Nova Scotia Law Reform Report on Parentage in the Context of Surrogacy and Sperm, Egg and Embryo Donation

The Access to Justice & Law Reform Institute of Nova Scotia has published its final report on Extending Legal Parentage in the Context of Surrogacy, and Sperm, Egg, and Embryo Donation.

From the Executive Summary:

"This Final Report makes recommendations on how Nova Scotian law should identify a child’s parents when the child is conceived via assisted reproduction (sperm, egg and embryo donation and/or surrogacy). This status is known as legal parentage. While subject to change through formal legal processes such as adoption, for most people legal parentage is an automatic and immutable status upon which their identity is built. For children, parentage legally situates them in the world. Rights based on kinship, such as inheritance, also flow via parentage. For parents, legal parentage provides the immediate presumptive status from which they are given standing to provide the parenting, care and support of children."

"In light of this foundational role, it is vital for legal parentage to reflect the social landscape within which Nova Scotians live, and the various ways families are created. It is also critical that parentage laws be accessible, understandable, and non-discriminatory. This need is most immediate in the context of surrogacy and assisted reproduction. Nova Scotia’s current approach to these families may give rise to discrimination under both the Canadian Charter of Rights and Freedoms and the Nova Scotia Human Rights Act."

"Nova Scotia is the only jurisdiction in Canada that lacks parentage legislation. At present, our parentage laws are based on two archaic common law presumptions: the woman who gives birth to a child is that child’s mother, and her husband is the father. Mechanisms to prove (or disprove) parentage outside of these presumptions are largely based on biology proved by genetic testing."

"There are a number of overarching problems with this outdated regime. First, it does not recognize all families living in Nova Scotia today. Many people have children outside of these constraints, including members of the 2SLGBTQIA+ community. At present, people outside the scope of Nova Scotia’s parentage laws must either formally adopt their own child or ask the Registrar of Vital Statistics to be listed on birth registry documents. The expense, uncertainty, and intrusiveness of asking people to adopt their own children undermines family autonomy and devalues certain family forms (...)"

"Second, existing rules fail to account for parentage in cases of assisted reproduction. Canadians are increasingly using sperm, egg and embryo donation to have children. These technologies separate the link between biology and parentage in a way that is not contemplated by our law. This puts parents who use donated reproductive material in a precarious situation vis-à-vis their children and jeopardizes the substantive legal rights that flow from kinship to children."

"Third, existing mechanisms to account for children born via surrogacy are onerous and outdated. While Nova Scotia does have a method to recognize parents via surrogacy, at the time of writing, these laws arguably place a great deal of risk with the surrogate, exclude parties who lack viable genetic material, and mandate judicial oversight in every case (...)"

"The Institute takes the position that, as social and cultural understandings of parentage change, so too should the law’s response. This Report addresses some of the longstanding gaps in Nova Scotia’s parentage law and seeks to bring the law in line with modern realities of family creation in our Province. "

Nova Scotia Law Reform Institute Discussion Paper on Intestate Succession Act

The Access to Justice & Law Reform Institute of Nova Scotia has published a discussion paper on the province's Intestate Succession Act:

"This Discussion Paper considers how a deceased person’s real and personal property should be disposed of if they die without a will (otherwise known as intestacy). The Intestate Succession Act RSNS 1989, c 236 governs the disposition of these estates in Nova Scotia. While it’s underlying function remains valid, the Act no longer reflects the legal, social, and economic landscape faced by Nova Scotians today. Reforms are needed to align the law with the modern Canadian family, harmonize it with other relevant statutes, and enhance the ability of Nova Scotians to access justice (...) "

"The Discussion Paper seeks input on the following proposals to enhance individual autonomy and address the root causes of intestacy:

• The public should be given easily accessible information on intestacy. Public legal education on the reformed Intestate Succession Act should be available to ensure Nova Scotians understand how intestate property is distributed. Updated, easy-to-understand manuals should be available to persons who are administering an intestate estate without legal representation.
• The public should have greater access to will drafting services for persons who wish to create a will but cannot afford to hire a lawyer.
• Lawyers should be provided with information and materials on how to support capacity when providing wills services for persons who may face challenges in their mental capacity.
• A simplified procedure for estates valued at $50,000 or less should be available to administer modest intestate estates."

The Institute is funded by the Government of Nova Scotia, the Government of Canada, and by the Law Foundation of Nova Scotia with in kind support from the Nova Scotia Barristers’ Society and Dalhousie University.

