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Posts from the ‘Court Reforms & Changes’ Category

New Surrogacy and Parenting Declaration Laws Upcoming in Ontario

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New Surrogacy and Parenting Declaration Laws Upcoming in Ontario

Last week I wrote about the province’s new Bill 28, The All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016. This new legislation, which is at the Third Reading stage and thus likely to pass into valid law soon, makes several changes to existing statutes that govern the intricacies of parentage.

Specifically, it amends the Children’s Law Reform Act, (by establishing new surrogacy and parenting declaration rules) and the Change of Name Act and the Vital Statistics Act (relating to name changes and birth registrations, respectively).

Here are a few more of those upcoming changes:

Surrogacy

• There are new rules relating to surrogacy situations, including the provisions dealing with the agreement that governs the parties’ relationship, and various provisions relating to the surrogate providing her consent.

• The Bill also gives surrogates a seven-day “cooling off” period before the intended parent of the child take custody.

Parenting Declarations

• Specific provisions deal with the ability to apply for a court-ordered declaration that a person is or is not a parent of a child.

• In this regard, the making of a declaration is subject to the court’s considerations relating to the best interests of the child.

• Such a declaration can also be set aside in the right circumstances; otherwise, it is recognized for all purposes, and is deemed to be effective from the date of the child’s birth.

Other

The new Bill also amends the Vital Statistics Act and the Change of Names Act, to bring it in line with the various changes relating to determining and declaring parentage in assorted circumstances, including assistant reproductive technology. The amendments relate to document name changes and birth registrations.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

New Proposed Law Clarifies Parentage, Surrogacy Rights, and Rights Arising from Assisted Reproduction

surrogacy

New Proposed Law Clarifies Parentage, Surrogacy Rights, and Rights Arising from Assisted Reproduction

The province’s new Bill 28, the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 proposes some important government-initiated changes designed to provide “greater clarity to parenting laws in Ontario”. As for November 2, 2016, the Bill has been ordered for Third Reading, which means it’s one step closer to being enacted into a law.

The Bill makes various changes to existing legislation, most notably the Children’s Law Reform Act where it sets out new rules of “parentage” for the purposes of all Ontario laws; it also clarifies the interplay of those new laws with existing ones. In particular, new provisions are aimed specifically at rights relating to children born through assisted reproduction, as follows:

• The mere fact that a person provides reproductive materials (i.e. sperm or an ovum) or an embryo for use in assisted reproduction is not in itself sufficient to make that person a parent (except of course where those items are provided for the person’s own reproductive use).

• A child’s birth parent, meaning the person who gives birth to the child, is considered a parent of the child; the only exception is a surrogate (who under normal circumstances is not considered to be the child’s parent).

• If the child is conceived without assisted reproduction, then the child’s biological father is also considered to be a parent, although this is subject to rebuttable presumptions (expressly set out in the new law) as to how the biological father may be determined. There are special rules for insemination by a sperm donor.

• If a child is conceived through sexual intercourse, then the person who provided sperm is also a parent of the child. Rebuttable presumptions are set out respecting how that person may be determined; the biological parents may agree in advance in writing that the person providing the sperm does not intend to be a parent of the child.

• A birth parent’s spouse at the time a child is conceived – either through assisted reproduction or through insemination by a sperm donor – is presumed to be a parent of the child. This is also subject to a rebuttable presumption, and there are also exceptions.

• A birth parent may entered into a pre-conception parentage agreement, involving one or more persons, in which they agree together to be the parents of a child who has not yet been conceived. To be valid, the agreement must involve no more than four parties.

In an upcoming Blog I will detail the other new changes that the proposed Bill would make in connection with surrogacy, parenting declarations, and other corollary changes to legislation.

What are your thoughts on this new legislation? Are these necessary changes in modern society?

For the full text of the bill, see:

http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=4176

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Woman Liable to Neighbour for Almost $70,000 in Damages Because of Facebook Posts

peeping-neighbor

Woman Liable to Neighbour for Almost $70,000 in Damages Because of Facebook Posts

Thinking about posting something mean about your no-good Ex on Facebook? Read this first.
In a recent B.C. Supreme Court decision called Pritchard v. Van Nes, a woman was found liable to pay her neighbor $50,000 in damages for defamation, plus another $15,000 in punitive damages – all because of some Facebook posts that she and her Facebook “friends” had written about him.

She was held liable in nuisance for another $2,500.

The civil decision has very broad – and potentially very serious – ramifications in all areas of the law, including Family Law.

