My dear colleague and blawgger Gary J. Wise is organizing a meet-up next Monday. If you write, tweet, or blog about law-related stuff, you are welcome to attend.
Date: Monday, May 7, 2012
Time: 7:00 pm
Place: The Keg, 175 York St.
Please RSVP @wiselaw via the Twitter universe. I will be attendance.
I’m pleased to announce that we at PSWLaw will be supporting and attending Taiwanese Heritage Day “Fantastic Taiwan.” The cultural festival takes place at the Winter Garden Theatre on April 28, 2012, at 6:30 pm. I have bought group tickets on behalf of the firm and friends in the community. I hope to see you there!
On February 17, 2012, the Canadian Legal Information Institute, or CanLII, added its one-millionth decision – appropriately for the occasion, a decision from the Supreme Court of Canada.
There are now more than a million Canadian court and tribunal decisions available on CanLII’s website, free of charge. According to the institute, it has taken 12 years to reach the historical one million milestone.
CanLII is an initiative of the Federation of Law Societies of Canada, the national umbrella group for Canada’s 14 regulators of the legal profession. It was launched in 2000 as a pilot project to provide free access to judicial decisions and legislative documents on the internet. In 2001 CanLII was formally established as an ongoing, not-for-profit service to support the legal profession.
CanLII is funded by all members of the Canadian legal profession through their law societies’ dues. At the same time, CanLII has also received contributions from federal, provincial, and territorial governments and their official publishers.
Access to the CanLII service is available at www.canlii.org.
*The CanLII logo is the property of CanLII, all rights reserved.
Something new is happening in the family law section of Toronto’s Superior Court of Justice. In an effort to encourage alternative dispute resolution and to reduce the backlog of cases at the Superior Court, a group called Mediate393 Inc. is providing free family law mediation on-site.
Mediators are offering their services to the public on the 9th floor of 393 University Ave., Toronto, where family law matters are usually heard on weekdays. The mediators take only cases that are on the court docket of the day, including motions, trials, case conferences, and settlement conferences. Cases are accepted on a first-come, first served basis. For matters that can be addressed in two hours or less, no fee is charged for the service.
When a case is complicated and likely to require more than two hours of mediation, clients are referred to off-site mediation.
Off-site mediation provided by Mediate393 gives the clients up to eight hours of subsidized mediation services. Fees charged are in relation to each person’s income.
Unlike on-site mediation, which is available only for matters on the court docket of the day, off-site mediation is available to anyone in the GTA who wishes to try mediation, regardless of whether they have started a court case or not.
If you’re interested in learning more about Mediate393, you may contact them at 416-593-5393 or read more online at mediate393.ca.
This blog is provided for your information and reference only and does not imply the author’s endorsement.
The right to be married regardless of the spouses’ sex is a universal one in Canada. Persons of the same sex have been able to marry each other since 2002 in Ontario, when the Ontario Superior Court declared the legal stipulation that marriage be between a man and a woman to be unconstitutional. In 2003 the Superior Court’s decision was affirmed by the Ontario Court of Appeal.*
In 2005 the Canadian Parliament passed the Civil Marriage Act, defining marriage as a union between “two persons,” as opposed to “a man and a woman.” It received royal assent the day after it was passed and was promptly proclaimed into law.^
South of the border in the U.S., things are quite different. The federal government doesn’t recognize same-sex marriage, but 8 states permit marriage between persons of the same sex. There are also a few states that allow civil union for same-sex couples but don’t recognize same-sex marriage. The remaining states prohibit marriage between persons of the same sex.
Below is a summary update on what’s happening in the U.S. on this topic.
Maryland and Washington State Legalize Same-Sex Marriage
Governor Martin O’Malley signed the bill allowing same-sex marriage in the state of Maryland into law today. The law will take effect in January 2013, making Maryland the 8th state to allow same-sex marriage in the U.S.
Earlier last month, the governor of Washington state, Chris Gregoire, signed a bill allowing same-sex marriage into law on February 14, Valentine’s Day. That law will take effect in June 2012.
N.J. Governor Vows to Veto Same-Sex Marriage Bill
The signing of the two bills in Maryland and Washington proved to be a bittersweet victory to those supporting same-sex marriage. In New Jersey, a bill that would permit same-sex marriage was passed in the state legislature on February 13, but the state governor vowed to veto the bill.
Legal Dispute over Ban on Same-Sex Marriage Takes a Turn
The legal battle over same-sex marriage recently took a turn in favour of the supporters of same-sex marriage. In 2010 the California ballot proposition known as “Proposition 8″ was passed by voters in the state, amending the state constitution to ban same-sex marriage. Then, in early February 2012, a federal appeal court panel of judges ruled that the ban on same-sex marriage was unconstitutional, affirming a lower court’s ruling.
