“Lying-in expenses”

While a white-hot debate over abortion engulfs the United States and threatens to spill over into Canada, this Washington Post column by law professor Carliss Chatman purports to take the anti-abortion position to its logical conclusion:

…When a state grants full personhood to a fetus, should they not apply equally?

For example, should child support start at conception? Every state permits the custodial parent — who has primary physical custody of the child and is primarily responsible for his or her day-to-day care — to receive child support from the noncustodial parent. Since a fetus resides in its mother, and receives all nutrition and care from its mother’s body, the mother should be eligible for child support as soon as the fetus is declared a person — at conception in Alabama, at six weeks in states that declare personhood at a fetal heartbeat, at eight weeks in Missouri, which was on the way to passing its law on Friday, but at birth in states that have not banned abortion.

Interestingly, the Parenting and Support Act in Nova Scotia does allow for child support once a child has been conceived – sort of.

Section 11(1)(a) allows an expectant mother to apply for a contribution toward “lying-in expenses” even before the child is born. The Legal Information Society of Nova Scotia defines such expenses as follows:

…These expenses are meant to contribute to the reasonable costs that a woman has while pregnant to carry the baby and prepare for the birth of the baby. These costs usually include things like maternity vitamins, maternity clothes and baby-related items, like a crib, stroller, or car seat. They can also include maintenance of the mother during the pregnancy and expenses related to the birth of the child.

An unmarried woman may ask to have lying-in expenses paid as part of a child support application to the court. A judge can order the mother or the possible father, or both of them, to pay certain amounts toward these expenses. The costs have to be proven (for example, by giving receipts or confirmation of costs) and they have to be reasonable and necessary.

Applications for lying-in expenses can be made during the pregnancy, or after the birth of the child. Often, the application is made after the child is born, and combined with the application for child support , to make things easier (making one application instead of two).

If the application is made before the child is born, the applicant mother must provide confirmation that she is in fact pregnant:

In practice, lying-in expenses are rarely sought. The most recent Nova Scotia decision on the CanLII case-law database in which they were awarded is from 2010. The issue came up in a 2017 case, but they weren’t ordered, at least in part because of the applicant’s tardiness in raising the issue.

In twenty years of practicing family law, I’ve only worked on a handful of cases where lying-in expenses are an issue, and never one where the application was commenced before the birth of the child. But the option is there.

Unsolved Nova Scotia: Kevin Martin

Forever young.

Imagine losing your young son in a devastating fire. And then your other son disappearing, seemingly without a trace, until his body is found in a shallow grave.

And you think you know who took the life of your little boy, but no one has ever been brought to justice.

That’s the unspeakable horror that befell Bonnie Thomas, now a resident of Prince Edward Island, when she lived in Pictou County. This is one of the most heartbreaking mysteries I’ve ever heard about:

Kevin was 13 the day in May he had run away from his house on MacKay Street in Stellarton. It wasn’t the first time he had left home without permission and his family had no reason to believe it would be his last. According to retired Stellarton police officer Hugh Muir, who became involved in the case early, Martin had fallen in with a bad crowd about six months to a year before this day. Muir was familiar with Kevin because he had gone to school with Muir’s older boys, and remembers him as a nice, polite kid.

Thomas recalls how Kevin had been bullied at school and craved acceptance. He wanted to be part of the cool kids and so when they skipped school, he did too.

“He was a great kid. He just got in with the wrong group of kids,” Thomas said. “He was a follower.”

A few years earlier Kevin had also lost his older brother Olin in a house fire. They had only been 10-months apart in age and shared a room. The fire was determined to be have been caused accidentally, but had a lasting effect on Kevin.

“I don’t think Kevin ever got over losing Olin,” says their mother.

[…]

Then came a degree of closure they had hoped not to find. Commercial loggers working in the Burnside area of Colchester County – near Upper Stewiacke – discovered Kevin’s remains buried in a shallow grave. While police have never released how they believe the teen died, physical evidence found at the scene was enough to determine his death was a homicide. They believe he was killed shortly after he disappeared in 1994.

While he’s no longer involved in the investigation, Muir personally thinks there had to be more than one person involved, particularly to dispose of the body. He believes the people responsible also likely had a familiarity with the area where Kevin’s body was found. He is sure there are people still alive with information that could solve the case and prays they think of a 13-year-old being brutally murdered and of a family still suffering without answers.

