19 April 2014

Extraordinary Court of Appeal Decision: Rights of Guardianship May Survive Agreement for Sole Custody

The British Columbia Court of Appeal has released its decision in Re British Columbia Birth Registration No. 2004-59-020158, a fascinating case that has some very important implications for orders and agreements for sole custody made before the new Family Law Act came into effect on 18 March 2013. As usual, understanding the important point this case makes requires a bit of an explanation, however let me start with the facts.

Background

In a nutshell, this case is about a mother's application for the adoption of her child by her new spouse and, because the father was none too happy with the idea, an order that the necessity of his agreement with the adoption be waived.

The mother and father separated in 2006 when their son was a year and a half old. A few months later they signed a separation agreement — this is important — giving the mother sole custody of the child and unspecified access to the father. This is what the agreement said:
CUSTODY, ACCESS AND GUARDIANSHIP 
2. [The mother] will have custody of [the child]. 
3. [The father] will have reasonable access to [the child]. 
4. If [the father] and [the mother] are at any time unable to agree on the particulars of access or on a variation of access, either may apply to a court of competent jurisdiction for directions. 
5. All terms as to custody, access and guardianship may be varied by the written consent of both Parties duly witnessed and signed as an Amendment to this Agreement.
Although the father initially saw his son almost every weekend, the frequency of his visits began to decrease after the mother started a new relationship. The mother and father divorced in 2010, and around the same time, the mother and her new partner took the child and moved out of town. The father was not told of the move and had no idea where his son was living until litigation ensued. The mother married her partner in 2011, and the couple started a law suit in the Supreme Court seeking an order that he adopt the child and a decision as to whether the father remained a guardian of the child after the parties' signed their separation agreement.

The Decision at Trial and a Parenthetical Comment on a Psychologist's Recommendation

The father, who had started a law suit in the Provincial Court for an order giving him specified access to his son, objected to the adoption application. As a result, the mother's claim went to trial, and her claim was heard together with the father's claim for access. The trial judge dismissed the mother's law suit and made an order that the father have access to the child; the trial judge decided that it was unnecessary to determine whether the father was a guardian of the child or not. The mother appealed the decision.

(I pause here to note that, at trial, a psychologist recommended that the mother's new spouse be allowed to adopt the child and that the father should have some limited access to the child. This was the psychologist's testimony:
"... in the report [I prepared] I actually make the point that perhaps there could be an agreement almost quid pro quo that if [the father] would allow the adoption, then there would be a reciprocal cooperation on the part of [the mother] to facilitate this type of arrangement to take place. ... I was hoping that — that by saying that there would be a reciprocity where [the father] would agree on adoption in exchange for [the mother] promising to — to allow and facilitate and arrangement that would allow [the child] to know [the father] and the paternal family, that — that if there was that reciprocal agreement, that it would make sense that — that — because what he wants is — meaning [the father] — what he wants is he wants to be a part of the child's life, he wants to have some input, he wants the child to know him, and he wants to know the child. But if — if in exchange for that, he gave up the ability and allowed them to adopt, then perhaps we could — you know, there might have been some — some agreement in that regard ..."
In other words, the psychologist was recommending that the father should give up his status as the child's father, and the rights that go along with that status, in exchange for contact with the child. This recommendation trespasses upon the offensive; the father had a right to seek contact with the child merely because of his status as the child's father, and he is now being asked to give up that status to obtain the access he ought to have had in any event? The Court of Appeal shared my concern:
"[31] Frankly, this notion of [the father] consenting to the adoption in consideration for future contact rights is troubling. I do not view a natural parent’s interest in consenting or not to the adoption of their child as something that should be required to be bartered away for the right to be peripherally involved in the child’s future. Yet that is what [the mother] was proposing and it is precisely what [the psychologist] was effectively recommending. ...
"[33] With respect, it is inappropriate to effectively require (or even to simply encourage) [the father] to give up his parental ties to the child as the price for gaining [the mother's] 'co-operation' in facilitating his future contact with the child, to which, prima facie, he is entitled at law."
Let me climb off my high horse and return to the main topic. I apologize for the long-winded diversion.)

