"Fidelity": Don't Divorce... from Courage Campaign on Vimeo.
- Garry J. Wise, Toronto
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Family Workshop, Dr. Richard Warshak's counter-parental alientation programme, was at the centre of last month's controversial Ontario Superior Court decision on parental alienation in A.G.L. v. K.B.D. (our previous reports are here and here).
The Dallas-based clinical psychologist, continues to attract the attention of Ontario's media and courts.
The Globe and Mail reported yesterday on a February 6 decision of the Ontario Superior Court, overturning an arbitrator's order that would have sent a Toronto teen to the Warshak programme. See Judge blocks sending teen for deprogramming treatment:
An Ontario judge yesterday blocked an attempt to forcibly send a Toronto child for deprogramming treatment in a controversial parental-alienation program in California.
Madam Justice Thea Herman of the Superior Court became the first judge to rule against the controversial treatment orders, overturning a 2008 arbitrator's order that the 14-year-old boy be coercively treated.
"The remedy of the Family Workshop, as acknowledged by the arbitrator and the parties, is an extreme one," Judge Herman said in her ruling. "That means that caution should be exercised in awarding such a remedy."
Treatment at the clinic - founded by Richard Warshak - involves isolating a child from the parent who is identified as having poisoned his or her emotions toward the other parent. Therapists then attempt to undo the child's hostile feelings.
Of particular interest, the current Globe article claims that the cost of the four-day programme is $40,000.
The case, as reported by the Globe, should not be interpreted as a repudiation by the Court of the Warshak programme. Rather, the Court appears, on the specific facts of the case, to have determined the treatment to be inappropriately extreme for the specific family involved.
For more on Dr. Warshak's views and therapeutic approach, see this June 2008 feature from Macleans: Interview with Richard Warshak. A short excerpt from the Q & A formatted article is below, discussing an earlier Ontario ruling:
Q: In this case, Judge Turnbull seemed impressed by your proposed remedy. His ruling caused a bit of a stir in Ontario. He ordered this boy be flown, against his will if necessary, to this program you helped design, the Family Workshop for Alienated Children. Would that be an unusual ruling?
A It's becoming more common as the courts learn about the damage to children in the present and on. Particularly when judges learn they hold the power to help the family, judges are more willing to tell kids that they don't get to choose their parents just as they don't get to vote or drink alcohol. Not only do the kids have to stop acting like entitled adults, the judges tell the grown-ups to stop acting like kids.
Q: A newspaper report of that case calls the program "a facility that deprograms children." Is that how you would describe it?
A: Not at all. This is a gross misconception of the work we do. Our program teaches children how to stay out of the middle of adult conflicts, and how to maintain a compassionate view toward each parent. We teach children to think critically. When children learn how to see a problem from different perspectives they usually begin to heal their relationship without having to acknowledge that they had been treating the parent with contempt and without having to apologize for it. They begin relating in a more positive way.
Q: Yet I understand that, to varying degrees, children can be forced to attend, either through a court order or by being physically escortedto the workshop. This is after the courts have already said they're going to make them live with a parent they've already rejected. It sounds like a recipe for disaster.
A: Again, what we have going for us is that the child really has an underlying wish to get out of this bind. I should clarify that often it is not the judge who orders the child to attend the workshop. Rather, the judge awards decision-making authority to the rejected parent who may then choose to enrol the child in the program, just as the parent is free to make other decisions regarding the child's health and education. Our program is designed to jump-start the reconciliation and offer a safe way to contain a child's anxiety and conflict. It's a misconception that the children are restrained. No child has been brought to me in restraints, and I would never work with a child under such conditions. They are oftentimes lectured by the judge about the necessity that they repair the damaged relationship. Once they understand they no longer hold a power that they should have never been given in the first place it's remarkable how much they co-operate.
...Q: You've got some major parental repair work to do as well then?
A: We do. And in truth we're not as successful with [alienating] parents as we'd like to be. We have much more success in healing the damaged relationship the child has with the parent who was rejected. We have had success with the other parent sometimes but in other cases they have no interest in co-operating. In the most unfortunate situations, the other parent will end up rejecting the child themselves. "If you're not on my side you're against me." Even if the other parent does not change their attitude the children can learn enough often to withstand that kind of influence without succumbing to it.
Q: They're inoculated?
A: Yes. We give the children the tools to be children and to stay out of adult conflicts.
An extensive listing of Dr. Warshak's media coverage is here. His Wikipedia biography is here.
- Garry J. Wise, Cancun
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Remember Larry Klayman and Judical Watch, back in those heady days when the only thing that mattered was Monica?
Allow me to refresh your memory, via Slate
It's Larry Klayman, the Clinton-hating, polymorphously litigious chairman and founder of Judicial Watch.
