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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 some of these news items, links to external sites have been deleted. Archived Items: 2004
CPP Benefits for Same-Sex Couples: In late December 2003, the Ontario Superior Court ruled that the federal government must pay CPP survivor benefits retroactively to lesbians and gays whose common-law partners died after April 1985, the date when the equality provisions of the Charter of Rights and Freedoms came into effect. The federal government had argued that its decision to make such benefits retroactive to 1 January 1998 was sufficient to meet the fairness test required by the Charter; the court found that the failure to extend these benefits back to the time the Charter came into effect constituted discrimination. This was a class-action law suit and will affect all lesbians and gays whose partners died after April 1985, however to receive these retroactive benefits you will have to execute an Affidavit stating the facts which support your claim to receive the benfits. Note that under federal laws to qualify as a "common-law spouse" a couple must have lived together in a "marriage-like relationship" for one year. This is different than the British Columbia standard, which requires cohabitation for a period of two years. Back to the top of the page. Spanking Provisions of Criminal Code Upheld: Section 43 of the Canadian Criminal Code creates a general exemption from the criminal laws on assault and battery for parents and teachers who use physical force, like spanking or slapping, to discipline children. The Canadian Foundation for Children, Youth and the Law brought an appeal of an Ontario decision which upheld the law. The Foundation argued that the exemption for corporal punishment contravened children's rights under the Charter of Rights and Freedoms and should, therefore, be struck down by the court. The Supreme Court of Canada rejected this argument, leaving the law intact, although it did note that such punishment should be reasonable and age-appropriate. Back to the top of the page. Judges' Discretion to Order Retroactive Support Limited: In a recent case before the Ontario Superior Court, Walsh v. Walsh, the trial judge took the view that the court had an inherent power under the Child Support Guidelines to recalculate and adjust child support retroactively, without the person receiving support making an application for that relief or proving any of the circumstances required to justify an order retroactively changing a support order. This finding resulted in an order that the payor make a payment of almost $43,000 to make up the difference between what was paid and what the court decided ought to have been paid. An important factor in the judge's decision was the payor's failure to disclose his financial circumstances on the demand of his former spouse. On appeal, the Ontario Court of Appeal rejected the trial judge's view, holding that neither the Divorce Act nor the Guidelines give the court the power to retroactively order an increase or decrease in child support because of an increase in the payor's income in the absence of an application for that order by the recipient of the support payments. The upshot of all this is that while a payor's obligation to pay support will increase as the payor's income increases, the simple fact of that increase isn't sufficient to justify a retroactive support order in the absence of an application for an increase in support by the payee at the time of the increase in the payor's income. Back to the top of the page. Date set for Same-Sex Marriage Reference: The draft same-sex marriage legislation the federal government referred to the Supreme Court of Canada in July 2003, originally set to be heard beginning 16 April 2004, will now be heard on 7-9 October 2004. As previously discussed, the federal government's draft legislation altering the definition of marriage has been referred to the SCC, Canada's highest court, for a determination of the constitutionality of the proposed legislation. Under the Chretien government, the questions put to the court were:
Under the Martin government, a fourth question has been added:
Back to the top of the page. Amendments to Divorce Act Likely to Proceed under Martin Government: BACKGROUND In 2002 the federal government, then under the leadership of Prime Minister Jean Chretien, tabled Bill C-22. The bill proposed fairly sweeping reform to various sections of the federal Divorce Act, replacing concepts like "custody" and "access" with "parental responsibility" and "parenting time," and changing some of the factors the courts are to consider in making orders about what is presently described as custody and access. Bill C-22 fell off the order table — the list of bills actively before Parliament for the members' consideration — when the 2002/2003 parliamentary session ended in the spring of 2003. Bills that fall off the order table must be retabled in order to be considered by Parliament again. Without being retabled, a bill that doesn't become law in one parliamentary session will never become law. The bill is effectively dead. The 20 February 2004 edition of The Lawyer's Weekly has reported that Justice Minister Irwin Cotler supports bringing Bill C-22 back before Parliament. Cotler made his remarks against the backdrop of the changes that may be made to the Divorce Act as a result of recent court decisions overturning the present common law definition of "spouse," and the changes to the act which may result following the federal government's reference to the Supreme Court of Canada regarding same-sex marriage legislation. Cotler didn't commit to putting Bill C-22 back on the table, as indeed he can't, but his public support of the bill is a good indicator of his intention to advocate for the changes in caucus, and increases the likelihood of the bill being retabled under the new Martin government. In the writer's view, these changes are probably going to be put off for at least two years, since a federal election must be held in the near future to confirm Prime Minister Martin's mandate to govern the country, and the proposed same-sex marriage legislation is likely going to be a more significant issue in the coming campaign than reforms to the way the Divorce Act speaks of custody and access. Of course, the longer the proposed changes are put off, the more likely they are to fall out of the public eye and into the dustbin. For more information see the following news items:
