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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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The equality rights guarantee contained in section 15 of the Canadian Charter of Rights and Freedoms has been described by members of the Supreme Court of Canada as “the most difficult right” and “the Charter’s most conceptually difficult provision.” Therefore, it is not surprising that, as Mr. Justice LeBel stated in Québec v A., “the analytical framework [of s. 15] developed by this Court has been discussed, reformulated and enriched many times over the last two decades”. Mr. Justice Cory stated in Vriend that the equality rights guarantee in the Charter embodies “our fondest dreams, the highest hopes and the finest aspirations of Canadian society.” In this paper, I will look back at the last decade of Supreme Court of Canada case law and review how it has been reformulated. I will then look forward and make some comments about where the Court should go with its equality jurisprudence in the next decade if it is to help us realize the “finest dreams of Canadian society.”
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