New Access to Justice & Law Reform Institute in Nova Scotia

The Law Reform Commission of Nova Scotia has recently changed into the Access to Justice & Law Reform Institute: 

The Institute continues to be independent of government but is no longer a statutory commission. The Institute will continue the mandate of the Commission by making recommendations for the improvement, modernization and reform of the law. The Institute will continue to make recommendations for the development of new approaches to, and concepts of law that serve the changing needs of Nova Scotian society. It will also make recommendations for the improvement and administration of justice and it will review judicial and quasi-judicial procedures.

The Institute will also be taking on access to justice projects such as #TalkJustice, formerly a project of the Nova Scotia Barristers’ Society and the Access to Justice Coordinating Committee. The #TalkJustice project seeks to bring the voices of Nova Scotians to the center of justice reform through community engagement and the collection of first-hand experiences of those who have navigated the system. With this unique new project we hope to make the work of the Institute even more responsive to the lives and experiences of all persons in Nova Scotian.

All of the Commission's reports remain available online on the site of the new organization.

Nova Scotia Law Reform Commission Discussion Paper on Enforcement of Civil Judgments

The Law Reform Commission of Nova Scotia has published a discussion paper on Enforcement of Civil Judgments: Exemption of Judgment Debtors’ Income:

"This Discussion Paper considers the extent to which a judgment debtor’s income ought to be exempt from seizure to satisfy a civil money judgment. We have organized the discussion around the following main issues:

1. what benchmark measure to use for determining a minimum threshold of income which is not subject to seizure;
2. how to apply the benchmark measure, including: a. whether the minimum income threshold should be differentiated based on community size, or whether instead a single provincial figure is appropriate; b. whether the minimum income threshold should take into account the debtor’s household income; c. how to account for the debtor’s dependants; d. whether to include certain tax benefits as income subject to seizure;
3. what deductions ought to be permitted in calculating an income exemption amount, in addition to the minimum income threshold (in particular, whether in addition to those legally required to be paid, such as CPP/EI, union dues and professional fees, a debtor ought to be able to deduct child care, child and spousal support, and/or medical expenses);
4. what proportion of the debtor’s income should be subject to seizure; and,
5. how to protect exempt income once it is paid to the debtor."

The document includes a section entitled "Comparison of Income Exemption Provisions in Canadian Legislation".

Contributions and submissions in response to the discussion paper will help the Commission in writing its final report.

Annual Report of the Nova Scotia Law Reform Commission

The Law Reform Commission of Nova Scotia has released its 2012 annual report covering its activities for the period of April 1, 2011 to March 31, 2012.

The Commission's job is to review the laws of Nova Scotia and to make recommendations for improvement, modernization and reform. This may involve either formulating new ideas and approaches to law, or proposing ways in which existing laws and the legal system can be made clearer or simpler so they can better serve the needs of the general public.

Last year, the Commission worked on a range of topics, including:

• seniors-only housing
• enforcement of civil judgments
• builders' liens
• modernization of powers of attorney
• modernization of the Matrimonial Property Act

Law Reform Commission of Nova Scotia Final Report on Seniors-Only Housing

The Law Reform Commission of Nova Scotia has released its final report on Seniors-Only Housing:

"This report considers whether to amend the Nova Scotia Human Rights Act to provide an exemption for seniors-only housing. Under such an exemption, a housing development (nursing home, assisted living facility, mobile home park, public housing, condominium project, subdivision, etc.) which restricted residence to seniors would be immune from a complaint of age discrimination under the Act. Such an exemption has been adopted in British Columbia, Saskatchewan and Newfoundland & Labrador (...)"

"We conclude that the Nova Scotia Human Rights Act should not be amended to expressly exempt seniors-only housing. The compelling interests that may be served by some forms of housing that cater to seniors’ distinctive needs are better protected, we suggest, by a case-specific approach under the existing provisions of the Human Rights Act, rather than a blanket exemption for any seniors-only rule in respect of housing."

New Zealand Law Reform Commission Third Issues Paper on Law of Trusts

The Law Reform Commission of New Zealand has published its third issues paper in its review of the law of trusts:

"Part one of the paper examines the rules that limit the duration of a trust: the common law rule against perpetuities and the Perpetuities Act 1964. The Commission explores the underlying rationale for the rule against perpetuities and asks whether the rule continues to meet a relevant policy need or whether either the mechanism for achieving this policy or the policy basis itself should change. The paper canvasses different options, including retaining the statutory perpetuity rule, adjusting or extending the statutory rule and abolishing the rule altogether, as has been done in a number of overseas jurisdictions."

