30 June 2013

UK to Draft IVF Regulations for Use of Third-Party Mitochondria

On Friday, the BBC reported that the UK government will be developing regulations allowing for the use of third-party mitochondrial DNA in an in vitro fertilization procedure. This is pretty cool; let me explain what that mouthful means.

In vitro fertilization is a major and often last ditch treatment when a woman cannot have a baby. In this treatment, an egg is removed from a woman and fertilized with sperm outside her body, under very carefully controlled conditions. The fertilized egg is then implanted into a woman's uterus, in the hopes that the fertilized egg will develop normally and a healthy baby will be born. This technique is often used when a mother has blocked fallopian tubes, pelvic adhesions or endometriosis or when a father has a low sperm count or sperm with low motility.

Since we're talking about fertilizing an egg without the necessity of sex, this process offers some  nifty possibilities. A lesbian couple can use an egg from one of them with donated sperm to have a baby; a gay couple can use their sperm to fertilize an egg that will be carried to term by a surrogate mother, or a straight couple can use either or both of their eggs and sperm and enlist the help of a surrogate.

The proposed UK regulations would take things one step further and replace the mitochondria from the egg with the mitochondria from another woman. You may remember from your biology class in high school that mitochondria are tiny organelles found inside most of the cells in living things like animals and plants. Mitochondria produce the energy that cells need to live and do the things the cell is meant to do. Without properly functioning mitochondria, the cell will waste and die.

In humans, mitochondria are found inside every cell except for red blood cells, and malfunctioning mitochondria can cause neuromuscular disorders that may result in blindness, heart disease and death. The really neat thing about mitochondria is that they have their own DNA, and the mitochondrial DNA always comes from the egg. In other words, all of the mitochondria in your body have their own genetic code, which is different from your chromosomes, the genetic code which you will pass on to your children, and comes exclusively from your mother.

The IVF technique approved by the British government would take the key parts of the mother's egg, before or after fertilization, and swap them into the egg from a third-party donor with healthy mitochondria before implantation into the body of the woman who will carry the child to term. The child conceived from this method would carry the chromosomes of the mother and the father, and the mitochondria of someone else. This is pretty cool, because all of the important DNA that makes you you comes from the chromosomes of your parents; the DNA of your mitochondria doesn't matter.

Here are two helpful graphics produced by the BBC from its report. In the process illustrated below, the key parts of a fertilized egg are implanted into the fertilized egg from a donor:

BBC News
In this next process, which strikes me as simpler, the key parts of an unfertilized egg are implanted into an egg from a donor.

BBC News
This process won't be available in Canada until it has been approved as a funded procedure under the various provincial health insurance programs. You might want to keep an eye on the website of Health Canada; the Assisted Human Reproduction Agency of Canada was shut down by the federal government on 1 October 2012.

26 June 2013

US Supreme Court Releases Landmark Decision: Ban on Gay Marriage Overturned

The Supreme Court of the United States has today released its decision in United States v. Windsor, a case in which an 83 year old woman from New York challenged, successfully as it turns out, the constitutionality of the Defence of Marriage Act in relation to her right to inherit as a spouse from the estate of her deceased partner.

The ironically titled Defence of Marriage Act was implemented to restrict marriage to opposite-sex couples in the face of a surging momentum to sanction same-sex marriage in various states across the union, including California, Washington and New York. Section 2 of the act says this:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship
Today's decision strikes the law down but, and this is an important nuance, does not "legalize" gay marriage. Saying you can't ban something is not the same as saying that it's legal, and I expect that the struggle for equality will be fought on a state-by-state basis. The National Journal has a very useful map showing the state of gay marriage across the US.

As a footnote, it occurs to me that if one were really to "defend" marriage, one would ban arranged marriages and provide couples planning on marrying with counselling and information on the legal consequences of marriage and divorce.

