Volume 31, Number 2, 2018
Articles
- Married Couple, Single Recipient: Understanding the Exclusion of Gifts and Inheritances from Default Matrimonial Regimes - Laura Cárdenas
In most Canadian jurisdictions, default family property law regimes exclude gifts and inheritances from the property that will be divided between divorcing couples. In Quebec, this exclusion is not only present in the default regime (the partnership of acquests) but rendered mandatory by the public order nature of the "family patrimony"—a construct determining the property that will be shared equally between spouses upon their divorce. This article examines default regimes of family property in Ontario and Quebec and analyzes the justifications provided by the provincial legislators for excluding gifts and inheritances from the mass of assets that will be divided between the spouses. The article then traces the various ways in which gifts and inheritances, both within and outside the couple, have been restricted through Roman, civil, and common law, and finds that these restrictions are tied to a desire to maintain property within the spouses' natal families. Finally, the article argues that the exclusion of gifts and inheritances points to a conception of the family tied not to marriage and choice, but to "family" understood as bloodlines, which is out of step with today's contemporary values and betrays the portrait of marriage otherwise painted in family property legislation.- Moral Evils v Health and Safety Evils: The Case of an Ovum "Obtained" from a "Donor" and Used by the "Donor" in Her Own Surrogate Pregnancy - Pamela M. White
This paper critically examines the amendment made in 2012 to section 10(2)(c) of the Assisted Human Reproduction Act, 2004 mandating the screening and testing of "obtained" ovum "donated" by a "donor" and used in her own surrogate pregnancy. The amendment at section 10(1) of the Act cites the federal government's obligation to reduce harm to human health and safety arising from use of sperm or ova for human reproduction, including the risk of disease transmission. This paper argues that the amendment mandating the screening and testing of surrogate ova when used by the surrogate in her own surrogate pregnancy creates a dangerous liminal regulatory space; one that transforms the surrogate into a third-party donor yet she incurs no health and safety risk to herself as she is the recipient of her own ova embryo. Genetic implications for the surrogate-born child makes a stronger case in support of mandatory testing, however the amendment imposes no similar screening and testing regime on the usual category of traditional surrogates: women who bear genetically-related children conceived through artificial insemination (IUI) rather than IVF. The paper questions the application of a health and safety evil that the amendment seeks to address. It suggests the real evil is a moral one whereby criminal code sanctions are being employed to discourage traditional surrogacy when practiced as a result of assisted reproduction techniques.- Prestation Compensatoire Et Union De Fait En Droit Québécois : Étude Critique Du Discours Judiciaire - Laurence Saint-Pierre Harvey
This paper analyzes a policy recommendation suggesting the compensatory allowance, a mechanism in Quebec matrimonial law, to be the solution of the cohabitation "problem." The study draws on queer theory to analyze the discourse found in the compensatory allowance case law. The judicial discourse is polarized into two binary categories: spouse taking advantage / spouse being taken advantage of, normal contributions / abnormal contributions. This analysis sheds light on two defining traits of the compensatory allowance. First, as elaborated by judgments, it expresses gendered, heteronormative, and traditional ideas of spousal identity and roles. Second, it is difficult to conceive of the compensatory allowance's jurisprudence without its closely connected institutions of matrimonial law. The paper highlights the perils of establishing normalcy as a legal criterion and points to the need for further careful study of this policy recommendation.Case Comment
- (Some) Mothers Know Best: A Case Comment on MM v TB and the Plight of Indigenous Mothers in Child Welfare and Adoption Proceedings - Catherine Wang
Over time, courts have come to acknowledge the significance of Indigenous identity when deciding custody disputes, but they continue to struggle with how much consideration should be given to the broader history involved, which can leave Indigenous mothers particularly disadvantaged in family law proceedings. Not only do Indigenous mothers have to contend with the law's general assumptions and expectations about mothers, they also have to endure the courts' often limited ability to situate mothers' individual actions in the wider context of structural barriers erected by government and societal forces. A close examination of the recent British Columbia Court of Appeal decision in M.M. v. T.B. provides a useful example of the challenges that Indigenous mothers can face, as well as the competing interests that courts must balance in these circumstances.Book Review
- The Family in Law by Archana Parashar and Francesca Dominello - Mary Jane Mossman