Volume 11, Number 1, 1992
Articles
- Child Sexual Abuse and the Law of Evidence: Some Current Canadian Issues - Allison Harvey Young
The phenomenon of child sexual abuse has recently begun to receive attention in Canada and other countries. As increasing numbers of sexual assault cases involving children come through the courts, it has become apparent that the traditional treatment of children and their evidence, is unsatisfactory. At the core of the problem is the failure of the law to recognize the special needs and psychological realities of children. This has tended to discredit the evidence of children and reinforce the inclination to deny or ignore the problem of sexual abuse. In addition, the application of the rules of evidence to children may be "truth-defeating" rather than "truth-enhancing." Although there have been reforms, the underlying difficulties remain. The use of closed circuit television, screens and video-taped statements in court are steps in the right direction. The author argues, however, that care should be taken to develop appropriate standards for the gathering of children's evidence which are guided by the principle that evidentiary rules should be truth-seeking. The challenge facing Canadian policy makers and the legal community is to find a way to modify the traditional framework to take account of the special needs and realities of children in a manner which is consistent with the constitutionally entrenched rights of the accused.
- Farmland, Free Markets and Marital Breakdown - Joseph Kary
In times of steep rises in the price of farmland, matrimonial property legislation has required that the value be divided between separating spouses is the inflated market value. Since this value often far exceeds the value of any other asset, the couple may have, the result will often be the forced division and sale of the farm. In Saskatchewan, the courts adopted the capital base theory as a justification for avoiding such a result and so preserving the farm as a farming enterprise. This theory was decisively rejected by the Supreme Court of Canada in Farr v. Farr. The author argues that the capital base approach was theoretically flawed, but that it did address a problem which the Supreme Court ignored. He uses empirical study of how farmland can be valued to support a new theoretical approach and argues that the courts must take into account not just the market pricce of the land, but also the utility or use-value that the land has to a farmer. The article concludes with a discussion of ways in which the courts can divide a couple's assets while doing the least injustice to either spouse: employing devices such as security instruments and trust arrangements.
- "Best Interests of the Child" Exposed: A Portrait of Quebec Custody and Protection - Claire Bernard, Robin Ward, and Bartha M. Knoppers
Given that the phrase "best interests of the child" generally remains undefined in the legislation, the task of its interpretation has largley falen to the courts. The authors examine Quebec custody access, and youth protection case law to extract criteria courts resort to when applying the test.
Preserving stability for the child is of paramount concern, whether the dispute involves two parents or parents and third parties. In the latter situation, however, courts must sometimes reconcile two competing values: stability of the child and maintaining a bond with the biological parent. When satisfying both criteria is not possble, courts are beginning to opt for the stabiility of the child with the psychological parent. The authors also discuss the possibility of a child-centered approach to decision-making, in which the child is treated as a true legal subject and becomes an active participant. Such an approach offers hopes for moving beyond the "best interests" test to a more comprehensive vision of the "well-being" of the child in the justice system.
Review of Periodical Literature
- John Batt, "Child Custody Disputes and the Beyond the Best Interests Paradigm: A Contemporary Assessment of the Goldstein/Freud/Solnit Position and the Group's Painter v. Bannister Jurisprudence" (1992), 16 Nova L.R. 2 - Yuki Matsuno
- Penelope E. Bryan, "Killing Us Softly: Divorce Mediation and the Politics of Power" (1992), 40 Buffalo L.R. 2 - Julien Dawson
- Michael L. Closen and Carol R. Heise, "HIV-AIDS and the Non-Traditional Family: The Argument for State and General Judicial Recognition of Danish Same-Sex Marriages" (1992), 16 Nova L.R. 2 - Siobhan Sams
- Matthew S. Feigenbaum, "Minors, Medical Treatement, and Interspousal Disagreement: Should Solomon Split the Child?" (1992), 41 DePaul L.R. 3 - Cheryl Tabler
- Earl M. Maltz, "Constitutional Protection for the Right to Marry: A Dissenting View" (1992), 60 George Washington L.R. 4 - Linda K. Templeton
- Tim Quigley, "Battered Women and the Defence of Provocation" (1991), 55 Saskatchewan L.R. 2 - Wendy R. Holland
- Janet L. Richards, "The Natural Parent Preference Versus Third Parties: Expanding the Definition of Parent" (1992), 16 Nova L.R. 2 - Jonathan Cohen
- Andrew Schepard, Joan Atwood,Stephen W. Schlissel, "Preventing Trauma for the Children of Fivorce Through Education and Professional Responsibility" (1992), 16 Nova L.R. 2 - David Owen
- Hon. Bertha Wilson, "Women, the Family, and the Constitutional Protection of Privacy" (1992), 17 Queen's Law Journal 1 - R.H. Shandler
- Camille L. Worsnop, "The Florida Statute Prohibiting Adoption by Homosexuals in View of Seebol v. Farie: Expressly Unconstitutional" (1992), 16 Nova L.R. 2 - Alison Taylor.
Case Comment
- Spousal Agreements and Statutory Succession Rights - Wagner v. Wagner Estate - Keith B. Farquhar
Book Reviews
- Ron Thorne-Finch, Ending the Silence: The Origins and Treatment of Male Violence Against Women. (Toronto: U. of Toronto Press, 1992). - Donald G. Dutton
- Dorothy E. Chunn, From Punishment to Doing Good: Family Courts and Socialized Justice in Ontario 1880-1940. (Toronto: U. of Toronto Press, 1992). - Mariana Valverder