Back to the top of the page. Step-Parents and Child Support: BACKGROUND The provincial Family Relations Act plainly states that step-parents can be responsible for paying child support just as biological parents are. This has meant that in some cases multiple people who meet the act's definition of "parent," "step-parent," or otherwise stand "in the place of a parent," can be simultaneously responsible for paying child support for the same child. In fact, there are a few cases in which parents have engaged in serial long-term relationships, each of which are long enough to attract a child support obligation to the successive partners of those parents. The Child Support Guidelines, on the principle that the more support a child has the better, does not offer a discount system where more than one person is responsible for supporting a child. A recent 2004 case of the British Columbia Supreme Court, H.J.H. v. N.H.H., offers some guidance for step-parents trying to avoid paying child support for a step-child. In this case, the parties had been married for less than three years when they separated. Each had been previously married, and the issue concerned the step-parent's liability for support for the parents's child from her previous relationship. The court found that the step-parent was not responsible for paying support, based on the following factors:
This case was decided under the Family Relations Act, however it is likely to be equally applicable to applications for support made under the Divorce Act. Back to the top of the page. Same-Sex Marriage Legal in Quebec: On 19 March 2004, the Quebec Court of Appeal issued a judgment upholding a trial court decision that the traditional definition of marriage, which restricts marriage to straight couples, was discriminatory, unjustified and therefore unconstitutional. The result of this decision is that same-sex marriage is now legal in Quebec, which joins Ontario and British Columbia as the only provinces in Canada to permit same-sex marriage. These provinces are part of only a handful of jursidictions in the world that presently permit same-sex marriage. Back to the top of the page. Marriage Agreement Upheld Despite Unfairness: On 26 March 2004, the Supreme Court of Canada released its decision in the case of Hartshorne v. Hartshorne, following it's previous decision in Miglin (see above), and signalling a return to an older point of view which placed a greater emphasis on a couple's intentions at the time they executed their marriage agreement rather than their circumstances on the dissolution of their relationship. In Hartshorne, the parties had lived together, broken up, and gotten back together and then become engaged. On the eve of their marriage, the husband insisted that the wife execute a marriage agreement. The husband brought the lion's share of the assets into the marriage, including a law practice, while the wife brought essentially nothing, apart from a load of debts. The agreement provided, among other things, that she would earn a 3% share of the value of the family home for every year they stayed together, but would never become entitled to a share of the husband's law practice and certain other assets. The wife sought independant legal advice, which resulted in the opinion that the agreement was fundamentally unfair, but the wife executed the agreement regardless. The Supreme Court of Canada held, essentially, that neither the obvious unfairness of the agreement (nor the fact that she received advice to that effect) entitled the wife to abandon the agreement when the relationship broke down, nor to claim that the agreement had no effect since she never intended to live up to it anyway. To quote from the judgment of the 6:3 majority, "Once an agreement has been reached, albeit a marriage agreement, the parties thereto are expected to fulfill the obligations that they have undertaken. A party cannot simply later state that he or she did not intend to live up to his or her end of the bargain. It is true that, in some cases, agreements that appear to be fair at the time of execution may become unfair at the time of the triggering event, depending on how the lives of the parties have unfolded. It is also clear that the FRA permits a court, upon application, to find that an agreement or the statutory regime is unfair and to reapportion the assets. However, in a framework within which private parties are permitted to take personal responsibility for their financial well-being upon the dissolution of marriage, courts should be reluctant to second-guess their initiative and arrangement, particularly where independent legal advice has been obtained. They should not conclude that unfairness is proven simply by demonstrating that the marriage agreement deviates from the statutory matrimonial property regime. Fairness must first take into account what was within the realistic contemplation of the parties, what attention they gave to changes in circumstances or unrealized implications, then what are their true circumstances, and whether the discrepancy is such, given the s. 65 factors, that a different apportionment should be made." This is a very important decision, as it emphasizes the stability and validity of marriage agreements and goes a long way to undermining a recent line of authority which suggests that a much less stringent standard be applied when evaluating a marriage agreement on the breakdown of the marriage. Back to the top of the page. New Website for Children Dealing with Divorce: The BC Attorney General's office has released a new website to help children deal with their parents' separation or divorce. The site is designed to help children understand how their lives might change, what might happen in a courtroom during divorce, custody issues, self-protection and how they can find help if they want it, and separately provides information for teenagers and young children. Visit the AG's new website at www.familieschange.ca. Back to the top of the page. Leave to Appeal Granted in Contino Case: BACKGROUND Child support is required to be paid at the amount set out in the Child Support Guidelines in all but two circumstances: when paying the table amount would cause "undue hardship" for the payor or the payee; and, where the payor is with the child for more than 40% of the time. Apart from these two circumstances, paying the table amount is mandatory. When a payor has the child for more than 40% of the time, the court has the discretion to reduce the amount of child support payable, on the presumption that the payor is incurring an increased amount of basic costs associated with the child's upbringing, costs normally covered by the table amount. The court's authority to fix support below the table amount is, under the legislation, purely a matter of discretion — it may chose to reduce the amount payable or it may not. The Supreme Court of Canada has granted leave for the appeal of an October 2003 decision of the Ontario Court of Appeal, Leonelli-Contino v. Contino. (Leave is required for almost all appeals the court hears, and, because of a busy docket, is usually denied.) In the Court of Appeal decision, the court held that once a payor reaches the 40% threshold of time with the child, the amount of child support payable should presumptively be below the table amount set out in the Child Support Guidelines. This marked an important development in the case law on this issue, as it put the burden to show why the whole amount to be paid on the payee. Previous court decisions put the burden on the payor to show why he or she should be allowed to pay less than the Guidelines amount, on the basis that the table amount was presumed to be correct. In the Contino case, the payor had the child for half of the time. The main issues to be heard by the SCC on the question of child support are:
