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Ask the Lady Lawyer! This week: Carleton, this is not your finest hour

by Tannis on August 14, 2009 · 4 comments

ladylawyer Every Thursday, Confabulous’ resident lawyer Tannis A. Waugh discusses the most interesting legal issues emerging in popular culture and addresses your burning law-related queries. Want to contest a parking ticket? Can’t help you. Got a legal question for our in-house LLB? Drop her a line at tannis [at] confabulous [dot] ca. Note: Nothing in this column constitutes legal advice in any jurisdiction and is for information and discussion purposes only. If you have a legal problem, consult a lawyer in your jurisdiction immediately.

As an alumni of Carleton, I thought this was very apropos that I would get a chance to review and comment on the negligence suit that’s been brought against the university.

On August 31, 2007, a Carleton University student working late in one of the labs was violently sexually assaulted. It’s important that you hear the facts of the assault because they’re particularly egregious. The victim had her head slammed down to the ground while the perpetrator repeatedly smashed her face against the floor after which he sexually assaulted her. The perpetrator then wiped her body down, stole some of her clothes and her cell phone and left victim on the floor tied up and semi-naked.

Just shy of the two year limitation period to bring a suit against Carleton, the victim has brought a suit against the university for just over $500,000.

In the Statement of Defence served by the university, they engage in victim-blaming, according to the Carleton University Student’s Association (CUSA) and other student organizations, by indicating that Carleton is not responsible because the victim failed to keep a “proper lookout,” didn’t lock the door of the lab and stayed in the lab alone.

This is a civil suit and the university is being represented by lawyers hired by its insurer and as such, all the stops are being taken to shield itself from liability which is generally what happens when an insurance company is involved in negligence matters such as this one.

It might be helpful for me to give a crash course in how a civil case comes to pass in Ontario.

Firstly, the plaintiff will file a statement of claim which is meant to be a precise statement of the facts that the plaintiff intends to prove at trial. It doesn’t get into the evidence that will be relied upon by the plaintiff but rather, it is a concise statement of the facts that the plaintiff intends to prove by calling evidence.

The university, or more particularly, its insurers, have 20 days to respond (or 30 by filing a Notice of Intent to Defend) or longer if the parties’ lawyers agree to a further extension, to prepare and serve a statement of defence.

When drafting a statement of defence, the purpose is to set out all possible defences to the claims set out in the statement of claim. If this is not done, the defendant may not be able to add defences at a later point (this is generally done with leave of the court or consent from the other party only) and generally, will not be granted if it would prejudice the other party.

As a result, the statement of defence is usually set up as a kitchen sink denial of any and all possible liability.

For this reason, it would be pretty difficult to draft a statement of defence that complied with a lawyer’s duty to its defendant client by professional standards to not engage in victim blaming. That is, after all, the very nature of the statement of defence.

While the statement of defence obviously leaves me with a bad taste in my mouth, I do understand that is the job of Carleton’s lawyer and frankly, there’s really no way to get around that…or is there?

After this assault, Carleton’s response was to institute significantly more security measures. To me, that indicates that Carleton recognized its lax security for its students who may be alone or working late.

It is a university, after all. Is that not what we were expected to do when we were in university? One only needs to think about being in an isolated area of the library or other part of their own university late at night to send a few chills down your spine about your own vulnerability.

The university may have been able to settle this case without the need for a public civil case to take place. Obviously, I’m not involved in this particular case but it’s general practice for a plaintiff’s lawyer to send a letter to the defendant prior to issuing a statement of claim in the interests of attempting to settle the matter without having to go through litigation. While it’s possible that this didn’t happen, it seems to me that this would have been the perfect opportunity to do the right thing. If the matter had settled, Carleton wouldn’t be receiving the bad publicity is now or the public outcry regarding its treatment of the victim.

Likely, this matter will be resolved before trial, as most civil cases are, and hopefully, the victim will obtain a settlement that will allow her to get on with her life as best as she can but in the meantime, the victim has to live through the stress of a claim that may take many years to resolve.

