Surrogate mother claims affair and seeks child, Statue, church and totem sentencing, and s. 96 courts
This week on Legally Speaking with Michael Mulligan:
After accepting $40,000 for expenses, a surrogate mother is asking to be declared the mother of a four-year-old, and obtain access to the child, on the basis that she claims to have become pregnant as a result of an affair with the child’s father, rather than through the use of a home artificial insemination kit.
For his part, the father has admitted to having an affair with the surrogate mother but alleges that this occurred only after the birth of the child.
The surrogate mother has presented records of having terminated two pregnancies, prior to becoming pregnant as a surrogate, where she listed the father of the four-year-old as an emergency contact. She claims that these pregnancies were a result of an affair with the father.
For the first two years of the child’s life, her parents permitted the surrogate mother to spend time with her. This relationship between the parties faltered when the surrogate mother demanded $100,000 and a fixed visitation schedule.
A trial to determine if the surrogate mother should be listed as a parent of the child, and obtain access to her, is scheduled for later in the year.
While awaiting trial, the surrogate mother applied for interim access to the child. This application was denied by a judge following an assessment of the best interests of the child. The judge concluded that the child’s best interests were served by stability, pending the outcome of the trial.
Also on the show, the destruction of churches, a Captain Cook statue, and a totem pole and how these could relate to sections 21 and 718.2 of the Criminal Code.
Section 21 of the Criminal Code is concerned with parties to an offence. Anyone who does or omits to do anything for the purpose of aiding any person to commit an offence or abets any person in committing an offence is a party to an offence.
Section 718.2 (a) (i) makes it an aggravating factor on sentencing that an offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor.
Finally, section 96 of the Constitution Act 1867 provides for the federal appointment of Superior Court Judges.
Superior Court judges can only be removed from office by the Governor General on address of the Senate and House of Commons.
This prevents Superior Court Judges from being fired for making decisions the government doesn’t like.
The independence that this provides could be undermined if the government could transfer the jurisdiction of Superior Court judges to different kinds of judges it could fire or otherwise control.
A recent Supreme Court of Canada decision concluded that, for this reason, the province of Quebec was not permitted to transfer jurisdiction over claims up to $85,000 to Quebec’s provincial court.
This decision is likely to have implications for British Columbia’s effort to transfer jurisdiction over claims relating to the new ICBC no-fault system to the Civil Resolution Tribunal. Adjudicators who make decisions in the Civil Resolution Tribunal are on short-term government contracts and could be fired, or not have their contracts renewed if the government was unhappy with decisions they were making.
Legally Speaking is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts or wherever you get your podcasts.
Automated transcript of the episode:
Legally Speaking July 8, 2021
Adam Stirling [00:00:00] Legally Speaking, with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, good morning, Michael, how are you doing?
Michael T. Mulligan [00:00:05] I’m doing great. Always good to be here.
Adam Stirling [00:00:07] Absolutely. What are or what is on the agenda for today?
Michael T. Mulligan [00:00:12] Well, I think the first case on the agenda is a good example of why practicing law is not often boring. And the case itself involved an application by a woman who was a surrogate mother to try to get an interim order to have access to a four-year-old girl whom she gave birth to. The background of that application, though, I must say, is really quite astonishing. And this is the fact pattern. A couple who got married in 2009 was having trouble conceiving a child and was making various efforts in that regard, trying invitro fertilization and other things. And then they met the woman who eventually was the surrogate mother for their now four-year-old daughter they met in 2014. Now, here’s where things start to get interesting. The surrogate mother claims that she had an affair with the husband, in the original couple, and in fact, claims that she had become pregnant on two occasions as a result of that affair, but claims that she had terminated those pregnancies and had befriended the mother in the couple, the wife.
Adam Stirling [00:01:36] hmm.
Michael T. Mulligan [00:01:36] She claimed then that she wanted to help this couple become closer and volunteered to become a surrogate so that they could have a child together. And then there was a surrogacy agreement entered into, setting out how that would work. That’s a good idea. But, and then eventually a young girl was born, apparently happy and healthy. So that’s wonderful news.
Adam Stirling [00:02:08] mhmm.
