Law Times

LAW TIMES / MAY 12/19, 2008 A See you in court The below on the floor of the Com- mons: "Step outside and say that. Come on! Step outside." The visitors in the public galleries are aghast, expecting a scene from parliaments in Hong Kong, Taiwan, or Japan. Nothing of the sort. No fisti- Conservative cabinet minister shouts angrily at a Liberal MP down Hill By Richard Cleroux cuffs here. The cabinet minister is daring the MP to repeat his nasty put-down outside the Commons so he can sue him. Parliamentary privilege does not apply outside the chamber and politicians can be sued for defamatory libel just like any- one else. And these Conservatives love to sue — at the drop of a hat. It's an old American disease they brought up to Canada. Take the famous Cadman affair — the one that Harper doesn't want to talk about. The Liberal web site asked point- edly what Harper knew about a million-dollar bribe offered to a dying MP, Chuck Cadman, to change his vote and turf out the Liberals back in 2005. Harper, who was later tape- recorded by a reporter as saying "financial considerations" were involved, decides that asking him what he might have known amounts to libel, so he gets him- self one of the best libel lawyers around, Richard Dearden, and sues the Liberal party and its web site for $2.5 million, which would be the highest amount ever awarded for libel in Canada. Think big, Stephen. It'll be years before the case ever gets to trial, if it ever does, but in the meantime, the Liberals have backed off. They don't talk about Cadman much any more. Even their web site has been ed- ited. Score a big one for Harper. Didn't cost him a cent either. Prime Minister Stephen didn't wash, they did an about- face and accused the Mounties of "storming" their offices and of being in cahoots with the Liberals and Elections Canada. Imagine how that one went over with RCMP Commissioner William Elliott, appointed by Harper only a few months ago out of Harper's office. One can always take liberties with friends. After running down a fire escape in a downtown hotel to avoid reporters they didn't want to meet, the Conservatives changed their tune once again. "But everybody does it," the Conservatives said in the Com- mons. "But officer, everybody runs red lights," I said to the cop. "Yeah, but I caught you, Cleroux." F COMMENT Parents, parents . . . and more parents? to advances in science and technology. In this new world, who, one might ask, can right- ly be called a "parent?" Last year we saw the courts make a groundbreaking deci- sion in A.A. v. B.B. In that case, there was a biological mother (C), biological father (B), and the biological mother's same-sex part- ner (A). All three were actively involved in the child's life. Two years after the amily structures have shifted dramatically in recent years, due in part The Conservatives began busily searching for evidence to show other political parties also have been using their same in-and-out financing scheme Supposedly that would make it less objectionable, and so much more legal. That's called the race to the bottom. "Mommy, Jamie pooped on the floor too." Meanwhile the Mounties be- gan poring over the strange in- voices the Conservatives had been using to claim $600,000 from taxpayers — all somehow dated on the same day, Jan. 1, 2006, and all spelled "NVOICE" with the first letter "I" missing. Talk about working over- time on holidays. Talk about sloppy billing. For the cops, it's not rocket science. Harper goes further. He doesn't sue just for libel. He sues for whatever else he feels has gone against him. Who would have guessed — all this is from a prime minister who once had a phobia about lawyers, judges, and the courts. That was before he became prime minister and the taxpayers got the honour of paying his legal bills. Take the ad-scheme that Con- servatives used in the last election to spend an extra $1.3 million, most of which they wanted Elec- tions Canada to fork over to them. Elections Canada ruled the scheme wasn't legal and refused to hand over about $600,000 of taxpayers' money to the Conser- vative party. So Harper hired a lawyer and took Elections Cana- da to court to get his money. Elections Canada decided to stand up to Harper. They called in the Mounties and raided the party offices in Ottawa to get documents they said Harper's people weren't giving them. They must have convinced the judge in Toronto with their af- fidavit because they got their search warrant. It caught the Conservatives by surprise. At first they spun that it was just a friendly "visit" by the Mounties. Then, when that port of the RCMP affidavit show the Mounties want to establish whether the money claimed on the strange invoices was ever spent on real campaign ads or whether they were just churned out by persons unknown (no one signed the "NVOICEs") as part of an outright criminal fraud. That's why the Mounties are in the picture. They couldn't care less about the legality or il- legality of the Conservatives' in- and-out scheme. That's for Federal Court to The documents filed in sup- decide. Court for sure, though possi- bly only after the next election. But that Harper is a wily one. Right now, behind the scenes, Harper's people are cooking up an amendment to the Canada Elections Act to