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This paper contributes to international feminist debates on shared parenting and family violence via reforms to Canada's Divorce Act, in force since 2021. Looking backwards, it reviews parliamentary debates and early judicial discussions. The documentary review reads the reforms as an unstable compromise between calls from feminist voices and experts on family violence and from groups representing fathers. Family violence is now defined broadly and declared relevant to children's welfare. But language in the statute may undermine its seriousness. Exposing the tensions underlying these reforms is useful for Canadian participants in family justice and for scholars, practitioners, and policymakers elsewhere, exemplifying the promise and perils of reform in this area. Looking ahead, the paper offers recommendations to higher courts. Appellate judges should read rules on contact with both parents and parental cooperation in the light of the new recognition of family violence, taking the latter as an overarching objective of the statute. [ABSTRACT FROM AUTHOR]

The settler state's taking of Indigenous children into care disrupts their communities and continues destructive, assimilationist policies. This article presents the perceptions of lawyers, social workers and judges of how Indigenous parents experience child welfare in Quebec. Our participants characterized those experiences negatively. Barriers of language and culture as well as mistrust impede meaningful participation. Parents experience epistemic injustice, wronged in their capacity as knowers. Mistrust also hampers efforts to include Indigenous workers in the system. Emphasizing state workers' ignorance of Indigenous family practices and the harms of settler colonialism, participants called for greater training. But critical literature on professional education signals the limits of such training to change institutions. Our findings reinforce the jurisdictional calls away from improving the system towards empowering Indigenous peoples to run services of child welfare. The patterns detected and theoretical resources used are relevant to researchers of other institutions that interact with vulnerable populations. [ABSTRACT FROM AUTHOR]

A correction notice is presented for an article " Compromise on Parenting and Family Violence? Reforms to Canada's Divorce Act" which was published in the previous issue of the periodical.

In an act of minor comparativism, this Article studies feminist writings on unmarried cohabitation from Canada's jurisdictions of the common law and civil law. It examines activist texts and legal scholarship for and against regulating cohabitants. Reading the English-language literature from the common law provinces and the French-language literature from Quebec, it reports differences in substance, in emphasis, and in what is common sense. Differing approaches to ideas of freedom, autonomy, and choice run throughout. The Quebec literature shows disagreement between activists and scholars. Over time, that literature has moved towards the view in the common law literature. Lessons for comparatists relate to varieties of difference, the definition of legal sources, the asymmetrical role that legal traditions play in majority and minority contexts, and the limits of law in explaining differences. Given the unreliability of initial observations of difference and sameness, comparatists should read a broad range of sources with care and humility. [ABSTRACT FROM AUTHOR]

This article interprets the notwithstanding clause in section 33 of the Canadian Charter of Rights and Freedoms. When a legislature activates the notwithstanding clause, subsection 33(2) temporarily ensures a protected law's 'operation' by preventing it from being 'inconsistent' with the Constitution of Canada in the sense of the supremacy clause, thereby precluding judicial remedies such as striking down. Construed in the light of its components (some never considered by the Supreme Court of Canada) and other constitutional features, the notwithstanding clause does not make rights irrelevant or strip them of their legal character. Nor does it confide the assessment of trade-offs about rights to the legislature alone. Instead, subsection 33(3) indicates a framework for such assessments in which the voting public plays a crucial evaluative role. The courts, as interpreters and guardians of the Constitution, can, and in some circumstances should, support the public's constitutional role by declaring the extent to which a protected law unjustifiably limits Charter rights. The public's ability to take such declarations into account in evaluating rights trade-offs would advance the democratic purpose of subsection 33(3), a purpose that underpins our constitutional framework more broadly. [ABSTRACT FROM AUTHOR]

Fifty years after Canada's partial decriminalization of gay sex, this article pursues two aims. First, it complicates understandings of the reform as a rational, liberal move to divert the criminal law from private, victimless conduct, in line with the image of removing the state from bedrooms. It does so by thematically rereading the House of Commons debates. Even the leading reformers insisted that homosexuality would remain illegal and laboriously affirmed their disgust for it. Second, the article reads the measures on homosexuality as part of the larger enterprise of defining and protecting the family by criminal means - criminal family law. Such prohibitions are typically studied separately, but they are a key part of how the state regulates family, and they show abiding anxieties and insecurities. The article reminds scholars and students to read behind the legislative text and to look beyond legal categories to seek broader patterns in the exercise of repression and other state power through law. [ABSTRACT FROM AUTHOR]