Michael T. Mulligan [00:02:08] And for a little while, things seem to go okay. The surrogate mother had some interactions with the child for the first couple of years, but then began insisting on things like a written schedule of when she could see the child and began demanding more money from the couple. She was paid some $40,000 for surrogacy expenses but was then trying to make a claim for a $100,000 from the couple. The result was that the relationship between the couple, the parents of the child, and the surrogate deteriorated and broke down to the point where they said, you can’t see the young girl anymore.
Adam Stirling [00:02:54] oh dear.
Michael T. Mulligan [00:02:55] Hence the court case. So, we’re now dealing with.
Adam Stirling [00:02:56] Yes.
Michael T. Mulligan [00:02:56] And things became, have become, more interesting because the surrogate mother now claims that the child was not conceived by means of a home artificial insemination kit, but rather claims that the child was naturally conceived with the father.
Adam Stirling [00:03:17] mhmm.
Michael T. Mulligan [00:03:17] And so on that basis, she’s applying to become listed as the parent of the child. Despite the surrogacy agreement and the fact that everyone seemed to be operating on the basis that she was acting as a surrogate. And so now the court is trying to both eventually unwind that issue, which is going to be scheduled for a two-week, 14-day trial to try to sort out that issue through how was this child conceived? Who were its parents? What is the meaning of surrogacy agreement and what was going on between the father and this woman? But in the interim, what the court has had to deal with is an application by the woman who was the surrogate mother under Section 59 of the Family Law Act. And that section of the act people should be aware of. It’s the section that allows people, a person to make an application to have access to a child, to spend time with the child. And that section can actually be used by various people, including grandparents, for example.
Adam Stirling [00:04:28] mhmm.
Michael T. Mulligan [00:04:28] Right. It’s fairly broad. But when a court is faced with that kind of an application to allow access, the way the court is required to approach it is to always ask what is in the best interest of the child. And so, the assessment by the court is not an assessment of, you know, what about the surrogacy agreement? How was the child conceived? What about the $100,000 or the$40,000 dollars? It’s always analyzed from the perspective of despite all those. Trials and tribulations, what’s best for this four-year-old girl? Yes. And on that analysis, at least on the interim basis, the court has decided that the parents of the child, pursuant to the surrogacy agreement, will continue to care for her. And the woman who was the surrogate mother will not have access to the child, at least subject to the time when there’s going to be a full trial on what exactly was her role? Was she the surrogate with the artificial insemination kit or did she have an affair? And is that how this child came about? And on that ground, on that basis, her claims are completely without any foundation because it would appear that the father acknowledges having an affair with the woman but claims that that only occurred after the birth of the child. And so, this is the naughty fact pattern that a judge is ultimately going to need to unwind. But in the interim, on that test of what’s in the best interests of the child, they’re not going to allow the surrogate mother to recommence a relationship with the child. And so I must say, I read the thing is an example of how, despite all of everyone’s best efforts to, for example, when you’re trying to come up with what the Family Law Act is to say about how things are to be organized for surrogacy and agreements and who’s a parent and so on, human affairs are just so endlessly variable and a good example of why on a daily basis I am not falling asleep at my desk.
Adam Stirling [00:06:44] No no.
Michael T. Mulligan [00:06:44] Ought to keep an eye on what happens to the little four-year-old girl and this trio. And eventually I guess we’ll get some legal answer to who her parents are.
Adam Stirling [00:06:55] Absolutely. I want to take our first break here, Legally Speaking, continues in just a moment. Up next, vandalism to statues and totem poles. How does that potentially intersect with the Criminal Code of Canada? Michael gives us an analysis right after this.
Adam Stirling [00:07:10] We return to Legally Speaking on CFAX 1070 Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers, the topic of vandalism, targeting statues, totem poles, churches, and other structures, certainly in the forefront of the public discourse recently. Michael, how does the criminal code treat such things?
Michael T. Mulligan [00:07:29] Not well, no. I say we, I mean, there are specific offences, of course, just kidding, for those particular things right, there would be arson and mischief by damaging property. But there are a couple of other particular sections of the criminal code that would relate to both of those things, which I think listeners should be aware of. One of the sections which would have application, at least with respect to what apparently happened to the Captain Cook statue, would be Section 21 of the Criminal Code. And Section 21 of the Criminal Code deals with the concept of parties to offences.
