May 7
I am planning on stopping into some wineries in Prince Edward County this week.
Which ones would you recommend?
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The 7th Annual Solo and Small Firm Conference and Expo
I am looking forward to attending and presenting at the upcoming 7th Annual Solo and Small Firm Conference and Expo in Toronto.
My co-presenter Donna Neff and I will be speaking on “The Mobile Law Office: Make it work for you“. We will review how all you need is a smart phone, laptop, iPad or similar tablet, and you can run your office from home, or the cottage, or even a donut shop on the other side of the world. In our session, we go over in detail the hardware, programs and apps that help you work remotely in a safe and ethical manner. Close that real estate deal from the beach in Florida—we will show you how!
The conference is designed for lawyers working as sole practitioners and in small firms.
Presenters will explore a wide range of innovative technology approaches and practice management tools designed to increase your productivity and enhance your client service.
Take advantage of the ample opportunities to meet other sole and small firm practitioners from across Ontario and discover new ways to improve your practice.
Registration includes networking opportunities during continental breakfasts, lunch, and a cocktail reception.
The vendor expo will showcase a variety of products and services to support and enhance your practice. You can also join us for the live webcast.
Follow this link to register http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE12-0050999
Hope to see you there.
Supreme Court of Canada Clarifies Disclosure Principles
Although it does not spring from family law directly, the Supreme Court of Canada has recently clarified the important governing principles relating to the disclosure of third-party information, and these may have repercussions in terms of government-disclosure and privacy principles in general.
In Merck Frosst Canada Ltd v Minister of Health, the backdrop was simple: the drug company Merck had duly tendered a new drug submission to Health Canada, in keeping with regulatory requirements. Certain other parties had formally applied for Access-to-Information requests in connection with those drug submissions, under the provisions of the federal Access to Information Act. Without notifying Merck, Health Canada disclosed the records it held on Merck’s new drug submission to the other parties; needless to say, when it learned of the disclosure Merck objected, claiming that the documents should not have been disclosed at all under certain exemption provisions in the Act, or that at the very least it should have received notice in advance.
In defence of its decision to disclose without notice, Health Canada conceded that the Act incorporated certain third-party exemptions (allowing a government institution such as Health Canada to refuse to disclose a third party’s trade secrets, its confidential financial, commercial, scientific or technical information, or any competitive information that would result in financial prejudice to the third party if it were to be disclosed). However it claimed – among other things – that it was unable to determine whether non-disclosure was justified in this case.
In assessing each party’s position, the Supreme Court of Canada set out important disclosure and privacy principles that are to govern in such cases. They are:
• There must be a balance between the duty to protect third-party information on the one hand, and the general principle there should be access to government records, on the other.
• There is no automatic right to notice of disclosure; however, there is a fairly low threshold for the requirement to give such notice.
• Disclosure without notice will be justified only in the clearest of cases.
• A government institution (such as Health Canada) should give notice even where is doubt as to whether the third-party exemption applies.
• The government institution must make a serious attempt to apply the exemption, by reviewing each individual record to determine which portion, if any, may be exempted.
• In keeping with common sense, the third party who requests access to the documents should be as helpful as possible in identifying precisely what information might fall within the exemption, and to identify why disclosure is not permitted. (Such parties will often be in a better position than the government institution to make these identifications).
• The decision of whether or not to apply an exemption to disclosure under the Act will also be governed by the question of whether disclosure could reasonably expected to cause “probable harm” to a party like Merck.
The Supreme Court of Canada then went on to clarify certain specific aspects of the Act’s exemptions, (such as the meaning to be given to terms such as “trade secrets” and “confidential information”) and provided further insight on the burden of proof on a judicial review of a decision by a government institution such as Health Canada not to acquiesce to the Access-to-Information request. Ultimately, it held that in this particular case, Merck did not establish that it fell within the third-party extension.
This decision provides important guidelines on the Court’s view the disclosure of confidential information; as it potentially relates to family law litigation, it may have tangential impact on disclosure obligations between parties (particularly where there is a corporate asset), or in connection with the disclosure of health records by medical facilities.
For the full text of the decision, see:
Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 (CanLII) http://canlii.ca/t/fpvd1
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
This a promotional video clip of Family Matters, a TV program with a focus on a multiplicty of issues affecting contemporary North American life, with a particular emphasis on the interplay between relationships and the justice system: internet dating, addictions, prenups, mental health, adoption, surrogate parenting, same-sex relationships, multicultural relationships, parenting after separation and divorce, mediation, child neglect and abuse, child and spousal support – and this is just the tip of the iceberg!
Hosted by an actual sitting Ontario family court judge, this exciting show is the first of its kind anywhere. Justice Brownstone provides educational episodes in an informative, compelling and entertaining talk show.
B.C.’s Parental Responsibility Act — Is it Worthwhile?