Tagged as: law

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Ask the lady lawyer! This week: Focus on the Family update their dress code

by Tannis on June 18, 2009 · 0 comments

in Advocacy

ladylawyer

Every Thursday, Confabulous’ resident lawyer Tannis A. Waugh discusses the most interesting legal issues emerging in popular culture and addresses your burning law-related queries. Want to contest a parking ticket? Can’t help you. Got a legal question for our in-house LLB? Drop her a line at tannis [at] confabulous [dot] ca. Note: Nothing in this column constitutes legal advice in any jurisdiction and is for information and discussion purposes only. If you have a legal problem, consult a lawyer in your jurisdiction immediately.

Well, I know I’m relieved. Focus on the Family has finally updated their dress code to bring them in line with social norms in 1965 and will now allow women to wear pants. No kidding. You can read about it more here.

I’m a little sad that with the changes to the men’s dress code at Focus on the Family that spandex is still against the policy. I don’t think I can really take a Focus on the Family male employee seriously unless they’re decked up head to toe in spandex. Or is it that head to toe spandex drives home the seriousness of the message more? Meh.

Anyway, reading about this ridiculous policy change that made me immediately think of Mad Men and I thought, “I bet our readers would be interested in the legal issues associated with dress codes.”

Q: So what’s the big deal with dress codes?

A: In the workplace in a province like Ontario, true employees (not independent contractors) are subject to either the Employment Standards Act (Ontario) or their collective agreement, if they’re unionized, with few exceptions.

There are some basic rules regardless of whether one is unionized or not: dress codes can’t violate the Ontario Human Rights Code nor can they violate the Occupational Health and Safety Act.

This means that a policy for Acme Co. like, “all women must wear short skirts” is going to be a problem, whereas a rule like, “all people must wear steel toed boots and hardhats while on the factory floor” will not be a problem (unless, of course, there are more stringent requirements under the Occupational Health and Safety Act, in which case it would be a problem).

Q: Those are the easy examples. But what about the hard ones?

A: It seems that Muslim dress is a good example of a “hard example.” Similar to the issue of the niqab in Canadian Courts that I discussed a while ago, there is an interplay between competing issues in some working environments between the right to express one’s religion by dressing a certain way (i.e. fully covered skirts) and health and safety concerns.

Back in the fall, a group of women working for UPS brought an action against their previous employer under the Canadian Human Rights Code because their employment was terminated for their refusal to raise their ankle-length skirts up to their knees while using ladders.

The women had been able to do so for two years without complaint from the management at UPS but after a safety audit, it was found that this kind of clothing was a hazard. The women refused to raise their skirts because, even though they were wearing pants under the skirts, they felt that the pants showed off too much of their body which was against the strict interpretation of Sharia law at the Mosque that they worshiped at.

At the end of the day, the matter was settled confidentially between the employer and the employees, likely with a cash settlement to the terminated employees or a reinstatement to their jobs. However, both the Canadian and Ontario Human Rights Codes are interesting because the power of both tribunals to make orders is much more far reaching than a court and as such, the flexibility of the remedies available to them can make the tribunals more attractive as a vehicle for effective change regarding human rights in the workplace.

Q: Is there some sort of moral I can take from all of this talk about dress codes in the work place?

A: Yes. The basic rule is that the dress code should apply to everyone. As such, I wholeheartedly recommend instituting a policy whereby all employees are required to burlap bags on Fridays as a statement against dress codes (or solidarity with our sisters over at Focus on the Family and their newfound freedom to wear pants).

Tagged as: dress code, Focus on the Family, law, sexism

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Ask the Lady Lawyer! This week: F$#@ing business names

by Sabine on June 4, 2009 · 0 comments

in Pop culture

Before I get started on this week’s column, I just want to take a quick moment to say: screw you, California High Court. No, scratch that: screw you, california high court. You suck so much, you don’t even get capital letters.

On May 26th, 2009, the california high court upheld the same-sex marriage ban as a result of Prop 8. I guess I’m not really surprised, given that it was a referendum of sorts. There has to be a measure of respect for that–even if it is hateful, bigoted and anti-human rights.

When assy decisions like this occur, which amount to a step back for human rights, it makes me sad and I lose a little bit of respect for humanity–or the lack thereof in california. As a silent protest, california will no longer get a capital letter from me until the ban is rescinded. I can’t do much, but I can do that.

