| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
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 some of these news items, links to external sites have been deleted. Archived Items: 2003
Divorce Act Changes Coming? BACKGROUND At present, the federal Divorce Act deals with the care and control of children in terms of "custody" and "access." Having the custody of a child means, loosely, having the child's primary residence as well as all of the incidents of guardianship with respect to that child. Access is how the law speaks of the non-custodial parent's time with the child. Where one parent is given custody of a child, which is the end result in a significant number of cases, the other parent is given access to the child. Two results of dealing with children in this way are the creation of an unhealthy and adversarial win/lose scenario, and a feeling that the role of the parent without custody is somehow diminished or is inferior to the role played by the parent who has custody. In 1997, the federal government established the Special Joint Committee on Child Custody and Access to examine the issues relating to custody and access arrangements after separation and divorce. In 1998, the Special Joint Committee released it's report, For the Sake of the Children. On 10 December 2002, the federal government unveiled it's response to the report, it's "Child-Centred Family Justice Strategy." Click here to read the Minister of Justice's news release, and here to read the Department of Justice's "backgrounder" on the strategy. The proposed changes to the Divorce Act, set out in Bill C-22, are the cornerstone of the government's response to the Special Joint Committee's report. The federal government, in Bill C-22, has proposed some fairly dramatic changes to the Divorce Act. Firstly, the Bill seeks a renewed emphasis on the best interests of the children, and a whole new list of criteria, in making decisions affecting the care and control of children. Secondly, the Bill would remove the words "custody" and "access" from the act, and replacing them instead with "parenting orders" and "contact orders." The premise of the Bill is that decisions made regarding children should focus on the children, and the effects of the divorce on the children, rather than their parents. The following is an except from the Department of Justice's news release on the new Bill: Best Interest Criteria The "best interests of the child" has been the core principle of family law in Canada for some time. In this reform strategy, this core principle is reaffirmed and strengthened by adding a list of best interest criteria to the Divorce Act. The list will help parents, family justice professionals and judges determine the child's best interests in his or her unique circumstances. The following is a list of criteria that will have to be considered: Terminology A large number of Canadians have been critical of the terms custody and access because in their view: Under the proposed reforms, the terms custody and access will be eliminated for the purposes of the Divorce Act. A new model based on parental responsibilities will be created. Removing the 'win/lose' connotations will contribute to reducing levels of parental conflict and stress. The new approach used in the Act and in legal proceedings will help parents to focus on their most important obligation - making sure their children receive the care they need. The proposed legislation is based on a parental responsibility model. Its underlying concept is that both parents will be responsible for the well being of their children after separation or divorce. How they carry out their obligations to their children is largely a matter for them to decide, using the best interest criteria as a guide. The parenting arrangements they make will include allocating 1) parenting time — based on a residential schedule that sets out the time that each child spends with each parent and 2) decision-making responsibilities — regarding the children's health, education, religion and so on. Where a judge is needed to make a decision — for example where parents cannot agree or in high-conflict or family violence cases — the judge will now issue a parenting order allocating parental responsibilities. In the author's view the intent of these changes is laudable, however the changes will be meaningless unless both lawyers and the judiciary commit to implementing the spirit behind the proposal. As things stand right now, attempts to replace the adverse connotations of "custody" and "access" with phrases like "primary residence" and "time with the children" are little more that semantic distinctions. Having the child's "primary residence," for example, is exactly the equivalent of having sole custody of the children, even if the order provides for "joint custody." The parent with primary residence enjoys all of the authority and final-say when it comes to decision-making as he or she would