Adam Stirling [00:08:11] mhmm.
Michael T. Mulligan [00:08:11] And what that section says is that everyone is a party to an offence, therefore could be convicted of it, if they either a) actually commit it or b) a person does or admits to do anything for the purpose of aiding any person to commit it or abets any person committing it.
Adam Stirling [00:08:29] hmm.
Michael T. Mulligan [00:08:29] And so that could include encouraging somebody to commit an offence, helping them commit an offence or doing something or not doing something for that purpose. And so, in other contexts, you can imagine, let’s say, for example, there’s a bank robbery. One person goes in with the gun and mask while another person sits outside revving up the car for the getaway car.
Adam Stirling [00:08:50] mhmm.
Michael T. Mulligan [00:08:51] Both people are potentially subject to being convicted of robbery. The person in the car is guilty on the basis that they are assisting the person as a getaway driver or keeping lookout or doing anything of that sort.
Adam Stirling [00:09:07] hmm.
Michael T. Mulligan [00:09:07] And so, well, the criminal law doesn’t attach to people who are passively doing nothing for no particular purpose. Right. And there are some notorious cases involving circumstances where you’ve got somebody engaged in some criminal conduct. You don’t have, generally speaking, an obligation to go over and intervene to stop it.
Adam Stirling [00:09:30] mhmm yeah.
Michael T. Mulligan [00:09:31] Right. If you see somebody robbing a bank, you’re not legally obliged to run over and try to tackle them.
Adam Stirling [00:09:36] hmm.
Michael T. Mulligan [00:09:37] But that is a different thing from if a person who’s doing something for the purpose of assisting somebody or abetting them or encouraging them to commit a crime. And so that will be an interesting one, I think, to watch ultimately, if there are people who are arrested with respect to the mischief to the statue. Because you could wind up being convicted of that, even if you’re not somebody who was tugging on the rope if you were doing something to assist with it. Right. So, if you were trying to cover the person or aid them or help them in some way, you could wind up being convicted as a party to the offence. The other section, which would have application potentially to all of the things you’ve mentioned.
Adam Stirling [00:10:24] mhmm.
Michael T. Mulligan [00:10:24] The burning of churches, the statue and the totem pole fire, section 718.2 of the Criminal Code and in particular the section part of 718.2, which is a section dealing with things that are required to be considered by a judge when sentencing somebody. And that section sets out things which can increase or reduce the potentially appropriate sentence. And the first series of things listed there, several of them would be potentially applicable to all three of these things. And that includes this: if there’s evidence that an offence was motivated by bias, prejudice or hatred based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity or expression or any other similar factors. And so, if there was a conviction, for example, for burning down a church,.
Adam Stirling [00:11:34] hmm.
Michael T. Mulligan [00:11:34] There would be a compelling argument that that would be motivated by bias or hatred or prejudice with respect to religion. Right.
Adam Stirling [00:11:44] hmm.
Michael T. Mulligan [00:11:44] Or similarly with respect to race.
Adam Stirling [00:11:47] yes.
Michael T. Mulligan [00:11:47] And somebody said, look, I’m going to target totem poles and burn them down. There may well be some evidence that that activity was motivated based on racial prejudice. The Captain Cook statue would be an interesting one as well on analyzing that section.
Adam Stirling [00:12:08] Yes.
Michael T. Mulligan [00:12:08] Because, of course, he died some 88 years before Confederation occurred.
Adam Stirling [00:12:13] Yeah.
Michael T. Mulligan [00:12:14] And so the sort of common denominator there, I suppose, would be his national origin or any other European, I suppose. And so, it would be it’ll be interesting to see if there are convictions for any of those things, the church, totem pole or statue, how a court would apply those particular provisions of 718.2 In determining whether there was evidence that any of those things were motivated by any of the listed or similar factors. And if so, the Criminal Code requires that a judge treat those as aggravating factors when determining what the appropriate sentence would be.
Adam Stirling [00:12:58] How common do we see prosecutions of this nature?
Michael T. Mulligan [00:13:02] Well, the interesting thing about that particular part of 718.2 Is that it wouldn’t even necessarily be a specific prosecution under that section.
Adam Stirling [00:13:12] hmm.
