Volume 12, Number 2, 1995
Articles
- Family Assets in British Columbia - Keith B. Farquhar
In British Columbia the Family Relations Act provides that upon marriage breakdown each spouse is entitled to an undivided half interest in each family asset as a tenant in common. The term "family asset" is defined in the Act in a variety of very general ways, and this generality has led to a flood of litigation on whether particular assets are to be divided or not. In recent years new issues have arisen in this connection. An asset is a family asset if it has been ordinarily used for a family purpose, but when will potential use or availability of an asset lead to division? This issues has led to complex jurisprudence involving insurance policies, damage awards, lump sum payments emerging out of employment, shares, interests in trusts, pensions and savings plans of various kinds. Another issue that has given rise to litigation is the date at which an asset ought to be characterized, and an allied point is that of the time at which valuation ought to take place. Yet again, as the Act is silent on the question of how responsibility for debt is to be allocated, a plethora of decisions on this matter has emerged. The author concludes that this litigation is unnecessarily time-consuming and expensive, and that it could be eliminated in large measure by a re-thinking and revising of the definition of family assets in the Act.
- Uncomfortable Victories and Unanswered Questions: Lessons From Moge - Colleen Sheppard
In this article, Colleen Sheppard reviews the significance of the Supreme Court of Canada's decision in Moge v. Moge, a leading case on the legal justifications for requiring former spouses to provide economic support following marriage breakdown. She maintains that the Court applied a substantive conception of gender equality to questions of spousal support that was sensitve to the disadvantaging effects of unpaid domestic work and child are responsibilities. In so doing, the Court rejected the formal equality characteristic of the presumed self-sufficiency model of spousal support. The author also highlights the importance of the Court's rejection of the modern versus traditional dichotomy in family law, which was premised on stereotypes that excluded most women's lives. Despite these positive dimesnions of the decision, the Moge case did not address the larger systemic context of Zofia Moge's economic vulnerability, as an immigrant woman with limited English language skills and educational training. The Court did not deal with issues such as gender, race, ethnic or national origin, or language discrimination in the workplace. Nor did it acknowledge the way in which immigration law and policy often reinforce gendered patterns of familial dependence. By focusing on economic obligations between individual spouses, the Moge case risks reinforcing a privatized response to economic inequalities and understating the importance of the larger social context of women's economic insecurity following marriage breakdown.
- W(h)ither Feminish? The Department of Justice Public Discussion Paper on Custody and Access - Susan B. Boyd
In spring of 1993, Canada's Department of Justice published a public discussion paper on custody and access and invited responses by December of 1993. It reviewed problems that have been identified in the field of custody and access and canvassed various reform possibilities. In this article, the discussion paper is described, discussed and a critical analysis is provided from a feminist perspective. Concerns are raised about reform alternatives such as the Parenting Act model of Washington State. Feminist responses to the discussion paper and recommendation are reviewed, including the need for an emphasis on the primary caregiving that continues to be provided mainly by women in Canadian society. The ways in which gendered power relations are underrated in the discussion paper, despite an effort to take gender bias into account, are identified.
- "Best Interests" In Child Protection Proceedings: Implications and Alternatives - Bernd Walter, Janine Alison Isenegger and Nicholas Bala
In the past two decades child protection legislation in Canada has placed more emphasis on legal rights, but continued to base much decision making on the "best interests of the child" test. While having understandable symbolic appeal, this test gives decision makers a broad discretion, and requires invocation of personal values as well as speculation about the future. It has often been implemented in a discriminatory fashion. This paper critiques the best interests test in child protection proceedings, arguing for more realistic, easily implemented, child focused criteria and for more expeditious decision making. It advocates more accountability from the child welfare system for intervention in the lives of families and children as well as for more decisive action to find stable placements for children when family situations cannot be brought to minimum acceptable levels in a child sensitive time period.
Review of Periodical Literature
- "Finding Fathers: Artificial Insemination, Lesbians and the Law"
- "The Abolition of Corporal Punishment in Canada: Parents' versus Children's Rights"
- "Violence and Family Mediation: Practice"
Case Comment
- Child Sex Abuse: A Comparative Case Comment