The Decision on Appeal

According to the judgment of the Court of Appeal, written by the province's Chief Justice, the mother's main argument on appeal was that the trial judge effectively ignored the child's best interests by dwelling on the mother's behaviour in "isolating the child" from contact with the father. However, the main issue for the court was the not the adoption claim, which it dismissed, but the question of the father's standing as a guardian of the child, and this is where the decision gets really interesting.

First of all, remember that the parties' agreement talked about custody and access but really didn't say anything about guardianship, even though that section of their agreement was titled "Custody, Access and Guardianship" and paragraph five said "all terms as to custody, access and guardianship may be varied by the written consent of both Parties." This agreement was made when the old Family Relations Act was the law of the province. Section 27 of that act set out certain presumptions about how guardianship was to be shared during and after the parents' relationship (important bits in bold):
(1) ... whether or not married to each other and for so long as they live together, the mother and father of a child are joint guardians unless a tribunal of competent jurisdiction otherwise orders. 
(2) ... if the father and mother of a child are or have been married to each other and are living separate and apart, 
(a) they are joint guardians of the estate of the child, and
(b) the one of them who usually has care and control of the child is sole guardian of the person of the child unless a tribunal of competent jurisdiction otherwise orders.
Since the parties' agreement didn't make any decisions about guardianship, this meant, according to both the trial judge and the Court of Appeal, that the father continued to be a guardian of the estate of the child, under s. 27(2)(a). Of course, since the agreement gave custody to the mother, she had "care and control of the child" and was therefore the guardian of the person of the child under s. 27(2)(b).

(Time for another diversion. "Guardianship" of a child has always — well, at least since 1660 — had two components, guardianship of the person of the child and guardianship of the estate of the child. Someone who is the guardian of the person of a child has the right to make decisions about where the child goes to school, how health care issues are managed, about the child's language and culture, how the child is disciplined, and so on; essentially, the guardian of the person of the child decides how the child is raised. Someone who is the guardian of the estate of a child is entitled to make decisions about how the child's property is managed, in the manner of a trustee of that property.)


This leads to the question of the parties' status under the new Family Law Act. Sections 251 and 252 are the main parts of the new act that translate orders and agreements made under the old act. Section 251, which applies here, says this:

(1) If an agreement or order, made before the coming into force of this section, provides a party with
(a) custody or guardianship of a child, the party is a guardian of the child under this Act and has parental responsibilities and parenting time with respect to the child under this Act, or 
(b) access to, but not custody or guardianship of, a child, the party has contact with the child under this Act.
(2) For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are as described in the agreement or order respecting custody, guardianship and access.
The parties' agreement gave the mother custody; she is clearly a guardian of the child. The court considered the father's status by comparing the rights of a guardian of the estate of a child under the old Family Relations Act to the rights of a "guardian" under the new Family Law Act

