Volume 29, Number 2, 2015
Articles
- Relational Theory and Choice Rhetoric in the Supreme Court of Canada - Lucy-Ann Buckley
The issue of personal choice has become central to Canadian family law. Much of the debate derives from the competing models of autonomy posited by neoliberal and feminist theorists. Neoliberalism, which currently dominates Canadian public discourse, views individuals as atomistic agents who can and should make "responsible" choices. However, feminists have highlighted the effects of structural barriers and social context on personal decision-making, particularly for women, and have advanced alternative relational autonomy models. These models are particularly appropriate to family law, but their application to family financial ordering has not been widely considered. This article discusses the practical significance of a relational autonomy approach in the context of spousal support (maintenance) and property agreements, focusing on the jurisprudence of the Supreme Court of Canada from 1987 to date. However, while the article centres on Canadian law, it also speaks to the broader debate on autonomy and fairness in family law generally. The article asks two core questions: First, to what extent has relational theory informed the Court's decisions on spousal support and marital property agreements? Second, do or would relational understandings make a practical difference in spousal support and marital property agreement cases? The article traces the evolution of autonomy theory in the Court's decisions on marital property and spousal support agreements. It contends that the Court has gradually adopted a largely, though not consistently, relational approach. This approach may not always make as much practical difference as some feminists might expect. Nevertheless, the article argues that a relational approach may be vitally significant in some cases. Consequently, the article concludes that it would be regrettable if so-called "choice rhetoric" were to displace relational understandings in this context.
- "Race Is Not a Determinative Factor": Mixed Race Children and Custody Cases in Canada - Susan B. Boyd and Krisha Dhaliwal
Statistics suggest that an increase will occur in the number of custody disputes involving mixed race children in Canada. This article considers the extent to which the fact that a child is mixed race factors into child custody determinations, and how courts consider it. It also discusses whether considering a child's mixed race heritage is helpful in the child-custody context. The article first explains the use of "race" and "culture" in the Canadian context, then reviews the literature on mixed race children and the law, before examining legislation on the "best interests of the child." The focus of the paper is an analysis of reported Canadian custody cases in which a child's mixed race heritage was mentioned in the written judgment, both before and after the leading case, Van de Perre v. Edwards. The case-law analysis considers questions such as judicial racism, "race-matching," and how race and culture are weighed against other factors relevant to a child's best interests. The conclusion offers suggestions for how courts should deal with custody disputes over mixed race children, based on trends identified in the case law. While racialized parents are not inevitably best suited for primary custody of mixed race children, it is key for any parent seeking custody to demonstrate their ability to foster the healthy development of a child's multifaceted identity. More directive legislative language might be useful in order to ensure that at least some judicial attention is paid to race and culture. Finally, taking judicial notice of the relevance of race would also be helpful in acknowledging the persistent existence of racism in Canadian society, as would a more diversified Canadian judiciary.
Allan Falconer Memorial Student Essay Contest Winner
- Who Is Family: Cohabitation, Marriage, and the Redefinition of Family - Andrew Morrison
The emergence of cohabitation as an alternative to the traditional form of the family has left the need for legislative reform. Currently, cohabitants must resort to equitable claims as they do not have access to the property sharing regime designated for married spouses. The definition of "family" requires reformulation to include cohabitation. This reformulation must then be reflected in Ontario's Family Law Act through the adoption of an opt-out regime. This reform appropriately balances the values of autonomy and equality and creates certainty, predictability, and consistency in the law of Ontario. This paper addresses the possibility of reform through the discussion of family law policy.
Book Review
- Relative Strangers: Family Life, Genes and Donor Conception by Petra Nordqvist and Carol Smart - Machteld Vonk