This paper shares results of a study of judgments applying the common law as adapted to the cohabitation context. Specifically, the Supreme Court of Canada has held that couples who formed a 'joint family venture' may need to share the wealth gained during cohabitation. The study compares the couples leading to positive and negative findings of a joint family venture. Positive findings correlate with traditional markers of family and economic integration, such as joint bank accounts and the presence of children. Despite the discourse of family diversity, gendered patterns run across all the couples, with women assuming primary care of children, shouldering domestic labour, and making career sacrifices for the family. In a sign of the limits of judge-made reforms, the doctrine may be harder for some claimants to access than for others, in ways not necessarily tracking commitment and economic integration. [ABSTRACT FROM AUTHOR]

How long does it take the elected branches of government to study complex policy questions and develop legislation that respects constitutional rights? Judges often suspend for twelve months declarations that a law unjustifiably limits a right protected by the Canadian Charter of Rights and Freedoms. Dialogue theorists praise such suspensions for allowing the legislative and executive branches to act. This article recounts the experiences of the governments of Quebec and of Canada in grappling with assisted suicide en route to legislating. It concludes that tackling a serious policy issue – including research, public education and consultation, and meaningful deliberation – may take much longer than twelve months. Consequent possible changes to judicial practice include granting fewer suspensions and prompting fuller debate in court on the appropriate order. As for dialogue theorists, they might better align their justifications of suspensions with legislative realities. [ABSTRACT FROM AUTHOR]

This paper contributes to feminist debates on cohabitation by studying judicial discourse after legal reform. It examines how Canadian judges speak about cohabitation and decide whether cohabitants qualify as “spouses” for the purposes of property sharing. Judges assess cohabitants against an ideal of companionate marriage with gendered and class overtones. A contrasting tendency is to disavow moral judgments by declaring openness to a diversity of relationships. It seems difficult to operationalize cohabitation as a relationship form distinct from marriage. Indeed, the cases undermine assertions that reform makes married couples and cohabitants equal. Efforts to “modernize” family law appear to give new life to traditional ideals of the good marriage. [ABSTRACT FROM AUTHOR]

The article offers a review of comparative law from the field of sociolegal studies. An overview on the insights and potential for sociological scholars in comparative law from the discussions of method and varieties in surrounding society and law, is provided. Also emphasized is the separated various activities of comparative law.

In contrast with prescriptions for law reform for unmarried cohabitants, this article studies legislative inertia on the subject. It compares France and the Canadian province of Quebec, drawing on theoretical treatment of boundaries from critical geography, queer theory, and sociolegal work on law reform. Abstinence from legislating for cohabitants has not secured legal stasis. Informally and indirectly, ad hoc responses to cohabitation have amended the boundaries of marriage and fundamental legal categories. A conservative approach to marriage and cohabitation has failed to conserve marriage. We identify a gap, not between law and social life but between law and its prevailing justification, that cohabitants are free to choose to marry or to conclude contracts. Legislative and judicial developments show that this justification fails to persuade. Finally, we read France and Quebec’s approach to cohabitation as symptomatic of an impoverished misreading of the civil law tradition. [ABSTRACT FROM AUTHOR]

This Article advances the comparative constitutional literature by examining the exercise of remedial discretion in rights litigation. It compares how the Supreme Court of Canada and the Constitutional Court of South Africa remedy unconstitutional legislation under their respective, relatively new, bills of rights. It uses an internal legal approach and, rejecting universalism and convergence, it pays attention to difference in constitutional texts. By reporting remedial practices and studying the written and unwritten factors that judges identify as conditioning their remedial determinations, the Article studies the significant gap between authoritative text and practice. In a warning for those who draft bills of rights, who rely on their texts to forecast judicial practice, or who simply aim to delineate and understand the exercise of judicial power under bills of rights, judges' discussion reveals that the scope of action they perceive as legitimate may differ from what a rights instrument's text implies. This gap has implications for efforts to classify forms of judicial review as strong-form or weak-form, as it may reduce the effective distance between different models as they appear on paper. The Article identifies shifting and contradictory views about reading-in versus invalidating legislation, and about immediate versus delayed orders. Based on its comparison of judicial remedial practices, the Article flags the unavoidable uncertainty of applying a bill of rights to legislation. It interprets the practices of the two countries' highest courts as embodying a preference for a judicial posture of legislative engagement over one of constitutional enforcement. This conception of the judicial role emerges from similarities in practice, despite differences in the authorizing constitutional texts. The Article establishes a firm basis for normative evaluation of the legitimacy of judicial remedial discretion exercised with a view to engaging the democratic branches of government. [ABSTRACT FROM AUTHOR]

This paper engages critically with the new orthodoxy holding that individuals have a "right" to know their genetic origins and that such knowledge is crucial to realizing their identities. It examines two case studies: the Pratten litigation under the Canadian Charter of Rights and Freedoms regarding anonymous donor conception and scholarship approving a reform to Quebec's adoption law. It addresses the supposed "identity gap" between those who are adopted or donor-conceived and those who are neither. Arguments for law reform exaggerate that gap, opposing the incomplete, insecure identity of the adopted or donorconceived to the ostensibly complete, secure identity of those raised by their putatively genetic parents. A result is to overstate what is distinct and harmful about being adopted or donor-conceived. The paper also identifies a mistaken perception of law's role in fashioning identity and recognizing family ties, including what law does for those who are not adopted or donor-conceived and what it might do for those who are. Some claims for law reform in the service of identity expect more from law than it can or should provide. [ABSTRACT FROM AUTHOR]

An introduction is presented in which the author discusses various articles within the issue on topics including equality under law, discrimination based on race, gender, and nationality, and women's right to equality.

