Shifting Scrutiny: Private Ordering in Family Matters in Common-Law Canada

Chapter
Part of the Ius Comparatum - Global Studies in Comparative Law book series (GSCL, volume 4)

Abstract

This paper surveys the place of contract or private ordering in the family law of the Canadian common-law provinces. While a certain space for legally effective private arrangements is evident respecting the vertical, parent-child relations of family law as well as the horizontal ones of adult intimate relations, there are limits. The common-law sources studied may not frame those limits as explicitly as the civil law’s constraints based on public order and good morals. Yet principles such as the court’s abiding jurisdiction to order support for a former spouse and the imperative of safeguarding the best interest of a child significantly constrain private ordering. On the matter of procedural contractualization or private ordering, the proliferation of programs and forms of dispute resolution complicates the picture. There is an impulse to foster out-of-court settlement of family disputes, balanced against certain controls. The overall observation is that efforts to protect vulnerable individuals and to assert the public interest in these common-law jurisdictions take the form of heightened scrutiny or review powers bearing on the products of private ordering, rather than the demarcation of zones in which contract is forbidden.

Keywords

Dispute Resolution Alternative Dispute Resolution Spousal Support Unjust Enrichment Marriage Contract 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.
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Notes

Acknowledgement

This research was funded by the Social Sciences and Humanities Research Council of Canada and by the Fay Cotler Fund. I acknowledge the excellent research provided by Marc Roy. For comments on a draft, I am indebted to Nicholas Bala.

