Education. Transformation. Discrmination – Trinity Western Law School Cannot Stand

To become a law student at the proposed Trinity Western Law School in British Columbia, you need more than passion for the practice of law, good LSAT scores, high grade point average and an impressive resume. You must also sign the school’s covenant, prohibiting same-sex relations or other sexual relations outside of traditional marriage. As the “Christian” school, Trinity Western feels justified in its delusion, because it is following the Biblical condemnation of homosexuality – and we all know that as long as your holy scripture of choice justifies an action, no matter how discriminatory or abhorrent in a modern society, that is OK. Correct? Welcome to the madrasa of the West Coast, about to receive the official state seal of approval.

The pursuit of equal rights in Canada is not a singular event. It is rather a continuum, a proud compendium of legal and political victories, driven by the brave and fair-minded Canadians of all backgrounds, religions and sexual orientations. The recommendation of the Federation of Law Societies of Canada in favour of the preliminary approval of Trinity Western’s law school is a break in this otherwise unbroken chain of commitment to individual dignity and ethics of equality. B.C. Ministry of Education’s decision to approve such accreditation would be as ill advised, as it is illegal.  While the world has moved on and the laws have evolved, the British Columbia government and the Federation appear to be stuck in 2001 time warp, which saw the Supreme Court of Canada sacrifice the dignity of gays and lesbians to the golden calf of freedom of religion (in B.C. College of Teachers case). Luckily, the evolution of equality jurisprudence and legislation, along with the accelerated shift in public sentiment no longer tolerate such outcome.

Gays’ and lesbians’ equality rights are no longer a helpless infant of the Charter family that they were almost two decades ago. We have grown as a nation, and in the process we have developed a strong distaste for bullies, bigots and their enablers. Many of us have realized that freedom from religion is as valuable and as valid as the freedom of religion. Our laws will no longer allow the dogmas of yore to hold us hostage forevermore.

That we are having this discussion in 2014 is shocking enough. It reveals the legal and social tensions bubbling and drawing up fault lines under the seeming calm of Canada’s venerable Constitution. It also shows that no matter how advanced our laws and our jurisprudence, complacency is all that it takes for discrimination and intolerance to take root. The outcome of this unfortunate experiment seems predetermined by the Human Rights Codes in Ontario, Alberta, and other provinces, which have enacted the statutes to preclude this abuse of human rights. The current legislative and jurisprudential frameworks, along with each law society’s mandate to work in the public interest not unequivocally call for the rejection of this overtly discriminatory institution.

The history of democracy is a chronicle of a frustrating tug of war between bigotry and demagoguery, packaged appealingly as religious liberty – on one side – and the forces of acceptance, inclusion, rational thought and the respect for human dignity on the other. I am hopeful that the law societies across Canada will rise to their core mission to uphold the principle of equality, and that they will not cower in fear of being labeled anti-religion. Freedom of religion in Canada is not under attack. Freedom to discriminate with the State blessing is. Had this unabashed attempt at discrimination and exclusion been cloaked in anything other than the claims of “religious freedom,” the reaction from the Federation, the B.C. Ministry of Education and the public would have been swift and decisive.

The right to form the relationships of one’s choice and to be accorded dignity and respect equal to that accorded to other more traditional family structures is at the core of our Charter. The B.C. government’s acquiescence and the Federation of Law Society’s gross neglect ignore this elementary constitutional guarantee. The law societies are the creatures of statute. Their actions must be in compliance with both the provincial human rights Codes and with the Charter. The recognition of the Trinity Western law school would run afoul of this obligation and would constitute an invalid exercise of delegated power. The right of an individual to enter into a consensual relationship with another person, just like the right to marry, is a right possessed both by each individual member of the couple and by the couple as a whole. The respect for sexual practices and romantic preferences of individuals are deeply private and sacrosanct pillars of our legal framework, and are not subservient to religious dogma. The law societies should be mindful that not only does the approval of Trinity Western covenant engage s.15 equality protections but it arguably touches upon s.7 of the Charter as well, since it encroaches upon the “sphere of autonomy” with which no entity, public or private may interfere.

If law societies fail to act, our courts will be called upon, once again, to discharge their gravest and most important responsibility under our constitution – to ensure that the rights and protection may not be withheld from any Canadian on the ground of sexual orientation or private sexual practices. But if we, as lawyers and members of the law societies, pass the buck to the courts, we will have failed in upholding our basic oath, which binds us to “champion the rule of law and safeguard the rights and freedoms of all persons.

