Fertility Physician in Ottawa Faces Disciplinary Hearing

After being challenged by three law suits alleging negligence in donor or intrauterine insemination, an Ottawa physician is now facing a disciplinary hearing.   He has voluntarily agreed to cease sperm donor insemination.   Our firm dealt with a similar situation that left a Toronto couple stranded in India for five years after they discovered that one of their twin children was not genetically the intended father’s.   This case is closer to home with at least three families alleging the incorrect donor sperm was used — a cautionary tale for families who are turning to assisted reproduction.   l recommend to all my clients in surrogacy situations to obtain DNA tests to confirm that there were no clinic errors.    There is presently no regulation of fertility clinics and until the provinces step in (after the Supreme Court of Canada found this to be a provincial responsibility), individual families need to be conservative.   That being said, this case is unique in Canada and there is no indication that such problems are widespread.   The fertility clinics that I deal with regularly have safeguards to prevent these mistakes.   To read more about the case, clinic the link below.


Lola v. Eric – To Marry or Not To Marry? That is Now the Question in Quebec.

The recently released decision of the Supreme Court of Canada (SCC) in Lola v. Eric is causing a resurgence of the debate over support obligations, mainly along gender and equality lines, across Canada. Quebec is, and after the SCC decision, seems poised to remain, the only Canadian jurisdiction that does not consider spousal support for those separating spouses who may have an entitlement under either a need or compensatory basis, but who are in a common law situation.
Lola v. Eric is a section15 equality rights Charter challenge to the exclusion of common law spouses from the articles of the Quebec Civil Code (“CCQ”) Book on the Family, which provides for spousal support and some property rights, among other rights, upon separation/divorce of married and civil union spouses (Civil unions were recognized in Quebec in 2002 as an institution that allows same-sex or opposite-sex couples to make a public commitment to live together and comply with the resulting rights and obligations ). In Quebec, common law spouses do not qualify as married or civil union spouse so they do not attract these family law protections, regardless of the length of the relationship, whether there are children born to the parties, or if there is economic disadvantage arising for one spouse due to the breakdown of the relationship. This type of exclusion for common law spouses was problematic throughout Canada until spousal support and some form of access to property rights became available to most Canadians in common law relationships across the country. The stated reason for this protection is that there are often still gender-related roles regarding child-bearing and child-care that result in women bearing the financial brunt of the breakdown of a common law relationship, and for the most part the law tries to recognize this.
Lola and Eric were common law spouses for seven years. There were three children of the relationship. Lola apparently wanted to get married, but Eric refused, stating that he didn’t believe in the institution of marriage. Lola argues that her exclusion from the CCQ provisions discriminates against her on the basis of marital status, while Eric argues in essence that Lola made a decision to continue in a common law situation with no formal property or spousal support rights, and to change that fact legislatively or through the common law (Court decision) would be paternalistic, as it would send the message that women are less able to be self-sufficient than their male counterparts. It begs the question, are women still more financially vulnerable than men in a spousal (unmarried) relationships, such that they require government intervention to provide for their well-being? In a practical sense, have women become financially equal to men, in earning capacity, given time out of the workplace to bear and raise children? The SCC seems to think so, for Quebec.
While in Quebec this issue seems to have been a non-starter, in the rest of Canada Lola v. Eric likely raises more questions than it answers. For instance: Will the case have repercussions for spousal support arguments across Canada, for cases before the SCC in the future? Did the Supreme Court of Canada get it right, and if so, has the rest of Canada gotten it wrong?
It seems that the only real protection that will be offered to spouses in a common law relationship who may ‘give up’ their earning potential to care for children, or otherwise take a leave of absence from the workforce during the relationship, will be through a formal domestic contract called a Cohabitation Agreement. While it may be prudent for all co-habitees to have such an agreement in place to ensure that both parties are aware of and acknowledge their rights and responsibilities in the event of relationship breakdown, it is actually quite rare to have co-habiting parties go through the process of drafting such a contract.
Drafting an enforceable co-habitation contract can be expensive, as lawyers should be involved and act for each party separately for the contract to be binding. As well, it seems most couples during a relationship put off thinking about what will happen in the event of a relationship breakdown until they are actually going through it.
Lola perhaps has created a clearer pathway for Quebec couples who follow the news and SCC rulings, but for the rest of the co-habiting population the lesser earning spouse may simply be out of luck given the SCC ruling if the common law relationship breaks down. A simple fact is that a large number of people throughout the country are not aware of their legal rights and obligations under their jurisdictions, and therefore don’t have the tools to plan accordingly. Publicity around Lola may change this somewhat, but it may also be that decisions made during the relationship that have the ultimate result of negatively affecting just the lower-income spouse will be perpetuated by Lola.

1. http://www.justice.gouv.qc.ca/english/publications/generale/union-civ-a.htm, as per January 29, 2013

Regressive reform

The hopes of same-sex binational couples in the U.S. were dashed today when the  immigration reform package announced by Democratic and Republican senators failed to mention them. In light of the recent trend recognizing same-sex marriage in U.S. states, this omission is puzzling, although perhaps not surprising given the Defense of Marriage Act which prohibits recognition of same-sex couples at the federal level in the U.S. The U.S. Supreme Court will have a chance to deal with DOMA later this year. In the meantime, the fears, uncertainty and separation of binational same-sex couples will continue.



