Three parents on birth registration, sentencing where facts are disputed, and a $600,000 judgement when house purchase not completed
What’s required for three people to be listed as parents on birth certificates, for children of a same-sex couple, who were conceived with sperm from a friend, who also wished to participate in raising the children?
The British Columbia Family Law Act attempts to contemplate a wide range of modern scenarios, involving surrogates and other assisted reproduction. Unfortunately, not every eventuality can be anticipated, as demonstrated by a recent court case.
Two women, in a long term committed relationship, with the assistance of sperm donated by a male friend, entered into a verbal agreement to conceive two children. Everyone involved agreed that all three people would cooperate in raising the children.
After one of the children was conceived, the trio reduced their agreement to writing.
Unfortunately, the Family Law Act specified that such an agreement needed to be in writing, prior to a child being conceived. As a result, the Registrar of Vital Statistics refused to register all three people as parents.
While the second child was conceived after the agreement was put in writing, another problem arose: the online form to register the birth of a child only has two spaces for parents’ names to be listed. The two mothers listed their names and the trio sent a letter, the same day, to the Registrar of Vital Statistics asking to have the father added to the registration. The Registrar refused to make the requested change.
While the judge who heard the case found that the Family Law Act attempted to deal with every possible circumstance, the language of the act permitted a judge to intervene where there was “any uncertainty” and this was sufficient to permit the wishes of all three parents to be accommodated such that they could all be listed on the birth certificate of the first child.
As for the online form, with only two spaces for parents to be listed, the judge utilized language that permitted the correction of a “technical error” so as to add the father to the birth registration. The online form has not been updated and parents in a similar circumstance should contact The Registrar of Vital Statistics directly, rather than filling out the form.
Also discussed is a Court of Appeal decision dealing with the impact on sentencing where someone pleads guilty but disagrees with aggravating facts being alleged by the Crown.
While a sentence would never be increased as a result of an accused person choosing to have a trial, there can be a reduction in sentence as a result of a guilty plea because it can demonstrate remorse, avoid a complaint from needing to testify, and save time. Where someone pleads guilty but denies aggravating factors alleged by the Crown, a hearing can still be required. How much, if at all, a sentence should be reduced in these circumstances can depend on whether the Crown is successful in proving the agitating circumstances alleged.
Finally, a case from Ontario is discussed. At the height of the housing boom in 2017, the defendant made an unconditional offer to purchase a home. The offer and an $80,000 deposit were accepted by the seller. Before the deal was set to complete the Ontario government introduced a 15% foreign buyers tax and the housing market fell by 20 – 30%.
The buyer did not complete the purchase and the sellers ended up selling the home for $600,000 less than the accepted, unconditional offer.
Often, in cases like this, a seller might decide to just keep the deposit but, in this case, the drop in value was much more than the amount of the deposit so they decided to sue.
While the prospective purchaser argued that the contract had been “frustrated” by the introduction of the foreign buyers tax, and resulting drop in the market, the Ontario Court of Appeal disagreed and ordered her to pay the $600,000 difference between the accepted offer and the eventual selling price, plus mortgage interest, and $15,000 in court costs.
Legally Speaking is live every Thursday at 10:30 on CFAX 1070.
Adam Sterling [00:00:00] It is time for legally speaking here on CFAX 1070, joined as always by Michael Mulligan from Mulligan Defence Lawyers. Michael. Good morning. How are you?
Michael T. Mulligan [00:00:07] I’m doing great. Good to be here.
Adam Sterling [00:00:09] Before we got into these stories of the week and some questions, of course, I’m not a lawyer; Earlier on, open lines about the incident, of which I’m sure you’re aware, both some notes that were left on vehicles in the Victoria area in Oak Bay particular talking about, yes, you are the problem talking about climate change and want not young man coming forward, admitting to engaging in that conduct. I had people asking me on our open lines, is this a crime? Is this trespassing? Should the police be called? You have any thoughts on that?
Michael T. Mulligan [00:00:35] Sure. I mean, there’s a section of the criminal code that might come to mind, but it would be, I think, a live issue as to whether it has application to this fact pattern. The section that comes to mind, a section 177 of the criminal code that says this, every person who without lawful excuse, Now that’s important, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction. So there’d be a few elements of that, first of all, there would be some issue about whether walking up somebody’s driveway to put a note on their car amounts to loitering or prowling. I think probably the loitering would denote some element of in a surreptitious way hanging around if you’ve come there and put the note and leave, I’m not sure that’s loitering.