The woman’s defamatory Facebook post had been spurred by a dispute she had with her neighbor over some ordinary things: parking, loud noises and parties, a family dog, and the woman’s fish pond and waterfall.

Prompted by the neighbour’s complaints, the woman took to Facebook to air her grievance about him, calling him a “nutter” and a “creep”, and implying that he was filming her and her children “24/7”. Other comments hinted that was unfit in his job as teacher, and that he was a pedophile. The woman’s friends added comments to her Facebook page in supportive response, and also shared the post with others. One friend even shared the woman’s initial comments on the neighbour’s own Facebook profile, and then contacted his school principal by e-mail.

Even though the woman removed her original inflammatory posts about 24 hours later, she obviously could not remove the copies that had been replicated through various Facebook “shares”.

The neighbour sued for defamation and nuisance, and when the woman did not file a response, he succeeded in obtaining a court judgment in default, granting him almost $70,000 in damages.

In attaching civil liability to the woman for her Facebook-based conduct, the B.C. court made some interesting – and arguably concerning – conclusions about the responsibility that a Facebook poster or other social media user might have, even for posts that are later shared by others without the original poster’s knowledge or express permission.

Specifically, the court drew the following conclusions:

• The woman was liable for her own defamatory comments made via her Facebook profile.

• She was also liable for the republication of comments by her Facebook “friends”, and for the e-mail to the man’s school principal.

• Finally, she was also liable for any new defamatory comments made by her Facebook friends about the man, in response to her initial Facebook post.

The court’s extension of the woman’s liability for the conduct of her Facebook friends – over whom she has no direct control – is a legally noteworthy aspect of the court’s decision. It was based on the court’s conclusion that the woman had “constructive knowledge” that the posts were likely to be re-posted and repeated by her friends on Facebook. The court also pointed to the woman’s failure to rebut any of the new negative comments that the friends posted.

The decision raises important issues of how to impose responsibility for defamation in a world dominated by social media, and calls into question the appropriate limits of responsibility where rapid (and sometimes careless) online dissemination of information is common.

The decision is also highly pertinent to Family Law situations, where the urge to vent one’s negative separation/divorce/custody stories on Facebook and other media platforms is compelling – and often it seems – both irresistible and irreversible.

Was this stretching the law of defamation in new directions? Probably. Should the law be stretched this far? Let us know your thoughts.

For the full text of the decision, see:

Pritchard v. Van Nes, 2016 BCSC 686 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Should Fitbit Data be Used in Family Court?

Fitness Aware Couple Outdoors

Should Fitbit Data be Used in Family Court?

These days there is no shortage of technology that quite literally tracks our every move: In the area of health and fitness, for example, there are Fitbit wristbands and similar devices which can monitor everything from the number of steps taken or stairs climbed in a day by the wearer, as well as his or her sleep patterns.

What if one day all that data gets trotted out (pun intended) before a Family Court judge in a divorce case?

About two years ago an Alberta personal injury lawyer made headlines because he intended to use the data obtained from a Fitbit to prove that his client, a personal trainer, had been in “peak physical shape” before allegedly suffering physical injuries in an automobile collision. This was apparently the first time in Canada that the information from such devices had been proposed for use as evidence in court.

Although the correlation is somewhat more direct in the scenario of a personal injury action, theoretically the data obtained from such fitness trackers could be used in Family Law cases as well: for example to bolster a spouse’s argument that he or she is legitimately depressed and inactive post-divorce. This in turn could play into the assessment of the spouse’s current ability to work – and by extension, of his or her “need” and legal entitlement to spousal support.

Of course this amounts to a double-edged sword: it’s one thing to voluntarily offer up your personal tracker device as evidence, but another thing entirely to have it (figuratively) wrestled from you and used against you in litigation. And of course, as with any sort of evidence of this nature there is opportunity for the wearer/user to manipulate the data, not to mention debate over potential frailties in data analysis methods, the limits of conjecture, and the validity of the resulting conclusions.

But it all raises the important legal policy question of such highly-personal and private information should be considered relevant and made compellable – by a court if necessary – as part of the discovery process that is a key part of the Canadian justice system.

So the next time you put on that Fitbit, or enter your day’s calorie intake in an App, or post your morning run statistics on Facebook, give some thought to how and whether this information could theoretically be used against you in the future.

What your thoughts?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Ontario Government Introduces Bill to Strengthen the Legal Status of All Parents

Boy walking with two men in a park. Image shot 2012. Exact date unknown.