Michael T. Mulligan [00:13:12] It could be any offence in the Criminal Code. Let’s say, for example, an assault. Right. If you had somebody convicted of an assault, you wouldn’t necessarily specify that it was an assault contrary to 718.2. But if you had a conviction for an assault and then the if the Crown was able to make a submission to the judge that there was evidence that the motivation for whatever the offence might be, the assault, the mischief, the arson, whatever it was, was motivated by any by bias, prejudice or hate, based on any of those listed things or other similar factors. Right. If you had an assault which was motivated by racial hatred, that is an enumerated aggravating factor on sentencing. And so, if there was evidence that that’s why somebody committed an assault, you would expect that the sentence for the same assault for the same offender. Right.
Adam Stirling [00:14:11] yes.
Michael T. Mulligan [00:14:12] Would be greater if there was evidence that it was motivated by prejudice or hatred based on any of those things, national ethnic origin, religion, sex, etc, etc..
Adam Stirling [00:14:24] i see.
Michael T. Mulligan [00:14:24] And so that could be potentially applicable to mischiefs, assault, arson, or any offence under the Criminal Code. And so, it’ll be very interesting to see how that plays out. If there is a conviction, whether the Crown relies upon that and how that eventually winds up being treated because it is an enumerated series of things that a judge must take into consideration.
Adam Stirling [00:14:48] Thank you very much for this detailed analysis, Michael. It’s very much appreciated. I’m sure I can speak for myself as well as, I suspect many in our audience, to better understand these issues because they’re very complicated, politically, and emotionally charged issues, but courts must, of course, analyze and treat each matter on a dispassionate basis. The law is the law, regardless of what public opinion at any given time might be. So, it’s important that we all understand it.
Michael T. Mulligan [00:15:13] Yeah, and I should say there is still a wide range of discretion, as there should be for a judge, in determining what an appropriate sentence would be.
Adam Stirling [00:15:21] Yes.
Michael T. Mulligan [00:15:22] But the various things listed in that provision of the Criminal Code on sentencing set out things which judges are directed to turn their mind to and to consider when determining what an appropriate sentence would be. And it’s, I think, a good thing that those things are drawn to the judge’s attention to determine, you know, what should be done with it, because for the same activity, it is not unreasonable to conclude that it is indeed aggravating if even the same assault or mischief or whatever it might be, was motivated by, for example, racial hatred or something.
Adam Stirling [00:16:00] yeah.
Michael T. Mulligan [00:16:00] That is just more serious than if somebody had engaged in perhaps the same activity motivated by nothing. Right. You know, if you had with respect to the totem pole being burned, you would, I think, treat more seriously if you could prove that the person had burned the totem pole because of racial hatred as opposed to, I don’t know, teenagers who were, you know, just engaged in random chaos or something. Right.
Adam Stirling [00:16:32] Yes, yes.
Michael T. Mulligan [00:16:32] the I think the first scenario I think most people would agree is indeed a more serious one and deserving of a different response
Adam Stirling [00:16:40] when we talk about the independence of the judiciary being key to, among other things, maintaining public confidence in our courts, the question of what sort of influence governments should have over, say, altering the jurisdiction of a court can arise. Interesting topic on the docket here with respect to the government of Quebec, unless I’m mistaken.
Michael T. Mulligan [00:17:00] Yes, indeed. And the what the fact pattern that the Supreme Court of Canada was weighing in on was the Quebec, The Government of Quebec was trying to increase the monetary jurisdiction of the what amounts to the Quebec small claims court. Right. The Court of Quebec and the Court of Quebec would be a court created by the Province of Quebec. It would be the equivalent of the Provincial Court of British Columbia. So, something created by the province and the judges of that court would be appointed by the province, just like the judges of the British Columbia Provincial Court would be appointed by the province.
Adam Stirling [00:17:43] mhmm.
Michael T. Mulligan [00:17:43] And what the Government of Quebec was trying to do was to increase the jurisdiction of the court to deal with claims of up to $85,000. And the reason that was controversial is that there is another category of judges we have in Canada, which are Superior Court Judges, and those judges are sometimes referred to as Section 96 court judges because of the section of the Constitution Act 1867 that provides for them and judges of that kind; those are the kinds of judges that would be in the B.C. Supreme Court or the Superior Court of all of the provinces, are appointed by the federal government rather than the various provincial governments.