Now, back to our originally scheduled post.

Yes, you read that right. It says “Bunghole.” This sign hangs outside of a real business in Salem, Massachussetts called Bunghole Liquors. It is a real business. In fact, they have two locations in Salem. I would have liked to have purchased some products from Bunghole Liquors, but unfortunately, they were closed when I was there on a recent trip.

Bunghole Liquors is even funnier if you say it out loud. Try it. If you’re like me and didn’t get it even when you said it aloud, think about how it sounds: bunghole lickers. That’s right. It’s a whole new level of awesome.

Q: What does this have to do with law?

A: While note exactly a sexy legal topic, why not take this opportunity to talk about censoring in the context of business names?

Q: How does registering a business name work in a province like Ontario?

A: As a registered business myself, I have some direct experience with this (but not with the censors–Tannis A. Waugh, Barrister and Solicitor doesn’t appear to be obscene in any language). All you have to do is apply for a master business license, but you are then subject to the guidelines of the license. Let’s see if Bunghole Liquors would pass the test in Ontario, shall we?

Guideline #1: When choosing your business name, remember that certain words or expressions cannot be used.

The ruling: Words or expressions, in any language, that are obscene or objectionable in nature. Hmm…yes, I think Bunghole Liquors would lose its license on this one alone. Ruling: guilty.

Guideline #2: Words that imply the business is a different type of organization. For example, you may not imply that a sole proprietorship is a partnership. You may not use numbers or words that imply the business name is a corporate number name. Also, the registered name of a business carried on for profit should not contain words that imply it is a not-for-profit organization.

The ruling: Given that the sign appears to suggest offering the service of “licking one’s bunghole,” or asshole, as used in common parlance, I would think that this would also make Bunghole Liquors a deal breaker. Ruling: guilty.

Guideline #3: You may not use the words “Limited”, “Limitée”, “Incorporated”, “Incorporée”, “Corporation”, or the corresponding abbreviations “Ltd.”, “Ltée”, “Inc.” or “Corp.”, unless the word “limited” is used in the name of a limited liability partnership, extra-provinical limited liability company or in the name of a limited partnership formed under the Limited Partnerships Act.

The ruling: Not guilty.

Guideline #4: You may not use the words “Limited Liability Partnership” or the abbreviation “LLP” in the business name unless you are registering an Ontario limited liability partnership or an extra-provincial limited liability partnership.

The ruling: Not guilty.

Guideline #5: You may not use the words “Limited Liability Company” or the abbreviation “LLC” in the business name unless you are registering an extra-provincial limited liability company.

The ruling: Not guilty

Guideline #6: Words that are prohibited under federal or Ontario laws or words that are restricted unless the restriction is satisfied.

The ruling: You’d think this is a sexy mix of words like “motherfucker” and the like, but no such luck. It has to do with words like, “amalgamated,” “engineer,” “college” and “royal.” Nope, not guilty.

Guideline #7: Words that imply the business is connected with the Crown, the Government of Canada, of a province or of a territory, a municipality, or an agency of the Crown, government or municipality, without written consent of the appropriate authority.

The ruling: Well, given that there’s a lot of brown-nosing that goes on in government, this could potentially be applicable, but if I were the solicitor acting for the business owner, I would argue that there is a distinct difference between licking one’s bunghole and sticking one’s nose in said bunghole.

Guideline #8: Names of individuals may not be used unless they have or had a material interest in the business activity and have given their written permission. If the individual is deceased and his or her name is used within 30 years of the date of death, the written consent of the estate or the estate trustee (i.e. the executor or administrator) must be obtained.

The ruling: I’ve never met a Mr. or Ms. Bunghole but I sure would like to. Not guilty.

Q: So, how did this happen in Salem? How the heck did this make it past the censors?

A: I have an untested, uninformed theory on that. If you were deprived of watching South Park and Beavis and Butthead when you were younger, perhaps you are unfamiliar with the slang definition of “bunghole.” Maybe you think “bunghole” still retains its original definition: a hole in a cask (or large barrel) of liquor through which liquor was poured. (I had to look that up. I’ve never used the word “bunghole” in this context). It would make sense to name a liquor store using this reference because it actually pertains to liquor.