This is what s. 25 of the Family Relations Act said about the rights involved in guardianship:
(2) Subject to this Act, a guardian of the estate of a child has all powers over the estate of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second, chapter 24, and 49 and 50 Victoria, chapter 27, section 4.
Frequent readers will recall that these two acts are the UK Tenures Abolition Act of 1660 and the Guardianship of Infants Act of 1887. (I talk about these acts in my post "Supreme Court Releases Important Decision on Paramountcy Problem between Divorce Act and Family Law Act" and in some of my other writing on this issue.) After considering an amendment to this part of the Family Relations Act that never came into effect, the court concluded that the rights involved in being a guardian of the estate are similar to those of a trustee:
"[50] ... Equating the guardian of the estate with a trustee of the child’s property recognizes the obligation of a guardian of the estate to protect and manage the child’s property for the benefit of the child and the right of the guardian of the estate to control the child’s property to that end."
The decisions guardians can make under the new act are "parental responsibilities," and are listed at s. 41. Of all of those parental responsibilities, the court held that the rights of a guardian of the estate of a child were most similar to those found at s-s. (k):
(k) subject to any applicable provincial legislation,
(i) starting, defending, compromising or settling any proceeding relating to the child, and 
(ii) identifying, advancing and protecting the child's legal and financial interests;
To this point, then, the Court of Appeal has reached these three conclusions:
· If you were married and have an agreement — or, by extension, an order — that gives the other parent sole custody but doesn't say anything about guardianship, you are a guardian of the estate of the child under s. 27(2)(a) of the Family Relations Act
· As the guardian of the estate of the child, you are a trustee of the child's property and must "protect and manage the child’s property for the benefit of the child," and you have the right "to control the child's property" for that purpose.  
· These rights and duties are the same as having the parental responsibility, under s. 41(k) of the Family Law Act, for handling legal proceedings on behalf of the child and protecting the child's financial interests.
Now we need to get back to the translation provisions of s. 251. The parties had an agreement giving the mother sole custody, but the agreement didn't decide anything about guardianship. This is what the court said about the intention of s. 251 and its effect on the rights distributed by the parties' agreement:
"[58] Section 251 is a transitional provision. It should not be lightly interpreted as taking away substantive vested rights. ...
"[59] ... did the separation agreement, properly construed, take away [the father's] then vested (under s. 27 of the FLA) right to guardianship of the estate of the child? I think not. In my view, one should interpret the separation agreement, by referring to guardianship without more, as implicitly continuing the guardianship regime then in place which afforded joint guardianship to [the mother] and [the father] of the estate of the child. Section 251 does not affect this status."
And now we can add a fourth point to the court's conclusions:
· If you are guardian of the estate of a child, as a result of an old agreement or order, you are a guardian under the Family Law Act, with the parental responsibility set out at s. 41(k), and other parental responsibilities under s-ss. (h), (i) and (j) as may be necessary for you to act under s-s. (k).
However, whether you're a guardian as a result of an old agreement or order under s. 251 or because you're one of the people who are presumed to be guardians under s. 39 of the new act, your standing can also be taken away under s. 51, which says this:
(1) On application, a court may
(a) appoint a person as a child's guardian, or 
(b) ... terminate a person's guardianship of a child.
And in this case, the the court decided it should be taken away:
"[60] In my view, it would not be in the best interests of the child in all the circumstances to grant [the father] parental rights under s. 41(h), (i), (j) and (k) of the FLA."
At the end of the day, the result from the Court of Appeal was that the mother's application for the adoption of the child by her new spouse was refused. The father's standing as a guardian was terminated — although the court didn't quite put it that way, which is curious — and the order from trial giving the father contact with the child was continued, but on terms which included requiring the mother and her spouse to keep the father informed of certain decisions they might make in respect of the child.

Conclusion

This decision is enormously important, because I expect that many formerly married parents who had agreements and orders that just talked about sole custody and access probably read s. 251 as meaning that the parent with sole custody became the child's only guardian under the Family Law Act. The Court of Appeal has made it clear that such orders do not disturb the other parent's standing under s. 27 of the Family Relations Act as a guardian of the estate of the child, and that as a result of this standing, the other parent continues as a guardian under the Family Law Act, albeit as a guardian whose only parental responsibility is that found at s. 41(k).

The effect of continuing as a guardian under the Family Law Act is profound, for the following reasons.
· Only guardians have parental responsibilities under the act. (s. 40(1)) 
· As a guardian, you have parenting time with the child, not contact. Someone with parenting time also has "the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child." (s. 42(2)) 
· Only a guardian can apply to court for "directions respecting an issue affecting the child." (s. 49) 
· Only a guardian can object to another guardian's plans to move with the child, or apply for an order that the move be prevented. (ss. 68, 69(2))
Nothing in the Family Law Act restricts these rights because a guardian has a limited range of parental responsibilities. These rights are available simply because of the person's standing as a guardian.