...At the moment, he has libel suits going against David Segal of the Washington Post and Harvey Berkman of the National Law Journal. He apparently feels victimized by Jewish journalists because (he wrote recently), "as a Jew with close ties to social as well as economic conservatives--and as a Jew who believes in Christ--I guess they perceive me as a threat to the liberal Jewish creed, a kosher Uncle Tom."
Taking a deposition from former Clinton aide Paul Begala, he pressed Begala for the name of his priest in La Porte, Texas. In another deposition, with former Clinton aide Harold Ickes, he made Ickes so mad that he threatened to piss on Klayman's rug. Klayman once sued his own mother. A character on NBC's West Wing named "Harry Klaypool," who heads a group called "Freedom Watch," is apparently based on Klayman.
According to a January 29 press release, Judicial Watch (now sans Mr. Klayman, who has left to found FreedomWatchUSA.org), has filed suit against Hillary Clinton, alleging the U.S. Constitution's emoluments clause preculdes her from serving as Secretary of State. See Judicial Watch Files Lawsuit Challenging Hillary Clinton Appointment on Behalf of State Department Foreign Service Officer:
Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has filed a lawsuit against newly sworn-in Secretary of State Hillary Rodham Clinton on behalf of U.S. Foreign Service Officer and State Department employee David C. Rodearmel, (Rodearmel v. Clinton, et al., (D. District of Columbia)). The lawsuit maintains that Mrs. Clinton is constitutionally ineligible to serve as Secretary of State and that Mr. Rodearmel cannot be forced to serve under the former U.S. Senator, as it would violate the oath he took as a Foreign Service Officer in 1991 to "support and defend" and "bear true faith and allegiance" to the Constitution of the United States.
Under the "Emoluments" or "Ineligibility" clause of the U.S. Constitution, no member of Congress can be appointed to a civilian position within the U.S. government if the "emoluments" of the position, such as the salary or benefits paid to whoever occupies the office, increased during the term for which the Senator or Representative was elected.
Specifically, article I, section 6 of the U.S. Constitution provides, "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time." The text of the provision is an absolute prohibition and does not allow for any exceptions.
According to Judicial Watch's lawsuit, the "emoluments" of the office of U.S. Secretary of State increased three times during Mrs. Clinton's most recent U.S. Senate term. That term, which began on January 4, 2007, does not expire until January 2013, regardless of Mrs. Clinton's recent resignation. The lawsuit notes that Congress attempted to evade this clear constitutional prohibition with a so-called "Saxbe fix" last month, reducing the Secretary of State's salary to the level in effect on January 1, 2007. This maneuver, first used in the Taft Administration, has been more frequently used in recent years by both parties, allowing notably Republican Senator William Saxbe to become U.S. Attorney General in 1973 and Democratic Senator Lloyd Bentsen to become Treasury Secretary in 1993. A similar "fix" has been enacted for Senator Ken Salazar to join the Obama Cabinet as Secretary of the Interior.
Well, that didn't take long...
- Garry J. Wise, Cancun
Update: February 9, 2009
More on Mr. Klayman's plans "to give the Obama socialists hell in the next four years” and his ongoing rift with Judicial Watch here
- G.J.W.
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A quick note to point our readers to an excellent new employment law blog from Osoode Hall Law School students.
The Osgoode Labour & Employment Law Society Blog is now featuring a recap of 2008's ground-shifting law decisons by the Supreme Court of Canada.
Its Employment Law Quadrilogy 2008, Part 1 looks at Evans and Teamsters and the duty to mitigate. Employment Law Quadrilogy 2008, Part 2 tackles Honda and Keays.
- Garry J. Wise, Cancun
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TRENTON, N.J. -- Gay marriages performed elsewhere are recognized in New Jersey for the purpose of divorce, said a ruling Friday by a judge presiding over a case in which a lesbian couple married in Canada are seeking to split.
The wider implications weren't immediately clear but Superior Court Judge Mary Jacobson said New Jersey has a long history of recognizing marriages that are valid where they were performed.
...The state attorney general's office had opposed the request, the first of its kind in the state, and was seeking to have the couple's marriage dissolved as if it were a civil union. Officials have not said whether the state will seek an appeal.
...Courts in a handful of states, including New York, Oklahoma, Rhode Island and Texas, have wrestled with the question in the last few years. In most cases, judges have ruled the state would not grant the divorces because the states do not recognize same-sex marriage.
There have been a flood of recent decisions in U.S. courts regarding same-sex marriages and unions:
We wrote last week on a New York probate court's decision that recognized a Canadian same-sex marriage in the context of estate distribution.