Judge Reinhardt wrote the majority opinion, relying on the Supreme Court’s 1996 decision Romer v. Evans, which forbids the government from singling out a class of individuals (in this case, same-sex couples) for “disfavored legal status” without sufficient grounds.+
The judge noted that Proposition 8 wrongly took away legal rights that had already been conferred to same-sex couples, whose marriage licences had been duly issued by the government.
Judge Reinhardt found the arguments of opponents of same-sex marriage insufficient to meet the Romer test.
The case may proceed to a review by the full 9th circuit court, or it may head directly to the U.S. Supreme Court.
*Halpern et al. v. Canada, (2003) 25 O.R. (3d) 161, 2003 CanLII 26403, 172 ONCA 276; aff’g (2002) 60 O.R. (3d) 321 (Div. Ct.)
^S.C. 2005, c. 33
+517 U.S. 620 (1996)
This blog is provided for news summary reporting purposes. It is not legal advice and should not be regarded as such. The law may have changed since the publication of this article. The writer is licensed to practise law in Ontario and not in any other jurisdiction, including those mentioned in this blog.
A while ago, a same-sex couple who don’t live in Ontario tried to file for divorce and were blocked by the lawyers for the federal government, leading to questioning of the legitimacy of same-sex marriages solemnized in Ontario for out-of-province couples.
Under the Divorce Act,* only residents who have lived in a Canadian province for at least one year are eligible to apply for a divorce.
After the story was published by the Globe and Mail, public outrage ensued. In a matter of hours, the Minister of Justice announced that all marriages solemnized in Canada are legal, even for non-residents, and that changes would be introduced to address the divorce issue.
On Friday, February 17, 2012, Bill C-32, the Civil Marriage for Non-Residents Act, was introduced in Parliament by the Minister of Justice.
The bill, as read on February 23, 2012, is relatively short. The first part of the bill affirms that marriages performed in Canada are valid even if the spouses did not have the capacity to become married according to the laws where they live.
The second part is more interesting. Non-residents may apply for a divorce if they cannot obtain a divorce in their home jurisdiction. However, the application may be made only with both spouses’ consent or with a court order that the other spouse is unreasonably withholding his or her consent.
Further, spousal support is not available for divorces granted under the provisions above. Also, unlike regular divorces, which take 31 days to take effect, the same-sex divorces contemplated under this bill would become effective on the day the judgment is rendered.
In short, the federal government appears to be carving out special provisions for same-sex couples married in Canada who are otherwise unable to obtain divorce in Canada or their home jurisdiction.
The bill is still at its introduction stage. Further changes are likely. We at PSWLaw will be keeping an eye out for our readers.
*R.S.C. 1985 c. 3 (2nd Supp)
Our lawyer, Pei-Shing B. Wang 王沛翔律師, was featured in today’s World Journal, a leading commercial newspaper in the Chinese community. Following is a translation of the article:
A York University graduate who is now a practising lawyer, Pei-Shing Wang reminds individuals who would like to become lawyers that in recent years law schools have been emphasizing oral advocacy. Effective presentation skills and English fluency are both important for those who wish to become lawyers.
After one year of senior high school [in Taiwan], Pei-Shing Wang moved to Vancouver to complete his secondary school diploma in 1999. Thereafter he studied commerce at the Rotman School of Management at the University of Toronto and law at Osgoode Hall Law School at York University.
Looking back, Pei-Shing Wang considers his first year of law school very challenging. “The Latin and the legal technical language were very difficult,” said Wang. To become familiar with legal writing, he relied on frequent review of the texts and diligent note taking.
When Wang first arrived at law school, he faced the vast difference between the continental [Taiwanese] law system and the common law system. He managed to let go of concepts not applicable to the common law so he could start again with an open mind, as if learning a second language.
After graduation from law school, lawyer candidates must pass the bar exam and article for 10 months before they are licensed. During the licensing process, the candidates must also demonstrate that they are of good character. No serious run-ins with the law are permitted.
Wang pointed out that visible minorities face additional challenges if they wish to article in major firms. The keys to securing an articling position in a major firm are good grades and fluent English.
According to Wang, an articling position in a major firm pays about $60,000 a year. Once he or she is licensed, the salary doubles or triples.
Although gaining admission to law school is difficult in itself, once the student is there he or she finds that studying law is no easy task. Fortunately, Wang was interested in studying precedents. “If you study law for money,” he said, “you will get bored easily.”
Regarding the tuition fees of $16,000 per year, Wang relied on student loans and scholarships. He recalled that although the lectures took up only about 10 hours per week, the time required to study the materials amounted to five times that much. In his second year, he chose family law, a field that members of the public can relate to. In his third year, he finished his major paper of approximately 10,000 words.
