Law Times

Law Times • OcTOber 19, 2009 COMMENT Partisanship, not ideology, marks judicial appointments OTTAWA – It's partisanship, not ideology, that has marked Prime Minister Stephen Harper's ap- pointments to the bench. Half of the judges he appointed last month have been donors to his Conservative party at one time or another. There was a fear in the legal community, based on the hard talk that used to come out of Harper's mouth, that if he ever got to power with so much as a mi- nority government, he would use the bench to roll back progress on Charter of Rights issues affecting women, gays, lesbians, and minority language groups. He would do so by packing the benches of the courts across the land as his mentor George W. Bush did with right-wing judges who would change the face of the judiciary. This hasn't happened. Canada isn't the United States. Harper isn't Bush, no matter how much he admires him. Harper talks a tough line to please his hardline conservative base, especially behind closed doors. But when it comes to putting his appointments where his mouth is, Harper curries favour with the centre. That's where the votes are. The examples are numerous. When it came time early in his mandate to appoint his first Supreme Court of Canada justice, Harper picked Marshall Rothstein of Manitoba. Rothstein, despite his inabilities in French, has proven to be a fine justice who is admired and respected by the legal community. His second Supreme Court appointment, the bilingual Thomas Cromwell from Nova Scotia, has been an equally successful appointment. But then Harper goes and opens his mouth in private as he did to an audience of hardline conservatives in Sault Ste. Marie on Sept. 2. A university student captured his so-called secret agenda speech on cellphone video, after which it found itself on YouTube. On the video, we see and hear Harper lash- ing out at judges, calling them "left-wing ideo- logues" who got to the bench through previous "socialist" Liberal administrations. Harper promised he wouldn't appoint such people as judges, senators or public servants. As for women's groups, which Harper sees as adversaries, they are described as being "marginal," something that will surely come as a surprise to a group that makes up 51 per cent of the Canadian population. So what does Harper do a week later when it's time to appoint a dozen more judges to various courts across the country? Does he pack the benches with the most bi- ased ideologues the right wing can send him? Not at all. He finds good judges, both men and women. They're mainly men, of course, who have shown no bias, who have commendable le- gal records, and who have been recommended by the various federal judicial advisory committees across the country. There are such committees in each province that "recommend" prospective judges for Harper to choose from. None are known ideologues. But half of Letter to the Editor I read with interest two articles in the Sept. 28, 2009, edition of Law Times. On page 6, Ro- salind Conway wrote about the problems criminal defence counsel are experiencing with the legal aid system. On page 7, Brian Finnigan wrote about the difficulties in accessing legal services in small communities. As a matter of policy, Cana- dians have decided that people charged with serious crimes are entitled to legal representation and that if they can't afford to pay for their own lawyer, the state must provide legal counsel. How- ever, legal aid is underfunded, and that simple fact is the source of the problems. Because lawyers them did contribute money to the Conserva- tive party at one time or other. And that, it turns out, is the common thread. William Burnett, named to the Court The Hill of Queen's Bench for Manitoba, once gave $3,000 to the Conservative party. Peter Richardson-Bryson, appointed to the Supreme Court of Nova Scotia, gave $2,750 to Con- servative candidates in that province. By Richard Cleroux Claude Dallaire gave $500 to a Conservative can- didate in the 2008 general election. He was made judge of the Superior Court in Montreal. Robert Dewar was named to the Manitoba Court of Queen's Bench. He gave $250 to the Conservative Party of Canada in 2008. But the appointment that attracted the most public attention on Sept. 9 was a former attorney general in Brian Mulroney's government, Pierre Blais, whom Harper named chief justice of the Federal Court of Appeal. But what many of the news media didn't report was that Blais was first appointed to the Federal Court by former Liberal prime minister Jean Chrétien, who was hardly a Conservative partisan. So all these former lawyers gave money to Harper's coalition of Reform, Alliance, and old- line Progressive Conservatives? Big deal. Was it any different in Liberal times? The only difference is that the Conservatives once promised they would do better. They haven't. While in opposition, Peter Van Loan, the man who is Harper's minister of Public Safety today, complained about Liberal party donors ending up on the bench, something he described as calling into question the in- dependence of the judiciary. Actually, it didn't call anything more into question back then than it does now. The important thing to note is that none of the ideologues out there have been ap- pointed to the bench under Harper. For that we can all be grateful. The only Harper-ap- pointed judge to have ever publicly expressed an opinion against abortion rights for wom- en is a former Conservative MP, Lawrence O'Neil, who was appointed by Harper to the Supreme Court of Nova Scotia in 2007. His comment on abortion came while he was still in the Commons on July 27, 1988. Hansard reports him as saying that there "ap- pears to be widespread acceptance of the no- tion that a mother should have the right to control her body. There is no such right." That's it. Nothing more. He's hardly a raving anti-choice advocate. So where's the evidence of hardline appointments to the bench by Harper? There are none. Harper is not George W. Bush even if he talks like him behind closed doors. This is Canada, not the United States, and Harper is well aware he doesn't have a majority. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richard cleroux@rogers.com. PAGE 7 Is an adult who pursues a second degree eligible for child support? BY ROBERT McGLASHAN For Law Times T raditionally, a parent's obligation to provide child support ends after completion of one post-second- ary degree, but a recent judge's endorsement has called that no- tion into question. Madison v. Madison con- cerned an application by the wife for further child support for her adult daughter who had completed her bachelor of arts degree at the University of To- ronto. She then sought continued support for the daughter's pursuit of a legal education at the University of Ottawa jointly with Michigan State University at a cost of US$46,526. The case, then, addresses one of the more contentious issues in child support matters: does the law consider an adult who has completed a post-secondary degree and is now contemplat- ing further studies as a child of the marriage under the Divorce Act and therefore eligible for ad- ditional support? The answer, of course, essen- tially dictates when a parent's obligation to pay support ends. Traditionally, the case law has said that happens when adult children complete their first post-secondary degree. Previous cases have also tend- ed to dictate that a payer spouse is able to avoid the obligation to pay for an adult child's educa- tion in situations where the two don't have a relationship or the adult child has abandoned pa- rental control. It's important to note, however, that this is not usually the case where the par- ent is responsible for the strained relationship. Similarly, payer spouses have been able to avoid support ob- ligations in cases where adult children haven't done well in school. But these principles recently came into question in an en- dorsement from Superior Court Justice Susanne Goodman in the Madison case. can't survive in small communi- ties on what legal aid pays, they have no choice but to work in larger centres where there is more work available, some of it on a private retainer basis. I don't see this changing until the courts start dismissing very serious criminal cases over de- lays due to underfunding of the justice system. Only then will access to justice actually assume some importance and priority in both the federal and provincial governments' spending. The problems addressed in these two articles are serious and www.lawtimesnews.com they require a serious response based on reasoned consideration. That response was not met by the recent decision of the On- tario government to harmonize the provincial sales tax with the federal goods and services tax. I find it ironic that the same gov- ernment that has been telling me for the last 30 years that lawyers have to be part of the solution has now chosen to address the problems by increasing the cost of legal services even more. I might be less inclined to view the Ontario government's action in extending the provin- The respondent, Dr. Kenneth Madison, was a wealthy dentist who owned two dental prac- tices. He had taken a second wife and adopted her two chil- dren from a previous relation- ship. He had failed to provide adequate financial disclosure for several years prior to the motion for additional support for the daughter's law studies. In deciding the case, Good- ruled man the adult child couldn't get a loan to pay for tu- ition herself and that she needed a guarantor, something the ap- Speaker's Corner plicant wouldn't qualify to do. In response, she found the adult child was a child of the marriage as defined by the Divorce Act and ordered that if she was pre- pared to fund one third of the program, the father should pay for the remaining two thirds. Goodman based her decision on her reading of s. 7 dealing with extraordinary expenses in the child support guidelines. She indicated she would also consider further submissions dealing with payments for the table amount of support under the guidelines. As a result, she ordered the re- spondent to transfer US$49,526 to the applicant and to act as the guarantor on the adult child's application for a bank loan of $10,000 per year. This decision is important because it provides that child support can continue for adult children who seek more than one post-secondary degree even where they are estranged from the payer spouse. This decision is also significant as it suggests it's possible for an adult child of the marriage to receive both extraordinary expenses and the table amount. LT Robert McGlashan is an associate at Genest Murray LLP practising in the area of civil litigation. He can be contacted at rmcglashan@ genestmurray.ca. cial sales tax to the cost of legal services as hypocritical if there was a commitment by the On- tario government that at least some portion of the province's share of the amount charged on legal fees would be paid to the Ontario legal aid plan. But I don't see that happening either. We as lawyers must make our clients and the general public aware of the facts if the community perception of the value of the justice system, and the need to adequately fund it, is going to change. Frank P. Oster

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