Legalese Dictionary

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that pertains to the annulment of marriage on July 15, 1870, is continued in Ontario in so far as it has not been repealed or changed.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.

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.

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 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.

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.

On Whether There Are Benefits Received in a Claim of Unjust Enrichment

Posted in: "All, Family Law, Lawyer Talk, Legalese Dictionary by Pei Wang | No Comments Friday, July 15, 2011

“Unjust enrichment” refers to a cause of action to recover benefits conferred to someone else without justification. To successfully prosecute such a claim, the plaintiff must prove the following elements: (1) an enrichment of the defendant; (2) a corresponding deprivation of the plaintiff; and (3) an absence of any juristic reason for the enrichment.*

For example, in the context of family law, a spouse may be able to successfully claim unjust enrichment if he or she proves that he or she worked at the other’s business during the marriage without compensation but did not retain ownership of the venture at the end of the relationship.

Today’s topic zooms into a very narrow element of unjust enrichment: whether there are benefits received in a claim of unjust enrichment. To be more precise, we’ll look at the difference between enrichment through the provision of money and through the provision of services.

In Sherwood & Co. v. Municipal Financial Corp.,^ Justice Laskin of the Ontario Court of Appeal explained that the receipt of money is always a benefit to the defendant. The receipt of services may or may not be a benefit because the defendant may not have wanted the services or would not have wanted them if payment had been required.

Following the Sherwood decision, the Ontario Court of Appeal ruled in the recent decision of Grover v. Hodgins# that the provision of services only constitutes a benefit for the purposes of establishing unjust enrichment in two situations: (a) where the services were performed at the request of the defendant or (b) where the defendant has “incontrovertibly benefited.”

The phrase “incontrovertibly benefited” was explained by the Supreme Court of Canada in Peel (Regional Municipality) v. Canada:**

An “incontrovertible benefit” is an unquestionable benefit, a benefit which is demonstrably apparent and not subject to debate and conjecture. Where the benefit is not clear and manifest, it would be wrong to make the defendant pay, since he or she might well have preferred to decline the benefit if given the choice.

In Grover v. Hodgins, defendants who benefited from higher property value as the result of the success of a prior lawsuit brought by their neighbours were found not have received incontrovertible benefits. All three courts found that there was no evidence that the individuals addressed requested the services. In fact, the trial judge found that the evidence was far from clear that the neighbours’ litigation resulted in the property value increase. Therefore, in the eyes of the Ontario Court of Appeal, the claim for unjust enrichment must fail.

In the end, the defendants were not required to pay for the legal fees in that prior lawsuit. To add insult to injury for the plaintiffs, the defendants were awarded costs throughout the proceedings, from the Small Claims Court to the Divisional Court and to the Court of Appeal, totalling $7,500.

*Pettkus v. Becker, [1980] 2 S.C.R. 834

^(2001), 53 O.R. (3d) 470 at para. 26

#(2011) 103 O.R. (3d) 721

** [1992] 3 S.C.R. 762




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.

Separation Agreements Are Subject to Best Interests of Child and Child Support Guidelines

Posted in: "All, Case Digest/Comments, Family Law, Lawyer Talk, Legalese Dictionary by Pei Wang | 1 Comment Wednesday, July 13, 2011

Can you do anything you want in a separation agreement? In Ontario, the answer is no, even if the rules of natural justice are observed.

In both the Family Law Act* and the Children’s Law Reform Act,^ the law stipulates that all domestic contracts, including separation agreements, are subject to the best interests of the children.

For example, the parents can’t agree to never send their school-aged children to school. Nor may parents agree to leave their infants unattended at any time.

Besides the above, the Family Law Act also stipulates that domestic contracts are presumably subject to the Child Support Guidelines, even if the domestic contract addressed was entered into under the authority of another jurisdiction. Provisions not compliant with the Child Support Guidelines may be found unenforceable by the courts of Ontario.

In Blagaich v. Blagaich,+ the parties entered into a divorce settlement in the state of Maryland. The terms of the settlement were subsequently incorporated into a divorce order issed by the local court. The order provided that child support payments were to cease when the child reached the age of 18 or graduated from high school (which is inconsistent with the Federal Child Support Guidelines). The parties also stipulated that the settlement was to be governed under the laws of Maryland, and that the Maryland courts would have jurisdiction over the matter.

