Volume 29, Number 1, 2014
Articles
- Suppressing Damages in Involuntary Parenthood Actions: Contorting Tort Law, Denying Reproductive Freedom, and Discriminating Against Mothers - Bruce Feldthusen
"Involuntary parenthood" actions are negligence actions, usually medical malpractice cases involving a failed sterilization, inadequate warning about the risks of pregnancy, or a failed abortion. In Canada, they will soon also involve product liability claims against negligent birth control manufacturers, providers and regulators. This article considers whether the parents' damages ought to include the cost of raising the child. No Canadian appellate court has ever ruled on this point, although it has been adjudicated extensively by the highest courts elsewhere in the common law world. At least 7 different rules limiting such recovery have been endorsed in the Canadian lower courts. Most of the limiting rules are unique to involuntary parenthood cases, deviating from the outcome that would prevail were the standard rules of negligence law applied. Many have no rational foundation. This article concludes that the failure to compensate parents for the cost of raising the child cannot be justified. Rather the refusal to compensate for reasonable child rearing expenses constitutes discrimination against parents, especially women who are mothers. This discrimination is sometimes, perhaps often, perpetrated by judges who refuse to accept and protect a woman's right to reproductive freedom. These mothers are under-compensated, and the medical establishment that failed them is under-deterred.
- Rethinking Canadian Legal Approaches to Frozen Embryo Disputes - Stephanie Carsley
This article examines and critiques Canadian legal responses to disputes over frozen in vitro embryos. It argues that current laws that provide spouses or partners with joint control over the use and disposition of embryos created from their genetic materials and that mandate the creation of agreements setting out these parties' intentions in the event of a disagreement or divorce overlook the experiences of women who undergo in vitro fertilization treatment. It also maintains that these laws do not accord with how Canadian law and public policy has responded to similar conflicts between spouses, or to agreements that seek to control or restrict women's reproductive choices. This article considers how legislatures and courts in other jurisdictions have sought to respond to embryo disposition disputes, but argues that their respective approaches raise similar issues and would pose additional problems within the Canadian context. It ultimately provides recommendations for how Canadian laws might better support the express objectives of the Assisted Human Reproduction Act and Quebec's Act Respecting Clinical and Research Activities Relating to Assisted Procreation to protect the health and well-being of women, to promote the principle of free and informed consent and to recognize that women are more directly affected than men by the use of assisted reproductive technologies
- Establishing Canada's First Integrated Domestic Violence Court: Exploring Process, Outcomes, and Lessons Learned - Rachel Birnbaum, Nicholas Bala, and Peter Jaffe
The establishment of domestic violence courts has resulted in significant improvements in responses to family violence, but these courts have generally dealt only with criminal cases and do not address the risks that the victim and children may face in family proceedings. In some locations in the USA, courts have been established to deal with both criminal and family proceedings that arise from a domestic violence situation. This paper describes and analyzes the establishment of the first court in Canada that hears both criminal and family cases concerning families where there are domestic violence issues. The authors report on a study of the views and experiences of 21 stakeholders (judges, Crown, criminal and family lawyers, community supports, victims, and offenders) involved in the Integrated Domestic Violence Court in Toronto. The participants generally report that the Court provides a better approach to dealing with domestic violence post separation, though there are some concerns expressed about its operations, especially by lawyers representing alleged abusers. The Integrated Domestic Violence Court is a promising example of how systems can collaborate to better protect victims and advance the interests of children.
- A Relational Model of Family Lawyering: Exploring the Potential for Education, Practice, and Research - Jill Howieson and Lynn Priddis
This article responds to what seems to be a "hot" millennium topic in the family law environment—namely the nature of the relationship between the family lawyer and the client. It proposes a model of family lawyering that puts the relationship with the client explicitly in the foreground of the process and suggests a research regime that could investigate the merits of the model. The authors refer to the model as a "relational model of family lawyering." The model involves family lawyers working within a partnering framework that incorporates attention to the relational aspects of the process, and in particular, to "mentalizing." Mentalizing is a construct that research has found creates space for parties in the family conflict to consider others' perspectives, alternative courses of action, and more constructive methods of approaching the dispute. The authors propose that the relational model could be a way of conceptualizing what family lawyers already do in practice with a number of additional factors that could enhance "best-practice." Adoption of the model could assist family lawyers in attending to some of the psychological needs of the clients in a dispute resolution mode while still fulfilling their requirements as legal advisors. The authors discuss this proposition in the context of implications for education, practice and research.
- Protecting Survivors of Domestic Violence Within the Insurance Regime: Opportunities to Seek Termination or Variation of Insurance Contracts - Elizabeth Adjin-Tettey
A person whose life is insured under a life insurance contract for the benefit of another person does not have a contractual or common law right to terminate or otherwise affect the terms of the contract. As well, such contracts remain valid even after termination of the relationship that provided an insurable interest at the commencement of the contract. The existence of a life insurance contract might provide an incentive for the policy owner/beneficiary to cause harm to the insured person in order to collect the insurance money. Recovery of the insurance money is precluded on grounds of public policy if the beneficiary is found liable for the death of the insured person. However, this is no comfort for the victim; indeed, this situation has the potential to create or exacerbate the vulnerability of victims of domestic violence, who are mostly women and children. Manitoba, British Columbia and Alberta have enacted provisions entitling persons whose lives are insured to seek judicial remedies aimed at alleviating the safety concerns in specified circumstances, notwithstanding the applicant's lack of privity of contract. This paper examines the bases and nature of the remedial options and explores how they can effectively protect persons whose lives are insured for the benefit of the policy owner and the appropriate threshold for granting remedies. Applicants may seek remedies under the insurance legislation in conjunction with protection orders in the family or criminal context. Courts are likely to assess similar factors when considering appropriate remedies under the insurance and family law regimes. Although these remedies are not a panacea for domestic violence, they may be significant in preventing violence against women and children whose lives are insured by other family members and where the latter's motivation for violence may include recovery of insurance money.