The child support clawback

In several Canadian provinces (including Nova Scotia) child support payments are deducted from social assistance.  A group of single mothers in British Columbia has launched a court challenge against this policy:

The case will argue that the deduction of child support payments from income and disability assistance violates single parent’s right to equality under the Canadian Charter of Rights an Freedoms.

Milne said the law is unconstitutional because it conflicts with the purposes of the child support system, denies the children of parents on income or disability assistance the right to benefit from their child support, and has a disproportionately negative impact on parents with disabilities and single mothers.

“Other kinds of families are better able to earn other kinds of income and they are allowed to keep some of it before it is deducted from their income or disability assistance,” said Viveca Ellis of the Single Mothers’ Alliance of B.C. “Meanwhile, these vulnerable children have an opportunity for better lives through their child support, but they are not allowed to benefit from it and their parents experience additional financial consequences.”

I’m not aware of any court rulings on this issue, so I’ll be keeping an eye on this one. (There is a PEI Human Rights Panel decision which found that the clawback was not discriminatory, but that wasn’t a Charter case.)

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Slow justice is no justice

A New Brunswick judge has been “mildly chastised” by the Canadian Judicial Council for taking so long to render her decisions:

Court of Queen’s Bench Justice Paulette Garnett was the subject of a complaint by an unknown person to the judicial council last spring, a year after CBC News reported on several of her overdue decisions.

But she will face no disciplinary action for bogging down the judicial system, according to a decision released on Tuesday.

“The judge had been very late in issuing reasons in a number of cases,” the council said in a press release.

“Undue delays in rendering decisions can lessen public confidence in our justice system. … The judge has acknowledged that she needs to do better in future, She is working to ensure that this situation does not happen again.”

Garnett was appointed in 1998 and almost immediately began violating judicial council guidelines, which call for delivering judgments within six months of the conclusion of a hearing.

One of her first cases, a claim for back rent at the Bathurst Supermall made in August of 1998 wasn’t decided on for nearly 13 months.

That became a familiar pattern to lawyers and parties in her courtroom for years to come.

In 2005, she presided over a one-day hearing between Fredericton’s old Elm City Chrysler dealership, its owners and their bank to resolve questionable transactions. She delivered a decision two years and two months later.

In 2012, she took so long to decide whether employees of Fredericton’s Jones Masonry had properly unionized, Gordon Petrie, the company’s lawyer, eventually died.

That’ll show her.

(via @BobTarantino)

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Hamas’ Jewish lawyer

There’s nothing wrong with defending unpopular people in court.  On the contrary, it’s downright admirable.  It’s what the criminal justice system is all about.

But this guy gives off a definite Doug Christie vibe. (Or he would, if Doug Christie stood up for people who’d have him killed because of his religion.)

A Hamas-defending, Israel-slamming Jew, Cohen simultaneously confounds and agitates. He’s known for f-bomb-laced rants against what he calls a “Zionist hijacking” of his religion. He demeans the tax charge to which he pleaded guilty [emphasis added] in April as a government attempt “to silence me.” And he doesn’t necessarily disagree with foes who label him “a traitor.”

“Am I someone who would intentionally, willfully sell government secrets or engage in activity with the intent to hurt America or American citizens? Absolutely not,” Cohen said in an interview with NBC News. “But I am someone who will, just willy-nilly, accept the party line whether it comes out of the White House, the Congress, or nice, safe majoritarian values? No. And if that makes me a traitor, then well f*** it, I’m a traitor.”

U.S. officials will, indeed, remove Cohen from his practice of defending some of those whom the feds deem enemies of the state. The tax case against him will likely cost him his law license.

According to federal prosecutors, Cohen failed to report more than $3 million in income.

[...]

“Hamas represents the kind of commitment and integrity that is so important to me — the leadership in particular, is comprised largely of physicians, engineers, academics, and political scientists,” Cohen said. “So they’re a people that not only do I share a common bond with in terms of their struggle, but they’re folks who I just love hanging out with.”

