Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Victim surcharges needed change he federal government struck another blow to judicial discretion last week in announcing plans to double the victim surcharge. According to the announcement on Tuesday, the govern- ment will amend the Criminal Code in order to double the surcharge to 30 per cent of any fine imposed. In cases where there's no fine, the surcharge would be $100 on a summary conviction offence and $200 for an indictable matter. In addition, judges will no longer be able to waive the surcharge. The move follows studies that have shown that judges regularly waive T the surcharge. A New Brunswick study, for example, showed there were waivers on two-thirds of eligible dispositions from 2000 to 2005. More importantly, it revealed the highest rates of waivers were often for the most serious offences, particularly those against a person. That' given that offences against a person are most likely to result in jail time and thus leave the offender with a limited ability to pay the surcharge. But it' s logical chance of getting out of paying a surcharge meant to, in an indirect way, provide for some type of restitution by funding programs for victims. Clearly, then, there' As a result, it's not unreasonable for the government to change the law s a problem with the program as it currently exists. to ensure greater alignment between the severity of crimes and the sur- charges levied. While there are clear revenue implications of increasing the surcharges and eliminating waivers, the program as it stands isn't very fair given its stated goal of making offenders more accountable to victims. The question, of course, is how realistic is it to eliminate discretion when there are good reasons for waiving the surcharge when people go to jail. Just exactly how does the government plan to get blood from a stone? s also ironic that those who do the most harm have a greater to reduce the sentence so the offender would have some opportunity to earn the money necessary to pay the surcharge. That' One option would be to allow judges latitude towards holding offenders accountable to victims but one the government is sure to reject given that it' s a reasonable approach tion. An alternative would be to provide offenders who can't pay with increased opportunities to earn money while in jail. In the end, however, what we'll probably end s taking sentencing regimes in the opposite direc- up with is lots of people convicted of more serious crimes having to pay the $200 mandatory surcharge with no fine imposed. While that further reduces judicial discretion to acknowledge individual cir- cumstances, the $200 surcharge is a modest amount that an offender should be able to come up with some way to pay during the course of a jail sentence. It' the ideal approach to the issue but it does go some way to resolving the current incongruity between surcharges levied and the severity of the offence. — Glenn Kauth A Creditor avoidance a difficult issue for family law creditor avoidance issues. Th e case, which involved the wife, the n interesting yet somewhat per- plexing decision came out of the Court of Appeal recently that dealt with what appear to be husband, and one of his unsecured credi- tors, illustrates the courts' apparent strug- gle with the competing interests of spouses and creditors. Th e parties in Schwartz v. Schwartz married in 1986. Karen Schwartz com- menced her divorce application in early 2009. During the marriage, the spouses bought a home together. In 2000, they transferred the title to Karen' While David Schwartz said they did the transfer because "it was the right thing to do, s name alone. " Karen indicated it was due to an estate rollover by her husband's father to him and that there were business considerations behind it. In 2006, the couple again transferred the house. Th is time, Karen was involved in a business that she operated from the home selling what she termed "knock off " casual wear. She received a letter from a lawyer indicating she may have infringed certain trademarks as a result of her business. It appears her husband became concerned Law Times LT Masthead.indd 1 about a potential lawsuit and suggested she transfer the house back to him, which she did. Unbeknownst to Karen, her husband had obtained credit for his business from a com- pany called Vast-Auto Distri- bution Ltd. a year earlier. In his credit application, he indicated he owned the home, which wasn't the case at the time, and gave a personal guarantee on behalf of his company. Th e parties separated a Family Law only party to oppose it. Th ere were also a number of proce- dural irregularities in the case, including the fact that the issue didn't arise by way of a sum- mary judgment motion. Justice Janet Simmons, ter back to the motions judge to deter- mine the extent of the wife' Siemiarczuk Marta few years aſt er the 2006 title transfer. Aſt er his business defaulted on its loan, Vast-Auto obtained a judgment of about half a million dollars and began enforcement of its writ against the mat- rimonial home that by then belonged solely to the husband. Th e wife then brought a motion seek- ing to have the transfer to her husband set aside. She argued she never intended to giſt the house to him and that he held it in trust for her by way of a resulting trust. Th e motions judge granted her the relief she sought and set aside the initial transfer. Interestingly, the husband didn't partici- pate in the motion and Vast-Auto was the and divest of the property or whether the intention was that the transferee would hold it in trust. What' speaking for a unanimous court, confi rmed that a trier of fact must focus primarily on the actual intention of the transferor at the time of the gra- tuitous transfer. In doing so, the court must determine whether the transferor intended to giſt time troubling with this case is that the motions judge found that the wife didn't in fact intend to divest herself of her in- terest in the matrimonial home, a fi nding the Court of Appeal upheld. What it set aside, on the basis of procedural unfair- ness in that the issue arose only in oral argument and wasn't previously pleaded, was the motions judge' s interesting and at the same wife was under undue infl uence at the time of the transfer. Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher ................... Karen Lorimer Editorial Director ................... Gail J. Cohen Editor .............................. Glenn Kauth Staff Writer ....................... Kendyl Sebesta Staff Writer ................... Michael McKiernan Copy Editor ..................... Katia Caporiccio CaseLaw Editor .................. Adela Rodriguez Art Director .......................Alicia Adamson Account Co-ordinator ............... Catherine Giles Electronic Production Specialist ........Derek Welford Advertising Sales ............... Kimberlee Pascoe Sales Co-ordinator ................... Sandy Shutt ©2012 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without writ- ten permission. The opinions expressed in articles are not necessarily those of the pub- lisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any war- ranty as to the accuracy, completeness or cur- rency of the contents of this publication and disclaims all liability in respect of the results of s fi nding that the interest in the matrimonial home. Th is result seems to confl ict with the other fi ndings of fact, namely that the husband earlier had transferred his entire inter- est in the matrimonial home to his wife and, therefore, that what she had in 2006 was a 100-per-cent ownership stake in the property. If it' Nevertheless, the court sent the mat- s benefi cial didn't intend to transfer her interest in the home to her husband and she had full ownership, there should be no need to send the matter back for further fi ndings. What seems to have happened in this case is an attempt by the Court of Appeal to protect the wife from losing the entirety of her equity stake in the matrimonial home while at the same time attempting to allow some recovery by the creditor. Th e result, however, creates uncertainty in these types of situations, ones that occur very frequent- ly in a family law practice. LT Marta Siemiarczuk is a lawyer practis- ing family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta. siemiarczuk@nelligan.ca. Law Times is printed on newsprint containing 25-30 per cent post- consumer recycled materials. Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. 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