Volume 26, Number 2, 2010
Articles
- Unheard Voices: Adoption Narratives of Same-Sex Male Couples - Malcolm Dort
This is the first legal study in Canada on same-sex adoption law, adoption administrative practice, and the social realities of parenting as experienced specifically by same-sex male couples. This paper identifies a gap in existing legal literature and jurisprudence with respect to the adoption narratives of same-sex male couples. Next, focusing on the province of Québec, it offers insight into how legal rules and social expectations construct families headed by such couples. It also highlights how, post-adoption, same-sex male couples conceive of their own families in a legal and social environment that continues to privilege heterosexual family models. Contradictorily, by entering societal discourse as committed couples who create families, these men reproduce aspects of an idealized heterosexual, two-parent family model.
- Newborn Adoption: Birth Mothers, Genetic Fathers, and Reproductive Autonomy - Lori Chambers
Overwhelmingly, Canadian-born children relinquished for newborn adoption have been born to unmarried mothers. Under provincial adoption acts, in cases of "illegitimacy" only the mother's consent was necessary for a child to be eligible for adoption. Since adoption statutes were introduced, however, the distinctions between those born within and outside of marriage have been eliminated at law. Provincial legislation now recognizes a wide range of unmarried men as fathers, lists circumstances under which paternity will be presumed and provides for the use of genetic testing. But this raises significant questions in the context of newborn adoption. Whose consent is required to relinquish a child? In this paper it is argued that the unfettered right to release a newborn child for third party adoption is an essential component of women's reproductive autonomy. It is also essential to women's dignity and equality rights, and to the right to liberty and security of the person. To illustrate this argument, consent provisions are contextualized by explicating the disrespect for unmarried birth mothers that has been central to adoption regimes. This is contrasted with the expanding rights of non-marital fathers under Charter litigation. With regard to newborn adoption, Charter reasoning has delivered equality with a vengeance. Relinquishment should be considered an issue of reproductive freedom, not a question of custody. Interference in the birth mother's decision-making process violates her section 15 right to equality; the on-going poverty and discrimination faced by single mothers are erased when the genetic claims of men are considered to give them equal standing with mothers in adoption cases. Moreover, women's section 7 rights to liberty and security of the person are vitiated when men can interfere with adoption placement, forcing women to abort or to retain custody themselves.
- One Judge for One Family: Differentiated Case Management for Families in Continuing Conflict - Nicholas Bala, Rachel Birnbaum, and Justice Donna Martinson
Understanding the differences between family cases and other types of litigation is essential for an appropriate response to family disputes. Judges have a role in family cases that markedly differs from the traditional judicial role. The authors argue that an effective and accessible family justice system requires pre-trial and post-trial case management by a single judge, an approach to family justice reflected in the slogan: "One judge for one family." Judges should have the necessary knowledge, skills, and training needed to resolve family disputes and to help effect changes in parental behaviours and attitudes, as well as the willingness to collaborate effectively with non"legal professionals. A differentiated approach to the way each family case is managed is required, varying with the nature of the case, the nature and level of the conflict, and the stage of the litigation process. The paper includes consideration of Canadian approaches to judicial case management, including analysis of the small body of reported case law on the reasons for judicial managing and monitoring family cases before and after trial, and on recusal—when to stop case management.
Allan Falconer Memorial Student Essay Contest Winner
- Access Barred: The Effects of the Cuts and Restructuring of Legal Aid in B.C. on Women Attempting to Navigate the Provincial Family Court System - Jaime Sarophim
Self-represented litigants are becoming an epidemic in the B.C. provincial court system. Litigants who lack legal training and knowledge about the formalities of the court often slow and disrupt the justice system. The cuts to legal aid and the Supreme Court of Canada decision in Christie have contributed to this epidemic. The purpose of this paper is to discuss some of the challenges that self-represented litigants pose to the family law justice system. The erosions to legal aid funding and services have had a disproportionately negative effect on women. It has forced women to become self-represented litigants, resulting in women's continued impoverishment and financial dependency on men, exposed women to violence and abuse by ex-spouses, and forced women to surrender child support, spousal support, custody, and access rights. This paper addresses the current state of legal aid in B.C. It also discusses the adverse effects that the cuts and restructuring of legal aid in B.C. have had on women attempting to navigate the provincial family court system. The paper limits its discussions to the heterosexual experience for brevity and does not address child protection issues, as different legal rules apply in that context.