Volokh also had two articles this week, highighting:
On the political front, the New York Times reports today that no legislation to legalize gay marriage in New York State is likely in 2009:
New York Senate Majority Leader Malcolm A. Smith said that he did not believe legislation to legalize marriage between same-sex couples had enough support to become law in New York this year.
See: No Gay Marriage Bill This Year.
- Garry J. Wise, Cancun
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Our friends at Overlawyered are not amused:
Ontario bans smoking in cars with children present
Because the government, unlike your parents, has your best interests at heart.
Meanwhile, Ontario's proposed ban on use of hand-held cell-phone while driving has passed second reading, but remains in Committee.
Thus, it is not yet the law of our Province.
- Garry J. Wise, Cancun
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The blawger definition of a news scoop:
I got to my RSS feeds before you did...
:)
- Garry J. Wise, Cancun
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Following up on the Ontario Superior Court's recent decision on parental alienation in A.G.L. v. K.B.D. (our report from last week is here), the Globe and Mail takes a critical eye to American counselling centres that purport to provide treatment to the "children of alientation."
See writer Kirk Makin's article, Judges sending children to U.S. for quack therapy, expert charges:
Parental alienation centres in the United States are using unproven "quackery" to deprogram children ordered into their care by well-meaning Canadian judges, a leading Ontario child psychologist has charged.
Peter Jaffe says the programs may even damage children by destroying overnight their primary support bulwark: the alienating parent whose care they have been under.
"It is not a good thing if a child has bonded to an alienating parent, but disrupting that child and pulling them away from whatever sense of security they have may end up being more harmful than good in the long run," said Dr. Jaffe, a professor at the University of Western Ontario in London.
"When you're going to provide a treatment, you have to know what the unattended consequences or side effects are," he said. "You may be solving one problem but creating a whole host of new problems."
The deprogramming issue erupted last week after a Toronto judge forcibly removed three girls from their mother and sent them for treatment to a U.S. centre in an undisclosed location. It was at least the third time that an Ontario judge has taken the extreme measure in the past year.
I'm not sure we know enough about these programmes to truly evaluate their long or short term implications. I am inclined to find them conceptually suspect, at very least.
To add a bit of perspective, however, I'll note that in Ontario, the forcible removal of children from emotionally destructive environments and subsequent enrolment of such children in state-mandated counselling programmes is not entirely a radical or new development.
In child protection matters, our Children's Aid Societies have a statutory mandate to do exactly that - in extreme circumstances where less intrusive interventions have been to no avail. This is the case, irrespective of how deep the attachment of affected children may be to their problematic caregivers.
See the definition of a "child in need of protection" at section 37(2) of Ontario's Child and Family Services Act:
(2) A child is in need of protection where,
(f) the child has suffered emotional harm, demonstrated by serious,
(i) anxiety,
(ii) depression,
(iii) withdrawal,
(iv) self-destructive or aggressive behaviour, or
(v) delayed development,and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;
(f.1) the child has suffered emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;
(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;
(g.1) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and that the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm;
(h) the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child’s development and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, treatment to remedy or alleviate the condition;
Is a child who is on the receiving end of unrelenting parental alienation a "child in need of protection?" At the extremes, probably.
The question, however, of whether the so-called U.S. deprogramming centres are an effective cure is an open one. I'd like to see research and data on this, before jumping to any conclusions.
And by research, I mean objective, comprehensive data on the long-term psychological well-being of children treated in these therapies. I was not swayed by the narrowly-defined study of a clearly tiny sample group by an involved clinician with a potential financial interest in the outcome, as was documented in an article yesterday at Parent Central (h/t Tamara E.):
Beyond that, I can't deny that a made-in-Canada solution - one that would allow our courts genuine ability to scrutinize, supervise and regulate "anti-alienation" therapies - would leave me considerably less frosty about this form of intervention.An intensive four-day program for children who've been brainwashed by one parent into hating another is showing signs of success, with more than 80 per cent repairing their relationship with an alienated mother or father, according to new research presented by its lead clinician.
The results, made public yesterday and currently undergoing scientific peer review, show that 17 out of 21 children who have completed the program after being removed from the grip of a "toxic" parent forged good relationships with the other parent that continue more than two years later.
"I think part of it is the children are relieved; they never really wanted to be soldiers in this war between their parents," Richard Warshak, a University of Texas psychologist who runs the program, told lawyers attending the Ontario Bar Association's annual conference yesterday.
Warshak's work was cited last month in a Toronto judge's ruling that stripped a mother of custody of her three daughters after the woman spent more than a decade trying to poison them against their father.
...Warshak won't say how much the program costs but does call it "expensive" – equal to 1 1/2 to two years of conventional therapy.