Ivan J. Steele, Barrister and Solicitor

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How Do I Withdraw Sponsorship of My Spouse or Common Law Partner In Canada

Often, life doesn’t turn out the way we planed. Physical distance, financial pressures, language barriers, deception or newly discovered differences can all put an end to a bi-national relationship or marriage. What do you do when your relationship comes to a premature end after you have submitted your sponsorship and undertaking for Canadian permanent residence?

In my practice as a Toronto immigration lawyer, many clients have asked me: “How do I cancel the sponsorship of my spouse?” This blog will explain in great detail legal and practical considerations and requirements, related to the withdrawal of sponsored applications for permanent residence under family class.

Timing is the key for a successful withdrawal of spouse sponsorship applications.

The sponsor can cancel his or her undertaking and receive a refund of permanent residence application processing fees if the actual processing has not yet taken place. This means that as long as an immigration officer has not yet reviewed the application and evidentiary submission or issued medical instructs etc., the sponsor can withdraw without any financial penalty and without triggering any additional legal obligations vis-à-vis the sponsor’s spouse or the Minister of Citizenship and Immigration. Keep in mind that the sponsored person cannot appeal a withdrawal, since no decision was made on his or her permanent residence application. In circumstances where the sponsor is found but requests from Citizenship and Immigration Canada to withdraw the undertaking before processing has begun, the application is usually returned and the processing fees, minus the sponsorship cost recovery is refunded.

When the sponsor requests the withdrawal of the sponsorship undertaking after the processing of the spouse’s permanent residence application has commenced, the case processing center that has the application has to consent to the withdrawal. Simply put, in this case, the withdrawal is not automatic, and the processing fees cannot be recovered.

Where a sponsor requests to withdraw his or her undertaking, and where the CPC approves the withdrawal, this may ultimately have the effect of a refused application. Since R120 prohibits the granting of permanent residence to foreign nationals applying as members of the family class in the absence of valid sponsorship undertaking is not in effect, CPC approval of a withdrawal request would likely be equivalent to a refused application.

CPC will only accept a withdrawal request in cases where final decision has not yet been made.  For spouse sponsorship applications processed outside Canada, this means that a withdrawal will likely be approved as long as permanent resident has not been issued. For Inside Canada applications, first stage approval (in principle) of the sponsorship undertaking is not a “final decision.“ Application processed at CPC Vegreville under spouse or common law-partner in Canada class, withdrawals are usually approved until the Confirmation of Permanent Residence has been entered into the system.

Even when a withdrawal request is denied, a sponsor’s request may still be considered as an indication that the sponsor will not adhere to their undertaking, which can lead, in turn, to a refusal of the sponsored permanent residence application.

Sponsorship withdrawal requests should not be taken lightly. A failure to properly withdraw or cancel an undertaking can leave the sponsor with an onerous three-year undertaking obligations and a significant Crown debt. If you believe that your relationship has irretrievably broken down while your spouse’s permanent residence application is in process, contact a spousal sponsorship lawyer immediately since timing is of the essence. We are here to help.

 

 

 

Ivan Steele, Toronto immigration lawyer, in the News – the National Post

Hey folks,

I  just found out I was quoted on the front page of the National Post – let’s hope that life stories and perspectives of my colleagues and myself can shift the public perception of our profession. They quoted my reasons for going to law school: “Growing up in Serbia as a gay man … I learned early in life that the most dangerous violence comes not from the fists of the bullies and the bigots, but from the pens and the mouths of the legislatures and the silence of the judges,” writes Ivan Steele, aToronto immigration lawyer. Practising law allows him to “remain watchful and safeguard the rights and lives of all Canadians.”

Check it out!

http://news.nationalpost.com/2013/07/31/campaign-aims-to-boost-canadians-plummeting-trust-in-lawyers-but-is-that-even-possible/

Scalia – the Supreme Reminder

My childhood in Serbia, as a gay youth, was  a perpetual buffet of bullying and social ostracism, served  by my peers and applauded by the law enforcement and the courts. A move to San Francisco to live with my father at seventeen changed my life – until I fell in love with a Canadian, whom I could not sponsor to the United States. Canada welcomed me with a promise of full equality. By my mid twenties, bullies and homophobes had forced me out of two homes. Today, I am happily married and I work as a family and immigration lawyer in Toronto.

I forgave those daily kicks, bruises and cigarette burns on my body long ago. They were kids in a war torn country, whose own lives were in turmoil. I cannot, however, forgive Michelle Bachman, Tony Perkins and Antonin Scalia that easily. I learned early that the most dangerous violence comes, not from the fists of bullies, but from the pens and the mouths of legislators and judges and the silence of our neighbors.

