Law Times

PAGE 4 NEWS December 1, 2008 • Law Times Province introduces family law reforms BY ROBERT TODD Law Times L lawyers for more family law reforms, because there's a few things that are pretty simple fixes," says Toronto family law lawyer Grant Gold. The province last week announced plans to bring in legislation it said will improve protection of wom- en and children and cut the financial and emotional toll of court proceedings. The proposed reforms would see breaches of re- straining orders dealt with as criminal offences; ensure that courts hear information regarding a violent past before deciding on custody transfers to non-parents; simplify the rules regarding division of pensions; and bring in automatic annual financial disclosure to cut down on battles over child support. The child custody reforms follow the August death of seven-year-old Katelynn Sampson in Toron- to, whose severely beaten body was found by police. Custody of Sampson had been granted to Donna Ir- ving and Warren Johnson, as her mother felt unable to care for the child due to a drug addiction. Irving and Johnson now face first-degree murder charges. Premier Dalton McGuinty promised to take action after it was revealed that Irving's criminal his- tory for drug use, violence, and prostitution wasn't revealed at the custody hearing. "I'd like the government to continue to look to awyers have applauded the Ontario govern- ment for introducing family law reforms, but say further modernization is essential. their own homes, which is why we propose to change child custody and restraining order laws to protect Ontario's women and children," At- torney General Chris Bentley said in a prepared statement. "These re- forms would also help families go- ing through separation spend less on family court proceedings, and more on getting on with their lives." Gold says practitioners will be most "No one should live in fear in relieved by the regulations aimed at simplifying pension splitting. "If you look at the assets most ordinary people have, it's usually a house and a pension, and pensions were the subject of a lot of litigation," says Gold, who advised the AG on the proposed changes. "The pension part of this is going to make things more simple for us to divide them." The mandatory annual disclosure for child support should be automatic, says Gold, noting many other provinces already have such a rule in place. He and many other lawyers already insert such requirements in separation agreements, says Gold. "It follows from the case law that says there's an ongo- ing obligation for support payers to make disclosure," he says. "I think now it's just codified, and everyone's going to know they have to do it, and they should do it." Gold says a major area where further change is needed to family law relates to matrimonial homes. Currently, a spouse who brings in a home to a marriage that becomes the sole home for the couple is not per- mitted to recoup the value of the home upon separation, says Gold. However, he notes, if a spouse in- vests an amount of money equal to the value of that matrimonial home in a GIC, they get the full value of that GIC upon separation. Similar requirements exist for gifts or inheritance funds spent on the matrimonial home, says Gold. "I think that's unfair," he says. 'I'd like the government to con- tinue to look to lawyers for more family law reforms, because there's a few things that are pret- ty simple fixes,' says Grant Gold. Ontario Bar Association's family law section, says the OBA is pleased with the reforms and pleased to see Bentley reaching out for consultation with the bar. "He's been very, very helpful and attentive to what we've been concerned about," says Dart. "Law reform's an ongo- ing thing. I'm sure [there are] other things we could be do- ing in the area of family law, so hopefully this is the start to some reforms that have been sought for some time." "I think it comes from when the legislation came out in 1986, there was a perception that in those days certainly, women were the disadvan- taged from a family law perspective. I think the thinking back then was that, if the family falls apart, people are going to need a place to live. So let's agree that the home's special." Tom Dart, chairman of the LT Securities regulator commitment comes at good time A BY ROBERT TODD Law Times curities regulator couldn't come at a better time than during the eco- nomic downturn, say lawyers. "One of the issues that's been discussed worldwide in response to the credit crisis is that ad- ditional regulation of financial institutions is required," says Borden Ladner Gervais LLP's Philippe Tardif. "Some of those financial institutions are regu- lated by the securities regula- tors. So yes, there is a need for a co-ordinated approach." The government referred to commitment from the federal government to help create a national se- the need to end Canada's scattered regulatory framework in the Nov. 19 speech from the throne. "The credit crisis has also un- derlined the