21 June 2013

The Masuhara Model of Shared Parental Responsibilities

In his recently released judgment in Van Kooten v. More, Mr. Justice Masuhara of the British Columbia Supreme Court has made an order distributing parental responsibilities between guardians under the Family Law Act that may find use as a model for future orders and agreements on the subject:
The guardians will exercise all parental responsibilities with respect to the child on the following terms: 
1. in the event of the death of a guardian, the surviving guardian(s) will be the only guardian(s) of the child; 
2. each guardian will have the obligation to advise the other guardian(s) of any matters of a significant nature affecting the child; 
3. each guardian will have the obligation to discuss with the other [guardian(s)] any significant decisions that have to be made concerning the child, including significant decisions about the child’s health (except emergency decisions), education, religious instruction and general welfare; 
4. the guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions; 
5. in the event that the guardians cannot reach agreement on a significant decision despite their best efforts, Mr. More will be entitled to make those decisions and the other guardian(s) will have the right to apply for directions on any decision the guardian(s) consider(s) contrary to the best interests of the child, under s. 49 of the Family Law Act;
6. each guardian will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals and third party care givers; and,
7. the guardians will maintain a common exchange journal which is to be exchanged when the child is transferred to the other [guardian(s)], and each guardian is to record on a daily basis while the child is in its care matters relating to the child including
a) school (such as events, key dates, report cards, newsletters, outings, assignments, home reading, parent/teacher meetings and homework),
b) health (observations of the child, child’s complaints, doctors' appointments, dental appointments, medications, injuries and diet),
c) social (invitations, activities taken and family events),
d) extracurricular activities (registration, schedules, equipment and events),
e) clothing,
f) key contact information for doctors, dentists, daycare and sitters, and [guardians'] emergency contact numbers, and
g) any other matter relating to the care of the child.
This order clearly draws its inspiration from the popular the Joyce model of joint guardianship under the former Family Relations Act, and includes special provisions governing communication between guardians about important events in the child's life.

See my post "The Crawford Model of Shared Parental Responsibilities" for a discussion of the sharing of parental responsibilities required in the case of G.P. v. M.J.R.P., and my blog post "Adapting Joyce and Horn Models for Divorce Act and FLA" on the Courthouse Libraries BC website for other potential models.

My thanks to my colleague Thomas Wallwork for bringing this helpful new decision to my attention.

17 June 2013

Provincial Court Releases First Decision on Relocation

Judge Morgan of the Provincial Court gave his reasons in S.G. v. J.P. at the end of May in what I strongly suspect is the first decision on relocation under the Family Law Act. The new act's provisions on relocation are important as they attempt to impose some order on an area of family law that has been a source of abiding uncertainty ever since the 1996 Supreme Court of Canada decision in Gordon v. Goertz.

Under Part 4 Division 6 of the Family Law Act, a guardian who wishes to relocate, with or without the child, must give 60 days' written notice of the his or her plans to relocate. If another guardian files an application to prevent the move, two tests are set out at s. 69 to guide the court. Where the guardians do not have "substantially equal" parenting time with the child, if the guardian proposing to move can establish that
  1. the move is proposed in good faith, and
  2. he or she has proposed reasonable arrangements to preserve the child's relationship with the objecting guardian,
the move is presumed to be in the best interest of the child unless the objecting guardian proves otherwise. Where the guardians have substantially equal parenting time, the moving guardian must prove that
  1. the move is proposed in good faith,
  2. he or she has proposed reasonable arrangements to preserve the child's relationship with the objecting guardian, and
  3. the move is in the child's best interests.
Hopefully this test will provide some certainty to this area of the law.

In S.G., the parties had substantially equal parenting time with their ADD-afflicted daughter, and the mother proposed to move with the child from the Cariboo to the Lower Mainland. In his decision, Judge Morgan provides a succinct review of the relocation provisions of Part 4 Division 6 and the best interests factors at s. 37, and engages in a step-by-step review of the s. 69 test.

