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Posts from the ‘Court Reforms & Changes’ Category

All Parents Are Equal Act, 2016 Now In Force – Surrogacy Arrangements Impacted

All Parents Are Equal Act, 2016 Now In Force – Surrogacy Arrangements Impacted

Several months ago, I wrote a series of pieces including: Ontario Government Introduces Bill to Strengthen the Legal Status of All Parents, New Surrogacy and Parenting Declaration Laws Upcoming in Ontario, and New Proposed Law Clarifies Parentage, Surrogacy Rights, and Rights Arising from Assisted Reproduction about the All Parents Are Equal Act, 2016.

That Act is now in force, effective January 1, 2017 and (among several other things) amends the Ontario Children’s Law Reform Act to change the former practice around surrogacy arrangements. That former practice called for a court to make a declaration – on the parties’ consent – as to the child’s parentage after birth, and required the parties to file a formal court application to obtain it.

Since obtaining the court declaration was the more costly portion of the former multi-stage process for legally recognizing “parent” status in surrogacy arrangements, the elimination of this steps may come as a welcome change.

However, the Act’s more streamlined is not without its detractors. With the elimination of the need for a court declaration in some circumstances, the safeguards have been moved to the front end of the process, before the child is conceived and born. Now, up to four intended parents of a child born to a surrogate will be recognized without a court order if the following conditions are met:

  • The surrogate and the intended parent(s) received independent legal advice and entered into a written pre-conception surrogacy agreement.
  • The surrogate provided written consent to give up her parental status both before conception and seven days after the birth of the child.

(That seven days is a “cooling off” period, to ensure that the written consent by the surrogate is validly given).

Since in routine cases there will no longer be any court oversight of the process, it will be left to the parties themselves, with the help of their lawyers, to ensure that they meet the requirements of the Act, and that when the time comes, the surrogate gives her consent to relinquish the child.

What do you think of these new changes? Are they an improvement?

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

UK Tightens Immigration Rules for Foreign Spouses

UK Tightens Immigration Rules for Foreign Spouses

In a controversial decision the Supreme Court of the United Kingdom has recently upheld the legality of immigration rules that imposed requirements on its British citizens to have a certain level of income before they are able to bring their spouses into the country. These contentious “Minimum Income Rules”, which came into force in 2012, had been challenged by four couples who asserted that they breached their basic human right to have a family life.

The rules require that, before being allowed to bring a spouse to live with them from another country outside the European Economic Area, a British citizen (including a recognized refugee) must have a minimum annual income of at least £18,600 (around CDN$30,600). The couples who contested the rules had argued that the income threshold was set too high, particularly since it increased with each additional child that needed to be supported.

This addition of a set income requirement reflects a stark change from the previous rules, which prior to 2012 had required only that the spouses could establish an ability to support themselves without needing to avail themselves of welfare payments from the UK government.

Although the UK Supreme Court’s ruling confirms that the rules did not violate human rights legislation, it also recommends they be amended, since the current incarnation does not adequately account for the best interests of the children, and neglects to consider other sources of income that the spouses might have.

This UK development is in stark contrast to the immigration policy in Canada, where applicants must prove only that they have enough income to provide basic needs for the spouse or his or her dependent children. (Although those who want to sponsor parents or grandparents are subject to specific income-level requirements and a new process for applying starting in 2017).

And by announcement made December 15, 2016, the Canadian Government has indicated that the department of Immigration, Refugees and Citizenship Canada will be speeding up the processing for spousal sponsorship applicants, as part of its commitment to family reunification. Most applications will be processed within a year of a person applying.

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

Revenge Porn: Not Just a Bad Idea; It’s Also a Crime

Revenge Porn: Not Just a Bad Idea; It’s Also a Crime

A few weeks ago, I reported on the appeal-level decision in the case of “revenge porn” where a woman’s ex-boyfriend had posted explicit photos of her on a pornographic website and showed them to his friends, all without her consent. She sued him for civil damages to compensate for the resulting humiliation.

The existence of this type of case is not unexpected, but it’s not as prevalent as one might think. Despite the widespread use of social media, and the immediacy with which even ill-advised messages can be sent, there are surprisingly few court decisions that involve a person seeking civil damages for an internet-based invasion of privacy, whether through hacking, or by posting without the person’s consent.

Part of the reason might be the impact of the criminal law: In December 2014, the Canadian Criminal Code was amended to add s. 162.1(1). The provision makes it a crime if someone “knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person” knowing that he or she did not give their consent. The term “intimate image” is defined to include a visual recording, including a photographic, film or video recording, “in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity”. On conviction as an indictable offence, the penalty can be up to five years’ imprisonment.

So far, there are only a small number of reported cases in which anyone has been charged with an offence under s. 162.1.

