Law Times

PAGE 2 Regulatory vacuum creates uncertainty NEWS Continued from page 1 their minds about the agreement, it is highly probable that the court won't give that agreement much weight," says Daitchman. "That being said, anyone who is biologically related can have access to the child, although it isn't an end- all be-all. The courts are required to look at the larger picture and assess what is best for the child. though she has limited knowl- edge of the case, it likely won't be an easy one for the biological father to win. "Duress is a very high legal But Daitchman says that al- " standard to meet," says Daitch- man. " pressure, which is natural during divorce and marriage contracts, you can't just claim duress. There needs to be a firm basis for the claim. Luckily for us, duress isn't an issue for sperm banks, so we don't have to worry. Any time you feel a little bit of also of Feldstein Family Law, says it' lation on the issue isn't clearer. "The challenge in this case Still, lawyer Andrew Feldstein, s unfortunate that current legis- " is deciding what our legislation wants," says Feldstein. the ability to create firm and binding contracts when it comes to egg or sperm donations or not? The problem is that we currently have legislation that became law in the 1980s but we're trying to fit the questions of those people who created the law into our cur- rent, technologically advanced context of reproduction." But, Feldstein adds, the deBlois "Do we want people to have case may not be as complicated as it seems. "I perceive there'll likely only with the mother, he could say that he saw the woman' growing, felt the baby kick, and decided he wanted to be a dad, and that might move a judge. But he'll still have to determine what is in the best interest of the child and that' "Even if he did make a deal s stomach " he adds. yer practising in the field of third- party sperm-donor agreements likely won't carry much weight in court. "We've always known Sherry Levitan, a Toronto law- reproductive s a very broad test." law, notes be one question in this case, and that is what access agreements will the father be allowed to have, sperm-donor agreements are not necessarily enforceable, Levitan. "There have been a couple of is born, the partner of the biologi- cal parent receiving the donation has no legal rights to it. Getting legal rights would involve for- mally adopting the child or enter- ing into another type of binding agreement, but the biological do- nor would have to accept it. In cases like Daitchman and her partner's, however, if the Levitan notes that once a child " donor remains anonymous, his consent wouldn't be necessary, says Levitan. "It absolutely affects my clients' decision about whom they choose, to have a relationship with the donor oſten make less formal agreements, whereas those who want more control and access over the process oſten turn to anonymous donors. Really, we're 10 or 20 years out and we're still leſt with a lot of questions." According "Those who want their child " she says. to the Ministry cases where the sperm is treated like property, but the rights to a child are much murkier and have never truly been resolved. " says of Children and Youth Services, more than 1,500 babies were born through in vitro fertilization in Ontario in 2006, the most recent year for which data is available. Babies born through all assisted- reproduction mechanisms now represent about one to two per cent of all live births in Ontario. "There's a lot of uncertainty out there," says Daitchman. thing doesn't want to deal with or what, but a lot of laws say to refer to the regulations. Well, the regulations just aren't there yet. Where does that leave us?" "I don't know if it's just some- that the government LT Fairness factors limited to 'trivial role' Court' Continued from page 1 724597 Ontario Ltd., also known as Appletex. In that case, the court ruled that the Environmental Appeal Board (the s 1995 decision in Re predecessor) could apply con- siderations of fault, negligence, causation, and unjust enrich- ment in determining whether it should relieve innocent owners of liability. But in Kawartha Lakes, the tribunal's June 18, 2012 • Law Times NEW EDITION CONSOLIDATED ONTARIO EMPLOYMENT AND LABOUR STATUTES AND REGULATIONS 2012 Get easy access to all Ontario employment and labour legislation with the full text of all key statutes and regulations in labour and employment law. Annual editions ensure you are always working with the latest legislation and a section-by-section table of contents plus a comprehensive index provide instant access to the information. UPDATED IN THE 2012 EDITION • Ontario Labour Relations Board Forms • The following statutes and regulations: – Under the Accessibility for Ontarians with Disabilities Act, 2005, Accessibility Standards for