Volume 31, Number 1, 2018
Remembering Judith Mosoff: Special Issue
Introduction to the Special Issue - Isabel Grant and Susan B. Boyd
Articles
- The Vanishing Body of Disability Law: Power and the Making of the Impaired Subject - Jonas-Sébastien Beaudry
The influence of disability studies on legal scholarship is most visible in the social model, which claims that people are not disabled because of their bodily impairments, but by society in its refusal to accommodate their impairments. However, a modest but growing discourse within disability studies that argues the notion of impairment, in addition to disability, is socially constructed. This article aims at bringing this problematized conception of impairment, informed by Michel Foucault's conception of power, into contact with legal scholarship. Judith Mosoff's sensibility to the role of impairments in the legal treatment of disabled people illustrates this critical outlook, which has the potential to guide scholarship and legal reforms. For instance, in the context of family law, those reforms could affect the evaluation of a person's fitness to parent or her right to childcare support. The first part of this article makes a prima facie case for a critical ontology of impairment and the second part provides theoretical foundations for such a practice. I use Supreme Court of Canada case law to illustrate how impairments are typically naturalized and to begin challenging impairment-based identities and detaching disability from impairment.
- Crazy Women and Hysterical Mothers: The Gendered Use of Mental-Health Labels in Custody Disputes - Suzanne Zaccour
This research studies the use of gendered mental-health labels, such as "crazy," "hysterical," "insane," and "emotionally unstable," in Canadian custody cases decided between 2000 and 2016. Building on Judith Mosoff's work on gender and mental-health stigma in custody proceedings, it maps how these "pop-psychology" labels impact custody litigation. This investigation reveals that mental-health labels serve to discredit the mother, attack her parenting abilities, and distract from her allegations of violence by the father. The article also explores fathers', mental health experts', and judges' role in framing the mother's credibility and parental capacity with regard to her alleged mental instability. It observes how the unjustified use of mental-health labels can backfire against the father, and how mothers can link out-of-court mental-health insults to legal arguments supporting their claim for custody. Although producing varied consequences, mental-health labels often reinforce gender biases and myths regarding domestic violence.
- Are You My Mother? Parentage in a Nonconjugal Family - Natasha Bakht and Lynda M. Collins
Two women friends and their son made national and international headlines when a court in Ontario declared that Lynda Collins was the parent of then six-year-old Elaan Bakht, the biological child of her friend, Natasha Bakht. Their story seemed to touch the hearts of many people around the world who were open to and interested in yet another family form that defies the traditional heteronormative, nuclear model.
- Young People as Humans in Family Court Processes: A Child Rights Approach to Legal Representation - The Honourable Donna J. Martinson and Caterina E. Tempesta
The authors, a retired British Columbia Supreme Court judge and a senior member of Ontario's Office of the Children's Lawyer, address the important issue of legal representation for children. They are co-chairs of the Steering Committee which guided the development of the Canadian Bar Association's new and comprehensive Child Rights Toolkit. As such, they are well-placed to discuss how a child rights approach, as required by the United Nations Convention on the Rights of the Child to which Canada is a ratifying party, supports legal representation for children who find themselves caught in contentious family law proceedings before the courts.
- Quebec's Filiation Regime, The Roy Report's Recommendations, and the 'Interest of the Child' - Regine Tremblay
This article describes Quebec's filiation regime and explains some of the Roy Report's recommendations to reform parent-child relationships in Quebec. While this report is unlikely to lead to legislative change, it represents an important insight into issues animating family law in Quebec today. The Roy Report anchors filiation and family law to the 'interest of the child', a notion likely different from the best interests of the child in common law. The article offers some critical and comparative analysis of current and proposed rules. It makes this lesser known area of Quebec civil law accessible in English and to common lawyers in Canada. It hopes to promote a conversation between jurists from Quebec and common law jurisdictions, especially those where family law has recently been reformed.