The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Family law

A major overhaul of Canada's Divorce Act

By Yves Faguy May 23, 2018 23 May 2018

A major overhaul of Canada's Divorce Act

Justice Minister Jody Raybould-Wilson has introduced legislation that would represent a major overhaul of Canada's divorce laws.  The main thrust of the amendments is to place the best interest of the child at forefront of resolving disputes, and emphasize parenting responsibilities after separation in less adversarial terms than the existing legislation does (exit talk of “custody” and “access”). They also include measures to address family violence and push spouses to rely more on family-dispute resolution services instead of the courts. Also noteworthy are new guidelines for parents wishing to relocate with children.

The amendments appear at first blush to be broadly in line with a number of CBA recommendations made over the years, including a recent submission on a private member’s bill dealing with shared parenting and a letter calling for specific changes to the Divorce Act.

John-Paul Boyd, the Executive Director of the Canadian Research Institute for Law and the Family, also remarked on Twitter that the proposed legislation bill owes much to provincial efforts already well under way (namely in Alberta and British Columbia) to modernize family law.

You can read the CBA’s statement on the proposed legislation here, and the Justice Minister’s Charter Statement, which looks at how the bill might affect issues surrounding mobility rights, expanded search and disclosure powers, and enforcement of family support orders.

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Indigenous law

Truth and reconciliation: More guidance is needed on legal reform

By Yves Faguy May 18, 2018 18 May 2018

Truth and reconciliation: More guidance is needed on legal reform

 

The Truth and Reconciliation Commission’s work and report may have achieved a lot in terms of raising awareness about past efforts in Canada to assimilate Indigenous individuals and erase their cultures. Unfortunately, Michael Coyle argues, it doesn’t focus enough on the specific ways Canada’s legal framework should be reformed to restructure Canada’s relationship with Indigenous peoples. In a recent article published in the Canadian Bar Review, Coyle offers the following comparison with other similar works:

The abstraction of the TRC’s recommendations for restructuring Canada’s relationship with Indigenous peoples may have rendered them easier for governments to embrace. Although Canada’s then Prime Minister, Stephen Harper, declined even to attend the ceremony accompanying the TRC’s final report, the current government indicated almost immediately that it would fully implement the TRC Calls to Action, including using the UNDRIP as the framework for reconciliation.

It is not clear at this time what systemic changes, if any, the Canadian government intends to implement in relation to their relationship with Indigenous peoples. It is clear, however, that some degree of support from the Canadian public will be required if the relationship is to be transformed. The failure of the TRC’s report to communicate more forcefully to the public the link between past government policies subordinating Indigenous peoples and the current legal regime will not assist efforts in this regard. It is worth noting that the TRC report follows the work of two other Canadian commissions, the six-volume Report of the Royal Commission on Aboriginal Peoples published in 1996, and the four-volume Report of the Ipperwash Inquiry published 11 years later. Both of those reports recommended significant legal reform to recognize the principles of treaty partnership with Indigenous peoples. Neither of these earlier reports provoked such reform. It will be worthwhile to reflect on at least one of the possible impediments to fundamental change.

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Trade

How missing NAFTA deadline could have an impact on talks

By Yves Faguy May 17, 2018 17 May 2018

How missing NAFTA deadline could have an impact on talks

 

U.S. House Speaker Paul Ryan issued a warning that today is the deadline for notifying Congress of a deal that could be voted on in 2018, before midterm elections in November.  Indications from U.S. Trade Representative Robert Lighthizer are that a deal – even a pared-down version – isn’t likely to be reached so soon.

Why the deadline matters

On December 1, 2018, Mexico will have a new president – possibly the leftist Andres Manuel Lopez Obrador who has opened up a wide lead in the polls, and who might want to push his own amendments with a new team of negotiators.  Also, the midterm elections in the U.S. could produce a very different Congress, controlled by Democrats, which might be inclined to pursue new trade priorities. Simon Lester noted in a couple of recent posts that the Democrats’ stand on trade policy could be even more protectionist than the Trump administration’s, or then again not:

Some months ago a group of Senate Democrats including New York's Charles Schumer put together a trade platform premised on outdoing Donald Trump as a protectionist (I blogged on that here back last August). 