Customer Service, O. Reg. 429/07 – Under the Crown Employees Collective Bargaining Act, 1993, Prescribed Bodies, Crown as Employer, O. Reg. 386/07 – Employment Standards Act, 2000, S.O. 2000, c. 41 – Under the Employment Standards Act, 2000, Enforcement, O. Reg. 289/01 – Ministry of Labour Act, R.S.O. 1990, c. M. 29 – Occupational Health and Safety Act, R.S.O. 1990, c. O.1 – Under the Occupational Health and Safety Act, Confined Spaces, O. Reg. 632/05 – Under the Occupational Health and Safety Act, Industrial Establishments, R.R.O. 1990, Reg. 851 – Ontario College of Trades and Apprenticeship Act, 2009, S.O. 2009, c. 22 – Under the Pay Equity Act, Prescribed Bodies, Crown as Employer, O. Reg. 387/07 – Under the Public Sector Labour Relations Transition Act, 1997, Application of the Act, O. Reg. 458/97 – Under the Public Service of Ontario Act, 2006, Delegation by Public Service Commission under s-s. 44 (4) of the Act, O. Reg. 148/10 – Under the Public Service of Ontario Act, 2006, Political Activity: Specially Restricted Public Servants, O. Reg. 377/07 – Under the Public Service of Ontario Act, 2006, Public Bodies and Commission Public Bodies — Definitions, O. Reg. 146/10 – Under the Public Service of Ontario Act, 2006, Public Bodies and Commission Public Bodies — Ethics Executive for Certain Public Servants, O. Reg. 147/10 – Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A. – Under the Workplace Safety and Insurance Act, 1997, Construction Sector – Exemptions (Partners and Executive Officers), O. Reg. 47/09 ORDER # 985046 $111 Softcover June 2012 approx. 1,300 pages 978-0-7798-5046-4 Available on standing order subscription Multiple copy discounts available AVAILABLE RISK-FREE tribunal ruled the city couldn't get relief from the order with- out proffering some evidence of a solution that was also con- sistent with the purposes of the Environmental Protection Act in the sense of being fair to the environment and those affected by the pollution. Here, the city had failed to do so. But in holding that the tribunal' able, the Divisional Court didn't go so far as to exclude the fair- ness factors from consideration. "The Divisional Court noted that the director may take into s decision wasn't unreason- account one or more of these factors in deciding whether to issue an order but is not required to do so, environmental lawyer at Osler Hoskin & Harcourt LLP. " the future. "My impression is that going forward, neither fairness nor Still, Saxe is skeptical about the role of the fairness factors in " simple proposition. "First of all, many guilty parties may have no money or may fault has any more than a trivial role to play in terms of who gets stuck with cleanup costs," she tells Law Times. Saxe also says that recovering from the party at fault isn't a have left the jurisdiction," she says. "As well, going to court is an expensive and risky proposition, especially in light of recent jurisprudence that has narrowed the scope of negligence and nuisance claims in the environmental context." According to Saxe, environmental due diligence is the order of the day more than ever, particularly in light of tightened pro- vincial standards that came into effect on July 1, 2011. "People should be much more conscious about the risk when dealing with either industrial or residential properties because residential properties are also not uncommonly contaminated, she says. For his part, Coop offers the following suggestions in light of " FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. the ruling: • Neighbours should be aware of any pollution problems and any steps taken by the ministry. • Municipalities must be especially vigilant and intervene early to prevent the spread of pollution because they'll often be the default, deep-pocketed adjacent landowner. • Neighbours should remember that the current uncertain economic environment makes financial instability more likely among landowners. • Innocent owners who find themselves before the tribunal will want to propose an environmental solution for the con- tamination problem that' • Owners should ensure they have adequate insurance coverage. • Due diligence is now more important than ever for prospec- tive purchasers. allocation but also fully protective of the environment. LT www.lawtimesnews.com s not only fairer in terms of liability " says Jack Coop, an that fault or lack of fault may be considered to be an exceptional or unusual circumstance that militates in favour of altering the timing and content of an order but will not impact whether the order should be made in the first place. As a result, the Divisional Court appears to have accepted Victims of someone else's contamina- tion may now find themselves liable for the cleanup, says Dianne Saxe. Photo: Kenneth Jackson

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