The Ontario Superior Court found that once the parties have attorned to (legal jargon for “submitted to the jurisdiction of”) the Ontario court, or once the Ontario court has assumed exclusive jurisdiction over the matter, the separation agreement (or divorce settlement) must comply with the laws of Ontario if it is to be enforceable.

Under the laws of Ontario, in determining the issue of child support payable under domestic contracts (including separation agreements, or in the present case, an order issued on consent of the parties according to the minutes of settlement), a court may disregard any provision that is unreasonable under the Child Support Guidelines.

In the end, the payor was ordered to pay child support pursuant to the Child Support Guidelines and the Family Law Act, notwithstanding the provision terminating support when the child reaches the age of 18 or graduates from high school contained in the consent order issued by the Maryland court.

*R.S.O. 1990, c. F.3., as am., s. 33, 56 and 58

^R.S.O. 1990, c. C.12, as am., s. 20, 22, and 24

+2007 CanLII 37325 (ON SC)

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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A Brief Note on Adultery in Divorce and Family Law

Posted in: "All, "Brief Note" Series, Case Digest/Comments, Lawyer Talk, Legalese Dictionary by Pei Wang | No Comments Wednesday, May 25, 2011

People are often misinformed about the true nature of adultery in family law. This is understandable. Information on the subject that is presented in TV dramas or the movies is rarely technically correct.

It’s important to understand that in family law adultery isn’t the same as “cheating.” While the definition of “cheating” is often subject to one’s moral latitude, the legal definition of adultery is not. For example, while having a sexually explicit conversation with another may be considered cheating by many, legally speaking, something more is required to establish adultery.

To establish adultery, no sex tape is required. Admission of an affair by the guilty spouse (or the third party) will likely suffice.* However, at the same time, evidence that amounts to a mere suspicion of your spouse having an affair (e.g., an unexplained lipstick stain on your husband’s shirt or a napkin with a phone number written on it) isn’t enough. The court must be convinced that on the balance of probabilities adultery has been committed.^

Interestingly, in the practice of family law, divorce claims on the ground of adultery are not all that common because adultery is only one of the three grounds for determining the breakdown of a marriage, the others being “cruelty” and “living separate and apart for at least one year.”

In many cases, separation is triggered by the discovery of an extramarital affair. However, by the time the parties are ready to deal with a divorce, they will likely have already been living separate and apart for one year. Therefore a claim of adultery will be unnecessary.

When confronted with a choice of claiming adultery or simply living separate and apart as the basis for divorce, I generally encourage my clients to choose the latter because it’s cheaper, less likely to be contested, and saves the parties from reliving difficult past events.

*see e.g., d’Entremont v. d’Entremont (1992), 44 R.F.L. (3d) 224 (N.S.C.A.)

^see e.g., George v. George, [1950] O.R. 787 (C.A.)

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.

Buying and Selling a Business: Assets Purchase vs. Shares Purchase

Posted in: "All, Business Development, Copyright and Trademarks, Legalese Dictionary by Admin | No Comments Wednesday, April 7, 2010

There are two ways of buying and selling an incorporated business in Ontario: assets purchase and shares purchase. Today I’d like to briefly discuss them. (An unincorporated businesses under sole proprietorship or partnership may be sold through assets purchases only.)

Assets Purchases:

Typically, buyers prefer assets purchases. In this kind of sale, the buyer buys substantial or all assets owned by the corporation. For example, if you buy a restaurant through an assets sale, you may want to buy the kitchen equipment, tables and chairs, but not necessarily the inventory in the freezer. In other words, the buyer can pick and choose which assets to purchase. Whatever is not dealt with remains the seller’s property.

Buyers of this kind generally don’t assume the debts of the seller, unless they are specifically included.

It’s important to remember that under an assets purchase agreement you only get what is specifically in the agreement. If you intend to acquire the corporation’s intellectual properties, such as trademarks and patents, you should make sure that they are specified in the transaction.

Shares Purchases:

In shares purchases the buyer buys substantial or all shares issued by the corporation. The buyer becomes the (majority) owner of the corporation and assumes the corporation’s assets and liabilities according to the percentage of the shares acquired. For example, if you buy a restaurant through a 100% share purchase, you assume all assets and liabilities of the corporation, including the debts owed to its creditors.

Sellers generally prefer shares purchases because they give the sellers a clean slate after the transaction. At the same time, because share purchases involve the acquisition of debts, there are more risks involved for the buyers.

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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