First, the judge held that the mother had met the good faith element:
[43] I am satisfied that the proposed relocation is made in good faith. [The mother] is not motivated by a desire to restrict or decrease [the father's] parenting time, or by any other inappropriate reasons. Her original primary motivation for the relocation was to support her husband's once-in-a-lifetime opportunity to play for [a team]. [The child's stepfather] believes that when his athletic career is over, his unique experience will assist him in obtaining employment... 
[44] [The mother] current primary motivation to relocate is to obtain assistance for her son ... in overcoming his [speech impairment]. The specialized assistance he needs is not available to him in [the Cariboo], but is available to him in [the Lower Mainland]. 
[45] Another valid motivation for the move is [the mother's] desire to take a Medical Office Assistant program that is not available to her in [the Cariboo]. The program is 11 months and she believes it is flexible enough to allow her to study when [the stepfather] is home with the children.
Second, the judge held that the mother had proposed a reasonable arrangement to preserve the child's relationship with the father:
[46] I am also satisfied that the mother's proposed parenting time schedule is a reasonable and workable arrangement to preserve the relationship between [the child] and [the father]. I'm also satisfied that given [the mother's] extended family live primarily in [the Cariboo], and given their clear recognition of the importance of maintaining contact between [the child] and her extended family, that [the child's] relationship with her extended family would be preserved.
However, the judge found that the mother failed to meet the third element of the test, that the move is in the best interests of the child:
[47] Both parties are competent and loving parents and are honestly motivated by what they believe to be in [the child's] best interests. The parties' spouses are also competent and loving persons who have assumed a significant parenting role in [the child's] life while respecting what, in this case, is the primary role of the biological parents. It is a comfort to the court to know that [the child] will be loved and properly nurtured by both parties and their spouses no matter where she primarily resides. 
[48] Consequently, many of the specifically enumerated and like factors set out in section 37 of the Family Law Act, that relate to the parties' abilities to exercise parental responsibilities, need not be analyzed given the parties are equally capable and motivated parents. 
[49] However, I do find the mother has not established that relocating [the child] from [the Cariboo] to [the Lower Mainland] is in [the child's] best interests. The two considerations that lead to this conclusion are:
1. the nature and strength of [the child's] relationships with her extended family, practically all of whom reside in [the Cariboo], where [the child] was born and primarily raised, and; 
2. the specialized educational assistance she is receiving.
[50] Having found [the mother] to have met the 'preserving of significant relationships' threshold set out in s. 69 (4)(a)(ii), does not foreclose the closer examination required in a 'best interests' analysis. 
[51] There was much evidence in regards to [the child's] close relationships with extended family, most of whom reside in [the Cariboo], and none of whom live in the lower mainland. I find the significantly reduced contact with her large extended family that [the child] would experience if moved from [the Cariboo] will be detrimental to [the child's] emotional well-being. 
[52] I also find there is no evidence from which I can conclude the specialized educational assistance that [the child] requires and is receiving through a local team of educational professionals could be duplicated in [the Lower Mainland]... 
[55] Another consideration regarding educational stability for [the child] is the uncertainty associated with [the stepfather's] athletic and career goals. ... The next step in his career is uncertain. He does not know what his job will be or where it will be.
[56] There is more stability for [the child] if she remains living in [the Cariboo] with her father. Given her young age and educational challenges, the importance of stability looms large.
Even though both parents are "capable and loving parents," the court held that in light of the child's "particular educational challenges and the establishment of an effective educational team at her current school" and "the particular importance of stability" for the child, it is not in the child's best interests to move from the Cariboo to the Lower Mainland.

If any points can be drawn from this case, apart from the useful example it provides of the s. 69 test in action, they are that:
  1. failure on any one element of the test may prevent a move;
  2. it would seem to be relatively easy to satisfy the good faith and reasonable arrangements elements of the test; and;
  3. the analysis necessary to determine the course of action that is in the child's best interests is more difficult and requires a thorough, detailed consideration of each of the factors set out in s. 37(2).
I have discussed the mobility provisions of the Family Law Act and the test set out in Gordon v. Goertz for matters under the Divorce Act in the "Changing Family Law Orders and Agreements Involving Children" section of JP Boyd on Family Law.

Again, my thanks to my friend and colleague Agnes Huang for bringing this important case to my attention.

11 June 2013

Department of Justice Releases Helpful Parenting Plan Tools

The Department of Justice has continued to expand its excellent Supporting Families Experiencing Separation and Divorce Initiative with three important new public legal education resources designed to help separating parents create parenting plans for their children.

If you go to the Family Law page on the Department's nicely redesigned website and click on the "Custody and Parenting" link you'll see four main subjects:
  • Create a parenting plan
  • Protect your children
  • Help your kids cope
  • Information for grandparents
Clicking on the "Create a parenting plan" link will take you to a new page with links to the three new resources, Making Parenting Plans, a Parenting Plan Checklist and a Parenting Plan Tool. The Department's backgrounder says this about the first and third resources:
"Making Plans gives parents information about what issues they need to address when coming up with a parenting arrangement after divorce (ex. schedule for time with children), as well as the processes that they can use to come up with this arrangement (ex. mediation, negotiation). This product promotes agreements between parents by emphasizing the importance of good communication, reducing conflict, and building a co-parenting relationship that focuses on the best interests of children.  
"The Parenting Plan Tool is a companion product to Making Plans. It is a practical guide to help parents develop a parenting plan. The Parenting Plan Tool contains sample clauses that parents can use as a starting point in developing their parenting plan."
These resources all give good, practical advice about planning for the care of children after separation and are well worth reading. The Department's backgrounder says that a PDF version of the resources will be available soon; that may be easier to use than the web-based version which breaks the resources into individual pages that can be somewhat difficult to browse through.

Another very useful feature of the Family Law page is the Child Support Calculator. You can't go wrong when you get your calculations from the horse's mouth.

My thanks to the incomparable Nick Bala, professor at the Queen's University Faculty of Law, for bringing the backgrounder to my attention.

