Canadian Journal of Family Law

Volume 6, Number 2, 1987

Articles

Loi de 1986 sur le droit de la famille et les biens familiaux: jurisprudence récente sélectionée - Karen M. Weiler

Cet article examine les différents facteurs utilisés pour déterminer le partage des biens familiaux entre les conjoints selon l'article 5(1) de la Loi de 1986 sur le droit de la famille et les biens familiaux. On examine des cas traitent de la date d'évaluation, du sens du mot "propriétaire" et les déductions permises. La Loi divise la valeur de ces beins qui est difficile à déterminer et les déductions permises. La Loi divise la valeur de ces beins qui est difficile à déterminer et les tribunaux ont le droit de modifier cette division. L'auteur conclut que malgré les efforts faits pour avoir une simple loi de partage égal, les tribunaux gardent un rôle d'interprétation et de vastes pouvoirs discrétionnaires. La question primodiale est déterminer la valeur de "cette moitié."

Youth Confessions: Section 56 of the Young Offenders Act - Jim Hanson

In recognition of the vulnerability of and the possible disadvantage to the young offender when involved with the criminal justice system, section 56 of the Young Offenders Act provides for a number of procedures governing the admissibility of statements made by young persons. As such, it is essential that lawyers practising in the youth courts have a knowledge of both the section and the related jurisprudence. This article examines and analyses a number of practical issues relating to the application of section 56 such as who is and who is not considered a "person in authority" for the purpose of the section's requirements; when a statement is "spontaneous" and thus exempt from the requirements; what procedures must be adhered to to permit admissibility of a statement; and when "duress" will prevent admissibility of a statement. In conclusion, while section 56 was implemented to promote procedural fairness for young offenders, it can instead be seen to create inequality. Youth may be better served by forbidding the admission into evidence of any statements made by them.

Limiting Judicial Discretion in Custody Proceedings on Divorce - Ann Ehrcke

The new Divorce Act confers broad discretion on the judiciary to make determinations respecting a child's best interests in custody cases. This paper explores some of the disturbing effects of allowing such broad judicial discretion in custody cases, and examines in detail various proposals for limiting judicial discretion in these cases. The potential means of controlling or directing judicial discretion evaluated are (i) directing the court to consider a checklist of factors deemed relevant to a child's welfare, (ii) prescriptive rules or legal presumption in favour of or against particular classes of applicants, (iii) legal presumption favouring specific custody arrangements, and (iv) proscribing the consideration of a specific factor unless it is demonstrably relevant to the decision in a particular case. Within this framework, the treatment of homosexual parents in custody disputes, the tender years doctrine and presumptions favouring joint custody are discussed in particular detail.

Family Law Reform: A Historical Perspective of the Ontario Experience - Ian F.G. Baxter

This article examines the property and family support obligation provisions of Ontario's Family Law Act, 1986 vis à vis the earlier recommendations of both the Family Law Study and the Ontario Law Reform Commission which issued reports in the late 1960s and the early 1970s. It first sets out the "Study" and "Commission" recommendations in detail along with the background and rationale for those recommendations, then considers the provisions of Ontario's new Family Law Act, 1986 in light of the recommendations. While a number of recommendations have been incorporated into the new Act, there are some important differences. The writer points to possible problems with the legislation and also expresses the opinion that parts of the family property sections of the Act should be amended to include the earlier recommendations. In considering the support obligations sections, the writer suggests that there be a different approach to financial support with judges and courts playing a less dominant role in dealing with support questions.

Parental Child Abduction Under the Criminal Code - Bruce Johnstone

Recently, here has been a heightened public awareness of the detrimental effects of parental child abduction and a corresponding need for criminal sanctions. Despite the resistance of the police and the criminal courts to use the criminal law to enforce what essentially amounts to a civil matter in a proprietary sense, Parliament has made it apparent that under the abduction sections of the Criminal Code, the criminal law can be utilised both in circumstances where a custody order is in effect and also were no such order exists. The author suggests that the most significant changes respect in parental child abduction occurred with the recent amendments to s.250 in the Criminal code with the introduction of ss. 250.1 and 250.2. The author examines the potential limitations and effects of this proposition upon the reduction of child abduction and also examines the not yet proclaimed Family Orders and Offences Act with respect to the investigation of parental child abduction cases.

Law Reform in Tort: Abolition of Liability for "Intentional" Interference with Family Relationships - Peter B. Kutner

This article describes the actions of intentional interference with family relations, namely enticement, harbouring, seduction and criminal conversation (adultery), and submits arguments for and against the abolition of these actions. The author further examines Law Reform Commission Reports from several commonwealth countries and their recommendations with respect to the actions. With the exception of the Law Reform Commission of Ireland, the Commission are unanimous in recommending that the actions be abolished. The author suggests that abolition will be the reality of the future.

Review of Periodical Literature

Carmina Y. D'Aversa: "The Right of Abortion in Surrogate Motherhood Arrangements" (1987) 7 Northern Illinois University L.R. - Ron Pelletier

Bernard M. Dickens: "Artificial Reproduction and Child Custody" (1987) 66 Canadian Bar Review - Linda Deat

Christina C. Duddy: "Wrongful Life: Exploring the Development of a New Tort" (1985-86) 21 New England L.R. - Wesley Shield

Shari O'Brien: "The Itinerant Embryo and the Neo-Nativity Scene: Bifurcating Biological Maternity" (1987) Utah L. R. - Greg Lanning

Mary Otvos: "Same Sex Marriage: Is the Charter an Open Door?" (1987) 21 The Advocate - Doug Bertz

In The Family Courts

Re Baby R.

The Children's Aid Society of the City of Belleville v. Linda T. and Gary T.

Re: A.M.L.

Dorian B. v. The Children's Aid Society of Durham Region and Sharon B.

The Queen v. Michael B.

Gartrell v. Carlsen

Stephanie Kushner, Debra Moore and Katie Derhousoff v. Larry Kusher

The Queen v. P.A.D.

The Queen v. Elan Andrew A.

Casenotes and Comments

Balancing Rights and Needs: Addressing the Dilemma in Canadian Juvenile Justice Policy - Alan D. W. Leschield

The Eve Decision - Carol Anne Polowich Finch-Noyes

Permanent Spousal Support in Divorce Proceedings: Why? How Much? How Long? - Julien D. Payne

Book Reviews

Continuing Legal Education Society of B.C.. : The Family Law Agreements Manual. (Vancouver: Continuing Legal Education Society of BC, 1986) - Julien C. Payne, Q.C.

Howard J. Irving and Michael Benjamin, Family Mediation: Theory and Practice of Dispute Resolution. (Toronto: Carswell, 1987) - Marje Burdine

Helga Kuhse and Peter Singer, Should the Baby Live? The Problem of Handicapped Infants. (Oxford: Oxford University Press, 1985) - Paul E. Norton

J. Lowman et al., Eds., Regulating Sex (Vancouver: SFU School of Criminology, 1986) - Patricia Houlihan

Hugh G. Stark and Kirstie J. MacLise, Domestic Contracts. (Toronto: Carswell, 1987) - Carol E. M. Huddart

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