Volume 19, Number 2, 2002
Articles
- Spousal Support Guidelines and the American Experience: Moving Beyond Discretion - Marie Gordon
In the post-Bracklow era, we have experienced a tremendous lack of clarity and predictability in the awarding of spousal support. The lack of consistency and uniformity has jeopardized the integrity of the remedy itself, leaving practitioners, litigants and judges with little guidance on rationale or result. This paper examines the theory and practice behind the recent introduction of spousal support guidelines in a number of American jurisdictions, and the possibility of adopting a similar approach in the Canadian setting. The author examines the "pro's" and "con's" of adopting Canadian spousal support guidelines, the historical clarity on private negotiations between spouses. Examples of American guidelines in theory, as well as in practice are explored.
- "Intuitive Fiduciaries": The Equitable Structure of Family Life - Margaret Isabel Hall
The trust has been suggested as a conceptual framework for describing the relationship between parent and child as a model for organizing or structuring child protection legislation and practice. This theoretical framework has been only partially followed in the law itself, where the fiduciary relationship between parent and child has been articulated as a retroactive theory of liability for breach. The implications of the trust model as a mechanism for enforcing the "family trust" have not been developed. In this paper I have set out a conceptual foundation and framework for the fiduciary child protection that is inferred by the fiduciary relationship between parent and child. The theoretical coherence of fiduciary child protection has important practical implications; the fiduciary model suggests the proper function of State child protection (how it might work) while explaining the purpose and legitimacy of the State's intervention (why it should work).
- The Separate Representation of Children in Australian Family Law - Effective Practice or Mere Rhetoric? - William J. Keough
This paper will examine the theory, history, and development of the practice of child representation in Australian family law. The paper will identify the practice of child representation in family law as a new paradigm in contemporary family law which challenges the stereotypical adversarial practice of lawyers in the matrimonial arena. The paper will examine the role of the child representative in acting for younger children, as opposed to acting for older children, and the implications of the United Nations Convention on the Rights of the Child in so acting. A model will be suggested as to the proper "role" of the child representative. The paper will go on to examine a number of difficult issues facing the child representative, such as whether or not to interview the child "client, cross-cultural issues in the representation of children, and the like. In addition, the paper will examine a number of other contemporary problems besetting the practice of child representation in Australia - such as legal aid funding cutbacks in family law cases and the limitation of the role of a child representative appointed in proceedings brought under the Hague Convention on the Civil Aspects of International Child Abduction - which, in the view of the author, challenges Australia's commitment to upholding the aims of the United Nations Convention on the Rights of the Child. Finally, the paper will examine various implications for future research in this area, which, in the view of the author, transcends jurisdictions worldwide. Such matters include research on the effects of exposing children to domestic violence: research as to the effects of Parental Alienation Syndrome (PAS) on children; gay and lesbian parenting; and best practice for the representation of children, i.e.: training and the accreditation of child representatives. This paper will be a critical examination of the practice of child representation in Australia and and will aim to act as a caveat emptor for the development of similar practice in Canada. The central thesis of the paper is that for the practice of child representation in family law to be effective it must not be the subject of factors that could realistically be seen as challenging the ethos of Article 12 of the United Nations Convention on the Rights of the Child.
Case Comment
- Halpern v. Canada (A.G.), [2002] O.J. No. 2714 (Ont. Div. Ct.) - Kathryn Chapman
Book Review
- Lorna A. Turnbull, Double Jeopardy: Motherwork and the Law. (Toronto: Sumack Press, 2001). - Rebecca Johnson