"Part two of the paper looks at the rules that allow trusts to be altered. Trusts may be revoked and varied through various common law, judicial and statutory mechanisms. These rules are examined to ensure that they are clear and workable, and to determine whether reform is needed."

Earlier Library Boy posts on the topic include:

• Law Reform Commission of Nova Scotia Paper on Rule Against Perpetuities (July 22, 2010): "The rule against perpetuities is a legal rule which limits the duration of certain restrictions on the transfer of property. By various means of estate planning - particularly trusts - and other forms of property disposition, a settlor or testator or grantor may postpone the time when property may be possessed and used freely by a beneficiary or grantee. The Rule insists that such inheritances - and indeed, many other sorts of postponed, restricted or contingent transfers of property - can only be postponed for so long. At some definite point the property must be fully transferred to its beneficial owner, free of restrictions."
• New Zealand Law Reform Commission Introductory Issues Paper on Law of Trusts (November 17, 2010): "The first issues paper is primarily a background paper. It traces the development of the trust from its origins in England through to the present day uses of the trust both in New Zealand and internationally."
• Recent Reports by the Law Commission of New Zealand (December 30, 2010): "The second issues paper will cover issues with the use of trusts (especially family trusts) in New Zealand. This paper will look at the purposes for which family trusts are established, including reducing tax obligations, protection of assets from creditors and relationship property claims, and meeting eligibility thresholds for government assistance. The paper examines different legislative and judicial responses to the use of trusts to 'look through' or disregard a trust where a trust has been used to frustrate the underlying policies of particular statutes. The Commission poses options for how the law could address concerns about the use of trusts. The paper seeks comment from as broad an audience as possible on issues such as why trusts are so common in New Zealand, whether limits should be placed on the uses to which trusts are put, whether high levels of settlor control is an issue for concern, how effective existing legislative mechanisms are at addressing the impacts of trusts and whether the law on sham trusts is satisfactory."
• Law Reform Commission of Nova Scotia Final Report on Rule Against Perpetuities (January 8, 2011): "The common complaint is that the Rule is simply too complex and abstract in its application, resulting in a substantial risk that beneficiaries or grantees will be deprived of their interests through inadvertent errors in drafting (...) Given these difficulties, the Rule has been subject to significant reform in most jurisdictions other than Nova Scotia. The most common sort of reform - referred to generally as ‘wait and see’ - maintains the substance of the Rule, but allows the disposition to run its course for the perpetuity period, rather than declaring it to be invalid at the outset (...) A more radical reform, adopted in Manitoba, South Australia, Saskatchewan, Ireland, a number of US states and certain Caribbean nations, is to simply abolish the Rule, relying on other laws to serve the purposes the Rule was designed to fulfill (...) We recommend abolition."

Law Reform Commission of Nova Scotia Final Report on Rule Against Perpetuities

The Law Reform Commission of Nova Scotia has published its final report on The Rule Against Perpetuities:

"The rule against perpetuities limits the duration of certain restrictions on the use and transfer of property. The Rule is to the effect that no legal interest in property is valid unless it is certain, at the time when the disposition (e.g., a trust) takes effect, that the interest must vest within a life or lives in being plus twenty-one years."

"In other words, property may not be tied up in trust, subject to restricted use, or otherwise held subject to any contingency, for longer than twenty-one years after the death of a person who is alive at the time of the disposition and whose life is relevant to the validity of the disposition. The Rule applies to all sorts of property interests - e.g., options to purchase, conditional easements, remainder estates, etc. - but today arises most commonly in connection with trusts. The Rule is generally understood to serve the purpose of balancing the rights of property owners to impose conditions on the use and exchange of their property against the importance of having property under the control of living persons, so that it may be put to its best contemporary use."

"The common complaint is that the Rule is simply too complex and abstract in its application, resulting in a substantial risk that beneficiaries or grantees will be deprived of their interests through inadvertent errors in drafting. In the estate planning context, a great number of vesting conditions may offend the Rule, most often unintentionally, and often only hypothetically in any event. The consequence of a breach is very real, however; the intended gift or transfer will generally be entirely invalid (...)"

"Given these difficulties, the Rule has been subject to significant reform in most jurisdictions other than Nova Scotia. The most common sort of reform - referred to generally as ‘wait and see’ - maintains the substance of the Rule, but allows the disposition to run its course for the perpetuity period, rather than declaring it to be invalid at the outset (...)"

"A more radical reform, adopted in Manitoba, South Australia, Saskatchewan, Ireland, a number of US states and certain Caribbean nations, is to simply abolish the Rule, relying on other laws to serve the purposes the Rule was designed to fulfill (...) We recommend abolition."