as a sole custodian of the child; what then does "joint custody" really mean? With the greatest respect, the author suggests that Bill C-22 will result in little more than giving new names to old ideas, unless lawyers and the judiciary are committed to a fundamental change of approach. One serious factor which may prove a stumbling block to this sea change, is that the provincial laws which deals with the same subject (in BC, the Family Relations Act) still use the old terminology and the old conceptual framework. It will be difficult to reconcile the "parenting" model proposed in the new Bill while the old "custody" and "access" regime persists in the provincial legislation. Back to the top of the page. Questioning the Finality of Spousal Support Orders: BACKGROUND The ultimate goal of all litigation is to arrive at a settlement or court order which is final and conclusive of all matters at issue between the parties. This is the same in family law as it is for all other civil law actions. On the other hand, family cases differ from generic civil litigation, since the final settlement or agreement usually structures the parties' relationship with each other well into the future; the conclusion of a wrongful dismissal law suit or an ICBC law suit usually finishes the parties' dealings with one another for ever. In January 2003, the Court of Appeal for British Columbia released a very important judgment in the case Gill-Sager v. Sager. At trial, the wife's claim for spousal support was dismissed because the nature of her income left her with more disposable income than her husband. The wife appealed the decision. The complicating factor was that the wife had been diagnosed with a serious and debilitating disease prior to the trial. At the time of the trial, however, the disease was in remission. Partly because of the parties' respective financial situations at the time of the trial, the judge dismissed her claim to spousal support. The effect of the trial judge's decision, as a final order, was to permanently dismiss her claim for spousal support. The wife was concerned that her disease might return and leave her unable to support herself without financial help from her husband; if her claim was permanently dismissed she would not be able to seek spousal support from her husband in the future if the disease resurfaced. On appeal, the court agreed with the wife's position, and held that her claim for spousal support should not have been permanently dismissed. The court held that trial judges who reject a claim for spousal support should, essentially, rule that the person seeking support was not eligible for support at the time of the trial, without permanently disentitling that person from ever seeking support in the future. The important point of Gill-Sager v. Sager is that a spouse may be able to seek support from his or her ex at any point in the future regardless of previous final orders dismissing such a claim. There may never be a termination of a spouse's right to claim support. Of course, there are two ways of looking at this. The broad way is to say that all spouses in all situations will for ever be able to look up their ex in the phone book and make a claim for support. In this case, a spouse who is potentially liable to pay spousal support will never be able to rest easy, without worrying about a support claim lurking in the bushes. The narrow way is to say that the principle in Gill-Sager v. Sager only applies in situations with similar facts, that is to say, in situations where a spouse has been diagnosed with an illness which has the potential to disable them from self-sufficiency. In such a case, an open-ended order such as the Court of Appeal has preferred will be appropriate, but not in circumstances where both spouses are hale and hearty and there is no indication, at the time of trial, of any future disability. Back to the top of the page. CPP Class Action Underway: BACKGROUND "Survivor benefits" are funds paid by the Canada Pension Plan to the "spouses" of people who have contributed to CPP. Until fairly recently, 1998, "spouse" was defined as a heterosexual couple, and gays and lesbians in common-law relationships were not entitled to receive survivor benefits on the death of their partners. A class action law suit has been approved in Ontario which could potentially benefit lesbians and gays whose same-sex common-law partners died between 17 April 1985 and 1 January 1998. A "class action law suit" is a law suit initiated by a small number of people on behalf of a much larger number of people who have the same complaint and would be entitled to make the same claim. In this class action, the plaintiffs seek an order that they be paid CPP survivor benefits back to the date their partners died, plus on-going survivor's benefits. If you were in a same-sex common-law relationship, you may be entitled to participate in this class action. People who participate in a class action