Volume 17, Number 2, 2000
Articles
- The Impact of the Charter of Rights and Freedoms on Canadian Family Law - Susan B. Boyd
This article provides a snapshot as of 1999 of the substantively diverse ways in which the Charter has affected a significant field of Canadian "private law" -- family law. The first part assesses the general impact of the Charter on family law. The second part reviews the most significant court challenges to family law based on the Charter. The final part offers a brief case study of the impact of the equality/ anti-discrimination provisions of section 15 on family law in order to illustrate the diverse effects that the Charter can have. This final part also reveals the evolving approach to equality and discrimination of the Supreme Court of Canada. Throughout the article, the complex and often contradictory ways in which rights discourse relates to legal regulation of familial relations are briefly highlighted.
- Joint Exercise of Parental Authority: The Quebec Civil Law Perspective - Dominique Goubau
This article comes in the wake of the Report of the Special Joint Committee on Child Custody and Access entitled For the Sake of the Children [See Note 1 below] and the Government of Canada's response, Strategy for Reform. [See Note 2 below] In its response, the federal government supports "a child-centred policy that will encourage parents to share the responsibilities of child rearing in a way that will allow both parents to have the opportunity to guide and nurture their children." The response also indicates that the government "will review the concepts, terminology and language used in family law with a view to identifying the most appropriate way to emphasize the continuing responsibilities of parents to their children and the ongoing parental status of both mothers and fathers post-divorce." In its report, the Special Joint Committee made several references to the specific situation of Quebec law, which, in keeping with civil law tradition, draws on the notion of joint exercise of parental authority. The purpose of this study is to describe that civil law concept and the manner in which it is applied and understood in Quebec in order to assess the advantages and disadvantages. Reference to the solutions used in other civil law jurisdictions will serve to highlight the unique character of this concept. The aim of my presentation is ultimately to answer the following question: in the context of divorce reform, does Quebec law offer an interesting prospect in terms of parental roles?
- European Models of Domestic Partnership Laws: The Field of Choice - Caroline Forder
In this paper a comparative overview will be given of the range of statutory schemes to be found in the legal systems across Europe which have the objective of regulating cohabitation or partnership relationships. It should be made clear at the outset that the majority of legal systems in Europe do not have a statutory scheme regulating either partnership or cohabitation: this article only seeks to explore the qualities of those schemes which do exist. The rationale of each scheme will be explored and compared with the other schemes. In particular a number of questions will be addressed. These are: who is permitted to register (same-sex couples only? or opposite-sex couples? or all couples? or any couple which is unable to marry?) does the scheme bring a change in civil status? what procedures are needed to invoke the scheme? and which (marital) rights and obligations are to be excluded or included? Although this article strives to provide a picture of the overall developments within Europe, in the nature of things a rather prominent place is given to the legal developments in the Netherlands, as this legal system has recently introduced registered partnership and also taken the further step of introducing legislation which could lead to the opening up of marriage to same-sex couples.
- Ties That Bind: Ontario's Filial Responsibility Law - Christa Bracci
Section 32 of Ontario's Family Law Act requires adult children to support their aged parents. Although this law and similar statutes in other jurisdictions have existed for years, claims for parental support have only recently come before the courts in significant numbers. With a quickly expanding elderly population in Canada, and potentially insufficient government resources, many more claims could be pursued in the near future. Section 32 requires that in order to be eligible for parental support, a parent must demonstrate need, have provided care or support for the child, and the child must have the means of contributing to the parent's support. Because of the lack of claims pursued, however, the jurisprudence that interprets this section is not well developed. While courts in Ontario may find guidance in the decisions of other jurisdictions, there remain significant ambiguities in the law that may only be resolved by an examination of the public policy behind filial responsibility laws. Filial responsibility laws in and of themselves are an insufficient government response to the needs of the elderly in our society. The use of such laws by parents making claims can destroy already fragile ties between family members. A comprehensive government policy addressing all the needs of the aged is preferable to the use of filial responsibility laws, which merely shift the burden of caring for the elderly onto family members with no attendant support.