The Lawyers Weekly - December 24, 2010

Biological parents, and

Support Guidelines.

spouses of step parents,
can’t afford to pay

““It’s a rather
interesting decision.”

CRISTIN SCHMITZ OTTAWA

Michael Stangarone, MacDonald & Partners

Stangarone suggested “counsel will need to be very careful in advising their clients that their new partners may have to start disclosing when dealing not only with spousal support issues, but also child support as well.”

Moreover, she ruled, it would be reasonable to send J. there for one year of treatment, given the means of his step parents.

The step parents of a troubled teen have been ordered to foot most of his $72,000 annual bill at a U.S. residential treatment facility because their spouses—the youth’s biological parents—can’t afford to pay.

K. is an open-pit mining engineer who earned $138,144 in 2009. She denied that she stood in the place of a parent to J. For his part, J. doesn’t consider her to be his parent.

Stangarone

Last month Ontario Superior Court Justice Marion Cohen ordered the second wife of H.A., and the second husband of E.M., to pick up much of the tab for supporting H.A.’s and E.M.’s 15-year- old son, J., over the next year.

father was an access parent for most of the three years of their marriage, [K.] became part of [J.’s] family. She provided financially for [J.] when he resided with her and the father, and through her health plan.”

for child support purposes, even if the new spouse is not deemed to be a “settled intention parent” under s. 2 of Ontario’s Family Law Act (FLA).

H.A. and his wife, K., agreed with E.M. and her husband, N., that a therapeutic boarding school in the Berkshire Mountains was probably the best-case scenario for J.

At press time the H. A. family counsel, Jacqueline Peeters of Toronto’s Birenbaum, Steinberg, could not be reached for com-

However the H.A. family argued that the $6,000-per- month U.S. option was simply unaffordable for them. They urged that the teen should instead go to a government-paid residential treatment facility for adolescent

She urged that her interactions with J. simply amounted to being a supportive and loving spouse to her new husband — who gets $13,000 per year in worker’s compensation. She is putting her husband through chef school and paid for legal bills flowing from his efforts to get custody of J.

The divorced pair split up in 1995 when J. was just six months old. Because both parents are currently unemployed they are being supported by their present spouses (J.’s step parents), who each earn in excess of $130,000 per year.

Counsel for E.M. (who was seeking to compel her ex-husband and his new wife to share J.’s U.S. treatment expenses) called the decision “very child-focused.”

“It’s a rather interesting decision,” Michael Stangarone, of Toronto’s MacDonald & Partners, told The Lawyers Weekly, “because step parents are typically ordered to pay after they separate from their spouses, and not while still married. In this case, Justice Cohen added the new wife as a party to the proceeding, held that she was a ‘parent’ and ordered her to pay.”

“Counsel will need to be very careful in advising
their clients that their new partners may have
to start disclosing when dealing not only with
spousal support issues, but also child support as well.

Justice Cohen ordered K. to pay $1,800 per month as a contribution to J.’s monthly $6,000 monthly special expenses under s. 7 of the Child Support Guidelines. J.’s father is to pay an additional $200 per month. The balance is to be paid by N. and J.’s mother, who are joint and severally responsible.

Justice Cohen rejected the assertion of H.A.’s second wife, K., that she had never shown a settled intention to parent J. in the three years since she married his father.

Michael Stangarone, MacDonald & Partners

“In my view, K. committed herself not only to the father, but to parenting his child as well. Her actions went well beyond kindness to [J.],” wrote the judge.

ment.

substance abusers in Elora, Ont.

Justice Cohen said the new spouse’s means are relevant to the parent’s ability to pay child support, including contributing to s. 7 “special expenses” under the Child

Based on the evidence, Justice Cohen accepted that the U.S. boarding school was the best option.

N. married E.M. when the boy was 22 months old. N. owns a software company and said he drew a salary of $130,000 in 2009. He told the court he was committed to getting J. the help the youth needs and thus agreed to be named as a party, and as a “parent” under the FLA.

