THE EVOLUTION OF MODERN CANADIAN FAMILY LAW PROCEDURE

"Family law procedure" differs greatly from "civil procedure." Canadian jurisdictions and common-law jurisdictions have copied English reforms of merging law and equity. Canada unlike the United States confined legislative authority over divorce to the federal government under the British North American Act. The Canadian federal government enacted the national Divorce Act of 1968, which had a homogenizing effect on substantive family law across Canada in both custody and support matters for a number of years. There are many pressures for fragmentation of procedure specifically, dealing with the provincial courts. Modern family law procedure is much more like civil procedure. If inquisitorial methods are used or if discovery is limited using "simplified rules" for smaller cases, family law procedure will become two different tiers-one for self-represented litigants and litigants where the stakes are small and the other tier would be one that operated under the "normal" rules of civil procedure.     

Oregon: does physician-assisted suicide work?

Since November 1997, Oregon, a State in the United States of approximately 3.3 million people, has allowed physician-assisted suicide, although not euthanasia, by virtue of the Death with Dignity Act. Before the Act, physician-assisted suicide, as in Australia and other common law jurisdictions, was illegal. Under the Act, the Oregon Department of Human Services is required to collect information and provide an annual report. The Sixth Annual Report on Oregon's Death with Dignity Act was released on 10 March 2004.     

Aid to Families with Dependent Children; extension of Medicaid when support collection results in termination of eligibility--HHS. Final rule

These final rules interpret section 20 of the Child Support Enforcement Amendments of 1984, as amended by section 303(e) of the Family Support Act of 1988, and section 8003 of the Omnibus Budget Reconciliation Act of 1989. The 1984 law extended Medicaid coverage for a period of four months to certain dependent children and adult relatives who become ineligible for Aid to Families with Dependent Children (AFDC) as a result, wholly or partly, of the collection or increased collection of child or spousal support under title IV-D of the Social Security Act (the Act). The regulations are applicable to the AFDC and Medicaid programs in all jurisdictions.     

Human rights and health law

Important statutory and common law developments are changing the landscape of health law in Australia. Human rights considerations are formally included amongst the factors to be applied in the interpretation of statutory provisions and evaluating the lawfulness of actions on the part of government instrumentalities. The Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) create limited bills of rights at State/Territory level in two Australian jurisdictions. Although neither is entrenched, they have the potential to make it more difficult for government to promulgate laws that are inconsistent with human rights, as defined. They will have important repercussions for the evolution of health law in these jurisdictions. The decision of Royal Women's Hospital v Medical Practitioners Board (Vic) [2006] VSCA 85 by the Victorian Court of Appeal has also provided a legitimation for parties to incorporate human rights perspectives in submissions about the interpretation of statutory provisions where health rights are in conflict.     

Barriers to the ballot: implications for the development of state and national crime policies

In 2013, the Supreme Court of the United States ruled in Shelby County v. Holder that Section 4(b) of the Voting Rights Act, which included the preclearance formula for determining which state and local jurisdictions needed to obtain federal approval before changing their election laws and voting procedures, was unconstitutional. By requiring federal approval, this provision prevented historically repressive jurisdictions from enacting covert policies to hinder non-whites from voting. The ruling in Shelby County is problematic because methods in use across the country prevent non-white citizens from casting their ballots, leaving their interests unaddressed. As people of color hold different attitudes and views than whites towards specific criminal justice measures, contemporary barriers to the ballot have potential implications for criminal law and policy. Consequently, analyses of two contemporary methods of denying non-whites a voice in government are warranted: felon disenfranchisement and voter identification laws. After considering the disproportionate effects of these laws on non-white voting, the paper reveals the potential harm that may result from Shelby County if similar laws spread to jurisdictions no longer covered by the Voting Rights Act.     

Toward Normalization of Defamation Law: The U.K. Defamation Act of 2013 and the U.S. SPEECH Act of 2010 as Responses to the Issue of Libel Tourism

In the wake of several high-profile libel actions brought by U.S. celebrities and foreign businessmen in London because of more favorable defamation laws there, London was dubbed the “libel tourism capital of the world.” The U.S. response in 2010 was the passage of the SPEECH Act, preventing courts from enforcing libel judgments from foreign jurisdictions not providing the same level of protection as the United States. Similarly, in 2013 the United Kingdom responded to international and national criticism by passing the Defamation Act to address the loophole in its system that caused the abuse. Both acts have been criticized, the first for its aggressiveness, and the second for its conservative nature. This article examines the development of the law of defamation in the two jurisdictions and analyzes the content of both statutes, along with their criticisms, proposing international cooperation to address the issue of libel tourism.     