Adam Stirling [00:18:29] Yes.
Michael T. Mulligan [00:18:30] And judges of that time, Superior Court Judges have some special protection, constitutional protection. They, they cannot be removed from office on good behaviour other than by resolution of the by the Governor General and an address of the Senate and House of Commons. So, they’re hard to remove. And moreover, judges of that kind have what would be referred to as inherent jurisdiction to sort of deal with matters, even absent a specific statutory authority to do so.
Adam Stirling [00:19:07] hmm.
Michael T. Mulligan [00:19:07] And the reason that those sections are important and how it came into play with Quebec’s effort to raise how much money the Quebec, Court of Quebec could deal with, claims of larger kind. Is that if provincial governments could simply create some other kind of judge and give them all of the authority that a superior court judge would have, the superior court would be meaningless.
Adam Stirling [00:19:35] Of course, yes.
Michael T. Mulligan [00:19:35] If you if you said all claims must be heard before a Court of Quebec judge and we’re going to appoint a whole bunch of them.
Adam Stirling [00:19:42] Yes.
Michael T. Mulligan [00:19:43] Section 96 would become meaningless or virtually meaningless. And that’s not permitted. The, we’ve over many years sort of read into this requirement of Section 96 court judges the idea that you can’t just transfer all of their powers to other, other judges, therefore making them have nothing to do.
Adam Stirling [00:20:03] Yeah.
Michael T. Mulligan [00:20:04] And so the Supreme Court of Canada recently came to the conclusion that the Province of Quebec was not permitted to increase the jurisdiction of the court of Quebec to that extent. But in so doing, the analysis that the Supreme Court of Canada did was a really interesting one. It dealt not only with the historical analysis of what were the powers of these superior courts at the time of Confederation, which is the start of the analysis. You would look at, you know, what kind of claims did they deal with then?
Adam Stirling [00:20:37] yes.
Michael T. Mulligan [00:20:37] We can’t take that all away. But the Supreme Court of Canada also engaged in an analysis of the constitutional history and compromises that produced the Confederation in Canada and looked at things like, for example, we have provinces responsible for the administration of justice in the province. But the Constitution provides that judges of this kind are to be appointed federally.
Adam Stirling [00:21:08] hmm.
Michael T. Mulligan [00:21:08] And so the Supreme Court of Canada talked about the history of that and the fact that it produces a state of affairs where you’ve got sort of a unified court of judges of a similar kind all across the country, who have a core responsibility to do things like ensure the rule of law. And when they are doing so, they enjoy a degree of protection that is absent from judges of other kinds.
Adam Stirling [00:21:35] Yes.
Michael T. Mulligan [00:21:36] Because next week the Quebec government could choose to do away with the, you know, Court of Quebec, for example, or modify what it’s allowed to do, in a way that would not be permitted for superior court judges. And so, it’s a really interesting analysis of all of that background. And it has application, immediate application in British Columbia to do with ICBC and the provinces efforts here to create the no fault system and to allow people only to have, if they have a dispute with ICBC. The province has tried to force people to go to this thing called the Civil Resolution Tribunal.
Adam Stirling [00:22:16] Yes.
Michael T. Mulligan [00:22:16] Where all of the people making decisions are on short term government contracts, the opposite of a Section 96 Court Judge.
Adam Stirling [00:22:23] Yes.
Michael T. Mulligan [00:22:24] And that was found to be contrary to Section 96 at trial. And that’s now being appealed to the Court of Appeal. And so, this decision from the Supreme Court of Canada, looking at all that history and finding that Quebec was out of bounds, will likely have implications in British Columbia for whether the British Columbia government is allowed to do what they’re trying to do and whether that takes away the core jurisdiction of the BC Supreme Court. So, it’ll be one to watch and it’ll have real application here.
Michael T. Mulligan [00:22:54] Michael Mulligan, appreciate your time. And the benefit of your knowledge and insight is always, Legally Speaking, on CFAX1070 during the second half of our second hour, every Thursday until next week.
Michael T. Mulligan [00:23:04] Always a pleasure to talk to you then.
Adam Stirling [00:23:05] Talk to you then.
Automatically Transcribed on July 9, 2021 – MULLIGAN DEFENCE LAWYERS