Back to the top of the page. Cutbacks to Legal Aid: The Legal Services Society, the agency which provides legal aid in British Columbia, has today announced that all referrals with an assignment date prior to 22 May 2002 will be terminated as of 31 August 2004. In other words, if your lawyer is funded by legal aid and your case was approved for legal aid prior to 22 May 2002, legal aid will not pay your lawyer's bill after the end of August. If you have no independent source of funds, this will likely mean that you will lose your lawyer. LSS says that they are "unable to make any exceptions to these terminations." Back to the top of the page. Chile Legalizes Divorce! The staunchly Catholic country of Chile has finally — after 120 years — replaced it's 1884 marriage code with a new law that allows a couple to divorce. Under the new law, a divorce may be granted after one year of separation. If one of the spouses disagrees with the divorce, the divorce will be granted after three years' of separation. The only remaining countries which do not allow their citizens the right to divorce are Malta and the Philippines. Back to the top of the page. Vandenelsen Misbehaviour Continues: Readers may recall Carline Vandenelsen from her escapades four years ago in which she abducted her triplets and took them to Mexico in the face of a court Order giving custody of the children to their father. According to CBC News, Vandenelsen was involved in a three-day armed standoff with her new husband, Larry Finck, in which they barricaded themselves inside their Halifax home with their five month old daughter. The standoff was triggered when Finck refused to hand the child over to Nova Scotia's child welfare authorities. At the conclusion of the standoff today, Finck and Vandenelen were arrested. According to the Globe & Mail, the couple carried out the body of Finck's mother, who died sometime during the incident, before they were cuffed. Readers are courteously reminded not to engage in behaviour of this sort. If you are concerned about keeping your children now, imagine how the odds might drop afterwards. Related News Items: 2003 Archives > Vandenelsen Acquittal Overturned Back to the top of the page. Australia's New Same-Sex Family Legislation: Australia's frequent dabbling in right-wing nationalist politics has focussed on gay and lesbian couples of late. Embattled Prime Minister John Howard has recently announced proposed legislation which takes one step forward but two steps backwards. In essence, the proposed legislation would officially ban same-sex marriages outright (most other nations make gay and lesbian marriage illegal by omission rather than by express exclusion), ban same-sex couples from adopting children from out-of-country, but will allow same-sex couples to name each other as the beneficiaries of their pension and death benefits. It has been legal in Canada to nominate same-sex spouses as pension beneficiaries since the 1996 Supreme Court of Canada decision in Egan v. Nesbitt. In 1993, British Columbia, Ontario and Quebec legalized same-sex marriage, finding that the bar against same-sex marriage violated the equality provisions of our Charter of Rights and Freedoms. Back to the top of the page. Yukon Court Permits Same-Sex Marriage: The Yukon Supreme Court has ruled that the bar against same-sex marriage is unconstitutional, and has ordered the Yukon government to change it's definition of marriage to "the voluntary union for life of two persons, to the exclusion of all others." Yukon joins British Columbia, Ontario and Quebec in permitting same-sex marriages. It should be noted that since the federal government has, under the 1867 Constitution Act, exclusive authority over marriage, the effect of the BC, Ontario, Quebec and now Yukon decisions ought to apply in all provinces, not just those whose courts have made a decision on this issue. The question of gay and lesbian marriages is not within the jurisdiction of the provincial governments. Back to the top of the page. Amendments to Supreme Court Rules in Effect 1 July 2004: Effective 1 July 2004, a number of changes have been made to the British Columbia Supreme Court's Rules of Court which have a minor impact on family law proceedings. The changes relevant to family law proceedings are as follows. Firstly, Praecipes (Form 2) are now known as "Requisitions." Consequential changes have been made to the rules and forms which refer to the document formerly known as a "Praecipe." This will primarily effect users who are using the desk-order divorce process to obtain their divorce; simply re-title your Praecipe seeking the divorce order as "Requisition." Secondly, the author has long complained that the "Judicial Separation" referred to in the family law Writ of Summons (Form 127), Statement of Defence (Form 129) and Counterclaim (Form 130) does not exist at law. These forms have now been changed to strike out reference to judicial separation. If you are just now starting an action or filing a defence or Counterclaim, simply delete the judicial separation tick-box. If you are already in the midst of a proceeding, you do not need to change your pleadings. Finally, the rules about indigent status have been significantly tightened. A litigant who is broke can apply for "indigent status," which will have the effect of waiving all the fees charged by the court registry for things such as photocopying, file searches and filing fees. This can be very significant for people without a lot of extra money lying around, since the fees charged for simple court procedures can be daunting. The rule on indigent status (at Schedule 1 of Appendix C of the Rules of Court) has been amended to provide that:
In a nutshell, the rules mean that someone with indigent status cannot take the continuation of that status for granted. More troubling is the provision allowing the other side the apply to cancel someone's indigent status, which may severly impair that person's ability to maintain their claim or defence. Back to the top of the page. First Same-Sex Divorce Action: In June 2004, a lesbian began an action for divorce in the case of M.M. v. J.H. As this website has often noted, the federal Divorce Act presently defines "spouse" — the only class of persons to whom the act applies — as "either of a man or woman who are married to one another." In other words, while gay and lesbian couples may now marry, thanks to the decisions of the superior courts of British Columbia, Ontario, Quebec and Yukon, they cannot marry. As a result, this couple has now a challenge to the Divorce Act definition of "spouse" under the equality provisions of the Charter of Rights and Freedoms which they are likely to win. In the meantime, the federal government has mused about the possibility of an amendment to the act simply removing the offending definition. Back to the top of the page. Changes Made to FMEP Legislation: On 22 July 2004, changes were made to the Family Maintenance Enforcement Act, the act which enables the Family Maintenance Enforcement Program, the government agency which enforces orders for the payment of child and spousal support in British Columbia. The changes include within the definition of "maintenance" the default fees that FMEP is allowed to levy against delinquent payors. This will allow FMEP to take the same steps to enforce a default fee that it can to enforce a support obligation. Previously, FMEP could only enforce bare support obligations but not their own default fees. Back to the top of the page. Alberta Court of Queen's Bench Breaks New Ground: The Divorce Act provides for the payment of support to spouses and children but is silent as to pets. Even the Alberta Family Law Act, which is notable for it's prehistoric views on certain social issues, does not provide for pet support. Nevertheless, in Duncan v. Duncan, a decision that opens a new frontier for Canadian family law, the husband was required to pay $200.00 per month to his ex-wife for the support of "Crunchy," a St. Bernard. Retroactive dog support, in the amount of $2,000.00, was also ordered. The husband was not, however, awarded access to the dog. The husband should perhaps count himself lucky. Had Crunchy been a child, his monthly support obligation would have been $691.00 per month. Back to the top of the page. Vancouver Sun reports some local interest in formally introducing Islamic sharia law to family disputes in BC: BACKGROUND Sharia law is an ancient Islamic system of justice based on principles set out in the Qur'an, the Haddith and the Sunnah. In certain Islamic theocratic nations, sharia law forms the whole of the law. In Canada, sharia law has been informally used by religious scholars and Imams to resolve religious and personal disputes between Muslims who consent to the process and agree to be bound by results of that process. Sharia law is not the only faith-based arbitration process used in Canada. Members of the Orthodox Jewish community have used the Beth Din (Rabbinical Court) to settle religious and personal disputes, including divorce issues. Again, the use of the Beth Din requires the consent of the parties. Sharia law has been routinely applied to a broader range of issues, including family law disputes, in Ontario since 1991, when the provincial government amended a law to give religious leaders the authority to act as arbitrators in civil disputes. The Vancouver Sun has reported that there is interest among prominent members of the Muslim community to ask the provincial government to formally endorse the application of Islamic shariah law to family law disputes within the Muslim community. This follows a similar effort in Ontario which started in the spring of 2004. The Sun notes, however, that the BC Muslim Association, the largest Muslim organization in the province, has not yet presented the issue to the provincial government. In essence, in a shariah law proceeding, the parties must consent to the arbitration and agree to be bound by its results. The arbitrator is an Imam or religious scholar, who considers the issues between the parties based on religious principles and imposes a settlement. The fruit of the arbitration cannot, however, be contrary to the laws of British Columbia and Canada — for example, an award of child support which deviated from the Child Support Guidelines would not be enforceable. Opponents of the formal recognition of sharia law argue that: the interpretation of shariah law differs widely among Muslim communities; the scope of a traditional shariah tribunal is extensive and includes a canon of criminal law which, for the most part, is incompatible with the Canadian Charter of Rights and Freedoms; and, while the process is voluntary, women may be forced into the process by community pressure. The arbitration of family law disputes in British Columbia is governed by the provincial Commercial Arbitration Act. Nothing in that act prohibits the use of either sharia law or the Beth Din to conclusively resolve family law disputes, and it would appear that the formal recognition discussed in the Sun article is actually unnecessary. The relevant highlights of the Commercial Arbitration Act are:
Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still initiate a proceeding in the Supreme Court of British Columbia for an order for their divorce. Note also that a religious divorce, such as the Jewish Get, is not a legal divorce. Update On 9 September 2004, the Globe and Mail ran an interesting article discussing some of positions taken by the organizations opposed to the implementation sharia law arbitrations in Ontario, under the title "B'nai Brith recommends sharia-based tribunals." According to the article: "Sharia is based on the Koran, and interpretations of it can vary widely. Under sharia, male heirs receive a greater share of an inheritance than female heirs; husbands, not wives, may initiate divorce proceedings; and in divorce cases, fathers are generally awarded custody of daughters who have reached the age of puberty." The article then quotes a member of the Muslim Canadian Congress, which opposes the official recoginition of sharia-based arbitration, as saying "Women will always get a worse deal under sharia. It is inherently discriminatory and divisive." Back to the top of the page. Changes to Divorce Act to be Retabled; New Provincial Accountability for Civil Legal Aid Payments Promised: On 16 August 2004, Justice Minister Irwin Cotler addressed the Canadian Bar Association's annual conference. The Minister made two important points in his address. Firstly, Cotler promised to retable the proposed amendments to the Divorce Act that died with the dissolution of parliament for the 2004 federal election, although he offered no timeline as to when the bill might be