If you were a silverback-type of cenor–over the age of 50 who sees the world in black and white, with no room for nuance or humour or puns–you might take the word “bunghole” pretty literally by its dictionary definition. After all, this kind of literal approach that censors take is how a lot of dirty stuff works its way into popular culture.

I recall reading an article by the creators of South Park, Matt Stone and Trey Parker, preceding the release of the movie, “South Park: bigger, longer and uncut” about how some of the jokes that they felt were fairly benign were cut but the references that would be obscure to the average silverback but perfectly clear to anyone under 30 were not cut out to avoid the NC17 rating. There’s a reference here to this being the case regarding the title (but there is some controversy as to whether that actually happened).

So the moral of my lady lawyer post appears to be that if you come up with an obscene phrase that is obscure enough to get past the silverback, you may indeed register a business with a dirty, double-entendre kind of name.

But really folks, I wouldn’t recommend it.

Tagged as: business, law

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Ask the lady lawyer! This week: The niqab in Ontario courts

by Tannis on May 21, 2009 · 5 comments

in Advocacy

There is currently a controversy is brewing in Ontario courts about the use of niqabs. A niqab, in case you don’t know, is part of the religious dress for some Muslim women. It’s a veil worn over the face that only reveals the eyes of the wearer.

What is the context of this issue?

In the fall of 2008, an Ontario Court of Justice judge ordered a Muslim woman to testify without her niqab at a preliminary hearing for a sexual assault trial where the woman, who wanted to wear her niqab, was the complainant.

Why is this a problem?

There are a lot of interesting issues that come into play here, some of which get at the heart of our legal system. One could argue that a complainant wearing a niqab in court violates the very basic legal right of the accused to confront their accuser. But stopping a woman from wearing a niqab in court goes against her right to her religious beliefs.

There is also an issue of ethnocentrism at play here, and the question of whether the niqab is an instrument of women’s oppression or women’s freedom. This is obviously a very polarizing issue.

How did this particular matter resolve itself?

The Ontario Court of Justice is the lower level of Courts that deals with less-serious offences, called summary convictions. I don’t know the specific details of this sexual assault trial but for whatever reason, the Crown had elected to go the summary route. It could have gone the more serious, indictable route, where the offence would have wound up in the Superior Court.

The ruling about the niqab was also not done at the trial level but at a preliminary hearing. This is where the Crown has to prove that they have enough evidence to take the case all the way to trial. The judge presiding over the preliminary hearing decided that he had the authority to order the complainant to remove her niqab because he felt that her religious belief wasn’t a strong enough reason for her to keep it on.

This decision was appealed to the Superior Court where, on May 1, Justice Frank Marrocco released his decision regarding the preliminary judge’s ruling.

Judge Marrocco did not grant the complainant’s request to wear her niqab during the preliminary hearing. In his ruling, he indicated that the preliminary hearing judge would need to have another hearing on the issue because it had not been explored thoroughly.

The preliminary hearing was adjourned to August 19, and it will be very interesting to see what happens at that point. Will the complainant drop the issue? Will another hearing be held? Will the decision of the preliminary judge be appealed?

Issues of freedom of or from religion and legal rights in the criminal justice system are not easy to decide. In the multi-faceted fabric of legal and human rights, there can be a thousand shades of gray.

Tagged as: law, niqab

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Alberta’s Bill 44: Teaching kids to opt out

by Veronica on May 20, 2009 · 1 comment

in Politics

Alberta’s Bill44, the Human Rights, Citizenship, and Multiculturalism Amendment Act, has spurred a heck of a lot of controversy lately. Most concern is over Section 11.1, which allows parents who have children attending public school to pull their kids out of class if instruction includes “subject matter that deals explicitly with religion, sexuality, or sexual orientation.” So, what happens if a teacher plans to cover these topics in class? S/he must inform parents in advance so that they have the opportunity to decide whether they’d like to remove their children from class. If teachers fail to comply with the proposed legislation, parents may lodge a complaint with Alberta’s Human Rights Commission.