are able to receive the same benefits as the primary plaintiffs, if the class action is successful. Not everyone is eligible to participate in a class action, however. You must fit into the "class." In this class action, the "class" of people is defined as: Every person, and the estate of every deceased person: If you fit within this definition, you will be automatically included in the class. If you do not want to participate in the class action, and wish to be excluded from the class, you must contact the law firm representing the plaintiffs. For more information about this class action, or to opt out of the class action, contact the Ontario law firm McGowan Elliot & Kim toll-free at 1-866-877-0109. Back to the top of the page. Consequences of Failing to Exercise Access: It can happen — though it happens rarely — that a parent awarded access declines to exercise that access, and then, years later, decides to reassert that right and spend time with his or her child. In the case of B.J.M. v. K.F.B., a 2003 decision of the Supreme Court of British Columbia, the father, who had agreed to supervised access in 1993, asked the court to lift the supervision condition of his access to his child in the course of his application for a reduction of his child support obligation. The father had not exercised any access to his child since he agreed to the supervised access order ten years ago. The court refused to lift the supervision condition of his access. The important point about this case is that the court, in refusing to lift the supervision condition, found that the father's failure to exercise access to his child was an act contrary to the best interests of the child. In other words, the failure of a parent to remain involved in his or her child's life can be harmful to that child, and such a failure may disentitle the parent from seeking a variation of the terms of his or her access. Said the court: "By refusing to exercise acces to his son, the father has essentially ignored the child's best interests since 1993. The likelihood is that the [supervision] condition would have been removed by agreement, or otherwise, a long time ago if he had complied with the order over a reasonable period so as to demonstrate that the requirement for supervision was unnecessary. "... I am not persuaded that the requirement for supervision should be removed at this point. While I consider it in the child's best interests that he have access to his father, I agree ... that the father has placed the child in an extremely difficult position. At age eleven, the child should not be compelled to be alone with his father at least until some independent evidence is available to assist the court in assessing whether access is being conducted in a manner consistent with the child's best interests." This case should help parties in a situation where the other parent has refused or failed to remain involved in a child's life when that parent seeks, down the road, an order changing the existing situation. Back to the top of the page. Change in Spousal Assault Policy: BACKGROUND For many years now, it has been the policy of the provincial Ministry of the Attorney General, the ministry responsible for the court system and criminal and civil policies, to prosecute charges of spousal assault regardless of the wishes of the victim or the circumstances of the case. There was a solid reason for this position: women who are abused by their partners may, because of Battered Wife Syndrome or reasons, find themselves stuck in a cycle of violence, symptoms of which include the rationalization of the abuse — "he only hits me because he loves me" — and a failure to follow through with criminal proceedings. On 1 May 2003, the Ministry of the Attorney General undertook a seachange in the way that criminal charges of spousal assault are dealt with by its prosecutors. The decision abandons the former policy of prosecuting such charges regardless of the wish of the victim. According to the Ministry, 40% of charges for spousal assault are abandonded because the victim refuses to co-operate with the prosecution of the case. Crown prosecutors now have a new discretion in dealing with such charges, and may choose to proceed outside the normal court process in situations of domestic violence. The new policy includes protective peace bonds where no criminal charges are laid, and alternative measures programs for assaulters with no previous record of violence. Back to the top of the page. Supreme Court of Canada Rules on Separation Agreements: In the recent case of Miglin v. Miglin, the Supreme Court of Canada dealt with a case where a wife, four years after the execution of a separation agreement, sought an order for spousal support which would have the result of varying the agreement. An older series of cases, know as the Pelech trilogy, had decided that, when someone sought to vary a separation agreement, there must be a material change in circumstances from those prevailing at the time the agreement was executed before the court would make a decision different from the provisions of the agreement. Moreover, this change had to be connected to the marriage or the breakdown of the marriage. In Miglin, the SCC held that the Pelech triology should no longer apply to the varation of spousal support, and that the wishes of parties expressed in agreements should only be set aside by the court where the agreement significantly departs from the objectives for orders for spousal support set out in s. 15.2 of the Divorce Act. The court held that a two-step test should be used in such applications:
Be cautioned that the SCC's decision deals only with claims made under the federal Divorce Act, which only applies to married spouses. Both unmarried and married spouses may also claim under the provincial Family Relations Act, to which the decision in Miglin may not yet apply. Back to the top of the page. Win for Same-Sex Marriage Rights: BACKGROUND Marriage is defined in the common law as the lawful union of a man and a woman. This definition excludes same-sex couples from legal marriage, and has served as the authority underwhich provincial officials have traditionally refused to issue marriage licences to gays and lesbians. A series of recent court rulings, in Quebec and Ontario, have challeged the validity of that law, on the grounds that it discriminates against same-sex couples in a manner contrary to the Charter of Rights and Freedoms, the constitutional document that guarantees that the governments of Canada will treat their citizens equally, regardless of race, gender, and other factors. In the recent case of Barbeau et al. v. British Columbia (Attorney General) et al., the Court of Appeal for British Columbia has determined, in an unanimous decision, that the present prohibition on the marriage of gay and lesbian couples infringes the Charter rights of gays and lesbians to be treated without discrimination, overturning an earlier decision of the Supreme Court of British Columbia. The court held that "marriage" involves a committed relationship between two people, and that the sex of the partners is not relevant to whether they should or should not be permitted to marry. It also said being able to produce children is not a defining characteristic of marriage, noting the equal ability of straight and same-sex couples to be loving parents and raise children. While the courts of other provinces have made similar decisions, the court's decision in Barbeau stands out because it gives the federal and provincial goverments a fixed deadline of 12 July 2004 by which the relevant legislation must be passed. While no decision has yet been announced as to whether the Court of Appeal's decision will be appealed, the federal government has appealed similar decisions of the courts in Ontario and Quebec. It seems reasonable to expect that the government will appeal this decision as well. Back to the top of the page. New Provincial Legislation: The provincial liberal government, using its all-but-two-seat majority, has taken the opportunity to rush dozens of new bills into law in the final two weeks of the spring legislative session. While one must wonder about the extent of the debate and depth of consideration given to these bills, until this government is voted out of office, the new bills are here to stay. The three most important new laws, from a family law perspective, are:
Interjurisdictional Support Orders Act This new act replaces Part 8 of the Family Relations Act, and is intended, according to the Attorney General, to "improve the way people obtain or change child and spousal support orders between provinces" and make the system "more efficient and less expensive for British Columbians." We'll see. In a nutshell, Part 8 required that a BC court making an order changing a support order made in another province, or in certain foreign jurisdictions, make only a "provisional" order, subject to the other jursidiction making a "confirmation" order. Likewise, a court outside of BC changing a BC order, could only make a provisional order subject to confirmation here. As you can see, and in all fairness to the Attorney General, two hearings were generally required to change orders in these circumstances, at both of which the order or intended order could be altered. Where there is no support order Where a person living in BC wants someone living outside of BC to pay support, the applicant completes a "support application" and submits it to the "designated authority" (a person selected for this purpose by the Attorney General) — I kid you not, this is the language of the act — who forwards it to the jurisdiction in which the other person lives. That court makes an order based on the application, and the order is returned to BC to be filed in the courts here. Where a person living outside of BC wants someone living in BC to pay support, the applicant