introduced. Secondly, Cotler announced that he would "try" to ensure that more of the money paid by the federal government to the provincial governments for legal aid are allocated to civil legal aid, such as legal aid for family law issues. At present, the provinces receive these funds in the form of lump-sum social spending transfer payments, with little restriction as to how the payments are to be spent, and little accountability as to how they are spent. British Columbia certainly doesn't spend the money on civil legal aid, which has led to the drastic cuts to the legal services available in family law disuptes. Cotler has promised to search for means to ensure that the portion of the payments dedicated to civil legal aid are acutally used for that purpose. We'll see. Related News Items: 2003 Archives > Divorce Act Changes Coming? Back to the top of the page. Payors under Positive Duty to Voluntarily Disclose Income: The trend in the case law for the past few years has been to make it ever easier for people receiving child support to go after payors for retroactive support increases where the payor's income had increased without a corresponding increase in the amount of support paid. Not too long ago, a recipient had to prove some sort of misconduct, such as the payor actively misleading the recipient about his or her income, or refusing to produce evidence about his or her income, before the court would allow an application for retroactive child support to succeed. Lately, however, some courts have held that not voluntarily providing income information is sufficient "misconduct" to trigger a retroactive increase in support. A recently-reported decision of the British Columbia Supreme Court, Hietanen v. Hietanen, appears to have put the final nail in the coffin for payors who do not automatically disclose annual increases in income, even where no request for that information is made by the recipient. In this case, the court held that: "As from today in British Columbia, the law is that parents whose incomes are relevant to the financial support of their children have an obligation to disclose changes in their income from time to time. This is based on the concept of utmost good faith. It does seem to me that the law should not hesitate to require that parents act with the utmost good faith toward their children. "... I do understand that I have introduced a new factor into the law concerning child support, as to which the Guidelines are silent, that is, the Guidelines do not require a parent whose income is relevant to the financial support of a child to volunteer information about changes in income." This case effectively sets in stone an obligation on payors to annually disclose increases in their income, even where there is no prompting from the person receiving support. Back to the top of the page. The Pope Speaks Out (Part 3): On 4 September 2004, the Pope told the Canadian ambassador to the Vatican that the purpose of marriage is for reproductive purposes, and that allowing same-sex marriages will create a "false understanding" of this purpose and "degrade" the true nature of marriage. Said the Pope, "the institution of marriage necessarily entails the complementarity of husbands and wives who participate in God's creative activity through the raising of children." This, of course, would seem to ignore:
nevermind straight married couples who choose not to have children and straight married couples who cannot have children. The author, however, is not a theologian. Back to the top of the page. No Formal Recognition of Sharia Law in BC: CBC British Columbia has reported that provincial Attorney General Geoff Plant has no plans to change provincial laws to allow the settlement of civil disputes under Islamic sharia law. According to Plant, the provincial government hasn't been approached by anyone seeking the introduction of sharia law. It should be noted that the provincial Commercial Arbitration Act, as it is presently worded, leaves it up to the people involved in an arbitrated dispute to choose who will act as their arbitrator (like an Imam), and what rules will be applied the arbitration process (like sharia law). Frankly, there need be no formal recognition of sharia law at all — if you want to resolve your dispute outside the court process and you want a special set of rules to apply, you are free do so, as long as both you and the person on the other side of your disupte agree on those rules. See the related news items for more information and background on sharia law. Related News Items: Current Items > Vancouver Sun reports some local interest in formally introducing Islamic sharia law to family disputes in BC Back to the top of the page. Ontario Superior Court Grants Canada's First Same-Sex Divorce: On 13 September 2004, the Ontario Superior Court granted the first divorce to a same-sex couple in Canada, and, possibly, the first same-sex divorce in the world. In the summer of 2003, court decisions in Ontario, British Columbia and later Quebec (and much later in the Yukon) held that the old common law rule which restricted marriage to straight couples alone contravened the equality guarantees set out in the Canadian Charter of Rights and Freedoms. Those decisions, however, had nothing to do with the the definition of "spouse" in the federal Divorce Act. "Spouses," the only people to whom the Divorce Act applies, are defined as "either of a man or a woman who are married to each other." That meant that while gay and lesbian couples could marry, they couldn't get divorced. While the federal government has proposed legislation altering the definition of marriage, no amendments had been proposed with respect to the Divorce Act. In granting the couple their divorce, the Ontario Superior Court found the act's definition of spouse to be "unconstitutional, inoperative and of no force and effect," effectively rewriting that part of the Divorce Act. As the law which the Ontario court overturned is federal legislation, the court's ruling with resepct to the definition of "spouse" has effect throughout Canada. From a family law perspective, the circle has come to a close: the legal rights and obligations of gays and lesbians in British Columbia are now exactly identical to those enjoyed by heterosexuals. Related News Items: Current Items > First Same-Sex Divorce Action Back to the top of the page. Get Over It, People! Issues relating to same-sex marriage (and now divorce) have managed to make the headlines four times in the last week. First, Ontario granted the world's first same-sex divorce. Second, Manitoba became the fifth Canadian jurisdiction to legalize same-sex marriage. Third, Canadian Press has today reported that one Hubert Osborne, a Manitoba marriage commissioner, has said he plans to resign his