08 June 2013

New Attorney General Announced

Premier Clark announced her new executive council yesterday, including the appointment of Suzanne Anton, a lawyer and former Vancouver city councillor, as Minister of Justice and Attorney General. The former Attorney General, Shirley Bond, who served in that post for the last two years if memory serves, has been appointed as Minister of Jobs and Minister of Labour.

According to the government backgrounder, Minister Anton's priorities will be to:
  • work to enhance public safety and security for all BC residents and implement the Domestic Violence Prevention Strategy;
  • ensure reforms from our comprehensive review of the justice system are implemented, including greater court efficiencies to reduce backlogs; and,
  • begin consultations to modernize BC's liquor laws.
If you can think of anything else which might be a top-three priority, like, for example, properly funding the provincial court, restoring legal aid for family law matters and improving access to justice, leave a comment.

04 June 2013

Sharp-Eyed Lawyer Spots Error in Supreme Court Forms

David Ibbetson of Browne & Associates in Victoria has spotted an error in the Supreme Court's Notice of Joint Family Claim (Form F1), Notice of Family Claim (Form F3) and Counterclaim (Form F5) that has apparently gone overlooked by the Ministry of Justice.

The problem is in the Lawyer's Certificate required by s. 9 of the Divorce Act when an action for divorce is started. According to the court forms, the certificate is supposed to look like this:
I, [name of lawyer], lawyer for [name of party], certify that I have complied with section 9 of the Divorce Act (Canada), which says: 
9 (1) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding
(a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses, and  
(b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to him or her that might be able to assist the spouses to achieve a reconciliation, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.
(2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters.
What David noticed is that s. 9 of the Divorce Act actually says this, with the phrase beginning "unless the circumstances" applying to both subsections (a) and (b):
9 (1) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding
(a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses, and 
(b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to him or her that might be able to assist the spouses to achieve a reconciliation, 
unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.
(2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters.
This is a small difference but an important one, especially since lawyers are certifying their compliance with the section, and lawyers should adjust their precedents accordingly without waiting for an amendment to the forms.

I'll add one further comment about the court forms, on an issue that has bothered me for some time. It's not necessary to refer to the Divorce Act as "the Divorce Act (Canada)," since there hasn't been a provincial Divorce Act in British Columbia for more than forty years following the repeal of the Divorce and Matrimonial Causes Act in 1972. Enough already.

New Limitation Act in Force

The new provincial Limitation Act came into force on 1 June 2013, repealing and replacing the old Limitation Act. The new act has some important consequences for family law matters; read on.

The Limitation Act is an important law that sets the deadlines, called "limitation periods," by which particular claims must be made in court before they expire. After the limitation period for a claim, the claim can no longer be brought.

The new Limitation Act doesn't apply to certain claims, including:
  • certain claims for the possession of land;
  • claims relating to property provided as collateral for a debt or obligation;
  • claims relating to sexual assault; and
  • claims relating to assault if the assault happened when the claimant was a minor.
Most importantly, from a family law point of view, the act doesn't apply to claims for assault in circumstances of family violence or to claims for arrears of child support or spousal support, whether the arrears came from an order or an agreement. Claims like these can be brought at any time, without limitation.

Under s. 6, the general limitation period for claims covered by the act is 2 years. Section 7 has a special rule for claims to enforce money judgments or claims for the return of personal property. These claims must be brought within 10 years.

Limitation periods begin on the day when the claim is "discovered." In other words, the clock starts to tick on the day the claimant realizes that a claim could be made. Under s. 8, a claim is discovered when the claimant knows, or ought to know, all of the following:
  1. that injury, loss or damage had occurred;
  2. that the injury, loss or damage was caused by or contributed to by an act or omission;
  3. that the act or omission was that of the person against whom the claim is or may be made;
  4. that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage.
The act provides special discovery rules for certain people, including principals, agents, minors and persons under a legal disability, and for certain claims, including claims based on fraud, claims for the recovery of trust property and claims relating to demand obligations like promissory notes. Other special rules are provided that extend limitation periods in certain circumstances, such as when the person against whom a claim could be made acknowledges liability or if the claimant becomes legally disabled.

Despite these special rules, s. 21(1) provides an ultimate limitation period of 15 years beginning on the dates described in subsections (2) and (3).

The act's transitional provisions have not been reproduced in the version posted on the BC Laws website. For that, you'll have to dig through the third reading bills posted on the website of the Legislative Assembly to find Bill 34 from the 4th session of the 39th parliament.

Read the Ministry of Justice's press release on the coming into force of the new act.