Ontario Government Introduces Bill to Strengthen the Legal Status of All Parents

It’s a legal differentiation that most people in Ontario will not have faced or even considered: But until now, if a parent is not biologically related to his or her child – for example a partner in an opposite-sex or same-sex union where the child was conceived using assisted reproduction – the laws of Ontario have required that partner to take formal steps by making an application to legally adopt the child.

However, this may change under the newly-introduced provincial Bill which would implement the All Families Are Equal Act, 2016. That legislation, if passed, would ensure that all couples who use assisted reproductive technologies, whether straight or same-sex, are automatically recognized in law as the parents. No extra applications or court orders are needed.

The law would also cover those parents who use surrogates, provided:

• The surrogate and the intended parent(s) received independent legal advice, and have also entered into a written pre-conception Surrogacy Agreement.

• The surrogate provided written consent to give up her parental status, both before conception and again seven days after the birth of the child.

The proposed changes also implement new rules for determining a child’s surname, in the event that there is a conflict between the parents, and makes changes to the existing provincial Children’s Law Reform Act and the Vital Statistics Act. It also tidies up other statues, in order to use more gender-neutral language, which is a particularly welcome update since some of them have not been amended since 1978.

The upshot is that this proposed new Act aims to clarify and simply the legal status of parents, and add certainty in the face of custody and access disputes should they decide to separate. Arguably, it will especially benefit those parents in the Lesbian, Gay, Bisexual, Transgendered and Queer (LGBTQ) community, where the legal rights have not always been clear. Across Canada there are similar Bills already passed (in British Columbia) or in the works (in Alberta, Manitoba and Quebec),

Does this proposed Bill offer much-needed legislative clarity, as the legislators suggest? What are your thoughts?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

What Will 2016 Bring to Ontario Family Law?

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What Will 2016 Bring to Ontario Family Law?

It’s a new year: A time to reflect on the past and learn from it, and then look forward to the future.

Here is my list of the hotter 2015 Ontario family law topics that I think will continue to have resonance in the coming year:

Self-represented litigants. Family law has seen a sharp increase in the number of self-represented litigants over the past few years. There are many reasons for this, but as I have illustrated in numerous prior blogs, it is not a positive development in my view. These individuals, intent on trying to save legal costs, often “spin their wheels” trying to navigate a complex and procedurally-intricate justice system on their own and without training. Too often, this leads to needless or high costs anyway, and less-than-optimal financial and other results in their litigation matter itself. Nonetheless – and for better or worse – I suspect that people’s urge to self-represent will continue throughout the coming year.

Unbundling of legal services. The notion of giving clients the cost-effective option to hire family lawyers to essentially do piecemeal or “unbundled” legal work under a limited retainer has gained increasing traction recently. This arrangement allows lawyers to perform pre-agreed, specific and well-defined tasks, rather than take on the client’s entire family litigation file from start to finish. The Law Society of Upper Canada (which is the regulatory body that governs lawyers) has drafted rules to guide lawyers in such situations, and has recently put on a continuing legal education seminar to help those lawyers properly and effectively navigate such unbundling arrangements. Clearly there is more of this to come.

• Mediation, arbitration, and collaborative family law. The trend toward increasing use of alternate dispute resolution methods has steadily increased in years past, and the coming year should be no exception. Public awareness and access is helped by various government initiatives, such as the Mandatory Information Programs that are available at family court locations across Ontario, which provide litigants with information about separation and divorce and the related legal processes.

• Streamlining of family proceedings. Hopefully 2016 will add even more efficiency and streamlined procedure to the existing family system. We already see the benefits of the widespread use of the Federal Child Support Guidelines, which dictates child support amounts payable at various income levels and circumstance. The Guidelines have provided a healthy and needed dose of certainty and streamlining to this area of family law at least. Some “softer” gains have been achieved through the use of case conferences, which are optional in some circumstances, but mandatory in others. Presided over by family judges, they are intended to help narrow the issues between the parties, and explore the possibility of settlement. Let’s hope the coming year sees more productive initiatives of this type.

What are your prediction for family law in the year 2016?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

British Court Approves Woman’s Potential Support Claim 20+ Years After Divorce; Should Canada Follow Suit?

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British Court Approves Woman’s Potential Support Claim 20+ Years After Divorce; Should Canada Follow Suit?

A recent court decision from Britain has given rise to considerable controversy all over the world: It centred around certain financial support claims of an ex-wife, who had been divorced from the ex-husband for more than 20 years.