References

  1. Abrams, L, & McGuinness, KP (2010) Canadian civil procedure law (2nd ed.). Markham, Ont.: LexisNexis CanadaGoogle Scholar
  2. Bala, N, & Leckey, R (2013) Family law and the Charter’s first 30 years: An impact delayed, deep, and declining but lasting. Canadian Family Law Quarterly 32(1):21–52Google Scholar
  3. Baldassi, CL (2006) The legal status of aboriginal customary adoption across Canada: Comparisons, contrasts, and convergences. University of British Columbia Law Review 39(1):63–100Google Scholar
  4. Besson, S (2007) Enforcing the child’s right to know her origins: Contrasting approaches under the Convention on the Rights of the Child and the European Convention on Human Rights. International Journal of Law, Policy and the Family 21(2):137–159CrossRefGoogle Scholar
  5. Bigwood, R (2005) Antipodean reflections on the Canadian unconscionability doctrine. Canadian Bar Review 84(2):171–216Google Scholar
  6. Boyd, SB (2007) Gendering legal parenthood: Bio-genetic ties, internationality and responsibility. Windsor Yearbook of Access to Justice 25(1):63–94Google Scholar
  7. Brun, H, Tremblay, G, & Brouillet, E (2014) Droit constitutionnel (6th edn). Cowansville, Quebec: Yvon BlaisGoogle Scholar
  8. Brunnée, J, & Toope, SJ (2004) A hesitant embrace: Baker and the application of international law by Canadian courts. In: Dyzenhaus D (ed), The Unity of Public Law. Oxford: Hart, p 357–388Google Scholar
  9. Campbell, A (2007) Conceiving parents through law. International Journal of Law, Policy and the Family 21(2):242–273CrossRefGoogle Scholar
  10. Cossman, B (2007) Parenting beyond the nuclear family: Doe v. Alberta. Alberta Law Review 45(2):501–513Google Scholar
  11. Fournier, P (2010) Muslim marriage in Western courts: Lost in transplantation. Farnham, Surrey: AshgateGoogle Scholar
  12. Glenn, HP (2014) Legal traditions of the world: sustainable diversity in law (5th edn). Oxford: Oxford University PressGoogle Scholar
  13. Halley, J, & Rittich, K (2010) Critical directions in comparative family law: Genealogies and contemporary studies of family law exceptionalism. American Journal of Comparative Law 58(4):753–776CrossRefGoogle Scholar
  14. Harvison Young A (2000) This child does have 2 (or more) fathers … Step-parents and support obligations. McGill Law Journal 45(1):107–131Google Scholar
  15. Harvison Young, A (2001) The changing family, rights discourse and the Supreme Court of Canada. Canadian Bar Review 80(1 & 2):749–792Google Scholar
  16. Kelly, F (2009) Producing paternity: The role of legal fatherhood in maintaining the traditional legal family. Canadian Journal of Women and the Law 21(2):315–351CrossRefGoogle Scholar
  17. Kelly, F (2012) Autonomous from the start: Single mothers by choice in the Canadian legal system. Child and Family Law Quarterly 24(3):257–283Google Scholar
  18. Korteweg, A, & Selby, JA (eds) (2012) Debating Sharia: Islam, gender politics, and family law arbitration. Toronto: University of Toronto PressGoogle Scholar
  19. LaViolette, N (2007) Dad, Mom—and Mom: The Ontario Court of Appeal’s decision in A.A. v. B.B. Canadian Bar Review 86(3):665–689Google Scholar
  20. Leckey, R (2008) What is left of Pelech? In: Cameron J (ed), Reflections on the legacy of Justice Bertha Wilson. Markham, Ont.: LexisNexis, p 103–129Google Scholar
  21. Leckey, R (2009a) A common law of the family? Reflections on Rick v. Brandsema. Canadian Journal of Family Law 25(2):258–296Google Scholar
  22. Leckey, R (2009b) Families in the eyes of the law: Contemporary challenges and the grip of the past. IRPP Choices (Vol. 15, pp. 1–42). Montreal: Institute for Research on Public Policy.Google Scholar
  23. Leckey, R (2012) Developments in family law: The 2010–2012 terms. Supreme Court Law Review (2d) 59:193–231Google Scholar
  24. Lianos, F (2012) L’avenir de l’accouchement dans le secret en France. Droit et société 82:643–658Google Scholar
  25. Macklin, A (2013) Multiculturalism meets privatisation: The case of faith-based arbitration. International Journal of Law in Context 9(3):343–365CrossRefGoogle Scholar
  26. McCamus, JD (2012) The law of contracts (2nd edn). Toronto: Irwin LawGoogle Scholar
  27. McInnes, M (2011) Cohabitation, trusts and unjust enrichment in the Supreme Court of Canada. Law Quarterly Review 127(3):339–343Google Scholar
  28. Mossman, MJ (2012) Families and the law: cases and commentary. Concord, Ont.: Captus PressGoogle Scholar
  29. Payne, JD, & Payne, MA (2013). Canadian Family Law (5th edn). Toronto: Irwin LawGoogle Scholar
  30. Razack, SH (2007) The ‘Sharia law debate’ in Ontario: The modernity/premodernity distinction in legal efforts to protect women from culture. Feminist Legal Studies 15(1):3–32CrossRefGoogle Scholar
  31. Rogerson, C (2001) The child support obligation of step-parents. Canadian Journal of Family Law 18(1):9–157Google Scholar
  32. Rogerson, C (2004) The Canadian law of spousal support. Family Law Quarterly 38(1):69–100Google Scholar
  33. Rogerson, C (2012) Spousal support agreements and the legacy of Miglin. Canadian Family Law Quarterly 31(1):13–70Google Scholar
  34. Rogerson, CJ (2003) ‘They are agreements nonetheless’. Canadian Journal of Family Law 20(1), 197–228Google Scholar
  35. Swan, A, & Adamski, J (2012) Canadian contract law (3rd edn). Markham, Ont.: LexisNexisGoogle Scholar
  36. Young, CFL (2015) Taxing times for lesbians and gay men: Twenty years later. In: Leckey R (ed), After Legal Equality: Family, Sex, Kinship. Abingdon: Routledge, p 134–149Google Scholar

Copyright information

© Springer International Publishing Switzerland 2015

Authors and Affiliations

  1. 1.Faculty of LawMcGill UniversityMontrealCanada

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