Law Times

Law Times • may 2, 2016 Page 7 www.lawtimesnews.com Mobility case has important repercussions T he Court of Appeal for Ontario recently released a decision in Forrester v. Dennis, 2016 ONCA 214 that addresses an important question about the need to show a material change in circumstances. Forrester, the father, and Dennis, the mother, were together for several years and had one child together. They separat- ed when the child was a year old. During the initial years, the mother was the pri- mary caregiver and the father had access. Several years later, trouble started when the mother made allegations the father had abused their child. Litigation ensued and a physician conducted an assessment. The results of the physician's assessment were that the mother's allegations were false. The parties then negotiated a com- prehensive order dealing with custody and access on a go-forward basis. Pursu- ant to the negotiated terms of the order, the father would now have custody of the child and the child would reside primarily with him. The mother's access was limited to supervised access only for a period of three months, and after that, the issue of continued supervision could be reviewed. The two other salient terms of the or- der were that the father could not relocate without giving 60 days' notice in writing to the mother, and the father had to make best efforts to keep the child in her cur- rent school. Two or three months later, the father, in accordance with the order, gave the mother 60 days' notice of his intention to relocate with the child. His rationale was that it would be better for the child to live in a community where the family's issues and the abuse allegations were not so widely known. The procedural steps are somewhat unclear, but one of the parties returned to court with the is- sue. At a case conference, an order was made requiring the issue of relocation to move for- ward as a motion to change by the father. The judge hearing the motion to change decided the father could not relocate be- cause he had not shown a material change in circumstances since the making of the initial order. The father appealed and the Court of Appeal agreed with the motion judge, confirming that it was up to him to show a material change in circumstances warranting his relocation with the child. While I disagree with the way this case was decided, or at least its legal implica- tions on a broader scale, this case needs to be a significant red f lag for lawyers drafting mobility clauses in orders and agreements. In arriving at its conclusion to uphold the motion judge's decision, the Court of Ap- peal read the two clauses noted above to- gether and held that, reading the "order as a whole," the clause that requires the father make best efforts to keep the child in her cur- rent school informs the mo- bility clause. This meant the only way the mobility clause could be made effective is if the court approved the relocation. Essentially, the court said that the schooling clause trumps the mobility clause. While I don't necessarily disagree with the result, I would read the order such that, for so long as the child resides in her current community, the father must make best ef- forts to keep her in her current school. I cannot reconcile the clear wording of the order that requires only 60 days' notice of relocation with a reading that has the school clause superseding a possible relo- cation that was clearly contemplated by the order itself. Of course, the purpose, in part, of the notice clause is to give the mother time to bring a court proceeding prevent- ing the relocation so, at some level, further court proceedings were also contemplated. However, the interpretation given to the plain language of the order, in my opinion, reverses the legal presumptions at play and the test to meet by each party. In my view, the appropriate analysis and approach should have been that the father's view that a move was in the child's best inter- ests given the social/community dynamic should have been given some presumptive deference as he was now the custodial par- ent. It would then be up to the mother to rebut this and to show that relocation was contrary to the child's best interests. I do not think, given the order provided a clear process for relocation, a material change in circumstances that was not foreseen at the time was the right test to meet. Given that the order in question also gave the mother a three-month period of supervised access, which she could then review, and have her access altered and ex- panded, I can see why the court would be reticent to allow the move so soon after the initial order. Taking the approach I sug- gest may have ultimately led to the same result. Nevertheless, the legal interpreta- tion of the plain language of the order is problematic to me. Family lawyers should keep this decision in mind to ensure we spell out the legal test each party would have to meet before a relocation is possible and don't rely on simple notice provisions — a further challenge to an already chal- lenging area of family law negotiations. LT uMarta Siemiarczuk is a lawyer prac- tising family law litigation and collab- orative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelli- gan.ca. COMMENT Family Law Marta Siemiarczuk A story of unchecked power BY SUKANYA PILLAY I n March of this year, two men died within a week while in the custody of the Canada Border Ser- vices Agency in Ontario — one in an immigration holding centre and the other in a jail. One of them reportedly committed suicide, and the cause of death of the other is still unknown. In December 2013, a woman in CBSA custody in British Columbia died in hospital after trying to hang herself at an airport holding centre; the death was not publicly reported until a month later. Why did these incidents occur? Did the CBSA do, or fail to do, something that could have prevented them? Why is information withheld in these cases? Any death that occurs on the watch of a government agency demands answers — demands accountability — and yet that is precisely what is missing with the CBSA. There is no accountability. It is reported that 14 people have died while in custody of the CBSA and its prede- cessor agencies since 2000, and there are still no answers and no concrete steps toward accountability. The CBSA also collects and shares national security information domestically and with foreign governments, but there is no review of its intelligence activities despite the recom- mendation 10 years ago by the Federal Commission of Inquiry into the Actions of Canadian Officials in Rela- tion to Maher Arar known as the Arar Commission. The CBSA is a powerful agency, created in Canada after the 9/11 terror attacks in the U.S., and mandated to support national security and public safety through in- tegrated border services. It assumed functions that had previously been held by Canada Customs, Citizenship and Immigration Canada, and the Food Inspection Services Agency — but it is a distinctly different creature with wider powers. The CBSA has been operating since 2003 as an in- tegral part of Canada's public safety and national secu- rity mandate. It has law enforcement powers, including arrest (with or without a warrant), detention, and the power to detect and remove inadmissible individuals from Canada. The CBSA also collects and shares na- tional security information domestically and with for- eign actors. The CBSA's powers directly engage fundamental rights and freedoms protected in the Canadian Char- ter of Rights and Freedoms, as well as Canada's binding legal obligations under international human rights and refugee law. Yet, there is no independent oversight or review of any of the activities carried out by the CBSA. Given the impact on fundamental rights, account- ability is imperative. In 2013-2014, the CBSA held more than 10,000 people in detention, in holding centres, and in jails. The Canadian Civil Liberties Association has spoken with refugee lawyers who report that individu- als are being detained by the CBSA for years pursuant to the Immigration and Refugee Protection Act. Prolonged and indefinite detention violates principles of due pro- cess and habeas corpus, and it may even constitute cru- el, inhumane, and degrading treatment or punishment. There are also serious allegations about the condi- tions of detention, including the segregation (i.e. solitary confinement) of detainees and treatment of individuals with mental health concerns. One lawyer told us about his client who was considered criminally inadmissible to Canada and who suffered from mental illness. This individual was "detained" by the CBSA for years in a correctional facility where, in solitary confinement, he deteriorated to a catatonic state and was engaging in self-harming behaviour. Only the urgent intervention of the lawyer and a psychiatrist enabled the individual to be moved to a psychiatric hospital. There must be independent oversight and review of the detention conditions of all individuals held in CBSA custody, including those held in solitary confine- ment, and those with mental health issues who we argue should never be placed in solitary confinement. Further, pursuant to international refugee law, refugees are not to be detained with prisoners sentenced for crimes, but there are reports that this has occurred in some facilities. We have also heard reports that the CBSA agents have detained asylum seekers and separated children from parents, in contravention of international refugee law and human rights law relating to children. Further, refu- gee claimants and foreign nationals have allegedly been subject to inappropriate questioning and intimidation tactics by CBSA officials, including contacting authori- ties in countries of origin despite the threat that can pose to an asylum seeker or his or her family. It is worth reiterating that asylum seekers and refugees are among the most vulnerable persons on the planet: individuals f leeing persecution on the grounds of race, religion, nationality, membership in a particular social group, or political opinion, without the protection of their home state. Their vulnerability only underscores the need for a check on the CBSA. In addition to due process rights, the information-sharing powers of the CBSA are also cause for serious concern. As we know from the mistaken information sharing by Canadian agencies with the U.S., which resulted in the "rendition" of Arar to Syria and his subsequent torture, serious and devastating errors can be made by intelli- gence agencies. In his policy recommendations emanating from the Arar Commission — one of three federal commis- sions of inquiry that have examined information shar- ing in the national security context — Justice Dennis O'Connor recommended that the CBSA be subject to independent review. Such review should include both a complaints investigation review process and a self- initiated review process. Ten years after the Arar Commission recommenda- tions, however, there has been no movement. Worse, the accountability gap has only widened now that Bill C-51 is law and 17 domestic agencies, including the CBSA, enjoy unfettered information sharing with each other and foreign agencies. As Public Safety Minister Ralph Goodale consid- ers the broad issue of national security oversight and accountability, he should consult meaningfully with the many Canadian civil society groups that have been pressing for CBSA accountability these many years, and have identified practical solutions and frameworks. For our part, we at the Canadian Civil Liberties Association will insist that any new parliamentary review process for national security agencies should not sidestep the need for independent oversight and review of the CBSA, for its law enforcement, detention and removal powers, as well as its intelligence functions. LT uSukanya Pillay is executive director and general counsel at the Canadian Civil Liberties Association. u SPEAKER'S CORNER

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