“He would have been possibly married and a father of his own now,” Muir said.

Thomas is confident she knows who the guilty people are. Based on information she said someone gave her and that was passed on to police, she believes there were three people directly involved. 

The News spoke with that person who gave Thomas and police the tip. Her first name is Debbie, but she requested her last name not be used. Debbie says her information came from a relative who says she knows the people responsible, where it happened and how. Debbie said she’s shared what she knows with police, but to date no arrests have been made.

Nova Scotia Crime Stoppers has posted a reward of up to $150,000.00 for information that leads to the killer’s arrest and conviction. In an era where many long-dormant cold cases are finally being solved, thanks to technological advances and determined investigators, hopefully justice for Kevin will be done.

A Chase the Ace disgrace

Lotteries always bring out the best in people, don’t they?

A photo-op to celebrate a $1.2-million lottery win in Nova Scotia turned sour Thursday when two family members feuded over the win.

Barbara Reddick of Guysborough, N.S., and her nephew, Tyrone MacInnis, posed for the cameras with a giant cheque in Margaree Forks, N.S., after winning the Chase the Ace fundraiser benefitting two local fire departments.

Reddick then pointed at MacInnis and said: “See you in court.”

“It was my ticket,” she told a group of people gathered for the ceremony. “I bought the ticket and now he’s trying to lie and say I said split. I said split with the 50/50, not with no Chase the Ace.”

“I’m taking him to court. I’m getting a lawyer tomorrow. Now you can print that.”

[…]

“I put his name on the ticket for good luck because he’s like a son to me — he was,” she said. “He was lucky, but not for half a million dollars.”

The contact number on the ticket was for MacInnis, who lives in Glace Bay, N.S.

I’ve come across many cases where someone whose name wasn’t on a lottery ticket sued the winner for a share of the money, but never a situation where the plaintiff tried to argue that the other named person isn’t entitled to anything.

The fact that she listed his phone number on the ticket will likely be relevant to this case.  But if she wants to retain my services to take her nephew to court to get all of the winnings for herself, she can give me a call.  I’ll need a $600,000.00 retainer.

Speaking of Chase the Ace, here’s my kid brother:

https://open.spotify.com/embed/track/2wVH8PSy5k3mybj1L9Ca6D

 

Lenehan cleared

This was a) inevitable; b) legally correct; and, c) will not satisfy the mob.

The Nova Scotia provincial court judge at the centre of the controversial sexual-assault trial involving taxi driver Bassam Al-Rawi has been vindicated.

Judge Gregory Lenehan acquitted Al-Rawi of sexually assaulting an intoxicated female passenger in Halifax.

[…]

In his March 2017 decision Lenehan said the Crown provided “absolutely no evidence on the issue of lack of consent.” The judge went on to add, “clearly, a drunk can consent.” That phrase set off protests and led to 121 complaints about his conduct.

A decision released today by the Executive Office of the Nova Scotia Judiciary states, “The uses of ill-considered words by a judge in a decision can undermine the public’s confidence in the judiciary.” But “the test for judicial misconduct has not been met.”

In its decision, the three-member review committee cited Lenehan’s statement that he was trying to use direct language that Al-Rawi could understand. Al-Rawi relied on an Arabic-to-English translator for his trial.

The committee noted that the expression “clearly, a drunk can consent” is “not an incorrect statement of the law.” Lenehan told the committee he used the phrase when referring to any person in a state of drunkenness, not the complainant specifically.

“[Lenehan] was focused on the presumption of innocence and the requisite standard of proof. While he committed errors of law as found by the Court of Appeal, and could have more carefully reflected his reasons, the committee could not find evidence to attribute the judge’s approach to bias,” the ruling states.

“This committee closely examined the allegations of gender bias or influence arising from attitudes based on stereotype, myth or prejudice that were raised by the complainants.”

The review committee noted that had Lenehan said “a drunken consent is a valid consent,” or “intoxicated person can nonetheless consent,” he would have made the same point without sounding personal or harsh.

There are certainly some cases where a judge’s behavior is so egregious that removal from the Bench is warranted.  (I’m looking at you, Robin Camp.)  But law professor Erwin Chemerinsky, commenting on an effort to recall a California judge who imposed a lenient sentence in a sexual assault case, warns against targeting judges who make unpopular decisions:

Judges should decide cases, including the difficult task of sentencing criminal defendants, according to their best view of the law and facts. This time the recall is for a judge who was too lenient in imposing a sentence, but next time it could be for a judge who excludes evidence in a high-profile case because the police violated the Fourth Amendment or for a judge who orders a school to be desegregated and upsets the voters.