...Although 130 children have completed the program, Warshak's research looked only at the 11 families he has treated himself. Seven of the alienated parents were mothers; four were fathers.
- Garry J. Wise, Cancun
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Canadian law firm Faskin Martineau has released the results of its 2008 Litigation Trends in Canada Study.
According to news release by the firm:
Canada is more litigious than most believe, according to a study commissioned by leading Canadian law firm Fasken Martineau. Over 40% of respondent companies indicated they were involved in some form of litigation over the prior year.
Labour and employment issues rank the highest in the type of dispute that most concerns Canadian companies according to the Fasken Martineau study. Contracts, personal injury and product liability rank second, third, and fourth, respectively.
- Garry J. Wise, Cancun
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In a decision released yesterday, a second court in New York State has recognized the validity of a Canadian same-sex marriage.
Law.com reports:
Recognizing the validity of a same-sex marriage between New Yorkers contracted in Canada, a Manhattan surrogate has ruled that a man is entitled to inherit the entire estate of his deceased male partner. The decision comes months after a Queens surrogate took a more cautious approach in holding that the validity of gay marriage had not been "definitely determined," ruling that the deceased partner's parents had to be included in probate proceedings.
Also see Family Law Prof Blog on this decision - Surviving Same -Sex Partner in Canadian marriage ruled "spouse"
In a brief opinion, a Surrogate Judge in New York recognized a Canadian same-sex marriage for probate purposes, declaring the surviving partner the "surviving spouse and sole distributee" and thus not requiring process to other members of the decedent's family. A copy of the Kristin Booth Glen's opinion, published in the New York Law Journal, page 27, today, is available here and the front-page article is available here, and continued here.
This ruling is consistent with a February 2008 New York appellate decision in Martinez v. Monroe, a landmark ruling that for the first time recognized a Canadian same-sex marriage as legally valid in the state.
In November, Monroe County abandoned its plans to appeal that ruling.
Based on these two decisions, it appears for the time being that New York State does indeed recognize the validity of Canadian same-sex marriages. The true test, however, may come when the State's courts determine whether they have jurisdiction to grant a same-sex divorce to a couple legally married in another jurisdiction.
We reported in December, 2007 on a 3-2 decision of the Rhode Island Supreme Court on this issue:
[The court] held that it lacked jurisdiction to grant a divorce to a same-sex couple that married in Massachusetts, but had moved to that State. In short, the court declined jurisdiction because Rhode Island does not recognize same sex marriages.
- Garry J. Wise, Cancun
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Following the emerging trend of Canadian law schools making a switch from the LL.B. to J.D. degree designations the York University’s Senate has approved a change in Osgoode Hall Law School’s law degree designation from Bachelor of Laws (LLB) to Juris Doctor (JD).
According to a York University press release, the new designation will come into effect with graduating class of 2009 and will also apply retroactively to alumni who choose to convert their degree. Students can however opt out of the change and receive an LLB rather than a JD.
The primary reason for the switch appears to be a feeling amongst the student community that the move will make the degrees more attractive in the international legal marketplace. However experts believe that the switch may not make any difference on international hiring as the firms who hire internationally are global firms who hire graduates from different countries, and regardless of the degree designation they know just what they're getting.
Whether the switch will make a difference in international marketability or not the new designation is at least easier to say and remember. Not many people know what LL. B. actually stands for.
- Shashi K. Raina, Toronto
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Legally speaking . . .
A frustrating aspect of the law is its occasional unfairness to those who lead their lives honestly. Consumers and business owners often lament that the unscrupulous, often with deep pockets, somehow figure out how to avoid paying the piper, despite laudable efforts of our legislators, courts and judges. But our legal system does have mechanisms to make justice prevail and catch the unsavory. And cases involving antiques illustrate how it can be done, by availing ourselves of extraordinary remedies.
Courts were originally created to provide financial compensation for perpetrated wrongs. But that didn’t always result in justice. So centuries ago in England a second level of court developed, known as the court of equity. Its job was to apply established concepts of law, but using principles of ethics and fairness, combined with good common sense and judgment … not always an easy task. In fact Charles Dickens’ Bleak House parodied the excessive time and expense associated with the Court of Chancery (the court hearing equity lawsuits) in 19th century England.
The most common extraordinary remedy, originally used in the English courts of equity, is the injunction. An injunction either requires that someone do something, or not do something. It’s customized to a specific set of facts and in general will be granted only where monetary damages are inadequate. It can be granted on a temporary basis, very quickly, and even without advance notice to the person it affects.
