Volume 8, Number 1, 1989

Articles

• Recognizing Spousal Contributions to the Acquisition of Degrees, Licences and Other Career Assets; Towards Compensatory Support - Nicholas Bala

  A major difficulty in granting spousal support is in determining the value of the contribution made by one spouse when the other obtains a degree of licence during the course of the relationship. It is rejected that theses should be seen as "property" and therefore be assigned a monetary value and divided equally. Several theoretical bases for support when this occurs are examined, and subsequently dismissed because of their inherent conceptual and practical difficulties. Any remedy of support must be flexible enough to take account of all modes of contribution to the obtaining of the degree of licence. The basis for this should be the compensation of the "supporting" spouse. This may allow for the unequal division of property in certain circumstances as an equitable end to the relationship.
  

• Unpacking the "Rational Alternative": A Critical Review of Family Mediation Movement Claims - Martha J. Bailey

  The family mediation movement claims: 1) family law cases are inherently unsuited to adjudication and are inherently suited to mediation; 2) mediation reduces hostilities of divorce; 3) joint custody and mediation as a means of achieving that custody result are in the best intersts of children; 4) mediation costs less than litigation; 5) higher levels of support result from mediation; 6) parties are more likely to comply with a mediated agreement and 7) mediation empowers the parties by allowing them to fashion their own agreements. All these claims fail on empirical grounds as being either unsupported or contradicted by the available evidence. The claims also employ dubious moral and political assumptions about women's position in society.
  

• The Causal Connection Test in Spousal Support Law - Carol J. Rogerson

  The philosophy behind causal connection is that spousal suppport should redress those economic needs flowing from or caused by the marriage and the economic inter-relationship which developed between the spouses during the marriage. Conversely, spousal support should not be expected to redress economic needs which do not flow from the marital relationship. This concept, developed in the late 1960s, was best articulated in the Law Reform Commission of Canada's 1975 working paper on "Maintenance after Divorce." The general idea of a causal connection in spousal support has not found its way into legislation, but it has been upheld in a trilogy of recent Supreme Court of Canada cases. This paper reviews the legislation and case law to date, and explores the range, extent and reasons for compensation and support. The author argues that, properly used, the causal connection test is an interpretative device for determining the amount and duration of support. This falls somewhere between the traditional "pension-for-life" model and the more recnet hard-nosed literal causal connection analysis.

• Why Hasn't the Charter Mattered in Child Protection? - D.A. Rollie Thompson

  Courts in Newfoundland, Nova Scotia, Manitoba and Ontario have recently appeared to reject the premise that the Canadian Charter of Rights and Freedoms offers constitutional protection to the parent-child relationship. The many blood-transfusion cases, which are inappropriate for Charter development, have produced decisions which are sweeping and dismissive of parents' constitutional rights, creating overwhelming challenges for those attempting to protect those rights. New legislation offers the best and most comprehensive way to achieve the "revisionist agenda" in child protection, i.e. a non-interventionist approach founded upon family autonomy and due process.

• Perspectives on Premenstrual Syndrome: Women, Law and Medicine - Judith A. Osborne

Although there is dispute concerning the nature, symptoms and treatment of premenstrual syndrome (PMS), its physiological existence is well recognized. In the 1980s, the criminal courts of Canada and England have tentatively recognized PMS as a relevant factor in the determination of legal responsibility. It is probable premenstrual syndrome can only support a finding of insane-automatism. A PMS-based mental impairment might negative a requisite specific intent. However, defence counsel in Canada should be cautious when raising PMS as an issue at all because of the potential of the Crown to annex it under s. 16, the insantiy provision of the Criminal Code. A finding of not guilty by reason of insanity under this section may result in the indefinite confinement of the accused. In light of the prevailing attitudes concerning female offenders, a PMS defence might create precedents which justify discriminatory treatment of women in employment, education and political life.

• Private Committeeship in British Columbia: A Study in Due Process - Glyn Davies and Lesley Taylor

  There is a growing interest in the examination of committeeship (substitute decision-making) and its effect upon individuals who may, by reason of impairment, be unable to make reasonable decisions regarding their person or estate. This study examined 500 applications for private committeeship made to the British Columbia Supreme Court in the period of 1966-1987 and the resulting orders. The study found that most individuals were never served with the documents related to incompetency; were never advised that a hearing was taking place; were not represented at the hearing by legal counsel and were not present at the hearing. It also appears that few incapacitated persons were served with the incompetency order. Medical evidence introduced at the hearing was non-specific and conclusory and in some cases, non-existent. Hearings were short - usually less than five minutes. Statutory reform is critical and recommendations regarding evidence, due process standards and the planning and review processes are made with a renewed emphasis on the needs of the disabled individual.
  

Comments

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Review of Periodical Literature

• "Guardianship and Mental Health Legislation: Interface Issues and Options"
  
• "Domestic Contracts in Ontario and the Supreme Court Trilogy: A Deal is a Deal"
  
• "Exploring the Effects of Resource Availability and the Likelihood of Female-Perpetrated Homicides"
  
• "Recent Reforms in Family Law: Progress or Backlash?"
  
• "Divorce Mediation: A Feminist Perspective"
  
• "A Consideration of the Metnal Capacity Provisions of the Marriage Act in View of the Charter of Rights and
• Freedoms and Webb v. Webb"
  
• "A Paediatrician's View"
  
• "Supporting Children After Divorce: The Influence of Custody Support Levels and Payments"
  
• "Whose Baby Is It?"
  
• "La Garde Conjointe, Rééquilibrage de L'Autorité Parentale"
  

Book Reviews

• National Themes in Family Law
  
• The Law Reform Commission of Canada: Working Paper 58
  
• A Practical Guide to the Family Law Act
  
• Schools and Students: Legal Aspects of Administration
  
• Payne on Divorce
  
• Women in Families: A Framework for Family Therapy
  
• Family Mediation Handbook
  
• Children, Parents and the State

 

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