In August 2001 – over 10 years ago – British Columbia passed legislation titled the Parental Responsibility Act. At the time, it was heralded as a positive step towards making parents more generally accountable for the conduct and (mis)behaviour of their children. Among other things the Act gives individuals whose property has been damaged by children the right to sue the children’s parents for compensation. (It does not go so far as to create an offence – criminal or otherwise – of failing to supervise one’s children, however).
The key provision of the Act imposes potential financial liability for property damage on a parent of any child who “intentionally takes, damages or destroys property of another person”. The maximum award under the Act is $10,000 (which falls within the jurisdiction of the B.C. Small Claims Court).
In terms of resisting liability, parents may rely on stipulated defences in the Act, specifically that he or she:
• was exercising reasonable supervision over the child at the time the child engaged in the activity that caused the property loss, and
• made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that caused the property loss.
With regard to what constitutes the exercise of “reasonable supervision” and “reasonable efforts to prevent or discourage the child” from engaging in the damage-causing behaviour, the court may consider any of the following:
• the age and maturity of the child;
• the prior conduct of the child;
• the likelihood that the activity would result in property loss;
• psychological or medical disorders, psychological, physical or learning disabilities or emotional disturbances of the child;
• whether the likelihood of property loss arising from the child’s conduct was reasonably foreseeable by the parent;
• whether the child was under the supervision of the parent when the child engaged in the activity that resulted in the property loss;
• if the child was not under the supervision of the parent when the child engaged in the activity that resulted in the property loss, whether the parent made reasonable arrangements for the supervision of the child;
• whether the parent has sought to improve his or her parenting skills by attending parenting courses or in any other manner;
• whether the parent has sought professional assistance for the child, designed to discourage activity of the kind that resulted in the property loss;
• psychological or medical disorders, psychological, physical or learning disabilities or emotional disturbances of the parent; and
• any other matter that the court considers relevant to the determination.
It all sounds like a good idea, right?
The reality is that even though the Act remains in force in B.C., it seems to be seldom used in practice. In the 10 years since it was enacted, there appear to be only two court decisions that apply or even refer to it.
Do you think we need a law like this in Ontario? I would love to hear your thoughts.
For the full text of the legislation, see:
Parental Responsibility Act, S.B.C. 2001, c. 45 http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_01045_01
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
O Canada, the Ottawa Senators were our last chance for the Stanley Cup.
With all the Canadian NHL teams out of the Playoffs who are you going to cheer for?
If we focus on Canadian content, the remaining teams (as of the March 2012 trade deadline) break down as follows:
Team Canadian Players
PHX 17
STL 16
LAK 15
WAS 13
PHI 12
NAS 11
NYR 10
NJD 7
NHL teams may list up to 22 players on their official rosters.
So if you base your decision on Canadian content then the Phoenix Coyotes would lead the pack.
Read our responses or submit your own comments.
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Mobility Cases – B.C.’s Model for Reform
In my other Blog post this week, I outlined a little primer on “mobility”, which involves consideration of when and whether one separated or divorce parent should be able to move with a child so that the other parent’s custody or access rights are potentially affected – for example a move to take a new job or pursue a new relationship in a different city or province.
In this regard, family law principles across Canada have developed and proceeded along a roughly uniform path. However, in 2010 British Columbia put forth a comprehensive set of proposals for reform, as part of a White Paper put out by the government. This in turn resulted in amendments to B.C.’s Family Law Act, which were enacted in late 2011 but which are not yet in force. (The proposed in-force date is in approximately 12-18 months’ time). The aim of these reforms is to make the law on relocation more certain, by reducing the unpredictability of outcomes, by encouraging settlement, and by allowing parents to plan their lives better.
For one thing, the B.C. amendments impose some firm rules surrounding the question of which parent bears the burden of establishing that the proposed move does (or does not) serve the child’s best interests. Specifically, where the day-to-day care of a child is “substantially equal”, the parent who wants to move the child bears the burden of proof to show that the proposed relocation would be done in the child’s best interests, and in good faith. On other hand, if responsibility for the care of the child is not split in a manner that is “substantially equal”, then the burden falls to the parent opposing the move to show that it would not be in the child’s best interests. In either case, the parent who seeks to move the child is generally obliged to provide a concrete plan showing that “reasonable efforts” will be made to find ways to preserve the child’s relationship with the other parent.
In addition to these rules and presumption relating to burden of proof, the legislative changes also bring about certain enhancements in connection with mobility, including:
• Implementing mandatory notice of moves. Generally, there will be a mandated 60-day notice period, by which any parent proposing a move (with or without the child) must give the other parent advanced notice. (There are exceptions in cases where there is an ongoing risk of violence, or where the child has no relationship with the non-moving parent).
• Defining the concept of “relocation”. This definition focuses on the impact of the child’s on existing primary relationships, rather than using factors such as distance moved or travel times.
