Volume 3, Number 2 & 3, 1980
Articles
- The Overlapping Custody Jurisdiction: Co-Existence or Chaos? - Judith P. Ryan
At present, legislative jurisdiction over custody of infants is fragmented between federal and provincial legislatures. Curial jurisdiction within any province or territory is likewise scattered over many different Courts. This paper compares the extent of federal custody authority under its divorce and criminal law powers against provincial dominion over custody, guardianship, child protection and adoption. The author also explores the potential for conflict and confusion between the custody powers possessed by inferior Courts and those possessed by superior Courts. The conclusion pleads for rational reform by federal abdication of its custody jurisdiction, by the promulgation of a unified custody code and by the establishment of a system of Unified Family Courts.
- The Child as a Participant in Divorce Proceedings - Donald J. MacDougall
In technical legal terms, a divorce is the dissolution of a marriage. The primary focus is on hte legal relationships between the adult parties, rather than on the other relationships, whether legal or non-legal, that will be affected by the divorce. As a child has significant personal and economic interests at risk in the divorce proceedings, the law should protect those interests and recognise the child's right to participate in the proceedings. The author examines the extent to which existing law protects a child's interests and ensures that a Court determining the custody of a child is adequately informed about the child's wishes and concerns. Problems that have arisen under existing law suggest that some legislative changes should be considered.
- Child Abuse and the Courts: An Analysis of Selected Factors in the Judicial Processing of 'Child Abuse' Cases - Joan Tator & Katherine Wilde
This paper examines 106 cases of child abuse brought before the Provincial Court (Family Division) in Metropolitan Toronto between January 1973 and December 1977. In contrast to the bulk of child abuse studies that have focused on the causal factors of abuse, this custody analyses the legal factors involved in the judicial processing of cases, using the Metropolitan Toronto Children's Aid Society records as a data base. Primary emphasis has been given to the time and delay elements in the Court process and to an analysis of the reasons and responsibility for adjournments.
- Poor Relations: The Effect of Second Families on Child Support - Simon R. Fodden
With the increasing divorce rate in Canada, the incidence of remarriage has begun to climb. One of the consequences of this establishment of second families is that Courts have been confronted with decisions how, if at all, the newly acquired voluntary support duties of the prime obligor towards hi second family affect his subsisting obligations to the first family, and particularly the children of that first family. Regrettably, current jurisprudential wisdom favours the exercise of broad, judicial discretion; at best, the remarriage and its train of new obligations is but a factor to which it is not presently possible to attach any guaranted weight.
- A Comparison of Some Parental and Guardian Rights - Walder G.W. White
Rights and obligations of children's custodians have undergone significant changes throughout the years. Those changes can best be examined by a review of the historical background from which these rights and obligations evolved and by a comparison of the roles of guardians with those parents in this historical context.
- Doli Incapax: The Forgotten Presumption in Juvenile Court Trials - Jill L. McLeod
Since 1892, the so-called "infancy defence" has been codified in Canadian law as part of the Criminal Code. At no time, however, has Canada's special juvenile legislation - the Juvenile Delinquents Act, first passed in 1908 and revised and amended several times since then - made reference to the infancy or "doli incapax" presumptions and their availability to proceedings under that Act. This "defence" has been virtually ignored by prosecutors, defence counsel and Judges. Why the doli incapax rules have been "forgotten" and how defence counsel can utilise them on behalf of an infant client are the principal focuse of this paper.
- The Exercise of Jurisdiction in Custody Disputes - Karen M. Weiler
This paper first examines the traditional basis upon which Courts have assumed jurisdiction to hear and decide a custody dispute and evolution of restraint by Courts in the exercise of their jurisdiction, particularly when a Court order has been previously made in another province or country. Recent case law under extra-provincial custody orders enforcement legislation enacted by several provinces is reviewed. The inter-relationship of custody orders made by a Court under the Divorce Act and those made under provincial legislation is discussed. The author also notes the development of what, it is hoped, will become a trend - restraint by Courts in the exercise of their custody jurisdiction under the Divorce Act.
Review of Periodical Literature
- Alastair Bissett-Johnson: "Children in Subsequent Marriages - Questions of Access, Name and Adoption" (1980), 11 R.F.L. (2d) 289.
- Margaret Ward: "Culture Shock in the Adoption of Older Children" (1980), 78 Social Worker 8.
- Gordon K. Nelson, Jane Dainauski and Lori Kilmer: "Child Abuse Reporting Laws - Action and Uncertainty" (1980), 54 Child Welfare 203.
- Nadia Ehrlich Finkelstein: "Children in Limbo" (1980), 25 Social Work 100.
In The Family Courts
- The Queen v. Midkiff
- The Commissioner of the Northwest Territories and the Superintendent of Child Welfare v. The Queen
- The Queen v. Jacqueline L.; The Queen v. Larry D.
- A. v. B. and the Attorney General for Quebec and the Director of Youth Protection
- Children’s Aid Society of Ottawa-Carleton v. Warner
Casenote
- Findings of Paternity in Ontario (Sayer v. Rollin) - Diana C. Dzwiekowski
Book Reviews
- John Eekelaar, Family Law and Social Policy. McGraw-Hill Ryerson, Scarborough (Ontario), 1978. - Johann W. Mohr
- Dr. Howard H. Irving: Divorce Mediation, The Rational Alternative. Personal Library, Toronto, 1980. - Franklin J.W. Corner