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“The Rise and Fall of Aereo”

Damon Root, in the latest issue of Reason, has an interesting piece explaining the U.S. Supreme Court battle between Aereo, makers of a tiny antenna which allowed subscribers to watch and record TV broadcasts on their mobile phones, and the major American TV networks. 

“Subscribers” might be the key word here. I get the impression that Aereo might have won its case had its device been more like an old-fashioned rabbit-ears antenna, which you paid for once, transmitted nothing and received television signals broadcast for free over the public airwaves.

The Aereo model was found to violate the 1976 Copyright Act, but even some justices who sided with the broadcasters asked pointed questions about how their (ultimately successful) argument could affect cloud computing services. There’s too much here to excerpt, so read the whole thing.

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His condition was updated to “alive”

1990: man mysteriously disappears without a trace.

2000: his grieving wife reluctantly has him declared legally dead, and begins collecting his pension.

2010: man reappears, claiming he had amnesia. Now he has commenced legal action to recover the pension:

…four years ago — 20 years after he disappeared — he came home. Bright said it wasn’t for a reunion.

“All he talked about was money,” she said.

Court documents show her husband filed a petition to prove he’s Winston Bright and to win back his pension, CBS 2’s Weijia Jiang reported.

He was not only alive but well, and teaching in San Diego with a new identity — “Kwame Seku.”

In his court filing, the “missing” man said, “I was never returned home but rather found myself in California with no recollection of how I got there or who I was.”

Seku said he suffered from amnesia, but his son A.J. said he isn’t buying it.

“You don’t just walk down the black and catch amnesia,” he said.

I’m not sure how this will play out, but by revealing he was alive all along, Mr. Bright/Seku has opened himself up to a potential claim for child support arrears:

Leslie said if Seku proves he is her husband, she’s taking him to divorce court. She said they’re still legally married and he owes her a lot — money to cover years of child support, for starters.

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The end of “custody” and “access”

A survey of Canadian family lawyers shows most opposed to a presumption that children should spend close to equal time with their divorced or separated parents, but overwhelming support for changing the outdated, confrontational terms currently used to describe the “winners” and “losers” in cases involving children:

Canadian family law lawyers and judges reported that an average of 46 per cent of their cases involve some form of equal parenting time (“joint physical custody,” “shared custody” or “shared residence”), in which the children spend at least 40 per cent of their time with each parent. Further, an average of 68 per cent of their cases involve some form of shared parenting (“joint legal custody” or “joint guardianship”). Thus, this survey suggests that roughly two thirds of cases involve some form of what may be broadly viewed as shared parenting.

The respondents also reported a substantial increase in the use of roughly equal parenting time over the past five years (31 per cent said that this had increased substantially, 51 per cent increased somewhat, 17 per cent said it stayed about the same and only one per cent report reported a decrease). Equal time cases, however, are still a minority of shared parenting cases. In only 13 per cent of their cases was there a provision for limited contact with one parent, and respondents report that there is no provision for contact with a parent in only three per cent of their cases.

A clear majority of the respondents (77 per cent) did not support the enactment of a presumption of equal parenting time, as proposed in Bill C-560. However, a substantial majority of the respondents (78 per cent) support the amendment of the Divorce Act to use language other than “custody” and “access,” such as through the of phraseology as “parental responsibility,” “parenting time” or other similar concepts. Of note, the majority of respondents (55 per cent) were from BC or Alberta, where the provincial legislation has already been reformed to include presumptions of mutual parental guardianship and to use the concepts of “parental responsibilities” and “parenting time” as the basis for making post-separation parenting arrangements.

Many of the respondents explained the need to change the language of “custody” and “access” because those terms are “adversarial” and “proprietary.” One respondent commented that “custody … implies that the custodial parent has possession, or control, or ownership rights to the children, while the access parent has something substantially less.” Another observed that they “are extremely dated terms and concepts.”