completes a "support application" and submits it to the "designated authority" who forwards it to the person living in BC and starts the hearing process. The court here then makes an order based on the application and the respondent's evidence. The order is then sent to the other jurisdiction for filing in its court system. Enforcing support orders made outside BC Orders for child or spousal support that have been made outside BC can be "registered" in BC by forwarding a court-certified copy of the order to the "designated authority" who then files it in court here. There is a 30 day period in which the respondent can apply to set aside the registration, but once this has passed, the registered order will be treated as if it were an order made by the courts of BC for enforcement purposes. Changing an existing support order A person living outside of BC can apply to change a BC order using the process described above. A person living in BC can similarly apply to change an order made outside of BC. A person living in BC can apply to change a foreign order that has been registered in BC in the courts of BC, so long as the parties accept the authority of the court or the respondent normally lives in BC. Enforcement of Canadian Judgments and Decrees Act According to the Continuing Legal Education Society of British Columbia, this act "allows for orders from Canadian courts outside of BC to be registered in the BC Supreme Court, and creates a presumption of validity with respect to orders from other Canadian courts so those orders won't have to be confirmed by a BC judge." Court Jurisdiction and Proceedings Transfer Act Also according to the CLE, this act "revises and clarifies rules for determining jurisdiction, and gives the BC superior courts tha authority to transfer litigation to other Canadian forums after determining that jurisdiction lies elsewhere." Back to the top of the page. Naming Children: Under the provincial Vital Statistics Act, a mother registering the birth of a child could choose not to acknowledge the father and, if so, select a name for the child. An unacknowledged father, regardless of proof of paternity, had no say in the matter at all, nor could he subsequently ask to be listed on the child's birth certificate. While this left quite a few fathers feeling quite put out, it did allow for a certain degree of consistency in children's lives. It also protected children who were the product of a rape from the chance of the rapist gaining access to them, along with other parental interests. Darrell Trociuk of Nanaimo, BC didn't take this lying down. In fact, he took it all the way to the Supreme Court of Canada. To cut to the chase, the SCC found that the provisions of the Vital Statistics Act which deny fathers a say as to the names of their children and the right to be listed on their birth certificates violated the Canadian Charter of Rights and Freedoms. Interestingly, the court did not order the mother to change the children's names. The SCC has given the provincial government one year in which to change the act, failing which the attacked portions will fall off the books. Back to the top of the page. Spousal Support Guidelines? It has recently been revealed that the federal government's Department of Justice struck an "advisory working group" to look into the feasability of developing uniform guidelines for spousal support in January 2003. This news was broken by Lawyers Weekly on 9 May 2003. According to Lawyers Weekly, and subsequent information released by the Department of Justice, the panel is composed of judges, family law lawyers, academics and social workers. It will be considering different formulae for calculating spousal support intended to be utilized in the same one-size-fits-all manner that the existing Child Support Guidelines are used. Factors likely to be included are the number of years of the marriage, the disparity between the spouses post-separation incomes, and so forth. In the author's view, the implementation of the Child Support Guidelines was a boon to family law litigants. It saved everyone time and money haggling about the "needs" of the children and the payor's "means" of paying support. While the cookie-cutter approach certainly doesn't suit every family and every child, the vast majority of litigants have benefited from the institution of the Guidelines. It would be wonderful if it was possible that similar guidelines could be developed for spousal support, however the author is sceptical of the project's success. There are so many different factors which go into not just assessing an entitlement to spousal support but also the amount of such support, factors which are almost always unique the particular circumstances of each couple, it is doubtful that any useful formula could address them all. Note that any such legislation would affect married couples only. Until and unless the provincial Family Relations Act is amended to included the