This article addresses important, neglected questions of legal craft in relation to rights challenges to legislation, especially equality claims. It considers the perspective from which to assess multiple parts of a complex scheme in a challenge under the Canadian Charter of Rights and Freedoms. Is the challenge best framed against the scheme as a whole - all or nothing - or against the separate parts? The framing or perspective can have serious implications for the outcome. Furthermore, a private litigant, motivated by self-interest in her individual circumstances, may frame the challenge in a way that does not advance a larger group's interests or even harms them. To study these matters, the article focuses on Quebec (Attorney General) v A, which upheld the exclusion of unmarried couples from provincial marriage law. Adding to the existing concerns about the prominence of corporate litigants and the class biases of judges, that appeal exemplifies another type of rights case in which money talks. [ABSTRACT FROM AUTHOR]

This paper pushes against the successful rhetoric of formal equality by which same-sex couples are the same as different-sex couples and opening existing regimes of marriage to them best recognises their equal moral worth. Drawing on social science research that indicates differences in the economic organisation of same-sex couples, the paper explores the possibility that a different marriage regime for the spouses' reciprocal duties might combine recognition of their equal moral worth with sensitivity to their needs. The study sharpens the understanding of contemporary investments in marriage law for everyone and offers a better justification for formal equality: same-sex couples may be treated identically to different-sex couples not because they are the same, but despite their differences. [ABSTRACT FROM PUBLISHER]

This paper uses queer theory, specifically literature onBowers v. Hardwick, to analyze debates over legislation proposed in Quebec regarding covered faces. Queer theory sheds light on legal responses to the veil. Parliamentary debates in Quebec reconstitute the polity, notably as secular and united. The paper highlights the contradictory and unstable character of four binaries: legislative text versus social practice, act versus status, majority versus minority, and knowable versus unknowable. As with contradictory propositions about homosexuality, contradiction does not undermine discourse but makes it stronger and more agile. [ABSTRACT FROM AUTHOR]

With analytical and methodological aims, this paper raises the difficulties of studying how well the financial frameworks governing marriage and divorce might serve the catchment group of same-sex couples to whom they are henceforth available. It calls for disaggregating the legal content of marriage for the purposes of analysis. By reference to the empirical social science, it then sets out the basis for challenging the assumption that access to marriage on the existing terms best remedies same-sex couples' long-time legal neglect. But crucial methodological difficulties arise when looking to research in order to assess the fitness of existing marriage law for same-sex couples. The available data do not speak to key elements of marriage law. Underscoring the limits of social science research, the paper draws out the role of justice and identity claims in marriage law. [ABSTRACT FROM AUTHOR]

What is the proper balance between legislative and judicial innovation and between formal and functional family recognition once legislatures have addressed gay men's and lesbians' families? In the civil-law jurisdiction of Quebec, legislative reforms allow two women to register as a child's mothers. But judges have recognized a second mother 'in fact' by orders sharing custody where the parties had not used the new legislative channels. Such judicial creativity is reconcilable with the civil law and comparative scholars should flag it as a valuable resource. But it risks undermining legislative choices about family recognition. Perhaps the option to give a child a second mother includes the choice for a lesbian birth mother not to do so. Once two women become thinkable as spouses and mothers, judges risk inappropriately pressing a rich range of queer kinship possibilities into standard models. [ABSTRACT FROM AUTHOR]

Depuis 2002, le Québec permet à un enfant de voir deux parents de même sexe inscrits à son acte de naissance. Le présent article vise à instruire le lectorat canadien anglophone des réformes relatives à la filiation ayant eu lieu au Québec en 2002. Il tente également d'enrichir le discours doctrinal de cette province, où l'approche positiviste semble encore prédominer. Il adopte par ailleurs une démarche fermement anti-homophobe et féministe, faisant sienne la préoccupation méthodologique féministe basée sur l'expérience de vie des femmes. L'article sélectionne trois aspects du régime québécois, le manque de formalité dans l'échange de consentements menant à la création d'un projet parental, la reconnaissance de deux femmes comme « mères » légales et la limitation du nombre de parents à deux tout au plus, et les oppose à des comptes-rendus des pratiques parentales des couples de femmes lesbiennes issus des recherches menées en sciences sociales. Le manque de formalité ne se voit pas confirmé par les pratiques réelles des femmes lesbiennes, tandis que la reconnaissance de deux « mères » et la limitation du nombre de parents à deux sont en grande partie fondées selon les données empiriques recueillies, bien que ces dernières ne soient pas toujours uniformes à cet effet. En outre, la complexité des portraits produits par les sciences sociales nous fait remettre en question la présomption selon laquelle il incombe au droit de la famille de « refléter » les pratiques sociales. [ABSTRACT FROM AUTHOR]