commission as he "just could not do" a same-sex marriage, as it would be, he said, "against all of my principles, all of my standards." Bully for Mr. Osborne. Fourth, Jimmy Swaggart, the noted American televangelist, apologized today for saying in a religious service televised on 12 September 2004, that "I've never seen a man in my life I wanted to marry," and expressed his terrible fear of being given the eye by a man: "I'm going to be blunt and plain, if one ever looks at me like that, I'm going to kill him and tell God he died." In his apology, Swaggart described his violently homophobic remarks as "a humorous statement that doesn't mean anything." Bully for Mr. Swaggart. Back to the top of the page. Nova Scotia Supreme Court Legalizes Same-Sex Marriage: On 24 September 2004, the Nova Scotia Supreme Court found the province's definition of marriage as "the lawful union of two persons to the exclusion of all others" to be unconstitutional, making Nova Scotia the sixth Canadian jursidiction to recognize same-sex marriages. Meanwhile, the Globe and Mail has reported that the Attorney General for New Brunswick as saying that his province will only recognize same-sex marriages until the federal government's proposed marriage legislation comes into effect. (The federal government has referred it's proposed legislation to the Supreme Court of Canada for an opinion as to it's constitutionality; the court will hear the matter on 7 October 2004.) Back to the top of the page. Turkey will not Criminalize Adultery: Turkey's parliament today passed a package of legislative reforms without including a proposal that would have criminalized adultery. The legislative reforms were necessary for the country to continue with talks of joining the European Union, and included the modernization of Turkey's criminal code in a number of areas such as human rights and torture. The inclusion of the provision that would have criminalized adultery were a cause of concern for the EU Commission, women's groups and Turkey's opposition party. Back to the top of the page. Vancouver Sun Wrongly Suggests Demise of "no-fault" Divorce in BC: BACKGROUND On 3 August 2004, the British Columbia Court of Appeal released it's decision in Leskun v. Leskun. In this case, the husband appealed a Supreme Court ruling which dismissed his application to rescind a trial judgment requiring him to pay spousal support to his wife. The Court of Appeal dismissed the husband's appeal. The 27 September 2004 issue of the Vancouver Sun features the following leading front-page headline: B.C. alimony order sets precedent: The article which follows suggests that the Court of Appeal has somehow changed the rule that spousal misconduct — in this case, adultery — has no bearing on how the court should decide the issues arising from the breakdown of a marriage. The article describes the Court of Appeal's decision as "reported in the next edition of The Lawyers Weekly." It is publicly available online at the court's own website, at www.courts.gov.bc.ca/jdb-txt/ca/04/04/2004bcca0422.htm. In fact, the court's decision does not change or imply a change to the "no-fault" system that has been in place since amendments to the Divorce Act in 1968. In Leskun v. Leskun the husband was, following trial in 2000, required to pay $2,250 per month in spousal support: "Spousal support of $2,250 per month will continue until Sherry Leskun returns to full employment, when both entitlement and quantum will be reviewed." The order which flowed from this judgment read as follows: "The Plaintiff shall pay spousal support to the Defendant in the sum of $2,250.00 per month on the first day of June, 2000 and continuing on the first day of each and every month thereafter until further Order of this Honourable Court, and the Plaintiff shall be at liberty to apply for an Order reviewing both entitlement to and quantum of spousal support." As the Court of Appeal noted, "The order, as drawn up, does not contain the words 'until Sherry Leskun returns to full employment'. If it did, then, as the wife has not returned to full employment or indeed any employment, there would be nothing to discuss." The husband asked the Supreme Court to rescind the portion of the trial order about spousal support in October 2003. That application was dismissed. The husband then appealed that decision to the Court of Appeal. The wife's position on appeal, and presumably at the husband's application to the Supreme Court, was that she was so emotionally damaged as a result of her husband's infidelity she was simply unable to return to work and become self-sufficient. It is a fundamental principle of the law on spousal support that each spouse has a duty to become financially independent of the other spouse, at which point spousal support should terminate. The problem here was that the wife's claim that she could not return to work rested, in part, on the psychological impairment she suffered as a result of her husband's adulterous conduct: should the wife be disentitled to spousal support because the cause of her inability to be self-sufficient was a fruit of her husband's misconduct? The majority of the Court of Appeal held that: "Not without hesitation, I have concluded that [the "no-fault" provision of the Divorce Act] does not prevent us from considering, when an issue arises under [the objectives of a spousal support order] concerning the failure of a spouse to achieve economic self-sufficiency, a failure resulting at least in part from the emotional devastation of misconduct by the other spouse. "I would not wish to be misunderstood. In the case at bar, there are further factors, that is to say, the age of the wife at the time of the break-up of the marriage, her own health, and her family's sorrows. "In all the circumstances, I am not prepared to hold that the wife has conducted herself in such a manner as to be disentitled to support from the husband." This is not a case where the court has departed from the "no-fault" principle concerning the irrelevance of spousal misconduct. In this particular case, the wife's impairment could have equally flowed from an illness, a psychological disorder, a disability, or any one of a number of factors. Instead her impairment flowed from the adulterous circumstances under which her marriage came to an end — and the other factors that the court mentioned, including her health and age. In the author's opinion, it would be wrong to interpret the "no-fault" provision of the Divorce Act to bar support from a spouse in legitimate need simply because the proximate cause of her need stemmed from the actions of the other spouse, so long as the need and the inability to become self-sufficient are bona fide. What if the divorce had been based on physical cruelty, and the result of the physical