Adam Sterling [00:01:31] Ok.
Michael T. Mulligan [00:01:31] Prowling, sort of denotes something sinister, more than I’ve come up here to deliver something, a note or message. And then the other element of that that would be a live issue would be the issue of without lawful excuse. And there’s another general legal principle that would have some application, and that’s the idea that there is implied consent for a person to come up your driveway and walk-in, for example, knock on your door or deliver flyers or mail. Those people aren’t committing some offence every time they show up to drop off the potentially irritating bundle of, you know, flyers on your door. You know, they’re not guilty of, you know, [00:02:10]loid [0.0s] prowling or trespassing or anything else because there is an implied invitation to do that so, I think would depend on what exactly is going on you can’t go and lurk around the edge of somebody’s home in the middle of the night, but on the other hand, if you are a walk-up somebody’s driveway, deliver a message, flyer, political message, a bundle of penny savers is whatever it is you might have to drop off. I don’t think the criminal law is going to get engaged there.
Adam Sterling [00:02:36] All right. Thank you for your thoughts on that, let’s dive right into our stories of the week, what is required when one is having a birth registration produced by the state by the appropriate authority, but one wishes to include more than two parents?
Michael T. Mulligan [00:02:51] Yeah, I thought this was a at the end of the day, a happy story of sort of the modern reality of parenting. And this is a decision that just came out from the B.C. Supreme Court this week. And it dealt with the issue of exactly that, what is required to have three people listed as the registered parents of a child. And the particular fact pattern was these three individuals, they were Mark, Echo and Nanna. So they referred to themselves in the decision, Echo in Nanna and Mark all live in Greater Vancouver. And Echo and Nana were in a same-sex relationship since 2010 and Mark was a close friend of Echo and Nana. Echo and Nana and Mark were all interested in having children, and so they entered into an agreement to do that. And Mark supplied semen for both Echo and Nana to become pregnant, to have two children. And before doing that, all three of them entered into a verbal agreement as to how that would work. And the agreement was they would all be parents who would all be registered, and they would all three of them participate in raising the children and so on they went and then a short time after that, in February, they entered into a written agreement specifying what they had verbally agreed to, their no disagreement as between the three of them, It was all well understood what they were going to be doing, but that became significant in this case the written agreement following the oral agreement. At one point in the case was that if you had some disagreement about who should be listed on registration for birth certificate, birth registration, you could go to the Supreme Court and they would sort of look at past cases and a judge would make some determination as to who should be listed. But we had a number we had a few years ago in British Columbia, an article, the Family Law Act, which was amended to try to contemplate some of these modern arrangements sort of like, you know, how, who is to be listed in the case of a surrogate parent? How is that to be dealt with? And is that person the parent? What about other people? Is that the person who was the biological parent who is there and in what circumstances? And that act tried to create a complete code as to how these things would be sorted out. I suppose to remove uncertainty and avoid people having to go to court in each case and make some argument about it.
Adam Sterling [00:05:28] Yes.
Michael T. Mulligan [00:05:29] And obviously, they tried very hard. You know, when you read the Family Law Act, they’re contemplating all sorts of sort of modern circumstances, you’re sort of, oh, my goodness, I never thought that might come into play. What happens when the intended parent dies prior to the birth of the child and there is a, you know, surrogacy agreement. You know what happens when a child is conceived with the, you know, sperm after the death of the person who is the provider or who is the parent? How is that to be dealt with? And it tries to contemplate all of these possible scenarios. Now, it actually tries to contemplate a circumstance sort of like the one that Mark and Echo and Nanna found themself in, were they all wish to become parents. And I should say, though, all of this was successful. There were, in fact, two children born as a result of these efforts, one from each of Echo and Nana were the birth mothers of each of those children, and then what happened is this, nice names too, Luka and Luna. The name of the two kids who were born now with poor Luka, here’s where the challenge arose. The three of them tried to register themselves as parents for Mark or, Mark, Nanna and Echo all tried to registry themselves as parents for Luka. Here’s the problem; That comprehensive code that we tried to develop in the Family Law Act, has a requirement that there be a written agreement made, and this is the language, before a child is conceived through assisted reproduction and then it lists various things that must be the case for that to govern the decision about who’s to be listed as parents.