To my generation, raised in the shadows of homophobia and forged in the fires of political oppression, SCOTUS ruling in Windsor signaled the imminent end of a walk through legal wilderness. Along with our straight allies, we have summoned the change that is happening today. But in our excitement, let us not forget the real hero of DOMA cases – Justice Scalia. While I relished every word of Anthony Kennedy’s ode to equality, it is Scalia’s dissent that echoes in my mind. It is his dissent that none of us should forget.

Mr. Justice, since you have been a fixture in our bedrooms, offices and schools for decades, it seems only appropriate to drop the formalities. May we call you Tony? Thank you Tony for reminding us that caustic words from a Supreme Court Justice are far more destructive than the fiery rhetoric of southern members of Congress. Clothed in the authority of high office, your words give permission and ideological cover to homophobes, hooligans and bullies to carry out their action with a sense of righteousness. President Putin says hi. Your comparison of homosexuality with murder, your ironic speech on “moralist judges” and “Mullahs of the West” and your harmful anti-gay rhetoric are not just reprehensible and, dare we say, impeachable. Your contempt and disregard for the appearance of impartiality dishonor the venerable office that you hold. You are not in the least bothered that your public pronouncements against homosexuality should preclude any reasonable judge from considering the facts and ruling objectively on the issue of same-sex marriage.

But this is not just about us Tony. Your bias and arrogance do not only risk our lives and dismiss our families. They shake to the core the public’s faith in the Supreme Court as an impartial institution. This is where my anger comes from. As a scared kid who grew up to become a lawyer, I place much faith in the rule of law, as it is the only shield that stands between us and the tyranny of majority. You take away this shield and the lawyer reverts to a scared school boy. If we cannot trust you and your fellow guardians of the Constitution to lend an impartial ear to a group that you do not favour, our nation is in trouble – deeper than the deficits and more dangerous than foreign terrorists.

Impeaching Scalia for conduct unbecoming of a Supreme Court justice will not happen. Perhaps that is for the best. Who better then Tony to remind us just how vulnerable we are to the whims of the few and the privileges of the many. His words are inspiring a whole generation of gays and lesbians to remain watchful and safeguard the commitment to equality that is the beating heart of our democracy. Although we have made invaluable strides, we must remain vigilant, as our right to life, liberty and pursuit of happiness remains on a collision course with ancient hatreds. Our only hope for a lasting protection is to change enough minds and hearts to make Scalias of this world irrelevant.

Ivan is a gay lawyer, practicing in Toronto, Canada. Born and raised in Serbia, he is a dual U.S. and Canadian citizen with a Juris Doctor Degree from University of Ottawa law school. Before starting his own practice, Ivan worked for the Office of the Children’s Lawyer, articled at Davies Ward Phillips and Vineberg LLP, a premier corporate law firm, and worked for a well known Toronto immigration and family law firm.

You Cannot Afford Not to Have a Pre-Nup (Marriage Contract)

Consider pre-nups (marriage contracts) a marriage insurance policy. Take it from a Toronto divorce lawyer – you hate to think that your home could ever be destroyed by flood or fire, but if it did, having an insurance policy would save you a great deal of stress and money. Divorce is the same, except that the extent of financial ruin and emotional damage far exceeds anything we can expect to see from floods and fires.

Any couple who brings personal or business assets to the marriage can benefit from a prenup. Marriage contracts otherwise known as “pre-nups” or “pos-nups” invoke the air of glamour and mystery. My job as a Toronto family lawyer, dealing with separating spouses has taught me that despite their association with celebrity couples, marriage contracts are hugely beneficial for any couple who brings assets into a relationship. Prenups’ popularity stems primarily from their ability to remove the parties from a general operation of family law and to preserve the expectations in the case of a relationship breakdown. Simply put, marriage contracts provide you with a way to control most of the consequences of your romantic decisions. A volatile cocktail of romantics feelings, hormones and the traditional view of love and marriage often eclipse or outright push aside any serious consideration of legal right and responsibilities that come with marriage or a long-term cohabitation. As many prior divorcees can attest, the next time they get married, they will usually have prenuptial agreements. Not having one could be a costly mistake if a marriage does not work out. What are you waiting for?

Obtaining a Foreign Divorce Opinion Letter in Ontario – Additional Implications of Foreign Divorces

In my job as a Toronto family lawyer, I have  drafted numerous foreign divorce opinion letters – some more complex than others. In my previous foreign divorce opinion letters blog, I discussed the legal tests and requirement for remarriage in Canada. This post expands on the policy reasons and additional legal consequences of (non) recognizing foreign divorces in Canada. Why is the recognition of foreign divorces in Canada relevant and important? Most people will only worry about this issue if they wish to re-marry in Canada and need to obtain a foreign divorce opinion letter from a local family lawyer. The recognition of foreign divorces in Canada, however, extends far beyond a person’s eligibility for a marriage license.