federal provisions, common-law spouses will be excluded from any forthcoming spousal support guidelines. Back to the top of the page. Same-Sex Marriage Legalized: BACKGROUND Under the 1867 Constitution Act, the various powers that go into running a nation are divided between the provincial governments and the federal government. For example, only the provincial governments have the authority to pass laws about property, and only the federal government has the authority to pass laws dealing with Canada's First Nations. Under our Constitution, the federal government has the authority to pass laws regarding "marriage and divorce," while the provinces have the authority to pass laws regarding "the solemnization of marriage." This means that the federal government can regulate the terms under which marriages are legal, as well as the circumstances under which divorces can be granted. The provinces, on the other hand, can make laws about the formalities of marriage, the people who are authorized to conduct the ceremony, who can issue marriage licences, and so on. In BC there are only two laws dealing with marriage: the provincial Marriage Act; and, the federal Marriage (Prohibited Degrees) Act. Both statutes are silent as to the gender of the people who are marrying. In other words, there is no law on the books that says that a marriage means a union between a man and a woman, or that marriage doesn't exclude men from marrying men and women from marrying women. Until the last few years, the courts have consistently denied gays and lesbians the ability to marry based on a principle of the common law, which holds that the only lawful marriage is one between people of opposite genders. The 2001 BC Supreme Court decision in EGALE et al. v. Canada et al. found that this was the fundamental reason why gays and lesbians cannot marry. Since there is no federal law which says that only straight couples can marry, this common law rule has been the only legal bar to same-sex marriages. Unless the old common law rule is overridden by legislation — legislation only the federal government has the authority to make, because of the division of powers in our Constitution — the old rule will stand as the sole barrier to such marriages. Despite the roving commission on legalizing same-sex marriages, not to mention the several appeal court rulings from across Canada which require the federal government to amend the law, the Ontario Court of Appeal has issued an critical judgment which legalizes gay and lesbian marriages in that province effective immediately. While there have been many appeal court rulings which had found the bar to same-sex marriage to be contrary to the Charter of Rights and Freedoms, those courts have either not directed the federal government to deal with the matter, or have given the federal government a fixed deadline to deal with the matter. For, example, the BC Court of Appeal, in Barbeau et al. v. British Columbia (Attorney General) et al., the appeal of the EGALE decision, gave the federal government until 12 July 2004 to pass legislation dealing with the issue. The roving commission on marriage reform was the principle fruit of these decisions. The Ontario Court of Appeal has gone one step further. It has overruled the old common law rule and, in the absence of federal law to contrary, made same-sex marriages legal in that province effective immediately. The court gave the federal government no time to pass laws regulating the issue, it simply found that in the absence of a law, such marriages were legal, end of story. In a move remarkable for a conservative government, the Ontario registrar was directed to being issuing marriage licences to gay and lesbian couples immediately. Update 1 Only days after the Court of Appeal issued it's judgment, the federal government has announced that not only does it not intend to appeal the decision to the Supreme Court of Canada, but will put forward legislation expressly legalizing same-sex marriages. The gist of the Prime Minister's statement is that the proposed legislation will make civil same-sex unions legal, but won't affect the rights of religious organizations to perform same-sex weddings. In other words, your church, synagogue, mosque or temple may not be able to marry you, but you will be able to have a civil ceremony with a Justice of the Peace. The point of the legislation is to overrule the common law rule on who can marry whom. There is, however, a catch. The legislation will be put to the House of Commons as a "free vote" in which the individual Members of Parliament will be able to vote on the legislation as they wish, without being obliged to follow the dictates of each party's whip. The upshot of this is that while the government will put forward the legislation, it hasn't committed itself to backing it and ensuring that it will become law. Update 2 Most of Canada's provinces have now stated their intention to comply with whatever