Efforts to recall judges for light sentences encourage judges to impose maximum penalties out of fear that anything else could cost them their positions. After all, no one has begun a recall when a judge imposed an outrageously high punishment, such as in the first case I argued in the Supreme Court where my client received a sentence of 50 years to life under California’s “three strikes law” for stealing $153 worth of videotapes.

Judicial independence is crucial to upholding the rule of law, and history shows that it is lost when judges fear removal for their unpopular decisions.  This is not a new realization. One of the grievances enumerated in the Declaration of Independence was how the King of England effectively controlled the judiciary by removing judges. Several years ago, when I spoke in Russia, judges there told me how they would be removed if they did not rule as the prosecutor and the government wanted.

[…]

A California Court of Appeal can overturn a sentence if it finds that it was an “abuse of discretion.” If the prosecutor believes a sentence is too lenient, the remedy is to appeal.

But the answer is not to remove a judge from the bench because we dislike the sentence. We all need judges to decide cases, including sentencing defendants, without fear that an unpopular decision will cost them their jobs.

There’s no justice like mob justice

Reading the front-page story in today’s Metro, about 13 Dalhousie dental students being suspended from clinical activities for their appallingly sexist Facebook comments, I was struck by this passage near the end:

Florizone said he’s not ruling out the possibility of expulsion, but emphasized university administration must follow a fair and just process to determine the proper course of action.

However, Jennifer Nowoselski, vice president internal of Dalhousie Student Union, believes those policies are outdated, saying it doesn’t protect students from sexual discrimination.

“It’s the base minimum of what the university could do in this situation,” she said.

Yeah, who needs due process, anyway?  It’s not like sexually charged allegations at a university ever turn out to be incorrect, right?

These Facebook comments (some of which “joked” about using chloroform to sexually violate women) were disgusting and grossly inappropriate, and the fact that these idiots would post them online, apparently under their own names, calls into question whether they’re smart enough to perform dentistry in the first place.

Is the university, whose reputation has been seriously damaged, right to investigate this?  Sure.  But the key word is “investigate,” before we destroy people’s lives and careers.

Someday, it could be one of the people demanding immediate expulsion who finds herself in trouble for something she wrote online.  And when that happens, I suspect she’ll be grateful for “a fair and just process to determine the proper course of action.”

Our Zimmerman case

Over two years after she was allegedly raped, and four months after she took her own life, two of Rehtaeh Parsons’s alleged tormentors will appear in court today:

Two young men face child pornography charges today in a high-profile court case connected to Rehtaeh Parsons, the Nova Scotia teen who was bullied online and then took her own life.

The 17-year-old died in April. She was taken off of life support a few days after a suicide attempt.

According to Rehtaeh’s parents, four boys sexually assaulted their daughter at a house party when she was 15. The Cole Harbour, N.S., teen was then said to have been mocked by classmates, enduring relentless harassment and humiliation after a digital photo of the attack was circulated at school and on social media.

The boys charged in the case are both 18, but they can’t be named because they were youths at the time of the alleged offences.

One is charged with creating and distributing child pornography. The other faces two distribution charges.

It’s not clear whether the accused will appear in person or if defence lawyers will appear on their behalf.

This CBC report quotes Dalhousie law professor Wayne McKay, and criminal defence lawyer Elizabeth Buckle, who note some of the unusual aspects of this case:

Wayne MacKay, a law professor at Dalhousie University in Halifax and the chair of the province’s task force on cyberbullying, said the case is a legal anomaly.

“It’s relatively unusual to have young people charged with child pornography, though there are a few other precedents for that,” he said. “So there are so many new elements that have come out of the Rehtaeh Parsons situation that it seems to be a never-ending process.”

[…]

Elizabeth Buckle, president of the Nova Scotia Criminal Lawyers’ Association, said the widespread speculation blanketing the case is troublesome.

“One of the things that shocks me is how little we’re hearing about the presumption of innocence and how many people are giving comment about the facts without knowing all the facts,” she said.

Buckle said it was unusual to hear Prime Minister Stephen Harper comment on the progress being made in the case as it moves before the courts.

“I think it ignores the presumption of innocence, and it ignores that maybe no criminal offence took place here,” she said.