legalize their fabulous in-and-out election scheme, so that even if Harper loses in court against Elections Canada, he will win on the floor of the Commons and get his money from Elections Canada. So you see. Even Harper doesn't need the courts all the time. LT Richard Cleroux is a freelance re- porter and columnist on Parlia- ment Hill. His e-mail address is richardcleroux@rogers.com www.lawtimesnews.com birth of the child, A ap- plied for a declaration recognizing her as the child's parent. She too wanted to be the child's "mother" in the eyes of the law. Both C and B, who believed that her rights as a parent should be recognized in law, supported her application. Moreover, given the pre- sumption in the Children's Law Reform Act that the male spouse of a birth mother is the "father" of a child, both L and I had standing to become the child's third and fourth parents, or maybe the first and second parents — confused yet? Well, that was exactly what M and J wanted to avoid. They wanted to ensure that Family best interests. A full analysis of the issue was not conducted however, until M.D. v. L.L.. In M.D. v. L.L., Justice Practice By Marta Siemiarczuk The trial judge, although finding such a declaration would be in the child's best interests, determined that he was without jurisdiction to make the order. Justice Marc Rosenberg, speaking for a unanimous Ontario Court of Appeal, al- lowed the application. The decision was monu- mental in that the case suc- cessfully challenged our tradi- tional ideas of what a family is. This next case follows in A.A's footsteps, although in the opposite direction. M.D. v. L.L. was a case in- volving parents seeking to do exactly the opposite of what the Court of Appeal ordered in A.A. v. B.B. In this case, the married couple, M and J were unable to conceive, but had a family friend, L, who agreed to act as M's gestational carrier. L was married to I. rial was provided by M and J, making them the "biological parents." However, as we know from All of the genetic mate- they were the only legally rec- ognized parents of the child. Unfortunately, the registrar was not so willing to accom- modate this request without a court order. As a result, and with L and I's consent, M and J applied to the court for a declaration that they were the parents of the child, E, and that L and I were not parents of E. While declarations of par- entage are not uncommon in Canada, only one other case in Ontario has dealt with a declaration of non-maternity. That was a 2002 decision of Justice Frances Kiteley in R. (J.) v. H. (L.). The primary focus in that case dealt with the legal presumption that the husband of a mother is the bio- logical father of the child(ren). While declarations of non- paternity are not overly prob- lematic, declarations of non- maternity are more so because the legislative scheme in the Vital Statistics Act inferen- tially defines a mother as the one who gave birth to a child. In R. (J.) v. H. (L.) the legal presumption of paternity was easily rebutted as a result of DNA testing. R. (J.) v. H. (L.), L being the one to actually give birth, was, under a strict reading of s.1 of the Vital Statistics Act, the birth "mother." Kiteley also allowed the application on the declaration of "non-maternity" declaring the birth mother (gestational carrier) as not a mother of the child, but primarily on the basis that the application was on consent and in the child's Clifford Nelson conducted a comprehensive analysis of whether, and if so, how, the court can "declare a person not to be the mother of a child when she is, in fact, the mother of that child pursuant to a statute." The answer was a re- sounding "yes." Nelson noted that limiting the court's ju- risdiction to affirmative declarations of parentage only leaves the door open for others, such as surro- gate birth mothers and potentially their husbands, to seek status as parents of the child in the future, irre- spective of what is stated on a certificate of live birth, if a corresponding declaration of non-parentage is not made. Having such a gap, with PAGE 7 very significant and possibly harmful consequences down the road, is not in a child's best interests. As a result, Nelson made it clear that given the legislative gap, the Court's parens patriae jurisdiction clearly permits declarations of non-parentage, even in cases where a statuto- rily defined mother is being declared to not be a mother. We have now moved to a legal scheme that permits dec- larations of multiple parentage, such as more than one mother and more than one father (by extension) and a system where we can clearly limit the number of legally recognized parents. So far, the jurisprudence comes to us from cases done on consent. In the next few years I am LT certain we will see the court revisit these issues when at least one party is not on board, so stay tuned. Marta Siemiarczuk is a law- yer practising family law, col- laborative family law, and civil litigation with the Ottawa of- fice of Borden Ladner Gervais LLP. Marta can be reached at msiemiarczuk@blgcanada.com CANADIAN LEGAL NEWSWIRE it's weekly e-news! it's fresh. it's free. Sign up today at www.canadianlawyermag.com FROM THE EDITORS OF CANADIAN LAWYER AND LAW TIMES

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