Wang reminds new immigrants that Canadian law may differ greatly from that of their native country. Newcomers to Canada are encouraged to observe the local law. For example, having an extra-marital affair would be grounds for divorce in Canada but not generally considered illegal. In Taiwan, on the other hand, adultery may be considered a crime.
Also, acceptable parenting styles may be quite different from those in immigrants’ native countries. In Canada, if parents still see their children as property and treat them as such, the authorities may become involved. Wang believes that parents should speak to their children when they misbehave.
Click on the image to view the actual file.
Within 24 hours of the publication of a Globe and Mail story revealing that the federal government was opposing the divorce of two non-resident lesbians, the government withdrew its objection and promised co-operation to speed up the court proceeding, the Globe reported today.*
The Justice Minister issued a statement on Friday, January 13, saying that the same-sex marriages solemnized in Canada are legal. The minister went on to blame the confusion on the previous government’s poor legislation drafting.
The couple’s lawyer said she received confirmation from senior members of the cabinet that the law will be amended and clarified.
The details of the proposed legislative changes are scant at the moment. Although the lawyer believed that changes will be made to the one-year residency requirement before a divorce can be granted, how exactly it will be changed has not been confirmed.
*Kirk Makin, “Ottawa affirms legality of same-sex marriage” (13 January 2012) Globe and Mail
The federal government has reversed its policy on same-sex couples who were married in Canada but do not live here, the Globe and Mail reported today.*
In a nutshell, the federal government now takes the position that non-resident applicants have not met the residency requirement necessary to obtain a divorce from the court.
Plus, those for whom same-sex marriage was not legal in their domicile (i.e., where they usually live) did not have the capacity to enter into a same-sex marriage in Canada.
In my humble opinion, the one year residency rule is no surprise. Canadian lawyers who are familiar with family law should not be appalled. It has been the requirement for obtaining a divorce for decades.
However, by raising the the issue of an applicant’s domicile, in my opinion, the federal government is attempting to undo the progress made in the Canadian legal system in recent years.
Legal domicile has become less relevant in modern times. The idea of domicile is that the law governing a person should be that of where the person usually lives.
However, with the advancement of globalization, the idea that a person is tied to his or her primary residence creates questions in law regarding which law is applicable. For example, a worker may work in one country and nonetheless continue domiciles in another. Or a student may go on exchange in a foreign country but still retain domicile in another. Therefore, many countries (including Canada) have moved toward territorial jurisdictions, that is, the local law is applicable if you are physically present in a court’s jurisdiction for both civil and criminal purposes.
Let’s see how this will play out in court.
* Kirk Makin, “Despite legal about-face, Harper has ‘no intention’ of reopening gay marriage,” The Globe and Mail (12 January 2012) A1
This blog is provided for your reference only and is not a substitute for the law. The law may have changed since the publication of this article. This article is not legal advice and should not be regarded as such.
@PSWLaw_TO
Publication Ban in Williams’s Divorce Is Set Aside
The divorce involving the notorious convicted serial killer Russell Williams has taken another detour in the Court of Appeal.*
Williams’s wife, identified only as M.E.H., obtained a publication ban and a sealing order by motion from the Superior Court of Justice on April 12, 2011. Various media outlets then intervened and appealed the publication ban.+
On January 24, 2012, the Ontario Court of Appeal set aside the challenged provisions under the publication ban, unless the ban is further ordered by the court within 14 days.
In its reasoning, the Court of Appeal found that the motion judge correctly identified the legal principles relating to publication bans and sealing orders. However, the evidence at bar could not support that the order was necessary to prevent a serious risk to the proper administration of justice. Absent that finding, said the Court of Appeal, “the orders could not have been made under the controlling jurisprudence.”
Under the jurisprudence, a publication ban should only be ordered when:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.^
The Court of Appeal acknowledged the wife’s right to go to court without fear of harm. “Access to the court should not come at the cost of a substantial risk of serious debilitating emotion or physical harm to the party seeking access,” said the Court of Appeal.
However, in the Court of Appeal’s opinion, the evidence provided by the wife wasn’t enough to justify a sealing order. In particular, the Court of Appeal could not find evidence that the media’s access to items covered by the publication ban would in any way negatively affect the wife’s ability to fully participate in the proceeding. In other words, the dangers of harm claimed by the wife had not been substantiated.
*2012 ONCA 0035
+See my previous post, “On Publication Bans and Sealing Orders in Family Law,” August 17, 2011
^R. v. Mentuck, 2001 SCC 76, at para. 32
This blog is provided for your reference only and is not a substitute for the law. The law may have changed since the publication of this article. This article is not legal advice and should not be regarded as such.