Volume 30, Number 1, 2017
Articles
- Family Violence and Evolving Judicial Roles: Judges as Equality Guardians in Family Law Cases - The Honourable Donna Martinson and Margaret Jackson
Access-to-justice studies initiated by Canadian lawyers and judges in the past four years have described the urgent need for family law reform. Reports from the studies discuss the need for a cultural shift-a fresh approach and a new way of thinking-in the reform process. A Roadmap for Change, the final report of the National Action Committee on Access to Justice, emphasizes the importance of providing justice, not just access: "Providing justice-not just in the form of fair and just process, but also in the form of fair and just outcomes-must be our primary concern." This article deals with the need to take a fresh look at the roles and responsibilities of judges in family law cases to ensure fair and just outcomes. Applying an equality-based analysis, this article emphasizes the importance to all family law cases of identifying family violence when it exists, and assessing its impact on the outcome at all stages of the judicial process-including judicial dispute resolution conferences. All justice system professionals, including lawyers, have a role to play in achieving fair and just outcomes; the responsibility does not just fall at the feet of judges. However, as guardians of Canada's justice system and its constitutional values, judges are accountable to the people courts serve. Because of this they have a particularly important and unique leadership role to play.
- Addressing Controversies About Experts in Disputes Over Children - Nicholas Bala, Rachel Birnbaum, and Carly Watt
There is significant controversy about the use of experts in child-related disputes in family and child protection proceedings in Canada. The 2015 Lang Review of the Motherisk Laboratory at Toronto's Hospital for Sick Children concluded that experts retained by child protection agencies were introducing unreliable expert testimony about parental drug and alcohol use. The recent decision of Ontario Court of Appeal in M. v. F. suggested that evidence from a party-retained expert critiquing the opinion of a court-appointed psychologist is "rarely" helpful or admissible. This paper addresses these and related controversies about the use of experts in child-related cases. It reviews recent developments in the law governing the admissibility of expert evidence, with a particular focus on the 2015 Supreme Court decision in White Burgess, and the role of the judge as a "gatekeeper," responsible for excluding biased or unreliable expert testimony. The paper explores the unique role played by court-appointed experts in child-related disputes. It is argued that there should be a continued role for experts retained by one parent to critique a report prepared by a court-appointed expert in a child-related case; nonetheless there is an obligation for party-retained experts to provide unbiased and reliable evidence, and avoid being "hired guns." This critique role may be especially important when the state has been involved in the court process, either as a party in a child protection proceeding or by arranging for a particular court-appointed professional to undertake an assessment. It is also argued that there is a strong Charter based argument that indigent parents in child protection proceedings may be entitled to a court order for funding to retain their own experts to testify to counter evidence put forward by experts funded by the government.
Allan Falconer Memorial Student Essay Contest Winner
- A Feminist Critique of Quebec v. A.: Evaluating the Supreme Court's Divided Opinion on Section 15 and Common Law Support Obligations - Natasha Mukhtar
A case comment on Quebec v. A. In Quebec v. A., the Supreme Court of Canada tackled a Charter challenge to the Civil Code of Quebec. The claimant, A., alleged that the legislation violated her section 15 equality rights by discriminating on the basis of marital status in excluding common law couples from spousal support and division of property upon separation. The Court delivered a lengthy, controversial, and divided decision with three lines of dissent. Ultimately, the exclusion was upheld. Quebec continued to exclude common law couples from the division of property and remained the sole province to deny common law couples spousal support upon separation. This paper uses feminist theories of substantive equality to evaluate each of the four major judicial opinions in Quebec v. A., highlighting the ways in which women in common law relationships are more adversely affected by exclusion from the support regime than men. It does so to argue that striking down Quebec's exclusion of common law couples from both spousal support and the division of property, as per Abella J.'s dissent, is more in keeping with feminist theories of substantive equality.
Book Review
- Autonomous Motherhood? A Socio-Legal Study of Choice and Constraint by Susan B. Boyd, Dorothy E. Chunn, Fiona Kelly, and Wanda Wiegers - Brenda Cossman