However, some caution may perhaps be warranted. In my view, the scheme of the new act splits up the traditional concepts of "guardianship of the person of the child" and "guardianship of the estate of the child." Normally, when an agreement or order under the old act gave someone "guardianship," he or she had both kinds of guardianship, unless the agreement or order expressly said something different. Under the new act, however, it seems to me that a "guardian" is really a guardian only of the person of the child. 

Part 8 of the new act is titled "Children's Property," and deals with a person's rights and duties about children's property that are essentially the rights and duties of someone who is the guardian of the estate of the child. This is what s. 176 says:
Except as set out in section 178 [delivery of small property], a child's guardian is not, by reason only of being a guardian,
(a) a trustee of the child's property, or 
(b) entitled to give a valid discharge on receiving property on behalf of the child.
If the child's property is worth more than than $10,000 — the value of "small property," set out at s. 24 of the Family Law Act Regulation — a guardian is not automatically the trustee of the child's property. The trustee, whether a guardian, a parent or someone else, must be appointed by court order under s. 179; the child's guardians cannot make an agreement that someone will be the trustee of the child's property, the appointment can only be by court order.

As a result of Part 8 of the new act, it is not clear to me that someone who is the guardian of the estate of a child is necessarily a guardian with the power to exercise parental responsibilities. Without a doubt, the powers set out at s. 41 are rights that stem from a person's standing as guardianship of the person of a child, but the power of guardianship over children's estates is not a part of those rights and doesn't result merely from being the child's guardian. Part 8 provides a complete and separate code for the management of children's property that is not, or is scarcely, impinged upon by the parental responsibility of "identifying, advancing and protecting" the child's "financial interests" under s. 41(k)(ii).

My thanks to my colleague, James Cudmore, for bringing this important case to my attention.

15 April 2014

CanLII Launches CanLII Connects

The Canadian Legal Information Institute, the organization which provides the well-known legal search website that offers free access to legislation and cases from across Canada, is expanding its service offerings to include CanLII Connects.

This new service gathers summaries and comments on new cases, and appears to include feeds from a variety of sources including law blogs, law firms and the Canadian Bar Association's National Magazine. Each article can be commented upon and comes with a nifty "concur" button that allows readers to indicate their agreement with the author's position. These articles are screened for quality to some extent, as CanLII requires contributors to have a "demonstrated capacity for legal analysis;" see below.

Here's how CanLII describes their new service:
"Through this project, CanLII is taking the first steps in drawing out the goodwill of the legal community to share their insights on Canadian case law. 
"Lawyers and others routinely prepare and share summaries and commentary on the decisions of Canadian courts. You will find these insights in journals, magazines, blogs, newsletters, commercial legal search tools and many other places. But until now, you could not find multiple thoughts about a single case in one place, at the same time, at no charge to the user and directly linked to the full text of the case! 
"CanLII Connects is launching with nearly 27,000 documents covering cases from 11 of Canada's 13 provinces and territories. 
"These contribution come from national law firms, major regional firms, academics, leading practitioners and legal bloggers, research specialists, commercial publishers and law societies. These contributors were invited by CanLII to help us launch with a bang, but starting April 4th, we are accepting contributions from anyone with a demonstrated capacity for legal analysis."
Although the service is clearly in its nascency, it has the potential to give judges, lawyers and the public fairly speedy access to competent analysis and discussion of important cases and will certainly complement CanLII's better known legal search service.

The work of CanLII in providing free access to the law is unparalleled in Canada. They have done an absolutely fantastic job in providing free public legal information and promoting access to justice. CanLII, as it happens, is an effort of the Federation of Law Societies of Canada and is funded by every lawyer in Canada through their law society membership fees. 

11 April 2014

BC Law Society Debate on TWU - Live Streaming

The benchers of the Law Society of British Columbia are debating approval of Trinity Western University's proposed new law school with it's code of conduct (PDF) requiring students and faculty to refrain from homosexual sexual activity. Watch now at:


Vote called at 11:10. Motion to refuse accreditation fails.

