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Law Times • march 14, 2011 I 'm sure many members of the legal profession feel a twinge of jealously when they consider the societal status of medical doctors. Be honest. Most folks like lawyers debate on health laws Inside Time for real only when they win, although the re- sultant invoice often defl ates that eu- phoria quickly. Doctors, on the other hand, are usually seen as knights in white coats who are sympathetic, empathetic, and for the most part in Ontario, free. Of course, health care isn't free. We spend some $1,256 per capita on hospitals alone in Ontario and we'll pour close to $50 billion into health care next year. It's no secret that money is tight as we deal with an aging population at the same time. Add it up and you could say it's time for some revolutionary think- ing around health care. But, in truth, we're constantly evolving our concepts either through natural social change or when a crisis forces our hands. For example, some 25 years ago as I anticipated the birth of my daugh- ter, I argued with friends over dinner that forcing women to go to a hospi- tal to give birth was unnecessary. "Pregnant women aren't sick," I said, observing that hospital births were clinically driven for effi ciency while the mother's comfort and dignity were of- ten just afterthoughts. "Most of them don't need to be in a hospital." My female friend was aghast. Births outside of a sterile hospital setting would be dangerous and risk infections and complications, she stormed. In a few years, however, she had changed her position and became a pioneer of midwifery in Ontario. She's an advocate on the issues today. Th e point is that things change over time, as does practice. Today's unac- ceptable concept is tomorrow's stan- dard procedure. Th at discussion and the continu- ally changing role of hospitals in health care came to mind as I looked over an Ontario Medical Association manifesto calling for change in how we structure services. Th e OMA has a host of good ideas and a proven track record that has al- ready pointed out better ways to de- ploy millions and millions of dollars. With the Oct. 6 election in mind, it's re-energizing eff orts and evange- lizing for action to end child obesity, block access to cheap cigarettes, ac- celerate implementation of electronic health records, and devise a better long-term care strategy. "Th ere is no issue greater than health care to Ontarians," noted OMA president and London, Ont., orthopedic surgeon Dr. Mark Ma- cLeod at a press conference launch- ing the platform. He's right. While we hold health care in high esteem, change is necessary nevertheless. More interestingly, the OMA says there are more effi cient ways to tack- le waiting lists and deliver quality health care, in particular by moving the basics out of hospitals and into clinics. Sure, it's a great idea. No one is advocating moving open-heart sur- gery to your family doctor's offi ce, but there is a host of services that don't require hospital facilities and the attendant costs. We don't go to hospital for blood tests, X-rays, laser Queen's Park By Ian Harvey eye surgery, and other procedures. So why not expand the list to include CT scans, MRIs, colonoscopies, and minor surgeries? Why not look at everything pos- sible? Well, preserving a rigid, one- size-fi ts-all health-care system has be- come a sacred cow in Canada despite the fact that its time has long passed. For the OMA's recommendations to work, there are two key pieces of legislation that need review if we're to do anything about restoring superla- tive health care. First is the Independent Health Facilities Act. It opened the door for some procedures and examina- tions to take place in registered clin- ics through coverage by the Ontario Health Insurance Plan. But unlike Quebec, which has steadily moved towards outsourcing and now allows more than 50 procedures to happen that way, Ontario rules limit those exceptions. In Ontario, such outsourcing is a political hand grenade because crit- ics see it as a slippery slope involving clinical procedures today that lead to private hospitals and a two-tier medi- cal system tomorrow. Th e rich will buy health care, thereby eroding the system, and the poor will die. Premier Dalton McGuinty's gov- ernment played on those fears with the second key piece of legislation, the Commitment to the Future of Medicare Act, that ostensibly out- lawed private health care. Th e Liber- als introduced and passed it early in their tenancy at Queen's Park. Today, it's a sick joke because we all know there's a de facto two-tier system. If you're prepared to pay an annual fee of a couple thousand dollars, you can register at a private health clinic where Ontario's health plan will still pay for your basic care. In the mean- time, you'll have quick access to an advanced network of specialists and state-of-the-art equipment with al- most no delays. Further, you can travel to places like the United States, India, and Th ailand to get the surgery you need with no waiting at relatively reason- able prices from doctors trained in North America. With no disrespect to the bar, I'm siding with the doctors. Th e OMA is right. It's time for some revolutionary thinking that challenges the sacred cows and reconsiders protectionist legislation. Th e question, however, is who is going to pull the pin on that politi- cal hand grenade fi rst? Not Premier Dad McGuinty or the NDP's Andrea Horwath. So it's over to you, Tim Hudak. Ian Harvey has been a journalist for 32 years writing about a diverse range of issues including legal and political af- fairs. His e-mail address is ianharvey@ rogers.com. COMMENT PAGE 7 Kerr and Vanasse create no presumption of shared property division in common law relationships, lawyers got answers on Feb. 