Making Babies Is a Tricky Business

DSC01152_2 (2)_2With the extraordinary science that benefits childless couples and the growing popularity of reproductive technologies, the prediction from early naysayers that baby-making would create criminal, social and ethical problems can no longer be ignored.

Public awareness of the foibles of procedures such as artificial insemination, in vitro fertilization, and anonymous sperm donation began with the news that a California woman, Nadya Suleman, gave birth to eight children via in vitro fertilization in 2009. Twelve embryos had been implanted, apparently at her request.

Ms. Suleman’s octuplets joined her already large family of six children, also born through in vitro fertilization. That she was a single mother with limited financial resources and was eventually compelled to work as a stripper and a nude model further rankled critics who denounced her physician, Dr. Michael Kamrava, who later lost his medical license.

The latest scandal in the baby-making industry involves a home-grown business called Canadian Fertility Consultants, with offices in British Columbia and Ontario, whose CEO, Leia Picard, has been charged with 27 criminal offences including purchasing sperm and egg from a donor and paying a surrogate to carry a baby for a client.

Under Canadian law it is illegal to pay sperm or egg donors and surrogates are only allowed to be paid for their reasonable expenses. While limited information has been released by the RCMP, it has been reported that two women who donated eggs were paid $5000.00 each.

Ms. Picard has also been charged with four counts of forgery in relation to allegations that her clients received false profiles of two of her sperm donors and two potential surrogate mothers.

Canada’s legislation has been in force for almost nine years, but this appears to be the first time that charges have resulted from a breach of the law, with related criminal charges.

There is speculation that Ms. Picard’s present legal problems arise from her purely innocent interaction with Maryland lawyer Hilary Nieman, who ran a surrogacy business with California lawyer, Theresa Erickson, that later proved to be anything but altruistic.

Under a unique California law, a woman can enter into a surrogacy agreement with prospective parents, but the agreement must be signed and finalized prior to the fertilization of the surrogate. Where there is a surrogacy agreement, the prospective parents do not need to go through an adoption to become the child’s legal parents as the child’s birth certificate will record the names of the prospective parents, not the surrogate’s name.

Lawyers Nieman and Erickson both specialized in reproductive technology law. Working together, they paid American women an average of $40,000 to travel to the Ukraine to be implanted with embryos. This was necessary because no doctor in California would do the in vitro procedure under the circumstances presented by the surrogates.

The lawyers got around the requirement for an executed agreement prior to fertilization by submitting forged documents to the Court which attested to the agreement being signed as required by the law.

Ms. Erickson with Hilary Nieman’s help, accumulated a stable of new-born babies ready to be sold to unsuspecting couples for $100,000 to $150,000 each.

In the twelfth week of their pregnancy the women, referred to as “gestational carriers”, flew back to the United States where the lawyers would find a couple who were told that a surrogacy agreement with another couple had fallen through after the couple backed out.

For couples who had tried numerous procedures over many years without the blessing of a child, the prospects of a new-born baby was like winning the lottery.

Erickson and Nieman, both plead guilty to wire fraud and conspiracy, involving the sale of twelve babies. Although lawyers for the State and Ms. Nieman agreed to a plea bargain of nine months of home confinement, the Court would have no part of that and sentenced Nieman to five months in federal prison and seven months of home confinement. She was also order to pay back profits of $133,000 and was later disbarred.

We now await full particulars of the charges against Ms. Picard, but payments of several thousand dollars to egg donors hardly seems worth the cost of the RCMP’s year-long investigation. Allegations of forgery, however, puts an entirely different spin on the agency’s practices.

Ms. Picard says she will vigourously defend against the charges and is inviting donations to her legal fund.

Lawdiva aka Georgialee Lang

Family Law in Canada? It Depends Where You Live

BarristerToday’s decision from the Supreme Court of Canada in A. v. B. has closed the door for common law spouses in Quebec to receive spousal support upon the demise of their conjugal relationships, a ruling that signaled the conclusion of a long-running legal saga launched by the former common law spouse of a Canadian billionaire.

While married spouses and those in civil unions are entitled to apply for support, “de facto” spouses, the term used for common law spouses in Quebec, may not, unless they have entered into a cohabitation agreement with their partner which provides for support upon the breakdown of their relationship.

Quebec’s distinctive language and culture is also accompanied by a Napoleonic legal system which is not shared by other provinces in Canada. Our highest Court examined the spousal support provisions of the Quebec Civil Code and determined that freedom of choice and personal autonomy trumps a family law regime that imposes obligations on spouses who do not expressly consent.

The upshot? If you want spousal support in Quebec you need to be married, in a civil union, or have a cohabitation agreement which covers support if the relationship fails.