Law Reform Commission of Nova Scotia Paper on Seniors-Only Housing

The Law Reform Commission of Nova Scotia has published a discussion paper on Seniors-only Housing:

"This discussion paper considers whether to amend the Nova Scotia Human Rights Act to provide an exemption for seniors-only housing. Under such an exemption, a housing development (nursing home, assisted living facility, mobile home park, public housing, condominium project, subdivision, etc.) which restricted residence to seniors would be immune from a complaint of age discrimination under the Act. Such an exemption has been adopted in British Columbia, Saskatchewan and Newfoundland & Labrador. In Nova Scotia, a private members bill along similar lines was introduced in 2006, but did not pass. The question of whether to introduce such an exemption into the Nova Scotia Act has now been referred to the Commission by the Attorney-General."

"This paper first discusses the potential scope of ‘seniors only housing’ developments, and outlines the current situation in Nova Scotia. It then identifies the problem of age discrimination under the Human Rights Act, and outlines the legislative provisions that some other provinces have adopted to avoid that problem."

"A number of social policy issues are raised by the question of introducing an express amendment into the Human Rights Act. The paper proposes a framework for examining those issues."

Annual Report of the Nova Scotia Law Reform Commission

The Law Reform Commission of Nova Scotia has released its 2009-2010 annual report covering its activities for the period of April 1, 2009 to March 31, 2010.

The Commission's job is to review the laws of Nova Scotia and to make recommendations for improvement, modernization and reform. This may involve either formulating new ideas and approaches to law, or proposing ways in which existing laws and the legal system can be made clearer or simpler so they can better serve the needs of the general public.

Last year, the Commisson completed a project on contaminated sites in the province. Current projects in progress include one on the rule against perpetuities (property law) and another related to the enforcement of civil judgments.

In the spring of 2010, the Commision received three new References from the Attorney General:

• “Seniors Only” Housing
• Powers of Attorney Act
• Builders’ Lien Act

In the upcoming year, the Commission will be issuing discussion papers and reports on those topics.

Law Reform Commission of Nova Scotia Paper on Rule Against Perpetuities

The Law Reform Commission of Nova Scotia has published a discussion paper on The Rule Against Perpetuities:

"The rule against perpetuities is a legal rule which limits the duration of certain restrictions on the transfer of property. By various means of estate planning - particularly trusts - and other forms of property disposition, a settlor or testator or grantor may postpone the time when property may be possessed and used freely by a beneficiary or grantee. The Rule insists that such inheritances - and indeed, many other sorts of postponed, restricted or contingent transfers of property - can only be postponed for so long. At some definite point the property must be fully transferred to its beneficial owner, free of restrictions. A transfer of property subject to a delay, restriction or contingency that might result in the full transfer occurring later than the allowable perpetuities period is void from the beginning. The postponed, restricted or contingent transfer simply fails at the outset, and the property will be received by someone other than the intended recipient, as though the offending transfer had not been made at all."

"The common law rule against perpetuities is to the effect that no legal interest in property is valid unless it is certain, at the time when the disposition (e.g., a trust) takes effect, that the interest must vest within a life or lives in being plus twenty-one years. In other words, property may not be tied up in trust, subject to restricted use, or otherwise held subject to any contingency, for longer than twenty-one years after the death of a person who is alive at the time of the disposition and identifiable by the terms of the instrument of disposition. If there is no such identifiable life or lives in being, the period is twenty-one years from the disposition."

"The common complaint is that the rule is simply too complex and abstract in its application, resulting in a substantial risk that beneficiaries or grantees will be deprived of their interests through inadvertent errors in drafting. In the estate planning context, a great number of vesting conditions may offend the Rule, most often unintentionally, and often only hypothetically in any event. The consequence of a breach is very real, however; the intended gift or disposition will generally be entirely invalid. The property interest meant to be held in trust will instead fall into the residue of an estate, or be subject to intestacy. In the non-trust context the interest meant to be held on condition will simply be void. The property will be
distributed differently than the testator or grantor intended, and in many cases the intended beneficiary or grantee will be deprived of property he or she was meant to receive."

The paper looks at the reforms adopted in England, Ireland, Scotland, Australia as well as in other Canadian jurisdictions.

Nova Scotia Crowns Demand Better Security in Courthouses

According to an article in today's Canadian Occupational Safety, Crown attorneys in Nova Scotia want the provincial government to investigate security at the Halifax and Dartmouth courthouses.