The couple had met as students, married in 1981, and had a son together. However, after living what was described as a peripatetic “New Age” lifestyle, they separated after only two years, and formally divorced in 1992.

Despite the 30 years since their separation and 23 years since their divorce, in 2011 the ex-wife brought a claim for £1.9m as “financial remedy” under Britain’s equivalent of our own federal and provincial family legislation. The claim was likely prompted by the fact about 10 years after they split up, the ex-husband had become a multi-millionaire in the green energy sector: His company was now worth more than £57m, and as the sole shareholder his personal fortune was estimated to be about £107m.

Although initially a court rejected the ex-wife’s right to assert the claim (in what was essentially a motion to strike), a three-judge appeal panel allowed it to go forward to a full hearing, ruling that it was not an “abuse of process” and was “legally recognizable”. Although the appeal court did not opine on the merits at this stage, it did speculate that while £1.9m was likely “out of the question”, some drastically more modest award could be in the cards.

Whether and to what extent the ex-wife should receive a financial payout at this very late stage will be subject to numerous legal and factual considerations. The U.K. family law system is underpinned by similar values to those that direct the courts in Canada: Primary among these is a recognition that, in situations of divorce, the court must evaluate the contribution of each party to the welfare of the family. (In the ex-wife’s case, she had raised their son through “16 years of real hardship” while the ex-husband had provided only minimal and occasional support. The ex-wife stated that she had not previously pursued him for support because she assumed that he was still penniless, as they had been while married.) Also, as in Canada, the court will have to take into account a wide array of factors, including the short duration of the marriage, the wife’s long delay, and whether her current financial needs were brought about by her relationship with the husband.

Naturally, the case has garnered controversy in Britain because it raises the prospect that former spouses, particularly those who have amassed considerable wealth since a divorce, may need to fear that their ex-partners will pursue them for financial support many years or even decades later. Indeed from a bystander’s viewpoint – particularly those who have long-ago divorces lurking in their own relationship histories – the old adage, “let sleeping dogs lie” will probably come to mind. Furthermore, there are the “optics” to consider: The ex-wife’s sudden interest in pursuing a claim seems admittedly unseemly, given it was undoubtedly doubt prompted by the husband’s inordinate post-divorce success.

But not for these reasons alone, it is highly unlikely that such an excessively dilatory claim would succeed in Canada: As I have written before, in Canada the law governing family claims imposes time limits, or imposes restraints on how far back retroactive claims for child or spousal support can extend.

Still, it raises and interesting question: Should courts allow these “out-of-the-woodwork” potential claims to go forward, from ancient relationships that ended long, long ago? What are your thoughts?

For the full text of the decision, see:

Wyatt v. Vince, [2015] WLR 1228, [2015] 1 WLR 1228, [2015] UKSC 14

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

What Should Courts Do With Self-Represented Litigants?

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What Should Courts Do With Self-Represented Litigants?

While I never intend deliberately to harp on the perils involved with family law litigants representing themselves in court, there has been a recent spate of cases that really illustrate the risks involved – and not all of them come from the Family Law dockets.

In an April 2013 criminal judgment in a case called R. v. Duncan the judge put a downright humorous spin on the narrative relating to a routine highway traffic infraction by the accused. Among other things, the judge admonishes the defendant for his indiscriminate use of the Internet in preparation for his stint at representing himself at trial. The judge wrote:

It has been said that, given enough time, ten thousand monkeys with typewriters would probably eventually replicate the collected works of William Shakespeare. Sadly, when human beings are let loose with computers and internet access, their work product does not necessarily compare favourably to the aforementioned monkeys with typewriters.

Thus it was that the trial began with Mr. Duncan objecting to us proceeding on the basis that I had no jurisdiction over him. Mr. Duncan provided me with an “affidavit of truth”, a rather substantial volume that appeared to me to be the result of somebody doing a Google search for terms like “jurisdiction” and the like and then cobbling them together in such a way that it makes James Joyce’s Ulysses look like an easy read. This hodgepodge of irrelevancies relied upon by Mr. Duncan was one of the misbegotten fruits of the internet. Finding it was a waste of Mr. Duncan’s time; printing it was a waste of trees and my reading it was a waste of my time and public money.

..

Mr. Duncan did not strike me as a fool and individual acts seldom define people, but the red binder he offered to the officers and the “affidavit of truth” he offered to me in court were regrettable descents into foolishness and Mr. Duncan would be well-advised to be more discriminating on what parts of the internet he models himself upon in the future.