Adam Sterling [00:07:14] Mhm
Michael T. Mulligan [00:07:15] The problem was, Luka was conceived prior to the written agreement, after the oral agreement, prior to the written agreement. So the registrar of these things says, no, sorry, we have a comprehensive code, even though all three of you are all in agreement all of you wish to be listed as a parent. The provincial registrar says I’m not registering you; you didn’t comply with Section 30 of the Family Law Act if you only had a verbal agreement until after the child was conceived, so I therefore refuse to register the child. With respect to Luna, that wasn’t a problem. Luna was conceived after the written agreement was entered into so, tick that box off. But if you can imagine this the process to register yourself as the parent of a child is an online process. I guess no surprise given this day and age, the online process, whoever has two spots, not three to fill in who the parents are, I guess ordinarily that would be satisfactory. And so Nana and Echo wrote their names in the spots and then they wrote Mark and in they, wrote a letter to the registrar saying, hey, here’s the agreement. I’m to be entered in there to please add me in. I’m number three. And to it’s the registry. I said, no, I’m sorry. You’ve already..
Adam Sterling [00:08:31] There are only two boxes there.
Michael T. Mulligan [00:08:32] Only two boxes. You should have done this first. We can’t correct that. There’s no changing it. Sorry, it’s final. And so that’s how it is that Mark had an echo all wound up in the B.C. Supreme Court, having an argument with the registrar of general and vital statistics to try to get themselves listed and the struggle the judge had as well. This looks like the legislature has created this complete code, contemplating every possible scenario that could occur, not having bearing in mind this scenario, which was everyone’s in agreement, but nobody wrote it down until after one of the child children was conceived. Now, happily and I think this is a happy ending story.
Adam Sterling [00:09:16] Yes.
Michael T. Mulligan [00:09:16] The judge was considering a section of the act that allows the court to resolve the languages. Any uncertainty and..
Adam Sterling [00:09:28] Any?
Michael T. Mulligan [00:09:29] Any uncertainty.
Adam Sterling [00:09:31] Isn’t there always some uncertainty, though?
Michael T. Mulligan [00:09:33] In fact, that was important because the judge pointed out that the phrase any uncertainty is broader than what the legislature could have used, which would have just been, quote, uncertainty. And even though there is this complete code, the judge concluded that any uncertainty was a broad enough language, that it permitted the judge still some authority to do what all of these people intended and to have all of them listed on the birth certificate registration for the child and so the judge so ordered but made clear that you know, people shouldn’t expect that remedy in every case and make sure you write these things down. Don’t just go to court after hoping it’ll be fixed. And then that left the problem of Luna and the two spots on the online forum. And again, the registrars say, I’m sorry, you’ve completed the online forum. I can’t fix this. It’s, that’s it. And there is apparently a tiny bit of wiggle room which permits the registrar to correct a, quote, technical error. And so, thankfully, the judge concluded that the absence of the third spot in the online form constituted a technical error and therefore directed the registrar to go back and add Mark in as everyone intended. And so this happy modern family of five can carry on with everyone listed on the birth certificate.
Adam Sterling [00:10:52] This is amazing how malleable the definitions of certain words can be when they need to be used.
Michael T. Mulligan [00:10:57] And I must say, thank goodness that so because no one wants to live in a world where I’m sorry you ticked the wrong box in your online forum. No one can fix it. That’s it for the child for the rest of their life. Sorry, Mark, you’ve been cut out. There are only two spots and no one really wants to live in a world where, despite our very best efforts to think of every possible combination, no one wants to live in a world where it’s; I’m sorry, You didn’t write that down in time. Therefore, for the rest of the child children’s lives. Mark isn’t listed on one of the birth certificates because of the time of conception. So thank goodness for a little bit of wiggle room in the language. And a reminder to all of us trying to come up with complete codes that contemplates everything, including people, dying and what about this and that in the interim, we’re just never going to quite get it right. So leaving a little bit of wiggle room, I think is good news for all.
Adam Sterling [00:11:51] Legally speaking continues in just a moment with Michael Mulligan from Mulligan Defence Lawyers, stay with us.
Adam Sterling [00:15:40] It’s Adam Sterling on CFAX 1070, Legally Speaking continues with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Our second story today how does pleading guilty impact a sentence that is handed down for an offence?