  • In R v. P.S.D., a young man in a volatile, on-again/off-again relationship with a young woman was charged after he took partially-clad images of her without her consent. He also sent the pictures to two friends, with instructions that they should save them, all with the intent to cause her emotional harm. The blurry, poor-quality photos were taken with his cellphone, in a manner that clearly indicated she had not consented, and showed portions of the woman’s bare breasts. The man was given a suspended sentence, after being given 90 days’ enhanced credit for the 60 days he spent in pre-trial custody.
  • In v. Calpito, the male accused, in his early 20s, confessed to having posted seven nude photos of his former girlfriend on Instagram after their romantic relationship had ended.  The photos were viewed by the woman’s large circle of friends, and even by her employer. The woman described the devastating effect of his actions on her life and university studies. The man was sentenced to a conditional discharge with three years’ probation, together with restrictions on his internet use and a significant term of community service.

The enactment of this new criminal offence, with its potentially hefty sentence, has surely had a chilling effect on the need for civil remedies as well. It means that Canadian law is well-poised to thwart the impulses of spurned ex-lovers to wreak revenge on former partners by oversharing intimate images.

For the full text of the decisions, see:

R v. P.S.D., 2016 BCPC 400 (CanLII)

v. Calpito, 2017 ONCJ 129, 2017 CarswellOnt 340

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 Pacemaker Evidence Be Used to Catch Cheaters?

Should Pacemaker Evidence Be Used to Catch Cheaters?

I have written several times before about some of the more novel uses of the information that can be gleaned from social media, for example the use in Family Law of evidence taken from Facebook. Some of our previous posts include: Facebook as a Source of Evidence In Family Law: Part 1Facebook as a Source of Evidence in Family Law: Part 2; and  Facebook as a Source of Evidence in Family Law: Part 3.

The legal issue behind this kind of information-gathering, is whether collecting information in this manner is unduly intrusive into a person’s privacy.

A U.S. case reported by the American Bar Association that caught my attention recently takes the privacy question it even further: It involved the use of evidence taken from a man’s pacemaker, used to support a charge of criminal fraud and arson against him. It seems the data from his heartbeat-regulating device – which was collected from him by way of a search warrant – did not support his claim that his house had burned down. Evidently the man’s heart-rate on the night in question did not correspond with his description of events, including his scramble to collect his personal belongings and get out of the home. He was ultimately charged with arson and insurance fraud.

As the American Bar Association article pointed out, this Ohio decision is contentious because it can be seen as having “eroded” the privacy rights that an individual has in his or her health information. In Canada, the government’s ability to collect and use private information is strictly governed by the Personal Information Protection and Electronic Documents Act (PIPEDA), and this includes the right and duties in relation to collecting information for the prosecution of crime.

Although the U.S. decision has no sway in Canada, it occurred to me that if it did, the information from personal health devices like a pacemaker might eventually be exploited in Family Law cases as well.  I started to think about the limits of this kind of information, and how it might apply to divorce cases.

For example, it could be called up in support of the adultery-based grounds for divorce under the federal Divorce Act, by bolstering other evidence that a spouse who claimed to have been “working late” on a given evening was – judging by an unusually elevated heartbeat – actually engaged in an extra-marital affair. (Although I guess it might depend on how truly exciting the person’s work is!)

For now, this is the stuff of science fiction; it’s probably a long way off, before these kinds of biometrics are used as evidence in litigation generally, much less in Family Law cases. And they give rise to many privacy concerns that are assiduously safeguarded by Canadian public policy in the form of legislation.

What are your thoughts on whether evidence of this nature should be used?

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

Has the Time Come in Ontario for E-Filing Divorce Applications?

Has the Time Come in Ontario for E-Filing Divorce Applications?

As reported in Canadian Lawyer magazine recently on January 18, 2017 at a Law Society of Upper Canada event, Ontario Attorney General Yasir Naqvi stated that the province of Ontario is considering allowing divorce applications to be e-filed.

This follows upon initiatives in provincial Small Claims Court during the past few years to increase digitization, through the Court Information Management System (CIMS). Enhancements have included the availability of 24-hour online services, including access to court forms, the filing of court documents, and the payment of fees online.

But as progressive as it may sound, Ontario is actually far behind other Canadian jurisdictions in this regard. British Columbia  for example, has allowed for e-filing of many court documents, including those relating to many Family Law proceedings, since as far back as late 2008.

There are certainly many up-sides to broadening and facilitating the access to court processes, including the obvious one: Ease of access for Family Law litigants, who can obtain information and file documents from the comfort of their own homes.

But there could be down-sides too. For example, for those who aren’t in-the-know about legal procedures, the formal step of filing for a divorce (whether by the traditional paper route or the proposed e-filing) triggers the running of the limitation period in Ontario for claiming an equalization payment from your former spouse. So the simple act of clicking “send” could start the clock ticking on important rights, without you even knowing it.

But leaving those potential pitfalls aside, the trend towards using technology to facilitate more fulsome access to court services can only be a good thing, it seems.

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

New Surrogacy and Parenting Declaration Laws Upcoming in Ontario

all-families-are-equal-act

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.