JUSTICE PREVAILS
The British Columbia case of Kay Minge v. J.W. Oak Furniture Imports Ltd. and William Heinhuis illustrates how this extraordinary remedy is particularly suited to claims involving antiques. Kay Minge was an antique automobile collector, residing in Norway. He agreed to purchase a 1932 Chrysler Imperial Le Baron Roadster for $124,800 (USD) from the defendants. The defendants admitted that Mr. Minge paid that amount within about ten days, but they refused to deliver the car. They said the contract was for the Le Baron and a 1976 John Deere Model 450 Tractor for an additional $50,000; that part of the sum was for the Le Baron, and part for the tractor; and that the agreement was that the vehicles wouldn’t be delivered until payment had been received in full for both. The plaintiff sued to get the Le Baron, and the defendants countersued for the balance.
On the face of that evidence, the defendants’ case seemed suspect: Mr. Heinhuis admitted that there was a deal for $124,800, and that the money had been paid … but part of that money was for the tractor sale and therefore neither vehicle had been paid for in full, all rather curious. However, there was fax and other evidence lending some credence to his position.
The proceeding was a motion brought by Mr. Minge, before trial, requesting interim delivery of the car pending trial. There was only affidavit evidence, so the Master of The Court didn’t hear oral testimony, note the demeanor of the witnesses, and examine all of the documents.
Just as with any rare antique or piece of art where ownership is in dispute, if the item remains with the vendor pending trial he can dispose of it, or it could be stolen or destroyed by fire. It wouldn’t be enough for Mr. Minge to eventually get his money back, because the vehicle was one-of-a-kind, and money wouldn’t be adequate compensation for the deal not coming to fruition.
The Master carefully considered the range of remedies available, deciding:
1) Provided the plaintiff pay into court money as security for the defendants’ counterclaim (i.e. the tractor payment), they shall release the Le Baron to Mr. Minge; should they retain the tractor they shall keep it insured; and, pending delivery of the car to Mr. Minge they shall not expose it to inclement weather and keep it insured.
2) If the plaintiff elects to not pay the additional sum of money into court as security, the defendants shall retain both vehicles, insured and protected from inclement weather.
In both instances, the interim order provided for inspection by the other side and proof of insurance coverage.
Mr. Minge gets his vintage vehicle, at his option either in his possession immediately or protected for him pending trial, and the defendants’ rights are preserved should they wish to pursue their counterclaim for sale of the tractor. In addition, the order could be registered with provincial government ministries, to prevent the defendants from mortgaging or disposing of the Le Baron before trial.
AND CATCHES THE UNSAVORY
Earlier this year a lawsuit was brought before the Ontario Superior Court involving a collection of 14 classic cars valued at $350,000 (CDN), in more dire circumstances. The saga began with a franchise known as O.K. Tire Stores suing former licensee James McLaughlin Jr. and his corporation, Ace Tire. In May, 2007, O.K. Tire obtained a temporary injunction restraining the defendants from using the plaintiff’s trade marks and trade name. In September, a judgment made the injunction permanent and ordered McLaughlin and his company to pay damages for an outstanding debt, passing off, and costs, totaling $199,830.25.
In February of this year, O.K. Tire commenced a second proceeding, O.K. Tire Stores Inc. v. McLaughlin, suing McLaughlin, Ace Tire, and four members of the McLaughlin family. Of the total owing, O.K. Tire had only recovered $1,674.71, through garnishment.
In the new proceeding, the plaintiff alleged that in 2004, McLaughlin submitted a credit application, representing that he owned the home in which he resided, the classic car collection, and more, and that his net worth was $641,700. After obtaining the judgment, O.K. Tire learned, amongst other things, that the home had been transferred into the name of Charlotte Murphy McLaughlin and James McLaughlin Sr. and that 9 motor vehicles had been transferred to McLaughlin’s wife, Debra. In addition, while McLaughlin had stated that he had “walked away” from the Ace Tire business, the plaintiff learned that the Ace Tire business location was being operated by McLaughlin’s brother, Martin.
O.K. Tire asked a judge, without giving notice to the defendants, to require that the McLaughlins preserve their assets and allow the plaintiff to put liens (certificates of pending litigation) on real estate, including the home. The basic allegation was that McLaughlin and his family had wrongfully taken steps including transferring property, with the intention of avoiding paying O.K. Tire. A concern was that the if the defendants knew that O.K. Tire was going to ask the court for such an order, it would give them time to dispose of everything, before a court order was made.
The judge’s order, made February 14, 2008, without the defendants knowing that the plaintiff had even started the new proceeding, included these terms, pending further court order:
1) The defendants or anyone acting on their behalf are restrained from directly or directly taking any steps to sell, transfer or otherwise deal with the vehicles and shall preserve and maintain insurance on them;
2) The defendants are to within ten days provide the plaintiff with a sworn statement stating the location of the vehicles, and by not doing so they will be in contempt of court and may be liable to be imprisoned or fined;
3) The plaintiff is granted permission to but a lien on the two pieces of real estate in issue in the case, including the home;
4) Any interested party can apply to amend the order;
5) The plaintiff is required to serve the order and the court proceeding (claim) as soon as possible.