In a recent candidates' debate in Houston, the Democratic primary finalists for multicultural urban District 07 were asked to address trade […]. Laura Moser, a Texas-born and -bred writer and activist whose campaign has attracted national and international attention, set out a different Democratic vision than Schumer & company. Moser said she believes in trade agreements and while noting that NAFTA has hurt some Americans she freely admitted it's benefited others, including in her own region of the country. She even supports TPP, stressing the importance of an accord in the Pacific region, but criticizes the existing agreement as giving inadequate consideration to environment and labor laws, while important parts have been drafted to suit entrenched corporate interests.

Those are positions that Team Trudeau might welcome, though how NAFTA negotiations move forward with new players in the mix is really anyone’s guess.

What to worry about in the short term

The Trump administration will have to soon decide on whether to extend a June 1 deadline for new tariffs imposed on steel and aluminum to take effect on imports from Canada and Mexico.

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CBA Futures

Legal futures round-up

By Yves Faguy May 16, 2018 16 May 2018

Legal futures round-up

 

Time for a round-up of notable trends and developments that highlight innovation in the legal industry.

Rosenblatt Solicitors announced plans to go public, and is hoping to raise £43m on its IPO, which would make it the largest of its kind. It would be the fourth English law firm to do so since the liberalization of the market for legal services in England and Wales five years ago. The other three are Gately, Keystone and Gordon Dadds.  

Allen & Overy (A&O) is bringing in a second cohort of startups into its tech space Fuse, which launched in London last year. The new cohort, includes Canadian based AI document review platform Kira Systems. According to Fuse chairman Jonathan Brayne: “This cohort’s focus is very different to that of the first – there’s a strong AI theme here.”

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Religious freedoms

Canada’s “institutional turn” in religious freedom litigation

By Yves Faguy May 14, 2018 14 May 2018

Canada’s “institutional turn” in religious freedom litigation <p> &nbsp;</p> <p> <a href="https://cbr.cba.org/index.php/cbr/article/view/4435/4416">Kathryn Chan writes in an article published in the Canadian Bar Review</a> that the &ldquo;institutional turn&rdquo; in religious freedom litigation we have seen in Europe and the United States is now apparent in Canada.</p> <p> The Supreme Court of Canada is scheduled to render judgment in three religious freedom cases in the fall, in <em>Wall v Highwood Congregation of Jehovah&rsquo;s Witnesses</em> and two Trinity Western University appeals. But until now, the top court&rsquo;s approach to institutional religious freedom claims, &ldquo;is deeply ambiguous,&rdquo; Chan explains:</p> <p style="margin-left: 40px;"> The big unanswered question is the &ldquo;constitutional personhood&rdquo; question: are corporations included in the &ldquo;everyone&rdquo; that is entitled to the protections of freedom of conscience and religion under section 2(a) of the <em>Charter</em>? In <em>Loyola High School</em>, the majority of the Court declined to decide whether corporations &ldquo;enjoy religious freedom in their own right under ... the <em>Charter</em>&rdquo;, &ldquo;since the Minister was bound ... to exercise her discretion in a way that respect[ed] ... [the] religious freedom of the members of the Loyola community who [wished to offer or] receive a Catholic education.&rdquo; However, the remaining three justices declared their willingness to recognize the religious freedom of a &ldquo;non-profit religious corporation&rdquo;, constituted for the purpose of offering a Jesuit education to Catholic children in Quebec. The minority justices also proposed a general test for an institutional religious freedom claim, stating &ldquo;that an organization [should meet] the requirements for s. 2(a) protection if (1) it is constituted primarily for religious purposes, and (2) its operation accords with these religious purposes.&rdquo;</p>

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