Volume 3, Number 1, 1980
Articles
- Issues in the Determination and Enforcement of Child Support Orders - Brian Burtch, Carol Pitcher-LaPrairie & Andy Wachtel
The problem of non-support of children after marital separation has been widely recognised in many jurisdictions. It has attracted a considerable body of applied research and programme development, but fundamental issues are largely unresolved. Such questions as support guidelines, adequacy of awards, motives of defaulters and the efficacy of Court enforcement procedures are briefly reviewed. The authors propose that further programme development be undertaken in tandem with basic research on maintenance-related issues.
- "Fault" Notions in Custody Adjudication Under Australian "No Fault" Matrimonial Law - Ellen Goodman
Current Australian divorce law is based on the sole ground of irretrievable breakdown of marriage. It is suggested that despite the "non-fault" rationale underlying this legislation, there appears to be a re-emergence of notions of "fault" (albeit in a different form from those previously entertained) in the decision-making process involving custody disputes. The tentative conclusion to be gleaned from the relevant case law is that, whereas under previous legislation the "matrimonially guilty" party contesting custody with a "matrimonially innocent" party was at a disadvantage, under present legislation it is the parent who follows an "unconventional life-style" who is at a disadvantage in a dispute with a parent embracing a "conventional life-style".
- Access: Legal Right or Privilege at the Custodial Parent's Discretion? - Judith Brown Greif
The author maintains that the singular most destructive aspect of divorce as it is practised today is the legal restriction of a child's open and easy access to both parents. Drawing on research and clinical example, the author discusses the serious problems posed for every member of the family, parents as well as children, when custody resides in one parent and the other parent's involvement with the children is significantly curtailed. Rather than support the imposition of legal visitation restrictions, interventions should be directed at maximising contact between the child and both parents, including the use of joint custody arrangements.
- Procedure in Child Custody Adjudication: A Study in the Importance of Adjective Law - Edward D. Bayda
The law of procedure tends to receive far less attention than do matters of substantive law. This is unfortunate, since the absence of a uniform body of sensible procedure can generate as much injustice as can the absence of sensible substantive law. The author illustrates this thesis by drawing upon two examples of substantive law whose procedural implementation is currently in a state of jurisprudential confusion: the right of a child to legal representation in a custody dispute; and the obligation of a Court to decide custody on the basis of the child's best interests. Solutions that extend traditional rules of procedure are inadequate and the author advocates the creation of a dramatically new set of rules.
Review of Periodical Literature
- Elissa P. Benedek and Richard S. Benedek: "Joint Custody: Solution or Illusion?" (1979), 136 Am. J. Psychiatry 1540.
- Arthur Leonoff and Maureen O'Neil: "Understanding Psychological Impediments to Joint Custody" (1979), 8 R.F.L. (2d) 93.
- Edward J. Rosen: "Joint Custody: In the Best Interests of the Child and Parents" (1978), 1 R.F.L. (2d) 116.
- Frank Bates: "Child Law and Religious Extremists: Some Recent Developments" (1978), 10 Ottawa L. Rev. 299.
- Eric Colvin: "Custody Orders Under the Constitution" (1978), 56 Can. Bar Rev. 1.
- Nancy A. Carroll and John W. Reich: "Issues in the Implementation of the Parent Aide Concept" (1978), 59 Social Casework 152.
- Chittaranjan N. Nirmel: "Save the Children: Help the Dangerous Parent" (1979), 2 Fam. L. Rev. 3.
- Edward Veitch: "Divorce Under the Divorce Act of Canada, 1968-1978" (1979), 2 Journal of Divorce 295.
- Doris I. Wilson: "Voluntary Sterilization: Legal and Ethical Aspects" (1979), 3 Leg. Med. Q. 13.
In The Family Courts
- U.P. v. W.P.
- Polglase v. Polglase and Boyle
- Lawless v. Lawless
- McCabe v. McCabe and Daley (No. 2)
- Foster v. Foster
Book Review
- H. Robert Hahlo, Nullity of Marriage in Canada with a Sideways Glance at Concubinage. (Toronto: Butterworths, 1979). - Berend Hovius