We want to hear from you! Email us at: tlw@lexisnexis.ca 

“Notwithstanding that the

Stangarone said the decision is noteworthy too because it makes clear that the new spouse of a parent must make financial disclosure

December 24, 2010

THE LAWYERS WEEKLY

www.lawyersweekly.ca www.lawyersweekly.ca
YEAR IN REVIEW
SPECIAL SUPPLEMENT

THE LAWYERS WEEKLY

December 24, 2010

www.lawyersweekly.ca

December 24, 2010

S7 FOCUS SEC TION

FOCUS SECTION

THE LAWYERS WEEKLY YEAR IN REVIEW SPECIAL SUPPLEMENT

Omar Khadr:

CHRISTOPHER GULY
hile a pivotal chapter
of Omar Khadr’s sad
saga concluded this
year, the story about the young-
est and the only Canadian (and

Westerner) among the 176 detainees at Guantanamo Bay is far from over.

International Transfer of Offenders Act, Khadr is expected to serve the rest of his time in a provincial correctional facility for adults — since he was a youth at the time his offencewascommitted—andbe eligible for parole after one year and eight months, or the summer of 2012, according to one of his Canadian lawyers.

In late October, he accepted a deal to avoid a questionable military trial and lengthy prison term upon conviction, and pleaded guilty to five charges under the 2009 U.S. Military Commissions Act, including “murder by an alien unprivileged combatant” and “providing material assistance to terrorism”—offences created after his capture by American forces in Afghanistan.

But while Khadr may by then be a free man, Nate Whitling suggests that some of the jurisprudence from his client’s legal battles in the Federal Court, Federal Court of Appeal and Supreme Court of Canada (SCC) could constrain officials of the Department of Foreign Affairs and International Trade (DFAIT) and Canadian Security Intelligence Service (CSIS) agents in the future.

In exchange, 24-year-old, Toronto-born Khadr received an eight-year sentence. He will spend one more year in Guantanamo Bay after which he can request (and likely obtain) repatriation to Canada under the plea deal.

Under the terms of Canada’s

“Canadian officials who go to other countries are going to be bound by the Charter insofar as to when they’re interacting with Canadian citizens abroad,” said Whitling, whose litigation practice focuses, in part, on international human rights law at the Edmonton firm, Parlee McLaws LLP.

But as he added, the SCC’s decision in Canada (Justice) v. Khadr, [2008] S.C.J. No. 28, emphasized that the life, liberty and security guarantees under s. 7 of the Charter applied to the interrogations of Khadr at the Guantanamo Bay naval base in Cuba by DFAIT and CSIS officials, because the process violated Canada’s obligations under international law. The court referred to other decisions, such as one from its American counterpart in Rasul v. Bush, 542 U.S. 466 (2004), in which the U.S. Supreme Court held that detainees at Guantanamo had illegally been denied access to habeas corpus, and that the procedures under which they were to be prosecuted violated the Geneva Convention. In Khadr (2008), the SCC also referred to its earlier decision in R. v. Hape, [2007] S.C.J. No. 26, in which the court unanimously ruled that the deference required to the principle of comity, which implies acceptance of foreign laws and procedures when Canadian foreign officials are operating abroad, “ends

where clear violations of international law and fundamental human rights begin.” n the SCC’s second decision on Khadr’s situation in the Guantanamo Bay prison, Canada (Prime Minister) v. Khadr, [2010] S.C.J. No. 3, the court agreed with previous rulings by the Federal Court and the Federal Court of Appeal that Khadr was entitled to a remedy under s. 24 (1) of the Charter, since his constitutional rights were violated when a DFAIT official interviewed him in 2004, knowing that Khadr had been subjected by U. S. authorities to a sleep-deprivation technique. Known as the “frequent-flyer program,” it involved physically mov-ing Khadr every three hours over a three-week period to make him less resistant to interrogation. However, the remedy Khadr sought —that the federal government be ordered to request his repatriation— was denied, “in view of the constitutional responsibility of the executive to make decisions

on matters of foreign affairs.” The government has yet to provide Khadr with any remedy. It could come in the form of challenging the validity of the plea bargain agreement reached between Canada and the U.S. once he is back on Canadian soil, according to constitutional law scholar Errol Mendes. “His lawyers could say that he should be released immediately since the plea deal was in itself a violation of his rights. The Supreme Court of Canada has already said that the complicity of Canadian officials in his interrogation amounted to a violation of his constitutional rights,” said Mendes, a professor of law at the University of Ottawa’s common law section and the editor-in-chief of The National Journal of Constitutional Law. “Or Khadr could spend whatever time he has left to fulfill the plea agreement, but sue the hell out of the government for millions of dollars.”