However, many respondents expressed concern that enacting legislation to a presumption of equal parenting time could cause harm to children. One wrote: “some children do not function well in this type of schedule, and it would lead to substantially more litigation, in my opinion, if we had to start with that presumption.” Another stated: “presumptions have no place in the formulation of the best interests of the child … this is fact-dependent and should be based on a holistic view and the unique factual circumstances implicit with the determination.”

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John Grisham is (partly) right

I still remember John Grisham’s hypocritical moral crusade against Oliver Stone’s last good movie, so I can’t deny feeling some shadenfreude watching him squirm over comments he made in an interview with The Telegraph:

“We have prisons now filled with guys my age. Sixty-year-old white men in prison who’ve never harmed anybody, would never touch a child,” he said in an exclusive interview to promote his latest novel Gray Mountain which is published next week.

“But they got online one night and started surfing around, probably had too much to drink or whatever, and pushed the wrong buttons, went too far and got into child porn.”

The author of legal thrillers such as The Firm and A Time to Kill who has sold more than 275m books during his 25-year career, cited the case of a “good buddy from law school” who was caught up in a Canadian child porn sting operation a decade ago as an example of excessive sentencing.

“His drinking was out of control, and he went to a website. It was labelled ‘sixteen year old wannabee hookers or something like that’. And it said ’16-year-old girls’. So he went there. Downloaded some stuff – it was 16 year old girls who looked 30.

“He shouldn’t ’a done it. It was stupid, but it wasn’t 10-year-old boys. He didn’t touch anything. And God, a week later there was a knock on the door: ‘FBI!’ and it was sting set up by the Royal Canadian Mounted Police to catch people – sex offenders – and he went to prison for three years.”

“There’s so many of them now. There’s so many ‘sex offenders’ – that’s what they’re called – that they put them in the same prison. Like they’re a bunch of perverts, or something; thousands of ’em. We’ve gone nuts with this incarceration,” he added in his loft-office in Charlottesville, Virginia.

Asked about the argument that viewing child pornography fuelled the industry of abuse needed to create the pictures, Mr Grisham said that current sentencing policies failed to draw a distinction between real-world abusers and those who downloaded content, accidentally or otherwise.

The thing is, Grisham has a point.  Not so much about child pornography (I don’t care how drunk you are or how much your life is falling apart, you there is no excuse for looking at this stuff) but about America’s addiction to incarceration.

The United States has by far the highest incarceration rate on earth, a phenomenon that really began in the 1980s.  And many of the people in American jails are not violent offenders – or, at least, they weren’t before they were locked up.

Grisham makes a fair point, that people who access child pornography are in many cases being punished more severely than people who actually abuse children. But by and large, the incarceration explosion is because of the unworkable, destructive “War on Drugs”:

The prison population across the U.S. starts off relatively low in the late 1970s, with most states having about 130 to 260 prisoners per 100,000 people.

By the late 1990s, incarceration rates have risen to more than 600 prisoners per 100,000 people in some states, including Texas, Louisiana, and Oklahoma. By the 2000s, every state in America had seen its imprisonment rate rise significantly.

The prisoners included in the statistics are under state or federal jurisdiction and have a sentence of more than one year.

The War on Drugs, which led to long prison sentences for drug offenders, is largely considered a massive failure that led to prison overcrowding without significantly changing U.S. drug abuse rates.

Fareed Zakaria writes for TIME:

“Drug convictions went from 15 inmates per 100,000 adults in 1980 to 148 in 1996, an almost tenfold increase. More than half of America’s federal inmates today are in prison on drug convictions. In 2009 alone, 1.66 million Americans were arrested on drug charges, more than were arrested on assault or larceny charges. And 4 of 5 of those arrests were simply for possession.”

That’s what Grisham really should have focused on. When the full interview is published on Saturday, we’ll see if he did.

Update: much more from the great Radley Balko, including an acknowledgement of Grisham’s laudable work for criminal justice reform, and a response to his “progressive” critics.

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