The Status of Religious Family Law Orders in Canada

I've just received an email from a colleague in British Columbia. She writes:
I have recently come across a number of cases in my work that I wanted to get your insight on, if you have the time or interest. ... 
I have been working with a number of Muslim families. ... I have had one situation where a husband ordered the wife and mother to return to Iran, so that the divorce could happen in Iran. In another case, the father went to Iran and obtained a divorce ... and then returned to Canada to register it with the Supreme Court. 
Because I like to figure things out, I did some research and discovered that there is a significant financial and time advantage for Muslim men if they can obtain a divorce in a Muslim country rather than in Canada. It seems that the issues of child support, spousal support, custody, and property division are significantly skewed to favour males in Muslim countries. They only have to register the divorce in Canada, and, under comity, they have effectively stripped away all these rights for Muslim women and children living in Canada. Further, if the Muslim woman obtains a civil divorce in Canada, but not a religious divorce, when she travels back to her country of origin, she can be arrested as an adulteress and, even in 2014, may be subjected to stoning. ...
This does happen every now and then, and although orthodox Islam is just as misogynistic as orthodox Judaism and orthodox Christianity, the orthodoxy is more tangibly problematic in countries like Iran and Libya that have adopted various species of Shari'a law — Islamic law — as the law of the state. This creates a number of alarming problems for women in those countries, as Shari'a law gives husbands a substantial degree of control over their wives and children. Men, for example, are often presumed to be entitled to custody of the children after separation. Men may also direct that their wives and children not leave the country, directions that the state will often enforce.

As a result, there have been times in my practice when I’ve warned certain clients whose relationships seemed to be in trouble against taking that family trip back to their country of origin. Often the real purpose of the trip is as my colleague describes. The federal government maintains a surprisingly useful country report website for people planning on travelling. If you click on the country, then the “Laws & Culture” tab, you can get a good snapshot of the laws of that country. Here’s part of the entry for Iran:
Canadian women married to Iranian nationals who register their marriage with the Iranian authorities automatically become Iranian citizens and are deemed to be Iranian citizens according to Iranian law, even if they travel to Iran on a Canadian passport with an Iranian visa. Iranian immigration authorities often impound Canadian passports, particularly those of women who intend to reside in Iran. Women who are considered to be Iranian by marriage must have their husband's permission to travel and to leave Iran, even if they intend to use their Canadian passport. 
Here's part of the entry for Libya:
Child custody decisions are based on Islamic law. It is extremely difficult for a Canadian woman, even if she is a Muslim, to obtain custody of her children through a court decision, unless she decides to stay in Libya. Regardless of parental marital status, children of Libyan fathers acquire Libyan citizenship at birth, and must enter and leave Libya on Libyan passports. Canadian mothers require their husband’s permission to take their Libyan children outside the country.
Interesting and useful information. Not every country under Shari'a law applies the law with its full rigour; not every country under Shari'a law has adopted all principles of Shari'a law. Check before you travel.

Now although the doctrine of comity is important, it is not a suicide pact. Comity requires respect for the decisions of foreign courts but not blind deference. In general, the courts of Canada will respect foreign orders in family law matters, but that respect is subject to considerations like these:
  1. Was the foreign court required too consider the best interests of children when making an order about their care? 
  2. Did the person against whom the order was made have notice of the hearing? 
  3. Did he or she have the full right to ask and answer? 
  4. Is the order contrary to public policy? 
The first and last points are particularly important. It is generally contrary to public policy, for example, to grant sole custody on the basis of religious principles rather than a consideration of the best interests of the children. For the same reason, Canadian courts rarely enforce the punitive terms of religious marriage agreements.

I think my colleague was right to identify this problem and this concern. In my view, the advice that must be given to women in fragile relationships who are planning a trip to a country governed by Shari'a law is to rethink the trip and consider the potential consequences. However, should the family, or just the husband, go and return with an order, that’s not necessarily the end of it. Women on the receiving end of such orders should be encouraged to make a fresh application for custody or guardianship, child support and spousal support on their return to Canada where the foreign order is unfair or prejudicial to their interests.

I am not a scholar of Islamic law, and welcome comments offering other perspectives.