Implications of the Human Rights Act (1998) for schools

The Human Rights Act 1998 finally came into operation on 2 October 2000 for all jurisdictions of the United Kingdom. The Act, which incorporates the European Convention on Human Rights into the UKs domestic laws, means that it will be unlawful for public authorities, which includes the DfEE and LEAs, to act in a way which is incompatible with the fundamental human rights set out in the Convention (found in Schedule 1 to the HRA). Bodies such as schools and their governing bodies, whose functions are of a public nature, are also covered by the legislation. The articles of the Act which have a particular relevance for schools and education are identified. It is probable that pupils and their legal advisers will invoke the Act in disputes over a wide range of educational issues, for example, bullying, exclusions and suspensions. Some of these issues are examined and where possible existing European human rights case law is cited. It is likely that the HRA will create interesting legal challenges involving schools and education, some of which cannot be anticipated at the moment, and that the Act will cause changes to education laws and schools regulatory procedures .     

Recovering fraudulent claims for Australian federal expenditure on pharmaceuticals and medical devices

The Australian Federal Government expends increasingly large amounts of money on pharmaceuticals and medical devices. It is likely, given government experience in other jurisdictions, that a significant proportion of this expenditure is paid as a result of fraudulent claims presented by corporations. In the United States, legislation such as the False Claims Act 1986 (US), the Fraud Enforcement and Recovery Act 2009 (US), the Stark (Physician Self-Referral) Statute 1995 (US), the Anti-Kickback Statute 1972 (US), the Food, Drug and Cosmetic Act 1938 (US), the Social Security Act 1965 (US), and the Patient Protection and Affordable Care Act 2010 (US) has created systematic processes allowing the United States Federal Government to recover billions of dollars in fraudulently made claims in the health and procurement areas. The crucial component involves the creation of financial incentives for information about fraud to be revealed from within the corporate sector to the appropriate state officials. This article explores the opportunities for creating a similar system in Australia in the health care setting.     

‘Til death do us part’: surviving spouses,civil partners and provision on intestacy in Ireland

The Succession Act 1965 brought, it was said, a ‘revolutionary change’ in the law of succession to Ireland (Re Urquhart [1974] IR 197 at 208). However, despite the enormous impact it has had on citizens, in the 50 years since its enactment, the Act has never been subject to a comprehensive review or reform. This lack of legislative engagement in Ireland stands in marked contrast to a number of other common law jurisdictions. In the past decade alone, the Law Commission for England and Wales, the Scottish Law Commission, the New South Wales Law Reform Commission and the British Columbia Law Institute have each placed their respective succession law regimes under the microscope. Responding to this gap in the literature, this article considers the extent to which surviving spouses or civil partners are adequately protected on intestacy, specifically, in Ireland. Highlighting the potentially serious shortcomings of the Irish fractional share approach, and drawing on the experience of a number of common law jurisdictions, the article presents a proposal for reform. In this regard, it places a particular focus on the need to strike an appropriate balance between the competing interests of spouses/civil partners and children in the distribution of an intestate estate.     

Beyond the property debate: animal welfare as a public good

Abstract

Animal protection is socially constructed through laws specifying which animals should be protected and how. Most jurisdictions codify animal abuse by specifying the legal protections granted to animals. While these vary between jurisdictions, western legal systems generally provide for better levels of animal protection by incorporating animal welfare and wildlife crime laws into criminal justice systems. UK legislation has long held that animal welfare is a public good, thus animals should be protected in the public interest. However, despite the protective provisions of animal protection laws they generally fall short of giving animals actual rights, protection exists only to the extent that animal and human interests coincide. Animals’ legal status as property dictates that much anti-animal abuse and wildlife crime legislation is about allowing animal exploitation commensurate with human interests. However, UK legislation in the form of the Animal Welfare Act 2006 subtly shifts this position in respect of domestic animals by imposing a duty of care towards companion animals. This paper argues that by requiring owners and responsible persons to give active consideration to the needs of individual companion animals, the Animal Welfare Act provides animals with a level of protection that amounts to a form of legal rights.     

Developments in medical law in the United Kingdom in 2005 and 2006

This article highlights and summarises the key developments in medical law in the jurisdictions of the United Kingdom in 2005 and to April 2006. Topics are mental health and mental capacity, data protection, freedom of information and the impact on health data, the Human Tissue Act, genetic research databanks, Human Fertilisation and Embryology Act--Review of the legislation, consultations and related case law, developments in embryo and embryonic stem cell research, clinical trials and human subject research, medical futility, and physician assisted dying.     

The jurisdictional bar provision: who is an appropriate relator?

After explaining the role of the qui tam litigation and demonstrating its importance to fighting Medicare fraud and abuse, this article provides a detailed explanation of various court interpretations of the jurisdictional bar provision of the False Claims Act, a common and contentious statutory pitfall for qui tam litigators. The author provides a thorough evaluation of the law among different circuits to assist litigators in choosing favorable jurisdictions to increase their likelihood of success.     

Cooperation in identifying and providing information to assist states in pursuing third party health coverage--Family Support Administration, HHS. Final rule

This final rule implements section 12304 of the Consolidated Budget Reconciliation Act (COBRA) of 1985 which requires each applicant or recipient to cooperate with the State in identifying and providing information to assist States in pursuing any third party who may be liable to pay for care and services available under State plans for medical assistance under title XIX, unless such individual has good cause for refusing to cooperate as determined by the State agency in accordance with standards prescribed by the Secretary. The regulations are applicable to the AFDC program in all jurisdictions.     