Still, in an upcoming article on Khadr (2010) to appear in the Supreme Court Law Review, University of Toronto law professor

a Canadian pariah Audrey Macklin wrote that “Khadr has been dumped in the mother of all legal grey holes, the place of right without remedy. And a legal grey hole is really little more than a black hole decorated with judicial wallpaper.”

In an interview, she explained that while not holding Canadian citizenship “can hurt,” being a Canadian citizen “doesn’t help when somebody is considered a pariah by the government.

“The government’s position is that it does not owe Canadian citizens any duty to assist them in any way when their fundamental rights are being violated abroad.

The government claims absolute and unfettered discretion to pick and choose which Canadians to protect.”

Regardless of one’s vie ws of

Omar Khadr, this assertion of
unaccountable discretion should
worryallCanadianswhotravel
outside the country. And so far,
theSCChasbeenunwillingto
contradict the government’s pos-
ition, said Macklin.
athalie Des Rosiers, the

Canadian Civil Liberties Association (CCLA)’s general counsel, said in an interview that the federal government needs to provide clarity on the criteria it applies to determine whether it will assist a Canadian in distress outside the country, since in recent years the message has been mixed.

Two years ago, a federal gov-ernment-chartered jet whisked Canadian Brenda Martin away from a Mexican prison back to Canada where she was briefly remanded into custody before being released on parole for time served. Yet Maher Arar endured torture as a suspected terrorist in a tiny Syrian cell before a federal government commission exonerated him of any terrorist ties; a

Federal Court last year had to order the government to issue a passport to Abousfian Abdel-razik, who was stuck in Sudan for six years; and in 2009 Suaad Haji

Mohamud was stranded for three months and spent eight days in jail in Kenya, where she was charged with identity fraud— on Canada’s recommendation— after Kenyan immigration officials claimed her facial features didn’t match her Canadian passport (DNA testing later verified her identity). All three people hold Canadian citizenship. “It looks bad if the government is helping white Canadians, but doesn’t help racialized Canadians,” said Des Rosiers, who is on leave as a professor in the University of Ottawa’s civil law section. “Maybe there are good reasons, but they should be more apparent to the public.”

Mendes believes Prime Minister Stephen Harper’s government made the decision that Khadr “wasn’t worth fighting for,” although he remains subject to a “potentially unlawful detention” under international law.

“The government is making distinctions between different types of Canadian citizens, and some have more rights than others. If it feels someone is not worthy to have the full protection of Canada, it won’t lift a finger. In fact, it will actually encourage a foreign state to let you basically rot in whatever condition you find yourself,” said Mendes. “Which is why I agree with the opposition that a Canadian is a Canadian is a Canadian. If we start making a distinction, we’re going down a very slippery slope.” To help avoid that from happening, Des Rosiers is in favour of the creation of a new federal “ombudsman” who would represent all Canadians in need of assistance when outside the country.

But Ottawa lawyer and international and terrorist intelligence analyst David Harris offers a cautionary note about interpreting Charter rights in light of current national security concerns.

“We understandably have a
greater focus on the individual,
and I think that must con-
tinue…But I am a little con-
cerned that we have gradually
and inexorably been leading
ourselves in directions that are
incompatible with public safety,”
said Harris, a former chief of
strategic planning at CSIS prior
to the Khadr case.

Harris acknowledged that while “platoons of exceptionally well-intentioned and well-educated lawyers are properly and vigorously advocating the interests of their clients in national security matters, I don’t see a great deal of public discourse in, and virtually any legal attention to, the sorts of backdrops, realities and threats I’ve seen on the ground. I think that reflects shortcomings in the profession and the community at large, and it interferes with our ability to seek a true balance in a delicate balance problem.” 

PHOTOS 1-4, 6-7 FROM THE CANAD AN PRESS Omar Khadr attends a hearing in the courthouse for the U.S. military war crimes commission on

Guantanamo Bay U.S. Naval Base in Cuba, on April 28.