10 April 2014

Children's Brain Development: Amazing Video from Alberta Family Wellness

The Alberta Family Wellness Initiative is a non-governmental organization that describes itself as "a multi-disciplinary initiative that connects early brain and biological development and children's mental health with addiction research, prevention, and treatment" which "seeks to translate current research into sound policy and practice on behalf of Alberta families," and is funded by the excellent Norlien Foundation.

The Initiative's website is full of interesting information on childhood developmental psychology and the development of children's brains, with pages on topics including
  • brain architecture and development
  • building cognitive, emotion and social capacities
  • positive, tolerable and toxic stress
  • interventions and treatments in children's mental health
and includes and extensive series of educational videos and print resources that ought to be very useful for parents, family law lawyers and mental health professionals.

In October 2013 — I'm sorry to be late on this — the Initiate published a wonderful animated video on children's brain development. Among other things, the video talks about positive stresses that improve children's functioning and ability to deal with change, and negative stresses, such as from parental conflict, abuse or addiction, that can negatively impact on the development of children's brains with effects that last into adulthood. The problem of children's response to negative stresses is particular important in high conflict families, whether the parents are in an intact relationship, separating or separated. 

The video is incredibly engaging and well worth watching, particularly for parents enmeshed in conflict. If you haven't found the link in the text above, you can find the video here:


Other helpful resources on high conflict relationships include the Parenting After Separation for Families in High Conflict program offered by Alberta Court Services, and the High Conflict Information Program being studied by the Nova Scotia Department of Justice. Judges, lawyers and mental health professionals working with high-conflict families should also get ahold of Bill Eddy's indispensable book, High Conflict People in Legal Disputes.

09 April 2014

New Decision from the Federal Court of Appeal: Citizenship is Genetic

The Federal Court of Appeal has just released its decision in Canada (Citizenship and Immigration) v Kandola, a case where the federal government appealed a judge's decision that a five year old girl is a Canadian citizen. The Court of Appeal overturned that decision, on the basis that a grant of citizenship to children born overseas to Canadian parents requires a genetic like to his or her parents.

In a nutshell, the child was born in India to a Canadian father and his wife, whom the father had sponsored to become a permanent resident of Canada. The parents, both of whom were infertile, decided to have the child by in vitro fertilization, using the sperm and ova from two anonymous donors and having the fertilized ova implanted in the mother, who carried the child to term and delivered her. 

Under s. 3(1)(b) of the federal Citizenship Act, a child born outside of Canada is a Canadian citizen if at least one of his or her parents was a Canadian citizen. Under s. 5.1(1), the minister may, but isn't required to, grant citizenship to children adopted by a Canadian citizen. 

Citizenship and Immigration discovered the child's status when it requested a DNA test of the child in processing the mother's sponsorship application. The child's application for citizenship was denied on the basis that there was no genetic link between her and her Canadian father, a decision that was overturned by the trial judge. The government appealed that decision to the Court of Appeal, which, as a citizen myself, strikes me as small-minded and churlish.

The analysis of the Court of Appeal turned on the definition of "parent:"
"[56] The question that remains is whether, leaving aside the definition of 'child' as an interpretative aid, the respondent’s legal guardian falls under the category of 'parent' pursuant to paragraph 3(1)(b) of the Act."
To clarify the issue, here's s. 3(1)(b):
3 (1) Subject to this Act a person is a citizen if
(b) the person was born outside Canada after February 14, 1977 and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen.
Simply put, if the father is a "parent" of the child, then the child is a citizen. So, who is a parent? 

Under s. 27 of the provincial Family Law Act, the mother in this case would, as the child's birth mother, be the child's parent. The father, as the spouse of the mother, would also be a parent. However, the federal government is bereft of such progressive legislation. Making things worse, the Citizenship Act does not define "parent." 

