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The taxman and legal fees for family matters

6/22/2012

Canada Revenue Agency will let you deduct legal fees from your income in filing your return if
- it is to pay fees for an adoption
- it is to pay fees to get child support
- to enforce an order or an agreement for support
- to defend an action to reduce support
BUT you cannot deduct legal fees if
- you are being sued for spousal or child support (or being sued for an increase, or enforcement of, a child support order)
- you are making a claim for spousal support

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Huge changes to BC family law to come into force next spring

6/20/2012

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The law governing rights and responsibilities of BC couples will be changed dramatically. Shirley Bond announced today that the Family Law Act, which has been passed by the Legislature but had not been 'proclaimed' (come into force) will be effective March 2013.

Would you share your property 50/50 if you broke up?
The Family Law Act will transform the law applying to couples and families in BC. One of the biggest changes is that common law couples (those who have lived together for more than two years, but are not married) will now have the same property rights that married people have. If they separate, each person will be entitled to 50% of the family property - something that till now has not been the case. In addition, each person will be responsible for 50% of the family debt - even credit card debts in the name of only one of them!

The only way for queer couples NOT to be liable to divide their family property if they break up will be to have a cohabitation, or marriage agreement. This is the opt-out choice if you don't like the property regime under the Family Law Act. I have always recommended cohabitation agreements: it is the way for partners to decide what is right for them, rather than relying on the default provisions of the law. While many people find it 'unromantic' to talk about such things at the beginning of a relationship, it is guaranteed to be much harder to do if the relationship ends! (There is an Out/Law guide for people thinking about a cohabitation agreement: "Living Together - Some Questions to Consider")

Good news for same sex parents who conceive with known donors
A positive development for same sex parents is that sperm or egg donors will have no legal rights or responsibilities with respect to the child. This is hugely important for children conceived with assisted reproduction, and their parents. It removes any possibility that a sperm donor might change his mind and sue for custody or access.

It will continue to be necessary for the non-biological parent to adopt the child her or his partner is biologically related to. Though both same sex parents can be named on a child's birth certificate, that is only 'evidence' but not 'proof' of a child's parentage.

In a separation, the only consideration in deciding about the future ofa child will be the best interests of the child. It remains to be seen how that will be interpreted. And there are new mechanisms to enforce agreements or orders about when each parent spends time with a child.

Other changes
The Family Law Act has a new emphasis on ways to resolve family issues without going to court, including mediation, parenting coordination, or arbitration. This is a welcome development since court always increases bitterness between the parties, which is especially harmful if there are children.

There are also new provisions to address violence in the home.

What about you?
Changes in the law WILL apply to relationships already begun. So, if you are in a relationship of more than two years, the law that applies if you break up will be different than it was when you entered the relationship. Be proactive: make your own decisions about what you want the financial aspects of your relationship to be, both while you are together, and if you separate. Otherwise you will find yourself in a situation you didn't plan for and don't want, with a judge making decisions instead of you.

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If coworkers are homophobic, employer is responsible

6/20/2012

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In a BC Human Rights Tribunal case, Guiget v NRI [2012] B.C.H.R.T.D. No. 191, the employer requested that the tribunal dismiss the case because it could not succeed.The complainant, Ms Guiget, said that her coworkers called her "fucking dyke", and though she complained to her supervisor several times, nothing was done.
The tribunal refused to dismiss the complaint, which will now go to a hearing.
Employers ARE responsible for the conduct of their staff, and have a positive duty to maintain a harassment free environment. If you are being harassed at work, do the following
- keep a daily log of everything that happens, and your response. Be detailed; you may need this years later
- tell your supervisor or HR
- send your supervisor or HR an email "confirming the conversation" - this is so they cannot later deny that you told them about the problem. In the email, include what you said and what they said.

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Study misrepresents queer parenting abilities

6/14/2012

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A recently-published study in the U.S. purports to demonstrate that the children of lesbian mothers are more likely to be on public assistance, more likely to be unemployed, less likely to be employed full-time, more likely to be cohabiting, less likely to be married, more likely to have had an affair, more likely to have had an STI, more likely to have been in therapy recently, more likely to have recently thought about suicide, more likely to have been raped, and more likely to have been molested by an adult.
The only problem? There is no data to support the conclusions of the study, which was done by a right-wing sociologist who, among other things, defined a queer parent as anyone who had a same sex relationship (of any duration) while a child was growing up.
Fortunately the problems with the study are being widely identified. See for example this Huffington Post article: http://www.huffingtonpost.com/zinnia-jones/regnerus-same-sex-parents-study_b_1595213.html
Other, credible research finds that the children of a two parent lesbian household are as well-adjusted on all indicators of psychological health; and actually are more open-minded and tolerant that children raised in two parent heterosexual household.

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Alberta reinstates sex reassignment surgery

6/11/2012

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Thanks, probably, to the work of Alison Redford, new premier of Alberta and formerly a human rights lawyer, sex reassignment surgery has been restored to Alberta's list of procedures covered by the provincial medical plan.