Two points are noteworthy: Firstly, none of these allegations (which do not constitute all those which were made) have been proven to be true at a trial, and in fact they represent only a summary of the plaintiff’s version of the facts. Secondly, as of June, 2008, according to the lawyer representing the plaintiff, the plaintiff and the defendants were is settlement negotiations, and no further court order had been made.
The plaintiff didn’t want Mr. Mclaughlin’s antique cars or his home. All he wanted was that the debt ordered by the court to be paid, be satisfied. On the face of the allegations it appeared that McLaughlin, with the help of his family, was trying to arranged his affairs to avoid paying the debt, if not fraudulently then certainly by taking illegal steps. You can sell or dispose of property, as long as your motivation is not to defeat another’s claim.
SUMMARY
An injunction is an extraordinary remedy available to Canadian courts today, historically rooted in the British court of equity, designed to meet specific, often urgent, fact situations. It can be used to protect the rights of an antique collector, to ultimately acquire a unique piece, where money would be inadequate compensation. It can be granted on a temporary basis, fast and without notice to the people it affects, where there’s a danger of irreparable harm to the innocent. Even when the gate has been closed after the horse has left the barn, justice can still prevail.
Alvin Starkman is a member of The Law Society of Upper Canada. However, this article is not intended to be and should not be relied upon as constituting legal advice or opinion. Alvin and Arlene, former Toronto residents and collectors of Canadiana, moved to Mexico in 2004. They operate Casa Machaya Oaxaca Bed & Breakfast - http://www.oaxacadream.com
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Canada's press has been having a field day with four sensational cases that have been winding their way through the nation's courts.
Dealing with fundamental questions at the very root of our values around marriage, children and family, these cases have captured the public's collective imagination - and ire -for very good reason.
The questions they pose are clearly lightning rods for debate:
[1] The issue in this long motion is whether the respondent’s child support obligations for two children, who are 16 year old twins, should terminate, now that DNA testing has confirmed that he is not their biological father. The respondent is also seeking repayment of the child support that he paid to the applicant for the twins from the date of separation in 1998, or at least from the date of a consent order of May 2, 2002 when the parties agreed to joint custody and to child support for the three children.After an exhaustive review of the circumstances under which the law requires payment of child support by parental figures who have been in loco parentis - in the stead of a parent - with their non-biological children, the Court required the continuation of child support payments to the mother.
At the root of this decision is the reality that the former husband was the only father figure the children had ever known. He had adopted the role of their father throughout the marriage.In van Rensburg's ruling, the fact that Pasqualino Cornelio had acted as the twins' father for so long was key to her decision.
"The relationship that developed from the time of their birth was the natural relationship between a parent and his children," she said. "The fact of that relationship – even if it has now become strained – is sufficient to require Mr. Cornelio to continue to contribute toward the children's material needs."
....It is consistent with the decision of the Supreme Court of Canada in Chartier that focuses on the reality of the relationship and the best interests of the child in determining whether a parental role has been assumed and whether child support should be paid. Further, and on the authority of the F.S. line of cases, while the failure of Ms. Cornelio to disclose to her husband the fact that she had an extramarital affair and that the twins might not be his biological children may well have been a moral wrong against Mr. Cornelio, it is a wrong that does not afford him a legal remedy to recover child support he has already paid, and that does not permit him to stop paying child support.
Parental Alienation has Consequences - AGL and KBD[23] The right to child support is the right of a child, and is independent of a parent’s own conduct, whether it be delay in pursuing support, an attempt to contract out of support, or the failure to disclose an extramarital affair that may have led to the conception of the child. Mr. Cornelio was the only father the twins knew during the course of the marriage; the relationship that developed from the time of their birth was the natural relationship between a parent and his children. The fact of that relationship, which continued for six years before separation and then for 10 years after separation, even if it has now become strained, is sufficient to require Mr. Cornelio to continue to contribute toward the children’s material needs.