The judge in R. v. Duncan also refers to a case – now famous in legal circles at least – called Meads v. Meads which was rendered by an Alberta court last year. That case resulted in a 700-page court decision which dealt at length with what the judge defined as “Organized Pseudolegal Commercial Argument Litigants”, who are essentially vexatious litigants – usually self-represented – who “employ a collection of techniques and arguments promoted and sold by ‘gurus’ (as hereafter defined) to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals.”

Certainly the spectrum of self-represented litigants is quite large, and can vary greatly in terms of the litigants’ preparedness, familiarity with court processes, and individual objectives. (And in Family Law, the decision to try to avoid hiring a lawyer is usually cost-driven, rather than ideologically motivated.)

Still, it begs the question: Should courts have formalized processes in place for dealing with self-represented parties? What are your thoughts?

For the full text of the decisions, see:

R. v. Duncan, 2013 ONCJ 160 (CanLII)  http://canlii.ca/t/fwsm0

Meadsv. Meads, 2012 ABQB 571 (CanLII) http://canlii.ca/t/fsvjq

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Are Canadian Judges Ready for to Face Lawyer Criticisms? (And is T.V-Style Courtroom Drama Next?)

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Are Canadian Judges Ready for to Face Lawyer Criticisms? (And is T.V-Style Courtroom Drama Next?)

Many people form their impressions of how the Family Court system works from watching T.V. shows or movies, namely overwrought legal dramas or courtroom reality shows. The truth is that Family Law process is considerably more mundane; for example in Canadian law there are no “surprise” witnesses who emerge at the eleventh hour to derail the proceedings and save the day for the underdog plaintiff. Courtroom antics are frowned upon in favour of civility and decorum. And while tempers can certainly flare, volleys of insults and dramatic shouting-matches between opposing counsel are generally not tolerated. Moreover, judges have historically been immune to criticism by the lawyers who appear before them.

But should judges be? That was the question recently addressed by the Supreme Court of Canada.

The case called Doré v. Barreau du Québec involved the specific issue of whether lawyers should be at liberty to criticize judges. The case involved a Quebec lawyer named Gilles Doré, who in 2001 represented a client before a judge of the Quebec Superior Court. During the hearing, the judge rebuked Doré for some of his submissions on his client’s behalf, adding that “an insolent lawyer is rarely of use to his client.” He also stated that Doré’s style was full of “bombastic rhetoric and hyperbole,” and that some of his submissions were “ridiculous”.

In response, Doré wrote the judge a private letter, which read in part:

I have just left the court. Just a few minutes ago, as you hid behind your status like a coward, you made comments about me that were both unjust and unjustified, scattering them here and there in a decision, the good faith of which will most likely be argued before our Court of Appeal.

If no one has ever told you the following, then it is high time someone did…
Your deliberate expression of these character traits while exercising your judicial functions, however, and your having made them your trademark concern me a great deal, and I feel that it is appropriate to tell you.

Your legal knowledge, which appears to have earned the approval of a certain number of your colleagues, is far from sufficient to make you the person you could or should be professionally. Your determination to obliterate any humanity from your judicial position, your essentially non-existent listening skills, and your propensity to use your court — where you lack the courage to hear opinions contrary to your own — to launch ugly, vulgar, and mean personal attacks not only confirms that you are as loathsome as suspected, but also casts shame on you as a judge, that most extraordinarily important function that was entrusted to you.
I would have very much liked to say this to your face, but I highly doubt that, given your arrogance, you are able to face your detractors without hiding behind your judicial position. …
Worst of all, you possess the most appalling of all defects for a man in your position: You are fundamentally unjust. I doubt that that will ever change.

Doré also wrote to Quebec Chief Justice the next day, asking to be excused from having to appear before that same judge in the future, since he would be unable to fairly represent his clients before him. Doré also complained to the Canadian Judicial Council about the judge’s conduct (which Council ultimately found in Doré’s favour, incidentally; it ruled that the judge had made insulting and unjustifiably derogatory comments, and adding that the judge had displayed a propensity for making personal attacks on lawyers in other cases as well).
Still, Doré himself was found by a disciplinary council of his province’s Bar Association to have engaged in professional misconduct, based on the letter to the judge which was deemed “rude and insulting”. He was suspended from the practice of law for 21 days. That suspension was later heard by an Appeal Court and upheld.