18 when Jus- tice Th omas Cromwell, writing on behalf of a unanimous bench, expanded the law to make it easier for common law spouses to bring forward unjust enrichment claims upon the breakdown of a relationship. Th e court heard two cases together A last year, Kerr v. Baranow and Vanasse v. Seguin, that both dealt with the is- sue of unjust enrichment in the con- text of common law relationships. In Vanasse, the fter many months of waiting to see what the Supreme Court of Canada would do with property something the court confi rmed it's also possible to infer from their ac- tions. Cromwell was very clear that what a "reasonable person ought to have intended" given the circum- stances plays no role in the analysis. Th e focus is strictly on what actu- ally happened and what the parties actually said and did throughout the relationship. Family couple cohabited for 12 years and had two children together. Mi- chele Vanasse, while initially very involved with her career, stayed home with the couple's children while David Seguin fo- cused on developing his business, the sale of which left him a very wealthy man. In Kerr, the issue involved a long-term relationship that had lasted 25 years. For Margaret Kerr, this was a second rela- tionship. It appears to have been a fi rst relationship for Nelson Baranow. Th e parties had no children together, and both worked until Kerr suff ered a severe stroke and was unable to return to work due to her paralysis. Baranow, mean- while, took early retirement in part to assist with Kerr's care. Th e primary point of Cromwell's rea- sons was that if a party can show that the common law couple functioned as a marriage-like family unit or, as he termed, a "family joint venture," the re- lationship falls within the new analysis for property division. Specifi cally, once a spouse can establish that the couple functioned as a "family joint venture," there's no longer a need to show a spe- cifi c link between that party's contri- bution either through money or some form of services and the specifi c asset to be shared. Nor is that spouse limited, if there's insuffi cient proof of that link, to monetary compensation on the former model of fee for services rendered. Cromwell's decision makes very clear that neither approach was refl ec- tive of reality in circumstances in which the parties cohabited in a truly unifi ed manner. At the same time, it dispenses with a long-standing need to pigeonhole spouses into non-realistic constructs to obtain equitable relief. According to the top court, in order to determine whether the family func- tioned as a family joint venture, there must be regard to the following four non-exhaustive criteria: • Mutual eff ort: Whether and to what extent there was a pooling of eff orts and teamwork to achieve common goals. In assessing this, there's no need to ascribe monetary value to individual eff orts. Rather, there must be regard to the totality of results arising from the pooling of eff orts. • Economic integration: Whether and to what extent the parties pooled re- sources to pay for all or part of the common expenses. Th e issue includes the question of whether one spouse was fi nancially dependent on the other, as was the case for Vanasse. • Intent of the parties: What were the actual intentions of the parties, www.lawtimesnews.com Law By Marta Siemiarczuk • Priority of the family: Whether and to what extent the parties gave priority to family life in their decision-mak- ing. For example, did one spouse take time off from work to stay home with the children or did one of them forego em- ployment advance- ment opportunities to spend more time with family? Essen- tially, is there good evidence to show that the parties gave priority in deci- sion-making to the family unit as op- posed to their individual interests? If there are other relevant criteria that come into play based on the spe- cifi c facts and circumstances of a case, the court must consider them as well. Cromwell's resounding point empha- sizes fl exibility in analysis to maintain focus on the reality of the relationship and the equities involved. Th e reasons go on to deal with two additional elements that, according to Cromwell, have historically been ap- plied incorrectly and inconsistently: mutuality of benefi ts and the reasonable expectations analysis. With respect to mutuality of ben- efi ts, Cromwell clarifi ed that this ar- gument only comes into play at the defence or set-off stage of the analysis. Th e courts aren't to consider arguments about the mutuality of benefi ts in the initial determination of whether there has been an unjust enrichment. It is on this point that Cromwell allowed Kerr's appeal and sent the matter back to trial. In his view, the B.C. Court of Appeal truncated Kerr's ability to make out her claim for unjust enrichment by focus- ing on Baranow's contributions in the "juristic reason" stage of the analysis. Finally, Cromwell confi rmed that the days of arguments about reason- able expectations are at an end. Again, the real focus is on what did happen, not what ought to have happened or what "the reasonable person" would have expected to happen. Th ere has been a great deal of pub- lic commentary on this decision and there appears to be an emerging percep- tion that there's now a presumption of property sharing among common law spouses. Th at's certainly not the case. Th e court has created no presumptions. What has happened, however, is a shift from a boxed-in analysis to one that recognizes that when analyzing how two people shared their lives together in order to determine whether there are equitable remedies that should fl ow from the breakup, the focus must be on those specifi c people and that particular relationship. Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta. siemiarczuk@nelligan.ca.