[24] Even if this matter were approached on the basis of fairness to the respondent, I would conclude that his child support obligations toward the twins continues notwithstanding that he is not their biological father. By his own admission, Mr. Cornelio knew at the time of separation that his wife had an extramarital affair with “Tony” and he developed suspicions that she had known Tony during the marriage and that he might be the father of all three of their children. Notwithstanding these suspicions, Mr. Cornelio sought joint custody of all three children and entered into a consent order that provided for his ongoing and important involvement in their lives and for the provision of child support. It was not until access was interrupted and Ms. Cornelio commenced these proceedings seeking increased child support that the respondent began pursuing this issue. As Mendes da Costa U.F.C.J. noted in Spring, a support obligation to a child created by one’s conduct during the marriage cannot be cast aside after separation. I can only conclude that this motion by Mr. Cornelio is a response to the current conflict with the applicant and his unfortunate alienation from the children, which may well be temporary.
In a stunningly blunt rebuke to the children's mother, the Court ordered that the three children girls be removed from their mother's care."It is now time for his and the children's fates to be free from [the mother's] control," Madam Justice Faye McWatt of the Ontario Superior Court of Justice said in her ruling. "She has shown that she cannot be entrusted with it."
The judge said the children had become so poisoned toward their father by the mother's "emotional abuse" that they had lost the capacity to make independent decisions about interacting with him.
... K.D. [the mother] also refused repeatedly to comply with court orders granting A.L. visitation rights, and invented excuses to thwart them.
Judge McWatt said a psychologist who assessed the family noted that K.D. was obsessive about observing the children when they were with their father, retained an unreasoning belief that he would harm them, and "overprotected the three children to the point of infantilizing all of them.
"Eventually, he was not allowed to see or speak to the children - but was left shouting good night to them through a door of K.D.'s home," Judge McWatt added. "Most times, he was not aware whether they were in the house. He did this for up to two years during this period."
The court also issued a restraining Order, preventing the mother from having contact with the children, pending a subsequent review of the family's progress:[151] The three children of the marriage have been alienated from the Applicant over a long period because K. D. is unable to accept that it is in the best interests of the children to have a relationship with their father. She has been given several opportunities to change her behaviour over many years, and refuses to do so. I find that her unrelenting behaviour toward the children is tantamount to emotional abuse as described by Dr. Fidler. The views and preferences of the two older children are not their own. And for the children to have any further contact with the Respondent, significant therapeutic intervention is necessary.
[152] It is remarkable that A. L. has not given-in to the Respondent’s persistence in keeping his children from him over the last fourteen years and simply gone on with his life without the children as, no doubt, many other parents in the same situation would have and, indeed, have done. It is now time for his and the children’s fates to be free from K. D’s control. She has shown that she cannot be entrusted with it.
[153] The best interests of these children require an order for A. L. to have sole custody of them...
Pursuant to section 17(3) of the Divorce Act and section 35 of the Children’s Law Reform Act, and subject to paragraph 2 herein, the Respondent [mother] is not to harass, annoy or molest, or attend within 300 meters of, or have any contact with the Applicant [father]or the children. She is not to have any contact, direct or indirect, or cause any contact, direct or indirect, with the children or with the Applicant pending review of this matter, as set out below, and this Order of restraint of contact by the Respondent with the children applies to all places where the children attend, including, without limiting the generality of same, the Applicant’s home, the children’s schools, the children’s church or place of extracurricular activities.What can we take from these two cases?
The National Post reports on the case, now before the Quebec Superior Court:
Montreal blogger Coolopolis takes a more caustic look at the case in Common lawlessness in Quebec - the land without wedding rings:A Quebec billionaire at the centre of a messy and public airing of his 10-year relationship with a young Brazilian summed up yesterday why he never married her, despite having three children together.
"It's not my cup of tea," the man, who can't be identified under provincial law, told a packed Quebec Superior Court room. His former common-law wife has launched a constitutional challenge to Quebec's unique-in-Canada family law to receive financial support, in a case that could affect the rights of the one million common-law couples in the province...
The woman's lawyers, who expect the case to go to Canada's top court, want couples in de facto unions for three years without children or one year with children treated the same as people who are married, just as in all other provinces.
The woman is asking for $56,000 a month plus a onetime payment of $50-million -- a figure she says reflects the kind of spending power she had when the two were together.
But the man, now living with a model to whom he is not married but with whom he has two children, says he gives the three children by his former lover ample support... He pays for the nannies, chauffeur, cleaning lady and cook, as well as all the children's school fees. He gives the woman $35,000 a month in child support.
Quebec has a lot of such unmarried couples. According to Statscan figures from 2005, 34.6 of women in Quebec are living in common law relationships.
Quebec's rate of couples living together out of wedlock is almost triple the rate in the rest of Canada, where only 13.4 percent of women are in unmarried cohabitation fake-marriage situations. Other countries are all far lower than Quebec. Britain, which studies show is the most sexually active country in Europe sees only 15.5 percent of couples in common law relationships.
... Quebec has Civil Law, the Napoloenic Code, as it's known. We do not practice Common Law here, so Common Law relationships is a misnomer. There's no such thing as a common law relationship, so there's no compensation for women splitting up from such a relationship.