The matter then came before the Supreme Court of Canada on further appeal. In a unanimous 7-0 ruling, the Court held that the Canadian judiciary should indeed be accountable and open to censure, and that “[l]awyers should not be expected to behave like verbal eunuchs.” In particular, under Charter principles there is a public benefit to allowing lawyers to express themselves in a constructive manner, not only about the justice system in general, but about individual judges in particular. Furthermore, disciplinary bodies were expected to tolerate “a degree of discordant criticism” by members of the Bar toward the judiciary.

With that said, the Supreme Court cautioned that lawyers are still expected by the public to display a certain reasonable level of professionalism and “dignified restraint”, and that they could certainly be subjected to professional discipline if their conduct exceeds that threshold.

In Doré’s specific case, however, the line of tolerance had been crossed; his conduct had gone beyond what the public would expect in terms of proper conduct by a lawyer. The Supreme Court added: “His displeasure with the judge was justifiable, but the extent of the response was not.”

Your thoughts?

For the full text of the decision, see:

Doré v. Barreau du Québec, 2012 SCC 12  http://www.canlii.org/en/ca/scc/doc/2012/2012scc12/2012scc12.pdf

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at http://www.russellalexander.com/practice/

Are Parents Liable for their Children’s Wrongdoing?

Are Parents Liable for their Children’s Wrongdoing?

Periodically, there will be an interesting case in the news about a court case somewhere that involves the question of whether parents should be responsible in law for the misbehaviour of their children. Depending on the jurisdiction, the outcome of these cases can vary greatly, and is usually the subject of some controversy.

In Ontario, there is actually legislation that addresses this issue to some extent: The Parental Responsibility Act, 2000 provides that where a child (i.e. under age 18) takes, damages or destroys property, the owner of that property may bring an action against the child’s parent in Small Claims Court. Furthermore, the parent is liable for any damages the child caused, unless that parent can satisfy a court that:

1) the activity that caused the loss or damages was not intentional; OR

2) he or she was exercising reasonable supervision over the child at the time, and that he or she made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage.

The Act provides a relatively narrow set of remedies for a narrow range of civil misconduct (it does not purport to cover criminal activity by a minor, for example). And the wording seems fairly straightforward.

So how does this legislation play out in real life? Not always as one might expect.

A decision called Shannon v. Westman (Litigation Guardian of) illustrates how this legislation is applied. In that case, a 14-year-old boy named Jeremy was paid to babysit another child, Tyler, who was 10. While under Jeremy’s supervision – and at his instigation – both children broke into the residence of a homeowner and stole several items, including some valuable pieces of jewellery that had sentimental value.

Jeremy and Tyler admitted to stealing the items, and returned several of them. However, some of the valuables remained unrecovered.

Relying on the provisions of the Parental Responsibility Act, 2000, the homeowner brought an action in Small Claims Court against both the parents and the children, for the value of those items that could not be recovered.

Perhaps surprisingly, the court allowed the homeowner’s action against the children, but dismissed it against the children’s parents.

Since the boys had admitted to the theft, the homeowner had established the fact of the stolen property, so all that remained to find liability under the Parental Responsibility Act, 2000 was for the parents to show that they were exercising reasonable supervision over the boys at the time they committed the break-in, and that they had made reasonable efforts to discourage them from participating in that type of activity.

Turning first to Jeremy’s parents, the court had to examine whether it was reasonable for his parents to allow him to be left at home during the day without supervision. Taking into account all the circumstances – such as Jeremy’s age, experience, background, and the previous history of having left him unsupervised without incident – the court found that it was.

Turning next to Tyler, the court found that at 10 years old, he was at the age when he would not have needed constant supervision; indeed, in the past he had been left with Jeremy without incident for about 7 weeks prior to the break-and-enter. Tyler’s parents had also imposed a structure on the boys’ daily activities, including set check-in-times with the parents, and permission to engage in only approved activities, and it was a structure that both boys had adhered to in the past. Considering all these factors, the court found that Tyler’s parents had also acted reasonably in this case.

In coming to these conclusions, the court noted that the Parental Responsibility Act, 2000 required only that the parents act reasonably; it did not demand perfection. As such, it considered the test under the Act to have been met, and the homeowner’s action against both Jeremy’s and Tyler’s parents was dismissed. However, his action against Jeremy and Tyler was allowed, for damages of almost $20,000, though the amount was reduced to $10,000 to bring it within the jurisdiction of the Small Claims Court at the time.

For the full-text of the legislation, see: http://canlii.ca/t/1k97

For the full-text of the decision, see:

Shannon v. Westman (Litigation Guardian of) (2002), 2002 CarswellOnt 2141 (Ont. S.C.J.)