Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ............. Neal Adams CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator . . Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . . . Rose Noonan Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Who's your daddy? confirms he is not their biological fa- ther? According to Justice Katherine van Rensburg the answer is no. While the decision stirs up bile in the S gut — especially given the mother's pre- posterous claim that she has no memory of an extramarital affair due to medication she was taking! — the judge's finding is consis- tent with case law in a system that's all about what's in the best interests of the children. Van Rensburg has also taken into ac- count that these days it's recognized being a parent is about more than whose blood runs in the children's veins. More than genetics are being regularly looked at in deciding what constitutes a family. And in this di- verse society, that's a good thing — although Pasqualino Cornelio might not agree. Cornelio was ordered to continue pay- ing child support to his ex-wife for their hould a dad's child support obli- gations for his 16-year-old twins terminate now that DNA testing twins, and was denied a request for repay- ment of support he has paid even though he has recently learned he is not their bio- logical father. Ah yes, but he is legally their father; as the judge said the "only father" they've known. In fact, he stood in the place of a parent even though he mistak- enly believed he sired them. Granted, it might have been nice to have made the decision with full disclosure, but sadly that horse left the barn a long time ago. "While the failure of [Anciolina] Cor- nelio to disclose to her husband the fact that she had an extramarital affair and that the twins might not be his biologi- cal children may well have been a moral wrong against Mr. Cornelio, it is a wrong that does not afford him a legal remedy to recover child support he has already paid, and that does not permit him to stop pay- ing child support," said van Rensburg. The judge said even if the matter were approached on the basis of fairness to the father, she decided his support obligations should continue notwithstanding the DNA. She noted Cornelio knew at the time of separation his wife had an affair with one "Tony" and he was suspicious said liaison might have produced the children. Notwithstanding that niggling doubt, Cornelio at one point sought joint custody and entered into a consent order for his ongoing involvement in their lives and support. It wasn't until access was in- terrupted and his ex began these proceed- ings seeking a boost in child support that he pursued the issue. "I can only conclude that this motion by Mr. Cornelio is a response to the current conflict with [his ex] and his unfortunate alienation from the children, which may well be temporary," said the judge. Cornelio's reaction is understand- able, but cutting support hurts the kids at the end of the day. So, while it's prob- ably a bitter pill for him to swallow (and apparently for legions of Internet armchair critics of this decision), and say what you want about this woman, the fact is that children have the right to support apart from the parent's conduct, even in these unusual circumstances. The judge is right; it's wrong to take this out on the twins. But does that mean the ex-wife is off the hook? Well, not to the extent of los- ing child support since it benefits the kids. But maybe now's the time for her to search the inner caverns of her brain and cough up the "real" daddy. Perhaps with the joyous news that he sired not one but two children 'lo those 16 years ago, he'd be willing to take some of the burden off Cornelio . . . although, yes Virginia we know there is a Santa Claus. Meanwhile, in the vein of When Harry Met Sally, we'd like to have some of what Anciolina had if it means one can conve- niently erase unwanted memories. — Gretchen Drummie L The Torrens story: real estate lawyers make history That's egal history is as prone as any other history to tilt toward great-man ideas about the past. Is legal history all learned judges, litigators, legal scholars, and firm builders? Or, in reaction to them, is it all theo- ries of law as a repressive force by which those greats fix their con- trol over the small? If that were legal history, what would it have to say about the daily experience of the Main Street lawyer doing real estate transfers and financings that hardly make the newspapers, let alone the history books? Well, if that is you, Professor Greg Taylor wants you to know that he finds historical significance in your work. His new book, The Law of the Land, is all about that familiar but vital point of law: how real estate gets transferred. Taylor, an Australian law pro- fessor, wants the world to know of South Australia's contribution to property law: the Torrens sys- tem. Robert Richard Torrens was a South Australian politician who got the first Torrens system legislated in his state in 1858 just 150 years ago. But this book is mostly about Canada, for Canada became the bridge that carried the Torrens system to the world. In English common law, property transfers were a matter of private contract. It was up to a buyer to establish not only that the seller held clear title, but that all the previous transfers of title were beyond dispute. Searching such "chains of title" was costly. But in England, land was held by the privileged few and changed hands infrequently. When it did, most buyers and sellers could af- ford to commission an elaborate search of the title deeds. In Australia, however, prop- erty title transfer became a po- litical crusade. There, even im- pecunious new immigrants were determined to be landowners. People and their property titles were extremely mobile, mak- ing complicated chains of titles almost impossible to track. But without confirmation of title, buyers were fearful and History By Christopher Moore money lenders closed-fisted. Torrens fixed on title registry to cut the Gordian knot. Under his law, no property transfer was valid until it was registered, and it was the act of registration that made it valid. No more private searches through chains of title. Suddenly land titles were certain and mort- gages secure. Torrens' system quickly spread across Australasia. By a mixture of happenstance and imperial communications, Vancouver Island/British Co- lumbia, another new, fast-grow- ing gold-rush territory without an entrenched old system to complicate matters, first car- ried the Torrens system beyond Australia in the 1860s. Torrens law was soon introduced right across Western Canada, and the Canadian example helped make www.lawtimesnews.com Torrens of interest around the world. Today it prevails in some U.S. states, the Philip- pines, and many Third World, Commonwealth countries. Taylor finds Ontario's Tor- rens history unique. Torrens law took hold here in the 1880s, but only as an option. Given the complications of switching over, movement was slow for a century. Only in the 1970s, as the symbiosis between the Torrens and computerized land registra- tion became evident, did Ontario shift massively over. Now Nova Scotia and New Brunswick are also going Torrens. Torrens was not a lawyer, and few great legal names are linked to the success of the Torrens system in Canada. Lawyers often wor- ried about giving up their hard- won expertise in the old system. It was mostly administrators and mortgage brokers who cam- paigned for Torrens in Canada. But Taylor argues that in Tor- rens jurisdictions, the commer- cial benefits of simple, efficient, low-cost property transfers January 19, 2009 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorim- er@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905-713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca or Rose Noonan at 905-726-5444 rnoonan@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. generally won over the lawyers. Taylor flies high in his survey of the history of property law. He has nothing to say about the banks' new power in title trans- fer, or the recent emergence of title insurance in Ontario, or the tangled history of Teranet Inc., or other questions that real es- tate lawyers might debate over their morning coffee. But if facilitating the transfer of real estate titles is your profes- sional expertise and your bread and butter, The Law of the Land is one small book to say that what you do is of commercial, social, political, and historical weight. The Law of the Land: The Ad- vent of the Torrens System in Can- ada by Greg Taylor was published in 2008 by University of Toronto Press and the Osgoode Society for Canadian Legal History. LT Christopher Moore's most recent book is McCarthy Tétrault: Building Canada's Premier Law Firm, published by Douglas & McIntyre. His web site is www. christophermoore.ca.

• Cover
• What`s A Conflict?
• The Hill
• Focus On Real Estate Law