cruelty was a life-long impairment such that gainful employment and independence were impossible to attain? Spousal support would certainly be payable in that case, despite the cause being spousal misconduct. The only difference here is that the injury suffered by the wife was psychological. Respectfully, today's alarmist headline in the Vancouver Sun should be disregarded. Lay litigants take heart: Ms. Leskun represented herself in this case, while the appellant husband was represented by a lawyer. Back to the top of the page. Woman Jailed in Sham Marriage Case: BACKGROUND Sham marriages — that is, marriages for the sake of convenience rather than a true intention of the spouses to remain in each other's lives forever — are fairly common. Some people marry to gain an economic advantage, others marry to gain a social advantage. Most commonly, people marry to gain citizenship and employment rights in a new country. The CBC has today reported that a woman in Edmonton has been convicted of "communicating false information" under the federal Immigration and Refugee Protection Act as a result of a sham marriage. It is not a criminal offence to enter into a sham marriage. It can, however, be an offence under the Immigration and Refugee Protection Act where the marriage is entered into for citizenship purposes. In cases of sham marriage for citizenship purposes, it is usually the case that both parties are aware that the marriage is merely a means to an end, and, as a result, complaints are rarely made. In this case, Satnam Parmar, an Edmonton resident, had no idea that his marriage to Karmjeet Jaswal, a resident of India, was for her advantage alone. The CBC reports Mr. Parmar was "heartbroken" when he discovered that Ms. Jaswal told him that she never loved him, following their wedding. Mr. Parmar then complained to immigration officials — doubtless because of the onerous sponsorship agreement citizens must make with Canada Customs and Immigration when sponosring immigrants into this country. As a result of Mr. Parmar's complaint, the investigating officers laid rare charges of "communicating false information" under the federal legislation which resulted in Ms. Jaswal's conviction. It is impossible to overstate just how rare convictions for sham marriages are under the Immigration and Refugee Protection Act. If you are involved in a sham marriage, charges are unlikely to ever be pressed unless your partner makes a complaint to the immigration people and convinces them that he or she was entirely gulled by your conduct into acquiescing to the marriage. Back to the top of the page. Saskatchewan Considers Same-Sex Marriage while US Voters Reject It: Today a Saskatchewan judge has reserved her decision in a bid by five gay and lesbian couples to have same-sex marriages recognized in the province; her decision will be released on Friday 5 November 2004. If the action is successful, Saskatchewan will become the seventh Canadian jurisdiction to legalize same-sex marriage. In the meantime, our neighbours to the south — whose wisdom is reflected in their choice of President — have voted to ban same-sex marriage. Yesterday, voters in Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, Oklahoma, Ohio, North Dakota, Oregon and Utah approved amendments to the constitutions of their states to prohibit same-sex marriages. These proposals were voted on at the same time as the senate, congress and presidential elections. Back to the top of the page. Another big news week for Same-Sex Marriage: On Friday 5 November 2004, a Saskatoon judge found that denying marriage licences to same-sex couples is a breach of the rights of gays and lesbians to equality under the Charter of Rights and Freedoms. The action was not contested by either of the federal and provincial governments. The day before the Saskatchwan judgment was handed down, two couples in Newfoundland announced their intention to challenge the opposite-sex definition of marriage in that province. In related news, Rob Moore, a Conservative Member of Parliament for New Brunswick, tabled a private member's bill on Friday which, if passed, would restrict marriage to only opposite-sex couples. Moore's bill, Bill C-268, is unlikely to ever see the light of day as Parliament's legislative agenda is always full and government bills take precedence. The few private member's bills that make it to the floor are selected by lot. Same-sex marriages are now recognized in British Columbia, Manitoba, Nova Scotia, Ontario, Quebec and the Yukon. Back to the top of the page. Supreme Court of Canada rules on Federal Government Reference: BACKGROUND: Both the provincial and federal governments have the right to refer proposed legislation to the courts for their opinion as to the constitutional validity of the bill. The federal government can refer questions to the Supreme Court of Canada, and the provincial governments can refer questions to their respective Courts of Appeal. Following the June 2003 decision of the Ontario Court of Appeal which held that the opposite-sex definition of marriage breached the Charter of Rights and Freedoms, the Chretien government sent proposed legislation redefining marriage to include same-sex couples to the Supreme Court of Canada for it's opinion on the matter. The Martin government added an additional question: is it unconstitutional to limit marriage to opposite-sex couples? Today the Supreme Court of Canada released its opinion on the proposed federal legislation on same-sex marriage that had been referred to it by former Prime Minister Chretien and amended by current Prime Minister Martin. To no one's surprise, the court approved the reference. Briefly put, the government's proposed legislation to redefine marriage to include same-sex couples has been approved by the court. Religious leaders do not have to perform same-sex marriage ceremonies if same-sex marriage conflicts with their particular set of beliefs. As to the constitutionality of limiting marriage to opposite-sex couples, the court held that the government had already accepted the position that it was unconstitutional when it failed to appeal the rulings of the various Courts of Appeal that legalized same-sex marriage. The Minister of Justice, Irwin Cotler, says that he might table the proposed legislation in Parliament as early as this month. Note that in those few jurisdictions in which decisions on same-sex marriage have not been made, nothing will change until the federal government's proposed legislation becomes law or the courts of those jurisdictions deal with the issue. The bill still must be introduced in Parliament, pass three readings in the House of Commons, pass the Senate and receive royal assent before it becomes law. In the author's view, the federal government's reference