The right of caregivers to access health information of relatives with mental illness

This article reviews the legal, ethical and practical challenges of complying with the Ontario Personal Health Information Protection Act (PHIPA) within the context of a Canadian mental health system that is overburdened and under resourced. The advent of deinstitutionalization has placed significantly increased responsibilities on the families of mentally ill individuals. While research evidences that involving family members in the care of their mentally ill relatives improves treatment outcomes, mental health practitioners constantly face the challenge of engaging family caregivers while also complying with privacy laws. The authors propose an Ontario Caregiver Recognition Act (OCRA) to formally recognize family caregivers as informal health information custodians based on the practice of other jurisdictions which incorporate the rights of family members actively engaged in providing care to their mentally ill relatives.     

Psychological models of mental disorder, human rights, and compulsory mental health care in the community

Recent amendments to the 1983 Mental Health Act in the UK (Mental Health Act 2007) include the controversial provision for: “supervised treatment in the community for suitable patients following an initial period of detention and treatment in hospital”. This provision is widespread, and more formal, in other English-speaking jurisdictions. Reviews of the international literature, human rights considerations and the perspective of psychological approaches to mental health care suggest that proposed ‘supervised community treatment orders’ are valuable, lawful, and compatible with the European Convention on Human Rights if certain specific conditions are met. Provisions for ‘supervised community treatment orders’ in the UK should be supported, but with the provisos that: the powers of the Mental Health Act are limited as in Scotland, to persons whose “ability to make decisions about the provision of [care] is significantly impaired”, that each order is time-limited and subject to review by a properly constituted Tribunal, and that the use of such orders should represent a benefit to people in terms of more appropriate treatment, or be a least restrictive alternative, or better preserve the person's private and family life.     

Federal financial participation in state assistance expenditures; federal matching shares for Aid to Families with Dependent Children, Medicaid, and aid to needy aged, blind, or disabled persons for October 1, 1991 through September 30, 1992--HHS. Notice

The Federal Percentages and Federal Medical Assistance Percentages for Fiscal Year 1992 have been calculated pursuant to the Social Security Act (the Act). These percentages will be effective from October 1, 1991 through September 30, 1992. This notice announces the calculated "Federal percentages" and "Federal medical assistance percentages" that we will use in determining the amount of Federal matching in State welfare and medical expenditures. The table gives figures for each of the 50 States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands. Programs under title XIX of the Act exist in each jurisdiction; title IV-A programs in all jurisdictions except American Samoa and the Northern Mariana Islands; programs under titles I, X, and XIV operate only in Guam and the Virgin Islands; while a program under title XVI (AABD) operates only in Puerto Rico. The percentages in this notice apply to State expenditures for assistance payments and medical services (except family planning which is subject to a higher matching rate). The statute provides separately for Federal matching of administrative costs. Sections 1101(a)(8) and 1905(b) of the Act, as revised by section 9528 of Pub. L. 99-272, require the Secretary of Health and Human Services to publish these percentages each year. The Secretary is to figure the percentages, by formulas in sections 1101(a)(8), and 1905(b) of the Act, from the Department of Commerce's statistics of average income per person in each State and in the Nation as a whole. The percentages are within upper and lower limits given in those two sections of the Act.(ABSTRACT TRUNCATED AT 250 WORDS)     

A Roadmap for CANS Validation

In nearly every jurisdiction, juvenile or family courts will be using the Child and Adolescent Needs and Strengths (CANS) tool to assess whether children can safely be treated in family-like settings to meet federal Family First Prevention Services Act (FFPSA) requirements. Yet, a number of peer-reviewed publications have raised serious concerns regarding the lack of CANS validation research. Rather than reject CANS, this article provides a roadmap for validating the tool with data that jurisdictions have already collected. Courts should require these three simple analyses before relying on the assessment.     

Dilution in the US, Europe, and beyond: international obligations and basic definitions

Legal context. The efficacy of trade mark dilution as a causeof action has been cast into doubt by the Supreme Court's actualdilution standard. However, Congress is currently consideringthe Trademark Dilution Revision Act 2005, removing the actualdilution standard and resolving other difficulties under thepresent Lanham Act 43(c). This should breathe new life intoblurring and tarnishment. It should also be recalled that theEU already has strong laws against dilution and unfair advantage. Key points. This article identifies international dilution obligationsin order to determine (in Part II) whether the US and EU arecompliant. It identifies problems under the present US dilutionlaw and the solutions offered by the Revision Act. It comparesthe US proposals with EU dilution protection to determiningwhat the two jurisdictions have to learn from each other. Thistheme will be continued in the next part of this article, whichfocuses specifically on blurring/detriment to distinctive character. Practical significance. The introduction of new US legislationwill make successful dilution claims easier and will increasethe frequency of actions under 43(c). It is vital that trademark lawyers are familiar with the changes. At the same time,it should be remembered that many of the same outcomes can beachieved under the current European legislative provisions.To the extent that the jurisdictions do not live up to theirinternational dilution obligations, there is scope for proprietorsto lobby for even stronger protection.