The article aims to complicate efforts to make law fit or catch up to social practices. It scrutinizes the ‘reflective claim’ using the case study of recognition of parenting by lesbian couples. Reforms in the United Kingdom’s Human Embryology and Fertilisation Act 2008 and the Canadian province of Quebec’s civil code are compared with empirical work from the social sciences on lesbians’ family practices. The reflective claim rests on problematic ideas about social practices and law. Since law is always blunt and incomplete, choices must be made as to which practices it should aim to recognize. Furthermore, the impact of heterosexist and homophobic conditions on lesbian families means that observable practices may not be a suitable model for gay-affirmative reforms. As advanced in the literature, the reflective claim overlooks law and society’s complex interaction, including how reform will not merely reflect but also alter practices. It fails to do justice to law reform’s normative character, obscuring its costs and positive potential. [ABSTRACT FROM PUBLISHER]

Highlighting the family home's significance as shelter this paper challenges the prevailing view of the demands of the equality guarantee in the Canadian Charter of Rights and Freedoms regarding unmarried cohabitants. In Nova Scotia (Attorney General) v. Walsh, the Supreme Court of Canada rejected the claim that it was discriminatory to restrict rules dividing matrimonial property to married couples. By contrast, on many views it is discriminatory to exclude cohabitants from a support obligation. Scholars and judges assume that Walsh upholds all statutory rules regarding married spouses and their property including measures protecting the family home as shelter. But Walsh is best read narrowly leaving open the status of the latter rules. Viewed in the light of the support/property dichotomy the regime of the family home is akin to support. For family law and policy it is analytically useful to unbundle conjugal unions' effects. Scholars' reading of Walsh may connect to procedural features of Charter litigation and attitudes towards judicial power inconsistent with the common-law tradition. [ABSTRACT FROM AUTHOR]

The paper contributes to debates on the role of appellate judges in the uncertain field of family law. It takes as point of departure recent judgments by the Supreme Court of Canada regarding children. Repeated scholarly criticisms that the judgments provide inadequate guidance for trial judges and lawyers call for scrutiny: the criticisms overlook live debates on the appropriateness of judicial deference to legislative instrument choice, as well as the difficulty of judicial rule making in a fractious field where little social consensus obtains on key distributive questions. Family scholars might fruitfully explore constitutional theorists' work on human rights, institutional expertise, and deference. It is also worth reading the judgments' moral signals against the backdrop of research on regulation and social norms. Perhaps the judgments provide guidance, but not of the expected kind. [ABSTRACT FROM AUTHOR]

The article offers information on the Supreme Court's approach for upholding limit on charter rights and freedom in Canada. It states the criteria for the approach which includes the recognition of significant objectives to justify a constitutionally protected freedom or right and a proportionality test. It relates that the approach have contributed to the reflection on several challenges including maintenance of a bilingual public law and suitable position for judges employing bill of rights.

The paper intervenes in current policy debates on unmarried cohabitation and comparative law debates on methodology. It adopts a culturally alert, discursive methodology of comparison to study regulation of unmarried cohabitation under the common law and civil law as well as the effect of an entrenched right to equality protecting against marital status discrimination. It identifies not different legislative solutions to a common problem, but distinct discourses of family law regulation. Yet the approaches are less radically opposed than is often thought. Discursive comparison tends to highlight dominant voices at the expense of minority ones, wrongly characterising minority views as foreign to a tradition. Discursive comparison should not confine itself to a synchronic view of present legal debates; a richer diachronic approach will also attend to views within a legal tradition's past. [ABSTRACT FROM AUTHOR]

The article discusses a private ordering by spouses filed in two Supreme Court in Canada. In each case, judges have set aside the agreement in acknowledgement of its unfairness. The majority ideologically holds people to their choices in producing family law subjected as abstract choosing agents. Moreover, it argued that contextual attention to the process of contract negotiation masks requires a deeper commitment to restricting private ordering.

Attempts to make the case for an abiding territoriality in the substance of Canadian administrative law. Identification of several salient characteristics of administrative law and scholarship practiced in French within Quebec; Examination of Suzanne Comtois' account of the pragmatic and functional approach in action; Examination of the metaphors deeply embedded in contemporary administrative law thinking and posits ways to loosen their conceptual hold.