I was asked a question during my radio show on Fairchild Radio a few weeks ago about an interesting scenario.  A Chinese couple had a child during marriage.  A few years ago, the mother divorced the father and then the mother hooked up with a boyfriend from Brazil.  The mother had sole custody of the child while the father had access only.  As such, the Brazilian boyfriend acquired the title of step-father to the child. 

However, a few months ago, the mother died and left the child with all of her possessions and assets.  Both the Brazilian boyfriend and the biological father then applied to the court for sole custody to the child.  Basically, whoever gets custody to the child can manage the mother’s estate assets.  The legal questions are: "Can the step-father obtain sole custody of the child?"  "Is there anything the biological father do to stop the step-father from obtaining sole custody to the child?"

The Children's Law Reform Act of Ontario provides the answer to this question.  Under the definition of “parent”, it provides three ways a person can become a parent to the child:

1.      By being the biological parent of the child;

2.      By being the adoptive parent of the child; or

3.      By obtaining a court order or court declaration of a non-parent custody.

A step-parent will not automatically have child custody.  In order for the step father to have custody over the child, the step-father will need to make a court application for a “non-parent custody” order.  Before granting such order, the court will consider the following factors.

1.      The opinion of the child – who does the child choose to be his/her father?

2.      Representations of the person – Whether the step-father is trustworthy?

3.      Intention – Why would the step-father want to take custody of the child?

4.      Whether the child participates in the extended family as would a biological child?

5.      Whether the step-father provides financially for the child?

6.      Whether the step-father disciplines the child as a parent?

7.      Whether the step-father represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child?

8.      The child's relationship with the absent biological parent

In order for the Chinese biological father to obtain sole custody of the child, he will need to prove to the court that the step-father cannot meet the above factors.  The biological father will need to demonstrate to the court that he has the resources and time to take care of the child and most importantly, that it is in the best interest of the child to grant the father sole custody. 

Let's say you have an unique design on a product.  You want to protect this design from being copied by someone else.  What type of intellectual property tools can I use to protect my unique design? 

I was asked this question by a business owner looking to protect her unique styles of products.  An industrial design would offer the level of protection that allows the business owner to reserve her claim on the design.  All industrial designs may be registered with the Canadian Intellectual Property Office (the "CIPO") in Ottawa.  In order to qualify, you must prove that your design is original, meaning you did not copy from someone else. The industrial design must be registered with each country in order to create a enforceable rights to the protection. 

There is no time frame as to when you must register the industrial design so long as you have not disclosed your design to the public or offered the commercial use of your design.   If you have disclosed your design to the public or offered for commercial use anywhere around the world, then  you have only 12 months from the date of disclosure to register an industrial design.   

The registration will be on a first come, first serve basis. If someone else filed the application form of the design before you did, then you lost your rights to the industrial design.  Should you need an industrial design to be registered, call us for more information.

Scott Au