Halifax police and RCMP decided to reopen the case in mid-April after her death, saying that new and credible information had been brought forward.

If the police really found new evidence that makes a conviction more likely, so be it.  But the similarities between this case and the George Zimmerman trial are disturbing.

In both cases, we have incidents that led to the tragic deaths of promising young people; decisions by the police and/or prosecutors not to law criminal charges; widespread outrage on the internet; blatant interference and pandering by elected politicians; the reopening of investigations by the police; and heavily publicized trials.

Zimmerman, of course, was found not guilty.  Considering the high burden of proof that must be met by the Crown, I will not be at all surprised if both accused in the Parsons case are acquitted as well.

The question is, will the people who wanted criminal charges laid accept such a verdict?

“Cyber Safety” in Nova Scotia

This province’s new Cyber Safety Act, drafted after the horrible Rehteah Parsons case came to light, officially took effect yesterday.

The law firm of Stewart McKelvey published this brief summary of the new law:

Cyberbullying is defined in the Act as:

any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way.

A person who subjects another person to cyberbullying commits the tort and can be liable for general, special, aggravated and punitive damages and be subject to an injunction.

[…]

If the person committing the tort of cyberbullying is under the age of 19, his or her parent(s) or guardian(s) will be jointly and severally liable, unless they can convince the court that they:

a.) Were exercising reasonable supervision over the child at the time the child engaged in the activity that caused the loss or damage; and

b.) Made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage.

Factors the court will consider in making this assessment include:

– The age of the child;

– The prior conduct of the child;

– The physical and mental capacity of the child, including any psychological or other medical disorders of the child;

– Whether the child used an electronic device supplied by the parent, for the activity;

– Any conditions imposed by the parent on the use by the child of an electronic device;

– Whether the child was under the direct supervision of the parent at the time when he or she engaged in the activity; and

– Whether the parent acted unreasonably in failing to make reasonable arrangements for the supervision of the defendant.

My time in Junior High was hellish enough without the internet and camera phones, so I shudder to think what it must be like today for those who don’t fit in.

But I also have little faith in the government’s ability to fundamentally understand, much less police, what happens online.  And legislation hastily drafted in response to a moral outrage inevitably has serious problems.

Freedom of expression is not absolute.  That’s why we have the tort of defamation, and laws against criminal harassment and “hate speech.”  But not everything that might disturb you, or hurt your self-esteem, should be considered “bullying.”  (I’m often accused of taking my political views way too seriously, and there’s no shortage of commentators who can get my back up almost every day.  But does that harm my “emotional well-being,” or do I just need to lighten up?)

And in an age where, in most households, both parents are working, there is only so far a parent can go in supervising their children’s internet usage.  It’s easy to delete your browser history (or turn on “private browsing”), so even the most diligent parent will not know everything that their son or daughter is posting.  And even if they don’t have home internet access at all, the youngster can just go to any public library.

I don’t want children being bullied online (or offline, for that matter), but there are other societal values – especially freedom of expression, and people not being held legally responsible for things they didn’t know about – which should be kept in mind. If the Cyber Safety Act survives Charter scrutiny at all, here’s hoping the courts keep these principles in mind.

Update: Jesse Brown, technology columnist for Maclean’s, savages the new legislation:

…Rape, assault, harassment: these are crimes with established parameters. All of them could also be called “bullying.” They could also be described as “mean,” and I suppose we could enact a law against being mean. But I’d rather have laws against specific crimes, rather than against vast swaths of vaguely defined human behaviour. Ultimately, bullying is in the eye of the bullied. For many, cyberbullying is equal to a negative thing said about them on the Internet. I’ve met restaurant owners who feel they’re being cyberbullied by Chowhound critics.

The problems with anti-cyberbullying laws don’t end there. Once a law establishes some flawed definition, it moves on to enforcement. Here’s how Nova Scotia’s new Cyber Safety Act, which went into effect yesterday, will go about stopping online abuse:

Someone feels that you’re cyberbullying them. They visit or phone the court and request a protection order against you (minors , or some reason, cannot do so, only adults). A judge decides if their claim meets the law’s definition. The definition of cyberbullying, in this particular bill, includes “any electronic communication” that ”ought reasonably be expected” to “humiliate” another person, or harm their “emotional well-being, self-esteem or reputation.”

If this is the standard, I don’t know a person who isn’t a cyberbully.