Volume 5, Number 1, 1986
The first three articles listed in this issue are revised from papers presented at the Conference of the Family Law Section of the Canadian Association of Law Teachers, April 1985.
Articles
- Judicial Discretion and Family Law Reform in Canada - Nicholas Bala
One of the hallmarks of family law is the broad discretion vested in trial judges to resolve individual disputes in accordance with very gengeral principles. Inevitably when judges are guided only by the vague standards embodied in these principles, they will be greatly influenced by their personal values, experiences and assumptions. As a result, the outcome of a particular family law dispute may seem arbitrary, particularly to the unsuccessful party. Although judicial discretion can never be eliminated, especially in family law, it must be structured so as to make the outcome of litigation more predictable. Relatively defnite rules would encourage negotiation and limit the scope and intensity of family litigation. Recent legislative and jurisprudential developments recognize the need to structure judicial discretion.
- The Charter and Child Protection: The Need for a Strategy - D.A. Rollie Thompson
Despite the parallels between section 7 of the Charter and the Fifth and Fourteenth Amendments to the Constitution, Canadian lawyers are not utilizing the American jurisprudence which provides for protection of autonomy in child-rearing against the demands of the state. Section 7 provides a new tool with which to press a revisionist agenda upon the child protection process, particularly with regard to the summary removal of children and the right to counsel.
- Family Law and Social Welfare: Toward a New Equality - Mary Jane Mossman and Morag MacLean
The rising divorce rate in Canad has had a differential economic impact upon men and women, and the author speculates ready divroce has been a major contributing factor in the "feminization of poverty". Principles in family law which have emerged for determining eligibility for support upon divorce or separation are not consistent with the principles of social assistance legislation. Future reforms must address the different economic positions of former husbands and wives following marital breakdown if the principles of equality and independence espoused as ideal are to apply to everyone.
- Canadian Native Children: Have Child Welfare Laws Broken the Circle? - Emily F Carasco
The child welfare legislation currently in force is inherently discriminatory towards native children as it suffers from a strong Euro-Canadian bias. The insufficient focus on the "indigenous factor" in cases regarding native children has dislocated the children from their culture and broken the "circle of life". However, the author concludes that there is a growing awareness of the importance of the "indigenous factor", causing a slight but discernible difference in the attitude of courts to a native child's "right of heritage." A new era in child welfare protection of native children has been signalled by Ontario's Child and Family Services Act.
- L'Enfant, la famille et l'Etat: trilogie de la socialisation - Lise Binet et Edith Deleury
Parce que la socialisation des enfants est en enjeu social et non privé, l'Etat, au nom de l'intérêt des enfants, intervient directement dans la vie des familles et les enfants chez qui l'on signale des problèmes reliés à la protection ou à la délinquance. La Direction de la Protection de la Jeunesse prend alors en charge ces situations. Une étude, réalisée à partir des dossiers de cet organisme, permet d'interroger les mecanismes qui conduisent les enfants à la structure étatique, comme lieu de prise en charge totale ou partielle.
Review of Periodical Literature
- Harold Niman: "Separation Agreement and Spousal Maintenance: A Fresh Look?" (1985) 6 Adv. Q. - Charles Rendina
- Kathleen Mahoney: "Day Care and Equality in Canada" (1985) 14 Man. L.J. - Taron Puri
- Nancy W. Perry and Larry L. Teply: "Interviewing, Counselling and In-court Examination of Children: Practical Approaches for Attornies" (1985) 18 Creighton L.R. - Elaine S. McKenna Kay
- Clare F. Beckton: "The Impact of Women of Entrenchment of Property Rights in the Canadian Charter of Rights and Freedoms" (1985) 9 Dalhousie L.J. - Don P. Hall
In The Family Courts
- Children's Aid Society of Toronto v. Mr. K. and Mrs. K.
- R. v. Powell and Powell
- R. v. J.B.
Casenotes and Comments
- Visiting Rights of Grandparents: How to Balance the Best Interests of the Child with the Interests of Parents and Grandparents - Barbara Landau
- Indian Self-Government, the Equality of the Sexes, and Application of Provincial Matrimonial Property Laws - Richard H. Bartlett
Book Reviews
- Michael D.A. Freeman, Ed., State, Law and the Family: Critical Perspectives (London and New York: Tavistock Publications and Sweet and Maxwell, 1984) - Carol J. Rogerson
- William J. Sammon, Advocacy in Child Welfare Cases, A Practitioner's Guide (Toronto: Carswell, 1985) - Kathryn M. Morrison