federal law is eventually passed, and the federal Minister of Justice, Martin Cauchon, has told the provinces they are free to start issuing same-sex marriage licences without waiting for the new legislation. Alberta, unsurprisingly, has stated that it won't comply with the law, and will rely on the "notwithstanding" clause of the constitution. (The notwithstanding clause allows provinces to opt out of federal legislation they don't like for a period of time.) A few further points need to be made about the impact of the new federal legislation and the Ontario decision. First, the effect of the Ontario decision is to legalize same-sex marriages in Ontario. In the other provinces, either the provincial government must make a policy change or the courts must follow the Ontario decision before same-sex marriages are legal. Second, with the new federal legislation legalizing same-sex marriage, changes will be required to other legislation. The Divorce Act, for example, defines married spouses as a "man and a woman." Unless that act is changed, same-sex couples will not be able to divorce. Further, they will then only be able to rely on the provincial laws which deal with married and common-law couples with respect to issues like spousal support, child support, custody of children, the division of assets and so forth. In BC, this is the provincial Family Relations Act. Back to the top of the page. Same-Sex Marriages now Permitted in BC: Following the Ontario Court of Appeal's June 2003 decision striking down the common law prohibition against gay and lesbian marriages effective immediately, and the federal government's announcement of its intentions to not only not appeal the decision, but to pass a law expressly legalizing same-sex marriage, the British Columbia Court of Appeal has revisited it's decision in Barbeau et al. v. British Columbia (Attorney General) et al.. In that decision, the court gave the federal government until 12 July 2004 to pass a new law legalizing same-sex marriages. On 8 July 2003, the BC court issued Supplementary Reasons for Judgment, amending the previous decision so as to legalize same-sex marriages in British Columbia immediately. Click here to read this judgment. Same-sex marriage is now legal in Ontario and British Columbia. It will become legal in the rest of Canada's provinces and territories when either their individual courts strike down the common-law prohibition on gay and lesbian marriages or the federal government passes new legislation. Back to the top of the page. Draft Marriage Legislation Complete: The Department of Justice has completed a draft of the proposed new legislation which will formally change the common law definition of marriage to include same-sex couples. The effect of the draft legislation, if it becomes law, will be to legalize same-sex marriage across Canada; at present it is only legal in Ontario and British Columbia. Before the draft goes to the House of Commons for a vote, it has been sent by Martin Cauchon, the Minister of Justice, to the Supreme Court of Canada for an opinion on three constitutional questions relating to the proposed legislation. This process, called a "reference," is a tool used by the federal government to settle important legal or factual questions; provincial governments have the same rights with respect to their Courts of Appeal. Click here to read the Department of Justice's news release, and here to read the Department's "backgrounder." Back to the top of the page. The Pope Speaks Out (Part 2): On 31 July 2003, the Vatican issued an edict requiring Catholics (in particular, Catholic politicians) to oppose same-sex marriage legislation. Said the Vatican, "When recognition of homosexual unions is proposed ... the Catholic lawmaker has a moral duty to express his opposition clearly and publicly and to vote against it. To vote in favour of a law so harmful to the common good is gravely immoral." (The quip about things being "gravely immoral" seems somewhat ironic, given the priesthood's scandalous behaviour in the Indian Residential Schools, the complicity of the church in the persecution of Jews during World War II, and its historical involvment in the slave trade.) In any event, Canada's own Bishop Fred Henry of Calgary, Alberta — not to be out done by the Pope — advised that Prime Minister Chretien will be risking his "eternal salvation" if the legislation goes through on his watch; no word yet on Paul Martin's projected post-morten status. Back to the top of the page. The Proposed Same-Sex Marriage Legislation: On 8 August 2003, the Globe and Mail published the results of their poll of Canada's 171 Members of Parliament to find out just how they stood on the federal government's proposed marriage legislation. The proposed law would change the definition of marriage to allow same-sex couples to marry as their straight counterparts do. This is what the Globe, god bless their inquisitive souls, found out.