The majority of the Court of Appeal resolved the matter by looking at the French text of s. 3(1)(b) of the act, a common tool for statutory interpretation when the meaning of the English text is vague or cannot be precisely determined. Said the court:
"[58] According to the appellant [government], the words 'née d’un père' and 'née d’une mère' presuppose that the mother or father contributed to the child’s genes. The appellant adds that the fact that an adoption cannot be contemplated when a child is 'née d’un père' or 'née d’une mère' explains why the words 'other than a parent who adopted him'. ... 
"[59] I agree ... that the words 'née d’un père' presuppose that the father, in this case the respondent’s legal guardian, contributed to the child’s genes as there is no other way in which a child can conceivably be said to be 'née d’un père'. In the case of the father, the conclusion that there must be a genetic link seems inescapable."
The French phrases "née d’un père" and "née d’une mère," which translate as "born of a father" and "born of a mother," were employed, said the Court, to distinguish circumstances in which a person is a parent by adoption. This "made clear Parliament's ... reliance on a genetic/gestational connection to determine who can procure derivative citizenship." The trial judge's decision was thus set aside.

The dissenting judgment of Mr. Justice Mainville takes a more purposive and, dare I say, enlightened approach. After undertaking a different analysis of the text of s. 3(1)(b), the judge held that
"[100] First, applying a textual analysis, I note that had Parliament intended to use the term 'parent' exclusively in its biological or genetic sense, it would not have been necessary to expressly exclude adoptive parents from the ambit of paragraph 3(1)(b). By specifically adding the words 'other than a parent who adopted him' ('mais non un parent adoptif' in the French version of the 1977 Act), Parliament has clearly indicated that the notion of 'parent' which it uses in that paragraph is intended to refer to a legally recognized parent. Indeed, an adoptive parent has no genetic or biological link with his or her adopted child, but is nevertheless a 'parent' under the legal meaning of the term. Had only a biological or genetic link been intended, that exclusion would have not been required, or the words used would have been quite different. 
"[101] In my view, this textual analysis is a complete answer to the issue before us. The words used in the paragraph are all precise and unambiguous, and the words themselves alone do, in this case, best indicate that the intention of Parliament was to refer to the legal notion of 'parent'. Thus, though a child/parent legal relationship may well result from a biological or genetic link, it also extends to other situations which are not necessarily exclusively based on biology."
This is not a full recounting of decisions of either the majority of the minority in this case, both of which should be read in full for a proper appreciation of the nuances of this case.

The upshot of all of this is two-fold. First, it is best that the child have a genetic link with at least one parent. If this is not possible, however, the child must either be born in Canada, thereby qualifying as a citizen under s. 3(1)(a), or should be adopted by the parent with Canadian citizenship.

Thanks to my friend and colleague Zara Suleman for bringing this case to my attention.

08 April 2014

The Essential Family Law Bookshelf

Here are a selection of books that I've stumbled into over the years and found very helpful in my work as a family law litigator, mediator, arbitrator and collaborative practitioner. Most links will take you to the Amazon page for each book.

Separation and Parenting After Separation

Renegotiating Family Relationships: Divorce, Child Custody and Mediation, Dr Robert Emery
This is a great book written by a fellow who's been in the trenches as a mediator. It talks about the psychology of separation, the grieving cycle, children's experience of separation and conflict, and how spouses can be renegotiate their roles as parents following the breakdown of their relationship.
The Truth About Children and Divorce, Dr Robert Emery
This was the first of Dr Emery's books that I happened to read, and I think predates Renegotiating Family Relationships. It is an excellent book that focusses on the emotional dimensions about separation, but also provides a lot of practical advice about dealing with children, making parenting plans and figuring out how both parents can remain engaged in parenting the children after separation. This book provides a lot of insight into how people process separation and deal with strong feelings like anger.
Befriending Your Ex After Divorce: Making Life Better for You, Your Kids and, Yes, Your Ex, Dr Judith Ruskay Rabinor
This book is first and foremost about building a productive, healthy parenting relationship with a former spouse, and is written by a psychologist who draws on her own experience of divorce and remarriage. Separation and parental conflict can be so terribly difficult for children, and one of the strongest buffers parents can give them is a healthy, productive and cooperative parenting relationship. If you're separating and you have children, read this book. 
The Bright Side: Surviving Your Parents' Divorce, Max Sindell
This book is written for children by a person whose parents' split when he was six. The book talks about the author's experiences about his parents' separation, their new relationships and his own relationships with step-parents and step-siblings. It gives some really practical advice to children about how they can avoid being caught in the middle of their parents' dispute. 
Helping Your Kids cope with Divorce the Sandcastles Way, Gary Neuman
This book provides a lot of really helpful information about the nuts and bolts of parenting after separation, with helpful tips about communicating with the other parent, children development, children's reactions to separation as they age, how to tell children about the separation and developing age-appropriate parenting plans.
Courts and Conflict