SRS used to be available in Alberta, but was removed three years ago.

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Good news for HIV+ immigrants with a plan to pay for meds

6/6/2012

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Generally speaking, people who are HIV+ are inadmissible to Canada because their illness will result in a disproportionate burden to Canada's health care system. In fact, if a person has any illness which will probably cost more than an average Canadian costs in health care dollars over the next five years, he or she is "medically inadmissible".
But in Ovalle v Canada the Federal Court has said that if the immigrant can show that he has another way to fund his medical care, he is not 'medically inadmissible'.

In Ovalle v Canada [2012] FCJ No 523, Mr. Ovalle had demonstrated that although he was HIV+ and would require about $18,000 per year in care, he would not cost the Canadian health care system disproportionately. His doctor said he would probably enjoy good health for the next 5-10 years. A non-profit group called "Aid for AIDS International" said it would provide free antiretroviral medication even after Mr. Ovalle moved to Canada. Mr. Ovalle's prospective Canadian employer said he would be covered under the firm's health care plan for at least $1500 per year. Mr. Ovalle agreed to assume responsibility for the social services he would need in Canada.

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Stepchildren out in the cold for fatal accident compensation

6/6/2012

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In a recent Alberta case, the court held that the stepchildren of a man killed in a motor vehicle accident were not entitled to the automatic $45,000 payment made by the insurer to the man's natural and adopted children. The stepchildren had argued that it was contrary to the equality guarantees in the Charter of Rights to extend those benefits only to natural or adopted children, especially since they had been closer to the deceased when he died than his biological and adopted children were. The court disagreed. The Charter does not include a direct reference to stepchildren in protection against discrimination, so the stepchildren had to prove that their situation was similar to the situation of other groups protected by the Charter in that stepchildren suffered from discrimination and denigration in Canadian society. The court said that stepchildren do not suffer any such mistreatment, and therefore are not "analagous" to other Charter-protected groups. Dares v. Newman 2012 AJ No 531
Cases about stepchildren are important for same sex families because unless the non-biological parent adopts the child born to her or his partner, the child is, legally, a stepchild of the non-biological parent. That is true even if the parents marry. (The same is true of a child born to a heterosexual couple if one parent is not biologically related to the child).

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Human Rights damage awards going up

6/6/2012

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Human rights damages awards (money awarded by the Human Rights Tribunal after it has been proven that the complainant has suffered 'injury to dignity', as opposed to money awarded for out of pocket expenses like lost wages) are going up.
Historically there was a $2000 limit on the amount that could be awarded under this heading; and even after that cap was removed, the amounts awarded for injury to dignity continued to be much lower than damage awards in court cases.
In Main v Ultra Care [2012] B.C.H.R.T.D. No. 158, the complainant was employed by a cleaning company, but after the company learned he was HIV+, it gave him only one further day of work. He was awarded $20,000 for 'injury to dignity'.

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Keep a Record! Keep a Record!

6/6/2012

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Angela Dawson is a transsexual woman who lived at. Atira Women's Resource Society. She was evicted by the society, and ultimately agreed to leave the residence. Atira's grounds for the eviction were that Dawson did not observe the non-violence rules of her agreement with the housing facility (which provides housing for women in the Downtown Eastside).

Later Ms Dawson said she had been harassed by other tenants; and filed a human rights complaint. But her complaint was dismissed even before a hearing because Atira produced affidavits (sworn statements) from tenants who complained about Ms Dawson, and about Atira's responses to Ms Dawson, but Ms Dawson did not have equivalent sworn statements. So the tribunal concluded that Ms Dawson could not possibly succeed at a hearing, and dismissed her complaint.

The take-away lesson for people who are harassed for being queer is that in order to be successful at a human rights hearing, you MUST write down everything that happens as it happens; you must bring the harassment to the attention of the managers/employer/landlord; and you must get witnesses who will agree to sign sworn statements about the treatment you received.

The same take-away lesson applies to societies, employers, or landlords: document situations and your response to them as the situation occurs, and be prepared to produce sworn statements from witnesses.
Dawson v. Atira Women's Resource Society, [2012] B.C.H.R.T.D. No. 166

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The uphill battle for queer HIV+ refugee claimants

6/6/2012

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A refugee claimant from Malaysia disclosed first his HIV status, and only later acknowledged he was gay. The Senior Immigration Officer (SIO) concluded that Ng was not protected as a refugee because he could get HIV medicine for free without charge; and though there was stigma against gay and HIV+ people in Malaysia, that same was true in Canada.
On judicial review (a kind of appeal) of that decision, the court said that the SIO was wrong because the particular kind of medicine that Mr. Ng required was not available for free; and because it was improper to compare the homophobia in Malaysia to that in Canada as the SIO had done. The case was sent back to be heard by a different SIO. Ng v. Canada (Minister of Citizenship and Immigration), [2012] F.C.J. No. 598, the Federal Court of Appeal

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