dangers of a frag- mented financial regulatory sys- tem," the speech reads in a sec- tion on reforming global finance. "To further strengthen financial oversight in Canada, our govern- ment will work with the prov- inces to put in place a common securities regulator." Finance Minister Jim Flaherty expanded upon the government's position following the speech, tell- ing reporters that the government was committed to creating the national regulator even without the support of all provinces. Que- bec has been an opponent, while FIRM UP! 10% Purchase 5 or more subscriptions for your law firm to Law Times or Canadian Lawyer and save 15% Purchase 20 or more and save 1 year $135.00 + gst, go online at www.lawtimesnews.com $65.00 + gst 1 Year $105.00 + gst 2 Year Special rates for students and international subscribers. go online at www.canadianlawyermag.com or call 1-888-743-3551 www.lawtimesnews.com LT - 1/4 x 3.indd 1 11/27/08 11:59:08 AM Alberta Premier Ed Stelmach has suggested the move could hurt his province's energy sector. Ontario is considered the strongest supporter of the idea. Flaherty said the government will take action following the release of a report from the Ex- pert Panel to Review Securities Regulation, led by chairman Tom Hockin. The government report- edly has called for completion of the review by the end of this year. Toronto lawyer Philip Anisman, who has advocated for a national regulator and was commissioned in 1979 by the federal government to write a proposal for a national securities market law, says it's "just a matter of when and how" a uni- fied regulator is created. "The current economic cli- mate demonstrates, I think once again, why it is important," says Anisman. "Because in the cur- rent economic climate, the in- ternational discussions in which the Government of Canada has engaged make clear that a single national regulator is an impor- tant element in addressing issues of international significance." Tardif says the economic slowdown has lent urgency to the campaign for a single regulator. "There's a greater need for policy development and over- sight in assessing regulatory re- sponse to various liquid securi- ties, and oversight of regulated entities," he says. Tardif, who was seconded to Flaherty has indicated his intention to go ahead with a national regula- tory body with those provinces that are willing to participate, I think is a major step forward." the Ontario Securities Com- mission from 1989 to 1991, says a national regulator is also needed to promote uniformity in enforcement proceedings, to promote efficiencies in some regulatory approvals, and for co- ordinated policy decisions. The current system does a good job on regulatory approvals, but is "clumsy" with policy develop- ment because different regulators have different priorities, he says. In terms of enforcement proceed- ings, Tardif says the regulators are hampered by their jurisdictions' limits in initiating proceedings. Anisman says he previously regulator will have the power to speak for all of Canada — even if other provinces aren't on board — because Ontario is participating. "There are all kinds of tech- nical or detailed issues that will have to be addressed, but I think that what we'll have to do is wait for the report of the expert panel to see how the panel recom- mends that they be addressed," says Anisman. "Then we'll have to wait and see how the govern- ment deals with the report." Hockin's commission, which Anisman says the national Flaherty announced in June 2007, has been instructed to fo- cus on a set of key areas: • the outcomes, principles, and performance measures needed to pursue a Canadian advan- tage in global capital markets; • how Canada could best pro- mote and advance propor- tionate, more principles-based regulation; believed that the only way for a national regulator to get estab- lished was through the federal government's commitment to do so regardless of individual prov- ince's co-operation. But he says reaction to the economic slow- down has changed that view. "The current financial circum- stances I think have made that unnecessary, because they've dem- onstrated the need for a national regulator," he says. "The fact that a number of provinces, in addi- tion to Ontario, appear willing to co-operate, and the fact that Mr. • how this regulatory approach could be implemented under a passport system or under a mod- el common act with a common securities regulator; and • how this could facilitate and be reinforced by better en- forcement; • the transition path, including key steps and timelines, to ef- fect proposed changes to the content, structure, and en- forcement of regulation. Hockin, a former minister of state for finance and ex-president of the Investment Funds Insti- tute of Canada, is joined on the commission by special adviser Howard Davies, director of the London School of Economics and Political Science and former chairman of the U.K.'s Financial Services Authority. 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