There are a whole whack of reasons why people are upset about this bill, and as the left battles the right, tempers are flaring. But outside of the political issues that Bill 44 stirs up (and, oh, there are plenty!), I think we need to stop and consider what children and teens will learn from this legislation.

Kids are sent to school to learn stuff (math, science, English, geography, etc.). But, in addition to presenting the usual academic fare, public schools should be a place where students learn about diversity, acceptance and tolerance. If this bill passes and parents start pulling their children out of class, we’re teaching young minds that if they disagree with someone or something, the best way to deal with the difference in opinions is to close their minds. Don’t listen to the debate and then formulate a point of view. Just opt out.

When I teach students how to write a persuasive essay, I tell them that the crux of a really solid argument is understanding the opposition’s point of view. In order to effectively persuade, you need to be able to address the other side’s concerns and sometimes even make a few concessions before you move on to argue your side. The thing is, if kids are learning to opt out of listening to the other side before they’ve even had a chance to fully formulate their own (i.e., not their parents’) opinions, we’re not teaching them to be critical thinkers. Rather, we’re teaching kids to close their eyes and put their hands over their ears whenever they encounter a viewpoint they (or their parents) disagree with. And I’m not so sure that’s a skill that’s going to serve a kid (or an adult) very well in the real world. Last time I checked, religion, sexuality and sexual orientation are part of the real world and part of people’s identities. Here’s hoping that public schools in Alberta will be allowed to continue teaching kids about the complexity of life and that every kid will be allowed to participate in the discussion.

Tagged as: education, law

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Ask the lady lawyer! This week: The Sophie Lancaster tragedy

by Tannis on May 7, 2009 · 1 comment

in Advocacy

Sophie Lancaster was 20 when she was killed by teenagers in a park in Lancashire, England on August 11, 2007. The motive for the crime was apparently that she dressed as a “goth” or “mosher.” Sophie and her boyfriend, Robert Maltby, 21, were walking in the park after midnight when Robert was attacked first. Sophie stepped in to protect him. The accused persons then turned on Sophie, who later died in hospital.

The boys who were accused of her murder, Ryan Herbert, who was 16 at the time and Brendan Harris, 15, have now been sentenced. Ryan pled guilty and received a 16-year minimum term which was later reduced slightly on appeal and Brendan, who pled not guilty, received an 18 year sentence after being convicted.

Q: Why are you writing about this and how is this a feminist issue?

A: Aside from the fact that it was violence that was perpetrated against a woman which resulted in her death, the tragedy doesn’t fit into the normal categories of male on female violence that are traditionally addressed from a feminist perspective. Rather, Sophie identified with a sub-culture, and from all accounts, appeared to die as a result of the way she dressed. While Sophie wasn’t murdered because she was GLBT or an ethnic minority or specifically because she was a woman, she was allegedly murdered because of how she portrayed herself through her clothes, hair and styling. Thus it becomes an equality issue based on self-identity, making it worthy of some discussion.

Q: I’m confused. Why did the accused persons receive such long sentences since the acts were committed when they were under the age of 18? That wouldn’t happen in Canada, would it?

A: In Canada, we recognize that young people’s sense of responsibility isn’t fully formed before they become an adult. As such, young offenders typically receive shorter sentences which have an emphasis on rehabilitation. The current legislation that governs young offenders here in Canada is the Youth Criminal Justice Act (2003), which replaced the controversial Young Offenders Act of 1984.

Now, there is a presumption at age 14 that a young person can be convicted and sentenced as an adult unless the province changes this presumptive age (up to 16). There is a process involved in having an adult sentence imposed on a youth, wherein the onus is on the Crown to prove that the youth should be sentenced as an adult.

A maximum adult sentence here consists of life imprisonment without the possibility for parole until 10 years have been completed. Had the Sophie Lancaster tragedy occurred here, the accused could possibly get out of prison before they would in the UK because of earlier parole eligibility. However, depending on their behaviour in prison, they could wind up spending the same amount of time in custody as the boys who were convicted of this crime.

Q: Was this a hate crime?