High Conflict People in Legal Disputes, Bill Eddy
This is book is written by a fellow trained as a lawyer, mediator and social worker and draws heavily on his clinical experience to talk about the sorts of personalities and personality disorders that drive conflict in family law disputes. The book talks about how high-conflict personalities can be identified, managed and how their disputes can ultimately be resolved. This is an essential book for lawyers and other dispute resolution professionals.
Tug of War: A Judge's Verdict on Separation, Custody Battles and the Bitter Realities of Family Court, Justice Harvey Brownstone
The author of this book is a provincial court judge in Ontario, prior to which he worked as a family law lawyer for legal aid. It offers some practical guidance on when you should go to court and when you shouldn't, how to hire a lawyer, and arguments and attitudes that don't work and those that do. It primarily addresses disputes about parenting and child support but should be required reading for anyone thinking of going to court about children.
Dispute Resolution Outside of Court

Collaborative Practice: Deepening the Dialogue, Nancy Cameron Q.C.
This thoughtful book is written by a lawyer who was one of the leaders who brought mediation and collaborative settlement processes to British Columbia, and talks about the profound differences between the resolution of family law matters in court and through more humane out of court processes. It provides helpful tips for the resolution of family law disputes in a collaborative manner and offers in-depth discussions of the roles of coaches, child specialists and financial specialists. This book is primarily directed toward lawyers and mental health professionals.
Family Law Arbitration in Canada, Anne Wilton and Gary Joseph
This book is written for lawyers and others trained in arbitration. It provides a soup-to-nuts overview of the arbitration process, from choosing an arbitrator, to pre-hearing meetings and screenings, arbitration agreements, the conduct of hearings and interim and final awards. This book is as useful, family-law specific follow-up to anyone who has taken training as a generalist arbitrator and wishes to specialize.
Fathers' Rights Groups

Defiant Dads: Father's Rights Activists in America, Jocelyn Crowley
I tracked down this book after experiencing a number of unpleasant attacks by men who were annoyed about my position on bill that would amend the Divorce Act to include a presumption of shared parenting. The author of this book, a professor of public policy, interviewed a coupe of hundred people involved in the father's rights movement in the USA. Her book discusses those interviews and offers a fairly well balanced review of their criticisms of the child support and custody laws, their organization, their attitudes and their strategies to achieve change. It is well worth reading.
Family Law

Family Law Sourcebook for British Columbia, Continuing Legal Education Society of BC
This book is a critical resource for lawyers, but is available to the general public through courthouse libraries. It offers an exhaustive discussion of the major family law subjects, from parenting plans to property division to adoption, all well backed up by comprehensive references to the case law and statute law.
JP Boyd on Family Law, Clicklaw
This wikibook is based on my old website, JP Boyd's BC Family Law Resource, and is fully up to date on the current legislation. It's written in plain language and covers almost every issue in family law in British Columbia, with pop-up definitions for common legal words and phrases, helpful "how do I?" tips and court forms for download. Copies of the book are available at every public library in the province, and all or some of the wikibook may be downloaded as a PDF file or an EPUB format for readers, or printed by an on-demand printer.
If there are books that have made an impact on you as a lawyer, mental health professional or person leaving a relationship, please post a comment with the name of the book, the name of the author and a short description of the contents of the book and why you liked it.