Michael T. Mulligan [00:15:55] Yeah, we got a little bit of a reminder and clarity from the Court of Appeal last Friday about that issue and I think it’s one worth talking about because I think there are some misconceptions and I think perhaps some differences between Canada and the U.S. and what you might see in the news reports from there. So in Canada, the important starting point is this there’s no penalty for somebody having a trial. If somebody pleads not guilty and has a trial, you’re never going to hear. Well, you had a trial. Therefore, you’re going off to the gulag for some extended period of time how dare you insist upon the crown proving the charge? We don’t have that. We do, however, have a concept that a guilty plea in some circumstances could reduce what would otherwise have been the appropriate sentence. So, for example, let’s say somebody was charged with robbing the bank. They pled guilty at some early opportunity. A judge might legitimately say, well, look, I was gonna give you five years for robbing the bank, but you’ve pled guilty at an early opportunity and that shows a number of things, including remorse, probably for robbing the bank, might show that you’ve taken some responsibility for what you’ve done and might be an indication that you’re on the road to rehabilitation, right, You said you did it. You’ve stepped up and acknowledged it. And a judge might legitimately say, well, look, the authorities say that the appropriate sentence here would be five years but given the early guilty plea, I’m going to reduce that to four years, thank you very much for coming out. It’s not as if there’s some penalty for having a trial, but there could be some reduction for the guilty pleas just a little bit different. But here is the sort of difficult case that the Court of Appeal was dealing with on a sentence appeal. If somebody you can have a circumstance where a person pleads guilty but doesn’t agree with the Crown’s what the call aggravating circumstances. So let’s say this. Let’s say a person was charged with robbing the bank and the crown was going to allege that, well when they robbed the bank, they had an automatic weapon, they shot the guard in the foot, they shot up the whole bank, they pistol-whipped the teller, took the money and took off. Right. And the person says, look, I agree that I robbed the bank. I’ll plead guilty to doing that. But my version of events is I went in there with a note and a squirt gun and said, deal, the note said, please give me my money, I’m desperate. They took the money and ran away doing nothing else. Now, both of those are robbing the bank. But as you might imagine, the shooting the guard in the foot and doing various other things would be very aggravating.
Adam Sterling [00:18:27] Yes.
Michael T. Mulligan [00:18:28] And might well cause the judge to say, well, look, you know, this isn’t a case where five years would be enough. This is to be ten years or whatever it might be. So how do you resolve that? And the way it’s resolved is if a person admits to the offence and pleads guilty, but denies some aggravating factor like shooting the guard in the foot, there can then be a hearing, an evidentiary hearing to determine on what basis is the judge supposed to sentence this person because it’s important, impossible task, If somebody says, I plead guilty, but I say I didn’t shoot anyone, I had a squirt gun and nobody got hurt. And the crown says, well, yes, he robbed the thing and then injured a bunch of bystanders. Different sentences. Yes. What is to be done with that mitigating circumstance of the guilty plea where a person denies a bunch of aggravating facts and then there’s a long hearing required to sort out whether those aggravating facts are true or not? Should that person still receive a discount in terms of what the sentence would be? On the theory that they are remorseful and have taken responsibility for what they’ve done and seethed court resources, those sorts of things.
Adam Sterling [00:19:33] But remorse relies on reconnaissance. Yes? So if there is no reconnaissance, there necessarily can be no remorse.
Michael T. Mulligan [00:19:39] Well, I mean, again, here are then here’s the other problem. And this is how the court sort of dealt with it. If you have a circumstance like in that theoretical bank robbery where the person says, I’ll agree that I robbed the bank and plead guilty, but I deny that I shot anyone and I see I had a squirt gun. Well, fine. There will then be a hearing is sometimes called a Gardiner hearing to determine, well, what is the fact pattern, what happened here? So the judge can sentence the person.
Adam Sterling [00:20:03] OK.
Michael T. Mulligan [00:20:04] If that kind of a hearing occurs, the crown then has to prove, just like at a trial, beyond all reasonable doubt, whatever aggravating fact they’re alleging.
Adam Sterling [00:20:12] OK.
Michael T. Mulligan [00:20:12] And so the idea would be if that kind of a hearing is required and the crown fails to prove whatever aggravating fact they were alleging like they claim that you shot the guard, you say, no, I had squirt and I didn’t do that. And the crown fails to prove it at the hearing, then the person should get the full credit for the guilty plea because they fessed up to what they actually did. But where the crown alleges something like you shot the guard, you deny it, and then the crown proves it. And you’ve now had a long hearing about that. A judge might legitimately say, I’m not giving you the credit for taking responsibility for this thing because you denied these sort of an important element of it. And then it was proven that you did it. So you saved no time, you saved no resources. And it doesn’t demonstrate your taking responsibility in any way whatsoever. You’re just, you know, caused a hearing of a different kind. And so that’s how the Court of Appeal left it in that case they say they can still be mitigating and reduce the sentence. But well, a judge has very broad discretion. They should take into account whether the crown was successful, improving those aggravating facts or not. And if they’re not, it would obviously be unfair to somebody who actually used a squirt gun to give them no credit for the guilty plea when the crown alleges some aggravating fact that they just didn’t prove right. So that’s how it is sort of a good reminder about how sentencing works, how a judge should take into account a guilty plea and what happens when there is still a disagreement about the underlying facts of the case.