A: Well, I think it would be a hate crime if there was sufficient evidence to suggest that the accused persons were motivated by the way the Sophie and Robert self-identified, which would have been evident from their dress and style. However, hate crime legislation (which is generally an aggravated factor for sentencing) doesn’t mention anything about being the victim of a crime as a result of self-identifying with a sub-culture, nor would it make any difference for sentencing when the accused is being sentenced as an adult to the maximum sentence. Nonetheless, it’s worth thinking about our conceptions of hate, bigotry and crime outside of the enumerated humans rights grounds.

When we think about equal treatment either under the law or in society generally, we have to remember that unequal treatment, bias, hate and bigotry are not just based on traditional arbitrary distinctions addressed by human rights legislation and that we all deserve to live a life free from violence–no matter who we are.

Tagged as: crime, law

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Ask the lady lawyer! This week: Estate planning

by Tannis on April 30, 2009 · 0 comments

in Advocacy

Last week, I talked about equal marriage and some of the questions and controversies that surround it (although, personally, I can see no controversy in the equal application of human rights) and it got me thinking about other issues related to it, like estate planning. Certainly estate planning is not an issue that only affects same-sex couples. However, in my practice, I’m often amazed at how uninformed people are about what happens when they become ill or die with our without an estate plan in place. This is especially true for the difference between those who are legally married or not.

Q: What is an estate plan, exactly?

A: An estate plan refers to the documents one sets out to be administered either when one is ill, has passed away or, in the cases of some powers of attorney (POAs), when one is simply unavailable (I am including POAs in the definition of estate plan because they are just as important as a will). [Ed. note: Or just as important as a Wii?]

A will sets out what is going to happen to your property on death, any funeral requirements you want, the guardians for any minor children and how your estate is to be administered upon your death.

In Ontario, there are two kinds of POA: one for property (that includes real estate, investments, bank accounts, etc.) and one for medical decisions. You give the power to someone to make those decisions for you. For the sake of brevity (and liability–I am a lawyer, after all), I won’t get into the specifics of when and how they are used because this varies from jurisdiction to jurisdiction.

Q: I’m single and I don’t have that much stuff and I don’t really care who gets it. Why would I possibly need a will and powers of attorney?

A: Common question. The bigger issue here is the power of attorney situation. Consider the tragic event of a car accident where one is not able to make decisions on one’s own behalf. If you are okay with your family making these decisions for you (i.e. to continue life support or not), then it may not be a problem. But consider the incapacitated person with two parents, one staunchly religious and insistent that life support be continued no matter what the circumstances and the other parent staunchly opposed to that and insistent on “pulling the plug” (crass, I know, but you get the idea).

By not having a power of attorney and setting out your wishes, you can put your loved ones in a terrible position, having to make that decision. In some families, this may not be a concern and some people appoint the decision maker(s) in their POAs but leave the actual instructions blank, meaning that the person(s) appointed will make the decisions based on what they think is best.

The other issue–and this is how estate planning ties into marriage–is that of common law couples vs. married couples. A lot of people don’t realize this, but being common law doesn’t entitle you to any estate rights. That means that you are not the de facto decision maker if your partner becomes ill. In fact, all too often in these tragic cases, family can swoop in, make all of the medical decisions and completely cut out the partner. As a common law spouse, you have absolutely no rights to even be included in the medical decisions.

Also, think of the terrible situation where an old power of attorney for property is in existence that names the family and not the partner. And the situation where the home that both parties live in is owned solely by the incapacitated partner and the family locks out the partner. And the list of potentially crappy situations–that really do happen to people–goes on and on. Kind of like what happened to Sharon Kowalski (which is also here) and more recently, Robert Daniel.

These are just two examples of why you need to get your legal house in order. The only way that you can truly know your rights and protect yourself is to seek legal advice and resources within your particular jurisdiction. Of course, with married couples, the spouse is the de facto decision maker–yet another reason why equal marriage is so bloody important, whether you’re gay, straight, bisexual, lesbian, transgendered or two-spirited.

Q: How do we deal with guardianship issues for my child but who is not actually a biological child?