Marriage and divorce carry specific rights, obligations and entitlements. For example, Canadian courts cannot grant a Canadian divorce if Canada had already recognized a foreign divorce. A foreign and recognized divorce has the same status on the parties as a Canadian divorce. Consequently, if the divorce is not recognized, a spouse may be able to divorce in Canada and make property and support claims here. Depending on the circumstances of each party and the family law regimes in their country of origin, this could be significant.

Furthermore, a widow(er) may not be automatically entitled to pensions and other succession interests if a foreign divorce is recognized in Canada. The estate law issues, including the interpretation and validity of wills are affected by (non)recognition of foreign divorces, including the effect on financial provisions for dependents (i.e. former spouse).

In my practice as a Toronto immigration lawyer, specializing in spousal sponsorships to Canada, I have come across cases where the existence of a non-recognized foreign divorce could have undermined the attempt by a Canadian citizen or a permanent resident to sponsor his or her foreign spouse. If one of the parties remains married in the eyes of Canadian law, the parties are unable to re-marry, or if they re-marry outside Canada, their new marriage will likely be considered invalid ab initio for immigration purposes. The question of bigamy also arises in this context and should not be taken lightly. Lastly, the recognition of a foreign divorce can have significant tax implication in Canada, and it may affect the parties’ entitlement to state and welfare benefits.

The laws in this area can be quite complex and technical. If you have been divorced outside of Canada and either wish to re-marry and obtain a foreign divorce opinion letter or if you wish to ensure that your divorce is recognized for other purposes, such as immigration, you should contact a knowledgable family lawyer in Toronto.

To Disclose or Not to Disclose – The Importance of Full Financial Disclosure in Marriage Contracts (Prenups)

Toronto family lawyers have witnessed a growing number of clients entering into cohabitation agreements and marriage contracts (prenuptial agreements). Traditionally, Ontario has a strong public policy favoring individuals contracting autonomy – deciding their own interests through contractual arrangements. This interest, however, is not absolute. The agreements addressing matrimonial issues (marriage contracts, otherwise known as prenups) are subjected to higher level of judicial scrutiny – far beyond that applied to contracts in general. While a well drafted and properly executed agreement carries a significant presumption of validity, it may nevertheless be voided by a court if one party is able to prove fraud, duress, lack of financial disclosure, lack of understanding of the terms or other inequitable conduct. Compiling financial information required under the full disclosure requirement can often be a tedious and even onerous task. It is no wonder that clients often ask their family lawyers to provide only partial disclosure. Such instructions, however, could have a potentially devastating effect on the future  enforceability of a domestic contract.

When entering into a domestic contract, both parties have a positive obligation to disclose all significant assets under s. 56(4)(a) of the Family Law Act (FLA). In a 2008 case, LeVan v, LeVan, the Ontario Court of Appeal awarded a $5.3-million equalization amount to a wife who waived her matrimonial property and support rights in a prenuptial agreement. The court invalidated the prenup on the basis that the husband  failed to disclose his full income and net worth to the wife. The facts of LeVan also touched upon another possible basis for challenging prenups. Namely, the wife signed the marriage contract merely two days before the wedding under threats from the husband to call off the wedding if she refused to agree.

The essential rule to follow when deciding how much financial disclosure to make can be summed up as follows:  to be considered full and frank, disclosure must be complete and adequate, and it must include not only assets and liabilities but also the contracting spouses’ respective incomes. One party’s failure to make full disclosure could easily be interpreted by a judge as a deliberate attempt to mislead the other spouse.

A New York state Petrakis decision is informative. Here, the judge tossed out a prenuptial agreement where a real estate mogul pressured his fiancée, to either sign a one-sided prenuptial agreement days before their wedding or he would cancel the wedding. He also told his fiancée that he would tear up the agreement as soon as they had children, which he then failed to do.

As the cases across common law jurisdictions evidence, if you are entering into a marriage contract, be aware of complex nature of these agreement and err on the side of caution. If you are planning on signing a prenuptial agreement, it is wise to have one qualified family lawyer draft it and another to review it before signing and provide you with the best possible legal advice. Your marriage contract lawyer in Toronto or elsewhere in Canada should draft an agreement that will stand up to judicial scrutiny and thereby protect your assets. To do his or her job, your family lawyer will need your full cooperation.