Maha Elsamnah, mother of Omar Khadr, rests her head on her hands as she speaks with journalists at her home in Toronto, on July 15, 2008. Karim Khadr, brother of Omar Khadr, attends a rally in Toronto on July 26, 2008 to press for the return of his brother from Guantanamo Bay. Mohamed Boudjenane, executive director of the Canadian Arab Federation (right), and Rev. Vicki

Obedkoff of the United Church of Canada, listen at a news conference in Toronto calling for the repatriation of Omar Khadr from Guantanamo Bay. Omar Khadr, a Canadian citizen, was just 15 when he was captured and seriously injured in a firefight in Afghanistan on July 27, 2002. The entrance to Camp Delta at Guantanamo Bay on Oct. 24. Omar Khadr is housed in a section of the detainee camp.

Omar Khadr’s Canadian lawyers
Nathan Whitling (right) and Dennis
Edney address a news conference on
July 15, 2008 in Edmonton.
3

4 5

Harris

Macklin

Bilingual SCC bill will impact future nominees
Conservatives have enough power to kill the bill in the Senate

CRISTINSCHMI TZ OTTA WA

Bill C-232 came in with a bang in 2010, and will probably go out with a whimper in 2011.

At press time, that was the fate anticipated for the controversial private member’s bill which divided lawyers across the country this year by proposing to mandate that future Supreme Court appointees be required to have sufficient facility, in both French and English, to hear appeals without the aid of interpreters. Although the NDP-sponsored bill defied the odds in the House of Commons March 31 by passing 140 to 137 — with the opposition parties uniting to outgun the minority government—the Conservatives now have enough fire power to kill the bill in the Senate. As of Dec. 6, the 105-member

Red Chamber included 52 Conservatives, 46 Liberals, two Progressive Conservatives, two Independents, two vacancies, and one senator who can’t vote pending the outcome of a criminal charge.

Conservative Senator Gerald Comeau, deputy leader of the governmentintheupperhouse and a foe of the bill, told The Lawyers Weekly he anticipates Bill C-232 will at least survive to receive study by a Senate committee. This would spare the Harper government the flack it got last month when Conservative senators killed Bill C-311 — an NDP private member’s environmental bill passed by MPs—before debate or committee study. Comeau stressed that anything can happen on a free vote, but he predicted “eventually I think

[C-232] would go to committee, and thereby listen to what people have to say about it, like the Canadian Bar Association (CBA) and others.”

In an effort to accommodate Western CBA members’ adamant opposition to Bill C-232’s ban on unilingual jurists, and francophone and Quebec members’ insistence that Supreme Court judges should fully grasp the nuances of both French and English oral pleading, last August the CBA’s Council took the position that unilingual jurists should remain eligible for the Supreme Court —but be barred from hearing appeals for which they need English- or French-language interpretation. The CBA also called on Parliament to adopt legislative, regulatory and administrative measures to make the court bilingual as an institution.

Bill C-232 is not expected to get much further than the Senate’s Legal and Constitutional

Affairs committee. Given the government’s new clout in the Senate, the Conservatives could vote the bill down at report stage or at third reading. This is unlikely to happen until next year.

Alternatively, the government could simply let the bill wither and die on the order paper if Conservative senators continuously adjourn debate until the federal election predicted for 2011. “Of course if it dies, I would be disappointed,” University of Ottawa civil law dean Sébastien Grammond acknowledged. “But I think that all the debate has been very useful in making pub-licalltheargumentsthatsup-port the idea that Supreme

Court judges should be bilin-
gual, and it will make even more
difficult the appointment of any
unilingual judge, as a matter of
policy, if not law.”
Grammond also expects the
initiative to raise its head again in
Parliament where “the arguments
that have been
made will be
useful.” He sug-
gested any jur-
ist in the coun-
try who aspires
to the Supreme
Court has now
had fair notice
that “bilingual-
ism, if it is not a requirement, is a
very definitive asset. So I think it
will influence the way that people
think about the issue, and the
way potential candidates will
prepare themselves.”

At press time, senators were still fiercely disputing the wisdom ofthebill’sprincipleduringits

JEREMY BRUNEEL FOR THE LAWYERS WEEKLY

See Bilingual Page S10 Grammond

Year in Review

Look for our special Year in Review section

in this week’s issue of The Lawyers Weekly.

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