A: Gah. That’s a complicated one, mostly because is law is vastly different from jurisdiction to jurisdiction, straight or gay. This is something you really really need to investigate to see what the rules are where you live.

In Ontario, same-sex couples can both be considered the parents of a child. I’m not a family lawyer, but I think it used to be done by declarations of parentage. I believe there is some other process now [Ed. note: do any same-sex parents have the goods on the answer to this? Let us know!]. The non-bio-parent isn’t going to have a problem with maintaining the right to raise their child in Ontario, but this can be a big problem elsewhere. If you are interested in more information about this, let me know, and I’ll research and write a blog post about it.

Q: I’m really wealthy and my spouse is a bit of a gold digger. I’ve decided not to leave them anything in my will.

A: Well, my friend, I think you need to re-evaluate your relationship, but this does touch upon some interesting issues. For example, if you live in Ontario and you are legally married, you have an obligation to provide for your spouse in your will–full stop. That’s right, you read that correctly: YOU HAVE AN OBLIGATION TO PROVIDE FOR YOUR SPOUSE IN YOUR WILL. If you don’t, the surviving spouse can treat the death of the other like a separation and seek an equalization of net family property under the Family Law Act. Or the spouse can take their preferential share under the estate legislation (which also provides for children and is only used when there is no will).

If you are common law, you are out of luck. Seriously. I can’t tell you how disheartening it is to have someone come in to my office and tell me they are a common law spouse, same-sex or heterosexual, and how I simply can’t help them (unless, in the rare exception, the deceased spouse was supporting the surviving spouse in which a claim for support can be made against the estate).

Also, for people living in Ontario: If you get married, your will ceases to exist unless it was done in contemplation of marriage, i.e. it says right in the will that the will has been done in contemplation of marriage. A lot of people don’t realize this and it can have some unfortunate and unintended consequences.

We’re all going to kick the bucket one day, and many of us have loved ones we want to protect. Have you sorted out your estate plan?

Any statements here about the current state of the law are in reference to Ontario, Canada and do not necessarily represent the state of the law in other jurisdictions. Estate law is wildly different from jurisdiction to jurisdiction and it’s important than anyone one needing estate advice should immediately seek the advice of a lawyer in their jurisdiction. Nothing in this column is legal advice, only legal information and is for the purposes of discussion only.

Tagged as: death, law, property, same-sex marriage

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Ask a lady lawyer! This week: Equal marriage

by Tannis on April 23, 2009 · 4 comments

in Advocacy

Each week, Confabulous’ resident lawyer Tannis A. Waugh discusses the most interesting legal issues emerging in popular culture and addresses your burning law-related queries. Want to contest a parking ticket? Can’t help you. Got a legal question for our in-house LLB? Drop her a line at tannis [at] confabulous [dot] ca. Note: Nothing in this column constitutes legal advice in any jurisdiction and is for information and discussion purposes only. If you have a legal problem, consult a lawyer in your jurisdiction immediately.

With same-sex marriage in the news as a result of the landmark decisions in Iowa and Vermont in the last month (not to mention the brou-ha-ha over the Miss USA pageant), there are a lot of questions about what this might mean. Citizens of the United States, regardless of how they feel about the topic, likely have many questions about its implications in law and society as a whole. Canadians, for whom same-sex marriage was made legal in 2003, may also have questions raised by the American debate.

Q: When and where has same-sex marriage been legalised?

A: The first country to legislate same-sex marriage was The Netherlands in 2001. Following suit was Belgium, Canada, Spain, South Africa, Norway, Sweden, and in the U.S., California (oops–then not), Connecticut, Iowa and Vermont in that order. We’ve come a long way in 8 years.

Q: How can individual states, rather than the entire country, decide to legalise same-sex marriage?

Marriage is a funny thing. In different countries, the jurisdiction over marriage lies in different places. In Canada, the definition of marriage is within federal jurisdiction but control over the marriage process is provincial. In the U.S.A., because of their strong history of state rights, marriage is an individual state issue.

Q: Why should we even care about same-sex marriage?