Ironically, while the absence of support for common law spouses in Quebec has now been confirmed as constitutional, the British Columbia legislature is mere weeks away from ushering in new law that will see common law spouses, including same-sex partners, enjoy the same benefits as married couples in regards to the division of property.

All Canadian provinces, with the exception of Quebec, provide for spousal support for common law spouses, but British Columbia’s new law is cutting-edge, albeit B.C. is not the first province in Canada to afford property rights to common law spouses. Those honours belongs to Manitoba, Saskatchewan and New Brunwick. However, it is a radical departure from the law as we know it today.

Presently, British Columbia couples are obliged to share all of their property, even if the property is brought into the marriage by one of the spouses. Our new law will ensure that if a spouse brings property into a marriage or common law relationship, that property will belong solely to the spouse who owns the property. However, if the property increases in value during the marriage or common law relationship, the increase in value may be shared by the parties.

As well, certain property will be exempt from sharing, including inheritances, which in our current law has been the source of bitter disputes, particularly when a large inheritance has been received by one spouse in the waning years of a marriage.

Another feature of B.C.’s new law will be the introduction of family law arbitration, a dispute resolution mechanism which is “old hat” in Ontario. In fact, Ontario lawyers have advanced to “med-arb”, a process where a senior lawyer or retired judge first tries to mediate a dispute and if that is unsuccessful, assumes the role of arbitrator and makes a final decision for the parties.

While Canada’s federal Divorce Act remains unchanged, with the exception that same-sex couples may now divorce, family law is rapidly evolving throughout Canada, depending upon where you live, and will likely not slow down anytime soon.

How could it be otherwise? Lawmakers across Canada need to figure how to approach sperm and gamete donation, donor parents, surrogacy contracts, and other intricacies of the new technology, together with the ramifications of same-sex marriage and divorce: all of which is changing what families look like in Canada today.

I’ll Just Leave the Country and Pay Nothing!

DSC01152_2 (2)_2One of the most common threats a lawyer may hear from a beleaguered client is the cry that “I might as well quit work, if I have to pay that much to my ex-wife”. Another is “I’ll just leave the country and then he/she will get nothing.”

Usually these threats are spoken out of frustration and rarely are they acted upon, however, from time to time a parent will abandon his or her family, rather than obey a court order that is perceived by them to be onerous and unfair.

In a recent Ontario case, Hans Mills did just that. He left the country to avoid paying his ex-wife, Donna Mills, spousal and child support of $3772.00 per month, $2235.00 for the children and $1537.00 for his wife.

A very bleak situation for Ms. Mills who is caring for a 10-year-old with cancer in remission, a Downs Syndrome 14-year-old, a depressed teen, age 17, and a 19-year-old son on methadone treatment. How did everything go so wrong?

After separating in 2005, the Mills reached an agreement in 2008 which gave Ms. Mills sole custody of the children, and the family home, valued at $1.2 million (with a $600,000 mortgage), in exchange for a payment to Mr. Mills of $175,000. Because she received the lion’s share of the equity in the home, she agreed to forego spousal support. Mr. Mills earned approximately $100,000 per year and would pay child support.

Three years after their agreement, money issues began to simmer and a trial was scheduled to deal with the problems that had arisen, including Ms. Mill’s alleged inability to work. In an interim application before the trial, the Court ordered Mr. Mills to pay his ex-wife spousal support, including retroactive support and court costs, in spite of the fact that she had received two-thirds of the family home.

Recognizing that the interim order was a precursor to worse things to come, Mr. Mills sold his house, cashed in his pension, paid his bills, and moved to the Philippines, a country where he had done business for years and a country that had no support treaty with Ontario.

Ms. Mills had always feared he would just leave and implored the government agency that collects child and spousal support to register a lien against his house and seize his Canadian and European passports, but to no avail. And then he was gone. His email to his ex-wife read:

“The result of the legal instrument which you recently designed and implemented
is that there is no possibility of a comfortable life or a (secure) retirement for me in
Canada at all. Therefore, I have left the country to seek greener pastures elsewhere
and will never return. Well done Einstein. Good luck and good bye.”

Ms. Mills is perilously close to financial, emotional, physical, and spiritual bankruptcy, but says she will not let her children down, despite the dire circumstances.

As for “Father of the Year”, his actions are despicable. His departure was fueled by a court order to pay spousal support, which he now uses to justify his decision to stop supporting his children. He has expressed hope that one day he can reconcile with his children, “but not in Canada, a morally bankrupt state”.

It is Hans Mills that is “morally bankrupt”.

Lawdiva aka Georgialee Lang