[NOTES: Of the 171 MPs, 7 could not be reached by the Globe. Capitalized surnames indicate government ministers. Names in red indicate the Prime Minister and Prime Minister-in-Waiting. The author has inadvertently missed the name of an undecided MP.] The reason why this survey is so interesting is that Prime Minister Chretien (for) has decided that the vote will be a free vote, in other words, that the individual MPs won't be bound to vote according to the wishes of the party. Each member will vote according to his or her own conscience, and, in theory, the wishes of their constituents. As a result, the proposed legislation won't become law just because the government has the majority of seats in the House of Commons. In fact, it might not pass at all. Click here to find your MP by postal code. Speak up, people. Back to the top of the page. Vandenelsen Acquittal Overturned: BACKGROUND In March 2000, Carline Vandenelsen lost custody of her three children in favour of their father. Rather than obey the court, she cashed in her assets and fled with the children to Mexico for a number of months. The children were eventually found and returned to their father. Ms. Vandenelsen was charged with abduction contrary to a court order, under s. 283(1) of the Criminal Code. At her criminal trial, she raised the defence of "necessity," and was acquitted by a jury. The Crown appealed her acquittal. The jury's decision has been discussed more thoroughly in a previous article which can be found in the chapeter "Breaking News > News Archives." On 26 August 2003, the Court of Appeal for Ontario released its decision in this appeal, R. v. Vandenelsen, quashing the acquittal and sending the charges back to the Ontario Superior Court of Justice for retrial. The bulk of the court's reasoning is not relevant to the purposes of this website. Essentially, the Crown argued that there was no "air of reality" to Ms. Vandenelsen's defence that it was necessary for her to breach the court order to save the children from imminent peril, and that the trial judge should not have instructed the jury to consider it in their deliberations. The court unanimously agreed with this argument, concluding that there were other avenues available for Ms. Vandenelsen to pursue before taking the radical action she chose: "Often the losing party may continue to feel that the court's custody or access decision was not the best for the children. However, in our society, where the parents choose or are forced by circumstances to separate, and where they cannot agree on the best care arrangements for their children, the court process is not only the best and most orderly way to determine where the children should be, it is the only legal procedure for doing so. It is based on the children's best interests. The court's orders must be respected and followed. Any other approach would lead to anarchy." The author shares the court's view. It is often the case that a litigant isn't happy with a judge's decision. Whether this is the fault of the lawyer, the judge or the system, or is no one's fault at all, is irrelevant. Our system of justice is designed so that there are always appropriate avenues of appeal, and, in family law, even an unappealed final judgment can always be challenged when, in the future, there is a change of circumstances affecting the children's best interests. Ms. Vandenelsen should never have been acquitted. Back to the top of the page. Duty to Report Change in Income: In the recent case of Henry v. Henry, the court found that a parent paying child support was responsible to pay an increased amount of child support retroactive to the summer of 1997 because of the payor's failure to report a significant increase in his income at that time. When the parties separated in 1990, the payor agreed to pay $1,200 per month in child support. One year later, the payor obtained a divorce order which required him to pay $700 per month in support. Over the next few years the income of the parent receiving child support remained negligible while the payor's income continued to grow. The payee requested additional support on a number of occasions, but didn't strenuously pursue the matter until 2002. At long last the payor disclosed his income, some $232,000 per year, which he had failed to do despite previous requests for the information in 1995 and 2000. The court required the payor make a lump sum payment of $100,000 in retroactive support, holding firstly that the payor had the burden of showing why paying at a higher level would be inappropriate, and secondly that the payor had an implied duty of advising the payee of increases to his income, following a 2003 decision of the Ontario Court of Appeal, Marinangeli v. Marinangeli. In the author's view, the second point is the most important. Section 25 of the Child Support Guidelines requires that a payor disclose his or her income at the written request of the payee, however this provision puts the burden on the payee to monitor the situation. In this case, the court held that the payor had an implied duty to report changes in his income, effectively shifting the burden of responsibility to the payor from the payee. Back to the top of the page. Warning Issued about Private Lawyer Referral Service: In a recent issue of the Law Society of British Columbia's Benchers Bulletin, the Law Society has published a number of adverse reports made about a private lawyer referral service, CanLaw, which maintains the www.canlaw.com website. "The complaints come primarily from women who report receiving abusive and obscene emails from CanLaw when they request a referral for a lawyer (especially if the referral is for a family law matter)," wrote the Law Society. The responses received from CanLaw, some of which the Law Society has published, are really quite shockingly derogatory. Users of this website are discouraged from making use of this referral service. CanLaw is a private company based in Toronto, Ontario. It is not affiliated with the Law Society of Upper Canada, the Law Society of British Columbia or the Canadian Bar Association. Back to the top of the page. Site Navigation
Go back to the Archives Index. Section Menu
The Legal System · Alternatives to Court · Children · Child Support · Spousal Support Resources Menu
Site Map & Index · Legislation · Resources & Links · Definitions · Feedback Please ensure you take the time to read these important legal notices. |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