• Providing criteria for the courts’ assessment of “good faith”. Courts are specifically directed to consider such factors as: the reasons for the move; the likelihood it would enhance the general quality of life of the child and the guardian proposing the move, including improved financial, emotional or educational opportunities; and any existing restrictions on relocation in an order or agreement.
• Requiring courts to aim to preserve existing parenting arrangements to the greatest extent possible. This prevents the decision on whether to allow relocation from becoming an indirect re-litigation of the fundamental issues between the parents relating to custody and parenting.
In effecting these changes, British Columbia becomes the first Canadian to jurisdiction to address the legal issues surrounding mobility by way of specific legislation. It will be interesting to see whether other Canadian jurisdictions follow suit.
Russell Alexander, Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. We are located in Ontario, and serve the communities of Oshawa, Whitby, Pickering, Ajax, Markham, Brooklin, and City of Kawartha Lakes (Lindsay). To book an appointment, call: 1.905.655.6335
There is a general misconception that when a couple separates, the children must automatically stay with their mother. But in Ontario, the mother and father are equally entitled to custody of the child. If a parent wants to move a child, this step will require a sole custody order, the consent of the other parent or a court order permitting the move.
In this video discusses who is entitled to custody of the child, defacto custody, and mistake parents, often fathers, make regarding custody and the establishment of a status quo. This video also examines the difference between custody and access.
Whether a Parent Has a Right to Move with a Child – The Concept of “Mobility” in Family Law
The moment that the parents of a child separate, everyone’s life circumstances change immediately: there are usually new living arrangements and a custody and access schedule put in place. But as time passes, there may be other developments as well; for example the parents may embark on new relationships with new partners, or may change jobs. The potential impact on any court-ordered support, custody or specific access arrangement, and the effect on each parent’s rights must be assessed and weighed.
In cases where one parent’s new relationships or new jobs require a move to another city or province, the concern is even greater. This is because such scenarios give rise the a legal issue of whether the circumstances and preferences of the parents should be allowed to dictate the child’s living circumstances, whether such moves should be allowed and by whom, and – if so – what happens to the custody and access arrangements that are in place.
In family law, this is known as a “mobility” issue.
In Canada, courts generally recognize that the well-being of a child is fundamentally interrelated with the well-being of the custodial parent; indeed, a 1996 Supreme Court of Canada ruling in a case called Gordon v. Goertz established conclusively that judges must apply the “best interests of the child” test in making decisions about whether a parent should be allowed to relocate with a child, which in turn requires an individual, fact-specific assessment. As the court put it:
“The focus is on the best interests of the child, not the interests and rights of the parents.”
Courts are required to make a “full and sensitive” inquiry. This means that they are obliged to take into consideration a vast array of factors, including:
• the existing custody arrangement and relationship between the child and the custodial parent;
• the existing access arrangement and the relationship between the child and the access parent;
• the desirability of maximizing contact between the child and both parents;
• the views of the child;
• the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
• the disruption to the child of a change in custody; and
• the disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
It is worth pointing out that in making this assessment, there is no presumption in favour of either parent (whether the custodial parent or otherwise).
Incidentally, the authority for a court to make such a determination on behalf of parents and children is set out in various provincial and federal family-legislation. Under the federal Divorce Act, for example, provides that if a court gives one parent custody of a child, the court may also require that parent to give at least 30 days’ notice to the other parent of any planned change of residence of the child (although practically speaking, most orders specify a 60-day period). The access parent, upon receiving such notice, can apply to the court to challenge the proposed change of residence, or seek a variation of the custody or access arrangements; this notice period also afford the parents the chance to negotiate acceptable relocation terms, before it happens.
When mobility issues arise, it is important to get experienced and competent legal advice, to ensure that the best interests of all parties – particularly the children of the relationship – are safeguarded. Russell Alexander, Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. For more information or to book an appointment call 1.905.655.6335.
The Law Society of Upper Canada was founded in 1797 and is one of the oldest professional organizations in North America. With over 40,000 members, the Society is the largest Bar in Canada.
The main function of the Law Society of Upper Canada is to ensure that all persons who practise law or provide legal services in Ontario are competent, follow proper procedures and behave ethically. The Law Society was created to regulate lawyers but its mandate has been broadened since May 1, 2007, to regulate providers of all legal services, including independent paralegals.
The Law Society provides a variety of services to help the public access legal services and information, including a lawyer and paralegal referral service, an online directory of licensees, including their practice status, and a client compensation fund.
The Society also offers continuing education, practice management, and substantive information services to assist lawyers and independent paralegals in their practice of law and the provision of legal services.
There is recent debate as to whether or not this governing body should change its name.
Should the Law Society of Upper Canada (the governing body for Ontario’s Lawyers) change its name to something more modern and inclusive?
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