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This paper traces the history of the "legal family" in Canada, the development of the laws governing marriage and the recognition of other familial relationships, and discusses some of the challenges presently facing lawmakers, both legislators and judges, in this area. One theme of this paper is that marriage and the family are not static institutions, but rather their social and legal significance have changed over the course of history in response to changing beliefs, values, behaviors, social structures, technology and demographics. Another theme is that the broad movement towards formal gender equality has had a profound effect on the legal treatment of marriage and the family. However, in most contemporary marriages there is still a differentiation of gender roles, and women continue to be vulnerable in the event of separation. Familial relationships based on marriage and biological ties are still very significant in Canada, but there is more social and legal recognition of a range of non-traditional familial relationships than in most other countries, including non-marital opposite-sex cohabitation, same-sex marriage, social parentage and more recently multiple parentage arising from the use of artificial reproductive technology. Despite the recognition of a more diverse range of family forms, and the adoption of a functional and flexible approach to the definition of legally significant familial relationships, monogamous conjugality is likely to remain a central concept of Canadian law, and Canada seems unlikely to extend legal recognition to polygamy.
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Expert evidence from mental health professionals and medical doctors can play a central role in child welfare cases, and this evidence needs to be carefully scrutinized before it is relied upon in making critical decisions about the future of parent-child relationships. In Ontario, concern about the reliability of expert evidence in child abuse and neglect cases was heightened by the 2014 decision of the Court of Appeal in R v. Broomfield, where a mother’s conviction on criminal charges related to giving her infant child cocaine based on testimony by an expert from the Motherisk Drug Testing Lab at the Toronto Hospital for Sick Children. In overturning the conviction, the Court of Appeal noted that “the trial judge made her decision unaware of the genuine controversy among the experts about the use of the testing methods relied upon by the Crown expert at trial to found a conclusion of chronic cocaine ingestion.” In the months following the Court of Appeal decision in Broomfield, the Attorney General of Ontario appointed a former justice of the Court of Appeal, Susan Lang, to undertake a Review to assess the adequacy and reliability of hair analysis evidence used in child protection and criminal proceedings (report to be released Dec. 15, 2015).
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Ontario residents are more likely to have a dispute concerning a familial relationship than any other type of serious legal problem.¹ The family dispute resolution process has evolved considerably over the past few decades, but the pace of change has been frustratingly slow, with many sound reports and recommendations for reform ignored, resulting in continuing unaddressed concerns about the family justice system. Many of those embroiled in these often traumatic, life-altering disputes have difficulties gaining access to the justice system and must proceed without adequate legal advice and assistance. The 2010 Law Commission of Ontario Report on the ‘broken’ family
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This article reports on four interrelated studies on self-representation by family litigants: a study of family litigants in Ontario; a survey of perceptions of lawyers in Ontario and Alberta; and a study of Canadian judges. There has clearly been an increase in self-representation in family cases. Lack of financial resources is the most significant reason for self-representation, but a significant number of the self-represented do not believe that they will have worse outcomes without a lawyer. Lawyers and judges report significant concerns about lack of representation, including fewer settlements and a slower process, with corresponding increased expenses for a represented party.
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The dominant philosophy in family court emphasizes cooperative solutions between separating parents who are encouraged to put their conflicts behind them. For the majority of separating families, this collaborative approach will best serve their children. However, cases involving domestic violence require a paradigm shift, with a greater focus on making a parenting plan that protects victims and children, and less emphasis on speedy, cooperative outcomes. This paper presents a framework for addressing domestic violence through a tiered assessment strategy and an accompanying intervention framework depicted by off-ramps from a freeway (as an analogy in this case to the substantial momentum towards collaborative settlements). These off-ramps for domestic violence and high-conflict cases do not suggest a one-size-fits-all solution within these categories; rather, they mark a departure point from which a wide range of solutions may be considered. Policy and practice implications of this paradigm shift are highlighted.
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The 11th edition of Family Law: Cases, Notes and Materials is a comprehensive, carefully curated collection of text, cases, commentary, notes, and questions dealing with the key areas of family law. It is intended as the fundamental text for introductory courses in family law, but, as with previous editions, it is also a useful initial research source for practitioners. This book provides up-to-date coverage of the main issues in family law, the laws governing marriage and divorce, property for both married and unmarried cohabitants, spousal support, child support, parenting, and domestic agreements. This edition includes coverage of emerging aspects of family law as well, such as evolving concepts of parentage, hearing the views of children, the impact of family violence, and social trends that affect family law in an increasingly diverse Canadian society. The 11th edition includes: detailed consideration of the 2021 reforms to parenting laws in the Divorce Act (Bill C-78) and corresponding provincial legislation, and the Supreme Court in BJT v. DT ; greater emphasis on inter-relationship of various issues in family law, in particular, significance of family violence for a range of issues, including the Supreme Court decision in Barendregt v. Grebliunas ; more emphasis on issues of professional responsibility, ethics, and the practice of family law ; updated discussion of issues related to domestic contracts, including the Supreme Court decision in Anderson v. Anderson ; greater consideration of issues related to the increased diversity of Canadian society and the growing number of multiracial families ; consideration of legal issues related to polyamorous families and parenting of transgender children. --publisher.
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