They complain of incidents of violence against lawyers, witnesses and other people.

Court house security committees composed of lawyers, Crown attorneys, judges, Department of Justice officials and sheriffs made recommendations to the government in the spring of 2009 on how to improve courthouse safety.

Saying that the government has done nothing, the Crown Attorneys Association has decided to file an official complaint with the Department of Labour.

Earlier Library Boy posts on the topic include:

• Newspaper Series on Threats to Montreal Crown Prosecutors (December 13, 2006): "The Montreal daily La Presse has a series of articles today about the security (or lack of security) for Crown prosecutors in Montreal and elsewhere in the province of Quebec. The intimidation tactics include being photographed inside the Courthouse by criminal gang members and their supporters, being followed in parking lots, and bomb threats." [note: links to La Presse articles no longer work but my post summarizes the series]
• How Much Courthouse Security Is Enough? (August 28, 2007): "The most recent issue of The Lawyers Weekly (August 31, 2007 issue) has a feature article on the ongoing debate about security in Canadian courthouses, in particular those in the province of Quebec (...) at the bustling Palais de Justice [in Old Montreal], combative family law litigants and people accused of serious crimes face no security checks whatsoever when they show up for their trials. That irony sparked comment in Calgary following a panel discussion Aug. 13 at the Canadian Bar Association’s conference which highlighted abysmal security in courtrooms across Canada, including at all of Quebec’s 42 trial courthouses. Montreal’s Palais de Justice, home to 93 courtrooms and the second largest courthouse in North America (after Chicago), does not even have a metal detector to screen the 6,000 people who flock through its five doors each working day. "
  

Nova Scotia Law Reform Commission Report on Contaminated Sites

The Law Reform Commission of Nova Scotia recently released its report on Contaminated Sites in Nova Scotia:

"Fears of uncertain liability discourage landowners and developers from cleaning up contaminated sites. The lack of contaminated site clean-up means a risk of significant adverse consequences to human health and quality of life, as well as to environmental well-being. This also has economic costs, as potentially useful land lies underused or not used at all. In January 2008, the Attorney General of Nova Scotia requested that the Law Reform Commission examine a number of issues pertaining to contaminated sites in Nova Scotia."

The report presents numerous recommendations relating to who should and should not bear regulatory liability for contaminated sites, how to determine the relative liability of responsible parties, and how to report on and maintain proper records of contamination and remedial actions taken.

The report also examines the legislative and regulatory picture in other Canadian jurisdictions.

Nova Scotia Introduces Apology Law

Nova Scotia's new Apology Act, that will come into force on October 1st, 2009, would allow individuals and organizations to apologize for an accident or negative occurrence, without it being used as evidence of liability in a civil legal proceeding under provincial law.

The legislation is especially significant for health care and hospital workers who will now be able to express remorse to families without putting themselves in legal jeopardy.

There are six other provinces that have apology legislation: British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, and Newfoundland and Labrador.

Earlier Library Boy posts about apology laws:

• Apology Acts - Saying 'Sorry' Without Incurring Liability (November 19, 2006): "The province of Saskatchewan will amend its Evidence Act to allow individuals and corporations to offer a sincere apology as part of their dispute resolution process without fear of legal liability... the provincial Justice Minister is quoted as saying: 'Within legal parameters, I think individuals are very concerned about saying anything that might cause them some legal liabilities and we want to clarify that for people(...) We believe that this will allow matters of dispute between citizens to be resolved, in many cases without a lawsuit. Because sometimes it's not the financial compensation, it's the desire for restoration, for an apology, for an acknowledgment that somebody was hurt'."
• Analysis and Critique of Apology Laws (January 14, 2007): "Marlynn Wei of the Yale Law School has just published an article in the Journal of Health Law, 2007 entitled 'Doctors, Apologies, and the Law: An Analysis and Critique of Apology Laws' (available for download via the Social Science Research Network) ..."
• Pros and Cons of Apology Legislation (March 26, 2008): "The most recent edition of The Lawyers Weekly features the article 'Saying sorry: Apology legislation makes it a lot easier' by Ellen Desmond, past chair of the national section for Alternative Dispute Resolution, Canadian Bar Association, and sessional lecturer in dispute resolution at the University of New Brunswick’s faculty of law."
• Ontario Introduces Apology Law (October 7, 2008): "The Ontario government today announced that it is introducing apology legislation that would allow individuals and organizations, such as hospitals, to apologize for an accident or wrongdoing, without it being used as evidence of liability in a civil legal proceeding under provincial law."