Law Times

PAGE 8 An online resource tool 1.800.263.3269 ntitled-6 1 1/28/10 4:34:45 PM Focus On FAMILY LAW/TRUSTS & ESTATES Can Skype replace in-person custody and access visits? humans interact. Millions of people across the globe now establish and maintain meaningful relationships without ever stepping into the same room. So it's no surprise that this shift has had an impact on family law. When it comes to visitation, online communica- tion tools like Skype have made it easier for non-custodial parents to keep in touch with their children. But the courts have offered differing opinions on its ability to provide adequate contact between parent and child. That question has particular meaning when someone seeks to move the chil- dren far from their other parent. Take the recent B.C. Supreme Court case of ELC v. ESB. The mother, ELC, asked the court to give her custody of the couple's two children, aged four and seven, so they could move with her to Australia where her family lived. The father and defendant in the action, ESB, sought joint custody but agreed the mother should provide the children's primary residence. ELC said the father could fly to see the children, and vice versa, and that they could communicate daily through "technology where the defendant and the children can interact with each other Courts grapple with online communications T BY ROBERT TODD Law Times he rapid advancement in recent decades of communications tech- nology has forever changed how visually and audibly," according to the deci- sion of Justice Hope Hyslop. But the father, Hys- lop noted, opposed that idea, arguing that "the children need emotional support of both of the parents and their pres- ence." He alleged the children were already acting out due to their parents' separation. As Hyslop pointed out, the Divorce Act instructs that in decid- ing custody of children, courts are to "take into consideration only the best interests of the child of the marriage as determined by reference to the condi- tion, means, needs, and other circum- stances of the child." It also encourages maximum contact with the parents. The mother proposed that the father would have the children for 10 of their 12 weeks of holidays should they move to Australia. He could also visit them, the mother said, and would be able to use a condominium and vehicle while there. She also cited the availability of high- speed Internet access to allow the father to speak to the children each day via Skype videoconferencing. Of course, they could also talk over the telephone. In the end, the judge rejected the 'I would say that e-mail and texting says Georgina Carson. is double-edged,' mother's proposal and ordered joint custody, saying the father "would have little chance of mak- ing a decision concerning the children as it would be difficult to obtain the necessary facts to make decisions relating to the children." Hyslop also doubted that online communica- tion would be adequate and suspected the children would suffer "emotional loss" as a result. "Skype is not enough," she wrote. "They will not be able to participate in activities or events with their father. . . . The plaintiff's plan is likely to fail; this will be at the expense of the children." In a separate case, however, B.C. Supreme Court Justice Deborah Satanove seemed more optimistic about the utility of online communication for non-custo- dial parents. "The plaintiff also promises to acquire Skype and to pay for regular long-distance telephone access," Satanove wrote in Gau- vin v. Gauvin. "Obviously, electronic communication is not as desirable as in-person access but it does allow for the child to keep in touch with her dad every day if she so wishes." The judge went on to grant the mother interim sole custody and permission to move her 12-year-old child with her to Spain for at least a year. Canadian courts are not the only ones grappling with this issue. Illinois, for example, recently amended sections of its Marriage and Dissolution of Marriage Act by adding new language that outlines how the courts should handle electronic communication, including online video- conferencing, when dealing with parental visitation issues. The statute now reads: "Visitation means in-person time spent between a child and the child's parent. In appropri- ate circumstances, it may include elec- tronic communication under conditions and at times determined by the court." But the Illinois legislature refrained from fully backing the use of electronic communication. The new rules, which took hold Jan. 1, also include a stipulation that courts "may not use the availability of electronic communication as a factor in support of a removal of a child by the custodial parent from Illinois." Meanwhile, most experts seem reluc- tant to legislate the use of electronic com- munication in Canada in order to deal with custody and access. "I think in Canada we certainly have the flexibility at present," says Queen's University law professor Nicholas Bala. "While there are things that I'd like to see changed in our child-related laws, I don't think this needs to be specifically addressed by the legislature." See Send, page 11 Battle over politician's estate drags on BY ROBERT TODD Law Times P rominent Cambridge, Ont., businessman and politician Norman Hipel died in 1953, but a judge was still ironing out his dying wish- es in a Kitchener courtroom last month. Hipel, who served as a Lib- eral MPP and cabinet minister and as mayor of the city's Pres- ton community, left a will that outlined how to divvy up his estate between his two children after the passing of his wife Olive in 1978. But his daugh- ter, 89-year-old Norma Jacques, claims she didn't know about her inheritance until 2004 and is now looking for $20 million in supplementary and punitive damages in a lawsuit against TD Canada Trust, executor and trustee of her father's estate, and the estate of her deceased brother, George Hipel. The statement of claim filed at the Ontario Superior Court argues Canada Trust should pay damages for breach of trust and Evidence in Family Law This practical book examines the rules of evidence as they pertain to family law. Written by top lawyers in the field, it covers areas such as evidence of children, assessment and use of expert evidence, electronic evidence and more. ORDER your copy today Looseleaf & binder • May 2010 • Approx. $225 • Releases invoiced separately (1/yr) P/C 0243030000 • ISSN 1920-9258 For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. LT0201 NIMAN_Evidence in Family Law (LT 1-8x5).indd 1 www.lawtimesnews.com 1/27/10 9:51:05 AM fiduciary duty; for the alleged negligence of the Waterloo Trust and Savings Co., of which Can- ada Trust is the legal successor, in managing the father's company; and for the alleged emotional shock Jacques suffered when she learned of her inheritance. Jacques, who lives in Calgary, is also claiming damages against her brother's estate based on accusations that include unjust enrichment. The claim alleges Water- loo Trust "inexplicably and in breach of trust" moved 7,101 of 8,150 total shares in N.O. Hipel Ltd. to Jacques' broth- er George in May 1965. He became president of the com- pany weeks after his father's death in 1953, the claim states. Jacques' claim alleges Water- loo Trust wrongly gave control of the company to the brother and, in so doing, it "deprived the estate of the significant capital growth that would have been expected from the prudent management of N.O. Hipel Ltd. to the detriment of the plaintiff, resulting in the unjust enrichment of George Hipel." Further, the claim alleges Waterloo Trust sold shares in the company for "far less" than their value and that Jacques' brother inappropriately sold shares as well. It also claims Waterloo Trust failed to noti- fy Jacques of her entitlement under the will. "There is no evidence that Waterloo Trust ever commu- nicated with Norma or that Norma received her full entitle- ment to all of the assets of the See Case, page 11 FEBRUARY 1, 2010 / LAW TIMES H arold Niman and contributors

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• Boycott Ends
• Judicial Retirement
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