was a rather shallow attempt to duck a political hot potato by having the court do its dirty work. It is difficult, if not impossible, to conceive how the Supreme Court of Canada would do anything other than find that changing the definition of marriage as proposed was constitutionally valid. Given Martin's wobbly minority government, it will be up to the opposition parties to determine whether or not the bill becomes law. Update Prime Minister Paul Martin announced today, the day that the Supreme Court of Canada's decision was released, that the government would introduce its same-sex marriage bill to Parliament in January 2005. In related news, R.E.A.L. Women of Canada and the Catholic Civil Rights League issued a call for a nation-wide referendum on the issue, in the hopes that a definition of marriage including only opposite-sex marriages would be enshrined in the constitution if the referendum were successful. It's difficult to see how the Catholic Civil Rights League could have much a stake in the issue as the court expressly said that religious officials could not be compelled by the proposed law to perform same-sex marriages because that would violate the freedom of religion guarantee in the Charter of Rights and Freedoms. As for R.E.A.L. Women of Canada's position on that matter is concerned, it is similarly difficult to see how same-sex marriage has much of a bearing on an organization of anti-feminists, save that it fits in to an overall anti-equality agenda fairly neatly. Back to the top of the page. Ontario Report cautiously endorses Islamic Arbitration in Family Law Disputes: Canadian Press reports that former Ontario attorney general Marion Boyd released her report today about the use of Islamic Sharia law in the arbitration of family law disputes. The study was commissioned in June 2003 when the Islamic Institute for Civil Justice announced that it was setting up a Sharia law court in the province. The report says that Muslims should have the same right as other religious groups to have family law disputes arbitrated using religious principles. The report does not use the term "Sharia law," and Boyd expressly stated that the Islamic principles she discussed are not Sharia law: "we are talking about the use of Muslim princples with respect to family law within the context of Ontario and Canadian law." Among the highlights proposed are safeguards to protect people from being forced into faith-based arbitration, including requirements that the parties seek independent legal advice and that the parties be screened for issues of domestic violence and power imbalances before beginning the arbitration process. Needless to say, with a sensitive issue like this, Boyd's report has displeased people on all sides of the issue. Back to the top of the page. Same-Sex Marriage Legalized in Newfoundland: A decision released today by the Newfoundland Supreme Court has held that the old common law definition of marriage which restricts marriage to oppose-sex couples is an unconstitutional breach of the Canadian Charter of Rights and Freedoms, effectively legalizing same-sex marriages in Newfoundland and Labrador. The province joins British Columbia, Manitoba, Nova Scotia, Ontario, Quebec, Saskatchewan and the Yukon as Canada's eighth jursidiction to legalize same-sex marriage. The provincial attorney general's office has announced that it will not appeal the decision. Back to the top of the page. Spousal Support Guidelines status update: According to an email from the Canadian Bar Association, the first draft of the proposal spousal support guidelines will be released by Professors Carol Rogerson and Rollie Thompson in January 2005. The CBA's email was sent to all members of the National Family Law Section to clarify what's actually going on with the guidelines because of a fair amount of "confusion and misinformation" creased by the publicity the guidelines have received. The following is a synopsis of the CBA's email. Guidelines to be Guidelines Only The proposed guidelines, in the form they will be released in January, will be advisory only. They will not be legislation and will not be binding on anyone involved in a family law dispute. The guidelines will provide a formula for determining the amount of spousal support payable, where an entitlement to support has been established. They will not be in a simple table format like the Child Support Guidelines. Income Sharing The essential concept underlying the proposed guidelines is income sharing. Under the proposal, the use of budgets will be reduced, and the process will focus on an income-based calculation of support. Income sharing does not mean an equal division of income. Existing Law The guidelines attempt to reflect current practice under the existing legislation. The guidelines will not be based on any particular theory of spousal support; they will attempt to reflect the results found in the case law. Entitlement to Support The proposed guidelines do not deal with whether a spouse is entitled to receive support. Entitlement is, of course, the first question to be decided when dealing with an application for spousal support. The guidelines will only be useful where a spouse is found to be entitled to spousal support. Amount of Support Where the parties do not have children, the length of the marriage will be central in determining both the amount of support payable and the duration for which support must be paid. The payor's gross income will be used to determine spousal support. Where the parties have children, the amount of support payable will be calculated taking into consideration the payment of child support and the different tax rules relating to spousal support and child support. The payor's net income will be used to determine spousal support. Duration The guidelines will deal with both the amount to be paid and the amount of time for which support must be paid. The guidelines will set out the circumstances in which indefinite and limited-term support will be owing. Structured Support In many cases where support will be for a limited term, the amount payable is set according to a structure of decreasing payments. $1,000 per month might be payable for two years, for example, followed by $750 per month for one year and $500 per month for a final year. The proposed guidelines will accommodate structured support payments. Upper and Lower Income Limits The proposed guidelines will have both floors and ceilings: where a payor's income falls below a certain amount, no spousal support will be payable; and, there will be a cap on the amount of support payable by payors with very high incomes. Related News Items: 2003 Archives > Spousal Support Guidelines? Back to the top of the page. Site Navigation
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