So living in Quebec is a great deal for rich men. Sure, they'll be on the hook for child support payments but beyond that it's zilch.
I'm still scratching my head at why (and how) Quebec's provincial government has avoided this issue for so long.
While the actual legal arguments to be advanced have not been featured in any of the press coverage to date, I expect the parties' positions will focus of the conflict between the Constitution's separation of provicial and federal powers and the Charter's Section 15 guarantee of "equal protection and equal benefit of the law without discrimination... based on national or ethnic origin, sex..."
And for those who are interested, Ann-France Goldwater, the lawyer for the woman claiming support in this case, made a cameo appearance in the comments section of our first blog post on this case.
The Polygamists' Rationale - Everybody else is doing it...
Finally, with criminal charges pending against a British Columbia man with 19 wives, polygamy will now have its Canadian test of constitutionality.
As the Globe and Mail reported on January 21, 2009:
Same-sex marriage, they said, would be the slippery slope to polygamy.
Just a few short years after Canadians engaged in a caustic debate over whether two men, or two women, should be allowed to marry, the prognosticators will find out if they are vindicated - however unhappily.The lawyer for Winston Blackmore, the man with 19 wives in the B.C. religious community of Bountiful who is to appear in court today on polygamy charges, says he will cite Canada's gay-marriage laws as part of his defence.
It's an argument that people on both sides of the same-sex marriage fight were expecting: If same-sex marriage is justified under Charter rights to equality, then polygamy is justified under the Charter's protection of religious freedom.
The article continues with discussion of another BC polygamy charge, now pending:
Marriage By the NumbersSalt Lake City lawyer Rodney Parker, who has represented members of the polygamous religious community in the United States, said yesterday the legalization of gay marriage in Canada will allow the court to focus directly on the defendants' constitutional rights in a way that U.S. courts could not.
With the Supreme Court of Canada decision legalizing gay marriage, Canada is "further down the path" than the U.S. on marriage issues, he said.
"It is a defence we've argued for in the states," Mr. Parker said in a phone interview from his office. The arguments, however, were ineffective because U.S. prosecutors went after sexual crimes, not polygamy. "The cases we had down here so far involved minors. Oler's case does not involve a minor."
Jim Oler, a rival leader from a different faction within the religious community in B.C., has also been charged with polygamy, for allegedly having two wives. Mr. Oler is aligned with those in the U.S. who have been represented by Mr. Parker. The Salt Lake City lawyer was the spokesman for the church after the raid last spring on the group's Yearning for Zion compound in Texas.
Beyond that, doesn't the law, in theory, already provide some protection to polygmous spouses?
For example, if a person has dozen common-law spouses, wouldn't each of them have a support claim against the primary other - or perhaps all of the others - upon separation, if the cohabitation had a duration of at least three years.
(Except in Quebec, of course).
So there you have it. It's only January, but 2009 is shaping up as a year in which family law courts will be addressing a number of cutting-edge issues that will raise a few eyebrows.
- Garry J. Wise, Toronto
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UPDATE:
A few of our comments have noted support awards to polygamous spouses by provincial courts in Saskatchewan. They've also directed my attention to the Criminal Code provision on polygamy:
293. (1) Every one who
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
The text above has been amended accordingly.
Law is Cool has an interesting podcast on this topic here.
G.J.W.
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
In yet another "top legal blog" listing, Avvo Blog is now posting Alexa's traffic rankings for the top 300 law blogs.
Among Canada's offerings, our own Wise Law Blog comes in at a not-too-shabby #104. Our friends at Law is Cool are impressive at #82, all as of today's rankings.
And on a related topic (from the better late than never department), the selections for the 2008 CLawBie Awards are up, and we are glad to see the notable quality of the blogs that have been highlighted, many of which are featured daily at our sister site, Wise Law Reader.
Congratulations to this years award recipients, and to Steve Matthews for once again quarterbacking this crowning event of the Canadian law blogger year. Next year, I'm thinking a fancy CLawBie dinner with champagne and tuxedos and evening gowns would be nice ...
- Garry J. Wise, Toronto
Update: February 5, 2009
I note that the good folks at Slaw now appear as the heavyweight Canadian representative on Alexa's law blog traffic rank listing. Today Slaw is listed at number 32.
Well deserved.
For the statistically-inclined, another ranking service is found at Justia's BlawgSearch. Justia's daily Canadian law blog "popularity" listings are here. Weekly, monthly and "all time" rankings are also available at the site.
The site's design has been updated, and now includes RSS headline feeds of recent (but not totally up-to-date) blog posts from the sites listed.
- GJW
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
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