marriage). However, if the owner gets to exclude the painting entirely, then the painting would not be included in the owner’s net family property at all.

Generally speaking, exclusions are rare. Examples include gifts or inheritances acquired during the marriage (but not necessarily income generated from the gifts or inheritances), damages awarded, life insurance policy proceeds, and items agreed to in a separation agreement.

*R.S.O. 1990, c. F3

This blog is provided for educational purposes. It is not legal advice and should not be regarded as such. The law may have changed since the publication of this article.

Planning a Summer Wedding? A Few Legal Things to Keep in Mind

Posted in: "All, Family Law, Lawyer Talk, Legalese Dictionary by Pei Wang | No Comments Wednesday, March 21, 2012

Although today is only the second day of spring, the weather in Toronto makes it feel like early summer. For many couples planning to marry, the nice weather inexplicably makes them want to ring their wedding bell sooner rather than later.

As a family law lawyer, I’d like to remind spouses-to-be that sometime before the knot is tied – amid all the cake tasting and gown fitting – there are a few legal things to think about. This is especially true if either or both of the spouses has been married before.

First and foremost, if either spouse-to-be has had a divorce outside Ontario, he or she must obtain a legal opinion letter (usually referred to as a “foreign divorce opinion letter“) from a lawyer stating whether that divorce should be recognized in Canada. Without the opinion letter and the authorization from the Office of the Registrar General, the couple won’t be able to obtain a marriage licence and cannot get married.

If either of the spouses-to-be has any children, he or she should consider entering into a marriage agreement (marriage contract) that specifies the other spouse’s rights with respect to the children and obligations to support them.

Merely being a step-parent doesn’t mean being obliged to support the kids financially, especially if the kids are older. However, if, say, a step-dad takes the kids in as if they were his own and supports them through the marriage, he may be required to continue his support even if the marriage fails.

It is also a good idea to enter into a marriage contract if either of the spouses-to-be expects an inheritance or a substantial amount of gifts, or if one of them will be moving into the other’s home.

The reason for the caution is that the law treats gifts or inheritances acquired after the marriage and the matrimonial home brought into the marriage as special species of properties. That’s why these items are often a source of regret if the marriage doesn’t work out.

If your bride or groom is expected to receive an inheritance or gifts after the marriage, or to move into your home, you should discuss the legal ramifications with your lawyer before the wedding bell tolls.

This blog is provided for educational purposes. It is not legal advice and should not be regarded as such. The law may have changed since the publication of this article.

It’s Your Right to Live and Remain in the Matrimonial Home

Posted in: "All, Family Law, Legalese Dictionary by Pei Wang | No Comments Tuesday, March 20, 2012

Imagine this: A couple has a big argument. In the heat of the moment, the wife tells the husband, “GET OUT!” Does the husband have to go?

The short answer is no. The husband doesn’t have to go anywhere, as a matter of fact. The home is his castle as much as it’s hers, and he can’t be forced out without good reason.

Under the law, the right to live and remain in the matrimonial home is a personal right against the other spouse. It cannot be waived by either party. The spouses can voluntarily decide to separate and live in different households, but no one spouse can force the other to move out.

In other words, a wife, no matter how angry she is, cannot legally throw her husband (or her wife, if she so chose) to the curb, no matter how angry she is, at least without a court order.

Usually, if things are bad enough, one of the spouses will end up leaving the matrimonial home just for his or her own sanity. However, if this doesn’t happen and yet the situation has become intolerable, or there is domestic violence, a spouse can apply to the court and ask for exclusive possession of the matrimonial home.

An order for exclusive possession of the matrimonial home isn’t one that is granted lightly. If the order is granted, the person who violates the order may be arrested without warrant and become subject to penalties under the Family Law Act.*

*R.S.O. 1990 c. F.3, as am., s. 24

This blog is provided for educational purposes. It is not legal advice and should not be regarded as such. The law may have changed since the publication of this article.

CanLII Hits 1 Million Mark

Posted in: "All, In the News, Lawyer Talk by Pei Wang | No Comments Friday, March 16, 2012

On February 17, 2012, the Canadian Legal Information Institute, or CanLII, added its one-millionth decision – appropriately for the occasion, a decision from the Supreme Court of Canada.

There are now more than a million Canadian court and tribunal decisions available on CanLII’s website, free of charge. According to the institute, it has taken 12 years to reach the historical one million milestone.

CanLII is an initiative of the Federation of Law Societies of Canada, the national umbrella group for Canada’s 14 regulators of the legal profession. It was launched in 2000 as a pilot project to provide free access to judicial decisions and legislative documents on the internet. In 2001 CanLII was formally established as an ongoing, not-for-profit service to support the legal profession.

CanLII is funded by all members of the Canadian legal profession through their law societies’ dues. At the same time, CanLII has also received contributions from federal, provincial, and territorial governments and their official publishers.

Access to the CanLII service is available at www.canlii.org.

*The CanLII logo is the property of CanLII, all rights reserved.

Same-Sex Divorce Update: Federal Government Introduces Proposed Changes to Civil Marriage Act

Posted in: "All, Family Law, In the News, Lawyer Talk by Pei Wang | 1 Comment Thursday, February 23, 2012

A while ago, a same-sex couple who don’t live in Ontario tried to file for divorce and were blocked by the lawyers for the federal government, leading to questioning of the legitimacy of same-sex marriages solemnized in Ontario for out-of-province couples.

Under the Divorce Act,* only residents who have lived in a Canadian province for at least one year are eligible to apply for a divorce.

After the story was published by the Globe and Mail, public outrage ensued. In a matter of hours, the Minister of Justice announced that all marriages solemnized in Canada are legal, even for non-residents, and that changes would be introduced to address the divorce issue.

On Friday, February 17, 2012, Bill C-32, the Civil Marriage for Non-Residents Act, was introduced in Parliament by the Minister of Justice.

The bill, as read on February 23, 2012, is relatively short. The first part of the bill affirms that marriages performed in Canada are valid even if the spouses did not have the capacity to become married according to the laws where they live.

The second part is more interesting. Non-residents may apply for a divorce if they cannot obtain a divorce in their home jurisdiction. However, the application may be made only with both spouses’ consent or with a court order that the other spouse is unreasonably withholding his or her consent.

Further, spousal support is not available for divorces granted under the provisions above. Also, unlike regular divorces, which take 31 days to take effect, the same-sex divorces contemplated under this bill would become effective on the day the judgment is rendered.

In short, the federal government appears to be carving out special provisions for same-sex couples married in Canada who are otherwise unable to obtain divorce in Canada or their home jurisdiction.

The bill is still at its introduction stage. Further changes are likely. We at PSWLaw will be keeping an eye out for our readers.

*R.S.C. 1985 c. 3 (2nd Supp)

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