Surrogate mother claims affair and seeks child, Statue, church and totem sentencing, and s. 96 courts

Legally Speaking with Michael Mulligan

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.

Follow this link for a transcript of the show and links to the cases discussed.