A: We should care because it’s a human rights issue. Even if you don’t self-identify as a member of the GLBT community and are an ally, ask yourself why it’s okay to treat LGBT persons as second-class citizens? It’s no different than Native Canadians and women being prohibited from voting (or in the case of the US, having separate drinking fountains and all of the other blatant prohibitions based on race that were deemed acceptable).

Q: What are the legal implications of same-sex marriage on same-sex couples?

A: In the countries where full, unrestricted rights are granted to marry, there are myriad of benefits under the law. Rights to adopt, declaration of parenthood on birth certificates, tax benefits, recognition under estate planning laws (and the list goes on and on) are what LGBT couples lose when they are not permitted to marry without restrictions.

Q: What are the legal implications of same-sex marriages on heterosexual couples?

A: Absolutely none. Conservative rights groups espousing the traditional view of marriage will often cite the breakdown of “marriage as we know it” as an explanation for why same-sex marriage should be prohibited. In a legal sense, same-sex marriage does absolutely nothing to the legal rights already enjoyed by heterosexual couples.

I would also point out that same-sex marriage also does not interfere with the rights of heterosexual couples to get married. One must always remember that being excluded from a legal right based on arbitrary identification with a specific group is a human rights issue. You can still disagree with same-sex marriage (if that’s your position) without prohibiting others’ right to marry.

Q: Will same-sex marriages be recognised in countries that don’t allow it?

A: Now, this is an interesting legal question and the answer is: it depends. This question brings up conflicts of laws issues in an international sense or, in the case currently in the United States, state conflict of laws. Conflict of laws is a vast and complicated area of law, but in the context of same-sex marriage, it boils down to this: countries that have no restrictions on same-sex marriages will recognise same-sex marriages from other jurisdictions as long as those marriages comply with the requirements under the laws of the country which is seeking to recognise the marriage.

This means that if you have a same-sex marriage in Bermuda (where same-sex marriage is currently prohibited) and you come to Canada and want your marriage legally recognised, it won’t be, because it didn’t have legal validity in the jurisdiction in which it was attempted.

Q: Why not just recognize a right to a domestic partnership instead of marriage?

A: That’s like saying that African-Americans have the right to vote but only if they own property, have a certain amount of money in the bank or any other arbitrary restrictions. A domestic partnership means that marriage is still prohibited for same-sex couples and therefore they are being treated as second-class citizens. “You’re not good enough for our kind of marriage but we’ll give you something that’s not the same, not as good, doesn’t confer as many benefits, so you will STFU.” In some ways, it’s even more discriminatory than a blanket prohibition on same-sex marriage. Others believe that domestic partnerships are good because they are a step in the right direction and societal change can be slow. What do you think?

Q: But not all gays and lesbians want to marry.

A: Who cares? Again, the right to marry is a lack of a prohibition of a legal right. If a same-sex couple wants to declare their relationship in some other form, all the more power to them. The distinction is when same-sex marriage is prohibited, it’s not an option for anyone who wants to be married.

Q: But if we allow same-sex marriage, it’s just a matter of time before pedophiles will be able to marry children! And what about goats? People will be able to get married to goats–that’s not right!

A: Well, first of all, plenty of legal rights are conferred on persons who have reached a certain age. For example, the right to vote, the right to legally (and not beneficially) own real property, the right to drive, etc. This is done based on plenty of research, policy and politics about what is deemed to be acceptable in society.

In Ontario, one cannot get married under the age of 18 unless one has parental consent (to age 16). This is unlikely to change unless there is a massive social revolution on who’s considered a child and who’s considered an adult. The age restrictions on marriage, as they currently stand, have a very clear policy goal of protecting young people from being forced into a marriage that they are not ready for either physically or emotionally. Personally, I’m not even sure if 18 is old enough–it certainly wasn’t for me.

Goats? C’mon, be realistic. Sex with animals has never been legal in Canada (that I know of). Animals don’t even enjoy the basic right of being free from abuse. Talk to me in a 100 years when the law has dealt with that issue and we’ll talk.

I’m all for discussing slippery slopes and in some contexts, the slippery slope is an important issue, but same-sex marriage is not going to result in marriages to goats or children.

Does that cover your same-sex marriage questions? Got any more? Let us know!

Tagged as: law, same-sex marriage

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