Australia meets Canada

On the eve of Australia Day, it is interesting to reflect upon the connections between Canada and Australia that go beyond our common relationship with the Queen. Citizenship and Immigration Minister Jason Kenney has publicly expressed his admiration of Australian immigration policies, and it is clear that the changes he has introduced into Canadian immigration criteria are almost perfectly geared toward Australian immigration to Canada. These include:

- working holiday programs for young Australians that lead to the issuance of open work permits for up to two years, with extensions,
- an increased emphasis on English language skills, and youth,
- the Canadian Experience Class, which is almost perfectly tailored to Australians who come to Canada through the working holiday programs.

In addition, many Australians file sponsored applications based upon their relationships with Canadians.

As we celebrate Australia Day, we also celebrate the well-traveled, worldy citizenry of this great country. While many of Minister Kenney’s immigration changes have generated controversy, his courting of Australian immigration to this country is beyond dispute.

Advocating equality

The LGBT community and bi-national same sex couples were encouraged to hear President Obama mention the importance of equality for same sex relationships in his recent inaugural address. It is more than just symbolism: for years bi-national same sex couples in the U.S. have lived with fears of separation due to the impact of the Defense of Marriage Act (DOMA) which prohibits the recognition of same sex couples in U.S. immigration law. This year will be crucial for binational same sex couples in the U.S. as the Supreme Court decides whether DOMA is constitutional. Advocacy organizations like Immigration Equality will be looking to draw upon support not only in the courts of law but in the court of public opinion:


Advocating equality in the U.S.

LGBT activists and bi-national same sex couples were encouraged to hear President Obama mention the importance of equality for same sex relationships in his recent inaugural address. It is more than just symbolism: for years binational couples in the United States have either lived with the fear and uncertainty of facing prolonged separation or have been separated due to the effects of the Defense of Marriage Act (DOMA) which prohibits the recognition of same sex relationships for immigration purposes.  This will be a crucial year for LGBT equality as the U.S. Supreme Court reviews the constitutionality of DOMA. Advocacy organizations like Immigration Equality will be looking for support not only in courts of law but in the court of public opinion:

What makes a marriage?

Last week an Ontario court judge recognized that a British civil union between a same sex couple should be recognized as a marriage in Ontario for the purposes of divorce, division of assets and support.

In Britain, same sex couples are not allowed to marry. Instead, they are able to form civil unions which provide almost all rights of marriage, except for the name of marriage and ceremonial aspects.  In this case, the gay male couple formed a civil union in Britain but after they moved to Ontario one party asked an Ontario court to find that it qualified as a marriage and could be dissolved according to Ontario law. The judge agreed. This agreement was based primarily on the discriminatory denial of marriage to same sex couples in Britain as well as the similarity of British civil unions to marriage in Canadian law.

Interestingly, the Canadian federal government intervened to argue against the recognition of British civil unions as marriages in Canadian law. This may lead people to wonder why the Canadian government would care.

The answer could lie in Canada’s policies regarding the recognition of same sex relationships in immigration law. The current policy states that the only relationships recognized for immigration purposes are married relationships (which, in the case of same sex couples must be in a jurisdiction which recognizes same sex marriage), common law relationships (defined by cohabitation of at least one year) and conjugal partner relationships (a committed relationship of at least one year when one party resides outside Canada). Civil unions are not in themselves recognized, although the same sex couple may still be treated as a couple for immigration purposes if they fall into the married, common law, or conjugal partner definition.

It will be interesting to see if the federal government challenges last week’s ruling. If they do not, civil unions will be a fourth type of relationship to be recognized in Canadian immigration law.

Resolutions revisited

If you are struggling to keep your New Year’s resolutions, you are not alone. When Citizenship and Immigration Minister Jason Kenney put the Federal Skilled Worker program on hold last June, he promised that he would revise the program and begin accepting new applications in January, 2013.

In December, Citizenship and Immigration Canada announced that this promise would not be kept and that new skilled worker applications would be accepted beginning May 4, 2013.

The good news is that the skilled worker program, which is still the category which brings most immigrants into Canada, has been revised, with a point system that places more emphasis on youth and English or French language skills. The government has also promised a system of credential recognition by designated organizations, but has not announced how this process would work, or by whom.  This credential recognition process would be a mandatory step for all skilled worker applicants, similar to the requirement to produce language test results. It adds another layer of bureacracy in the processing of skilled worker applicants, however the government’s intention is to maximize the capacity of skilled workers to integrate into the Canadian labour market.

The government has also promised to introduce annual application caps for the skilled worker category, so it will be important for qualified applicants to file their applications as quickly as possible. If you would like to have your credentials as a skilled worker assessed in advance of the re-opening of the program on May 4th, 2013, contact Michael Battista at mbattista@jordanbattista.com