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Note that items are published in reverse chronological order, with the newest at the bottom of the page and the oldest at the top; the index lists the newest items first. Because of the age of these news items, links to external sites have been deleted. Archived Items: 2001
This website was first published to the internet in November 2001. The Vandenelsen Case: BACKGROUND Carline Vandenelsen and Craig Merkley lived in Stratford, Ontario and are the parents of triplets. Merkley had custody of the children as a result of a court Order. On 14 October 2000, Vandenelsen fled with the children to Mexico to avoid, she said, the prospect of losing her access to the children. She was eventually located and returned with the children to Canada, where she was charged with abducting the children. She was tried before a judge and jury, and argued that she was had to flee with the children to protect them, regardless of the Order giving Merkley custody. The jury acquitted her on the charges on 26 October 2001. Vandenelsen's flight with her children to Mexico was an act of abduction as well as contempt of the Order giving Merkley custody of the children. At her trial, Vandelenelsen admitted to having smuggled the children across the border in the trunk of her car. In her defence, she argued that she had to take the children, despite the Order, to protect them from the psychological and emotional harm they would suffer if they could no longer see her. The jury accepted this argument. On the bare facts of the case, Vandenelsen: breached a court Order; committed an act contemptuous of court; and, committed a criminal offence by removing the children from the lawful custody of Merkley. Vandenelsen's acquittal surprised most legal observers, who had expected a straightforward conviction. From a family law perspective, the Vandenelsen case means that someone who has breached a court Order and abducted the children from their custodian may be able to successfully argue the defence of necessity: "I had to breach the court Order because of the harm which would result if I obeyed the Order." Needless to say, from a lawyer's point of view, this is an extremely troubling prospect, and, in the opinion of the author, is not a correct interpretation of the law. Before people change the locks on their homes and give their children emergency locator beacons, a couple of things need to be pointed out. First, the Vandenelsen decision was the decision of a jury, not a judge, and as a result does not become binding "precedent" case law. Second, the trial was a criminal trial, not a civil family trial. In other words, the acquittal was not the result of a contest between Merkley and Vandenelsen; Vandenelsen was prosecuted for committing a criminal offence. Third, the courts generally take an extremely dim view of people who disobey their Orders, and if Merkley had applied for an Order that Vandenelsen return the children, he would likely have succeeded and obtained an award of costs in his favour. While the jury's deicision in this particular case was unfortunate and, in the author's opinion, misguided, it is not likely to have a broad impact on family law. Back to the top of the page. The EGALE Case: BACKGROUND Most of the petitioners, or plaintiffs, in this case were a number of gay and lesbian couples who sought to the right to legally marry. The other petitioner was EGALE Canada, a group which seeks to obtain social, political and legal equality for gays and lesbians. The petitioners, except for EGALE, had each applied for a marriage licence from the BC Department of Vital Statistics and each had been turned down, on the ground that only couples of different genders can marry. The petitioners applied to court for an Order requiring the department to issue the licences or, if not that, then for an Order that the legislation forbidding same-sex marriages was unconstitutional and should be overturned. On 3 Ocober 2001, the Supreme Court of British Columbia denied the petition. EGALE's point in this case, was that gays and lesbians are discriminated against because the laws relating to who can marry exclude same-sex couples. Becuase the Canadian Charter of Rights and Freedoms does not allow the governments of Canada and the provinces to pass legislation which is discriminatory, EGALE argued that the court should find that the laws relating to marriage were unconstitutional and allow the petitioners to marry. In a nutshell, the court found that while the rules which allow only couples of the opposite sex to marry were in fact discriminatory and therefore unconstitutional, this discrimination was a resonable limit on the petitioners' rights. (Section 1 of the Charter allows governments to pass legislation which goes against the Charter's protection of equality where it is "reasonable and demonstrably justified limit in a free and democratic society.") Furthermore, the court also found that the requirement that marriage be between couples of the opposite sex was based on common law rules founded long before Canada's 1867 Constitution Act. Therefore, when the 1867 Constitution Act was created, marriage excluded same-sex couples as a matter of law. Because our governments can only act within the limits of the powers they are given by the constitution, the federal government is incapable of making a law that allows same-sex couples to marry. In the end, the petitioners were denied their application for an Order that they be issued marriage licences. Their argument that the sections of the federal and provincial legislation restricting marriages to couples of the opposite sex was dismissed. The court's decision is under appeal. In the author's view, it is extremely significant that the court found that the requrement that marriages be between people of the opposite sex contravened the Charter's equality rights provisions. Gays and lesbians have made profound strides towards legal equality with heterosexuals over the last ten years, and the laws have changed substantially towards recignizing same-sex rights and the legitimacy of same-sex common-law relationships. While EGALE's argument did not succeed in this case, it may in the future. With respect to the court's decision respecting the federal government's authority and the 1867 constitution, the author respectfully submits that while governments derive their power and the extent of that authority from the constitution, as the case ought to be, the constitution should not act as an anchor miring twenty-first century Canada in nineteenth century British law. Click here to view the court's Reasons for Judgment. Back to the top of the page. Site Navigation
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