Adam Sterling [00:21:45] Fascinating. What happens if a person does not complete on the purchase of a home? An award with many zeros on it currently in the news. I believe it was in Ontario.
Michael T. Mulligan [00:21:57] Yes. This is, I think, an important reminder to everyone as we should go about our business trying to buy homes. This case is from the Ontario Court of Appeal. And the circumstance was that back in the spring of 2017, when the real estate market in Toronto was red hot, they were routinely multiple offers coming in for houses. And a prospective purchaser of a reasonably expensive house made a an unconditional offer of one point eighty-seven one million dollars for this house. Now, there, that was not the highest offer. There were others, but this offer was an unconditional offer. And therefore, the seller accepted the offer. Along with an eighty thousand dollar deposit. Now, what happened? Well, Ontario has their own or introduced their own foreign buyers tax, 15 percent. And when they introduced it, not only would that increase the cost of purchasing a home, but it precipitated a major drop in housing prices. They dropped 20 to 30 percent. Significantly reducing the value of this house. And so the woman who had, quote, won the bidding war, making this unconditional offer on the home, decided she wasn’t going to complete on the deal. And in many cases, the seller would just say, well, fine, I’ll take in that case the eighty thousand dollar deposit, lick my wounds and move on. But the important warning for people is this. That’s not all you’re on the hook for. And in this case, what happened is the person selling the house tried again then to sell it. And because the market had just dropped as a result of the foreign buyers tax, they were only able to sell the house for one point two five one million dollars, a reduction of six hundred nineteen thousand one hundred and twelve dollars and so, the seller sued the prospective purchaser saying, I don’t just get your 80 thousand dollar deposit, I get the difference between what you agreed to pay one point eighty-seven and what I got one point two five one, pay up. And they succeeded and they succeeded last this week in the Court of Appeal. And so the person who had made the offer argued that, well, hold on, this was frustrated by the introduction of this tax. Yes. And then she tried arguing that, well, it was an implied term of the offer that she could only complete if she was able to sell her own home, to which the court had none of saying, well, you made an unconditional offer. It wasn’t subject to selling your own home. And in fact, you managed to get this, quote, deal for less than what other people were offering because you agreed to make the offer unconditionally.
Adam Sterling [00:24:36] Was the offer made with the assistance of a lawyer drafting the..
Michael T. Mulligan [00:24:39] It would’ve been a real estate agent. OK. Right. And that’s ordinarily how it would be.
Adam Sterling [00:24:42] Because I was thinking, can they sue the lawyer, real estate agent?
Michael T. Mulligan [00:24:45] No doubt that may be the next claim made, a real estate agent – You should have warned me.
Adam Sterling [00:24:49] Well, I just think..
Michael T. Mulligan [00:24:52] Yeah, but I mean, I must say this. You’ve made an unconditional offer to buy the thing. So and that, I don’t think it was uncommon when the real estate market is red hot because a person thinks, how else am I going to get it if it’s subject to inspection and selling my own house and whether my husband likes it. Nobody’s going to buy the thing. So there’s the cautionary tale. This person is on the hook for the one hundred six hundred nineteen thousand dollars difference plus forty-six hundred bucks in interest, which was what the additional mortgage interest paid and 15 thousand dollars in legal fees. So be very careful when you make that kind of an off that kind of offers. You are on the hook for potentially much more than the deposit you’re offering, even though in some cases a seller might just say, I don’t want to bother litigating it, I’ll just take the deposit and just sell the thing again. If you have the misfortune of the market dropping 20 or 30 percent, you’re on the hook.
Adam Sterling [00:25:44] There we go, legally speaking. Mike Mulligan, thank you so much, as always for your knowledge, your insight.
Michael T. Mulligan [00:25:48] Thank you.
Adam Sterling [00:25:49] Michael Mulligan again every week here at CFAX 1070 for Mulligan Defence Lawyers.