TSpace Research Repository tspace.library.utoronto.ca Developments in Family Law: The 1999-2000 Term Brenda Cossman Version Publisher’s Version Citation Brenda Cossman, "Developments in Family Law: The 1999-2000 (published version) Term" (2002) 13 Supreme Court Law Review 307. Publisher’s Statement Brenda Cossman, "Developments in Family Law: The 1999-2000 Term" (2002) 13 Supreme Court Law Review 307. © [2002]. Reproduced with permission of the Supreme Court Law Review. How to cite TSpace items Always cite the published version, so the author(s) will receive recognition through services that track citation counts, e.g. Scopus. If you need to cite the page number of the author manuscript from TSpace because you cannot access the published version, then cite the TSpace version in addition to the published version using the permanent URI (handle) found on the record page. This article was made openly accessible by U of T Faculty. Please tell us how this access benefits you. Your story matters. .~~. i I I t I DEVELOPMENTS IN FAMILY LAW: THE 1998-99 TERM Brenda Cossman* I. INTRODUCTION In the 1998-99 Term, the Supreme Court of Canada handed down no less than seven family law decisions. The Court addressed a broad range of family law issues, from spousal'and child support, and division of property, to child protection and child custody. The most important family law decisions issued by the Court in the 1998-99 Term were in relation to family support obligations. 'In the cases of Charlier,' Bracklow2 and M. v. H.,. the Court has steadily expanded the scope and content of support obligations. And amongst these rulings, M. v. H. which struck down the opposite sex definition of spouse for the purposes of spousal support stands as the decision with the most far-reaching implications for family law. For the first time, the majority of the Court recognized the spousal status of same-sex couples. While the Court tried to carefully limit its ruling to the specific provisions of the Ontario Family Law Act: it has nevertheless raised difficult, and as yet unresolved, questions about the definition of spouse in Canadian family law, and the extent to which the law will be able to maintain distinctions between married and unmarried couples, and between heterosexual and same-sex couples. A. number of other trends are discernible in the family law rulings of the 1998-99 Term. The Court has continued its emphasis on family law as an area in which trial judges must be given consider­ able discretion, and in which the appellate courts must therefore * Associate Professor, Faculty ofLaw, University ofToronto. 1 Chartier v. Chartier, [1999/1 S.C.R 242. Bracklow u. Bracklow, [1999J 1 S.C.R 420. [1999) 2 S.C.R 3. • RS.O. 1990, c. F.3. Electronic copy available at: http://ssrn.com/abstract=1144210 434 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) (2000), 11 S.C.L.R. (2d) Family Law 435 exercise considerable deference to lower court rulings. The Court family law - of expanding the private support obligations of emphasized the fact-driven and discretionary nature of family law individual family members. While family law has always been about proceedings, and the importance of appellate courts deferring to the the private responsibilities of individual family members, the trend findings of the trial court which has had the opportunity to hear the reflects the new found importance of family law in an era of evidence, and to balance the various factors accordingly. In several of privatization. Within the new neo-liberal state - characterized by a the cases, the Court declined to rule on the facts, sending the reduction of government spending, and a transfer of responsibilities determination back to the trial court. In all but one (Best'), the Court to the private realms ofmarket and family - family law is becoming agreed with the rulings at trial. Also noteworthy in the family a more important regulatory instrument for the enforcement of rulings of the 1998-99 Term was the move towards unanimity. Five private support obligations for economically dependent family of the seven rulings were unanimous. Only in M. v. H., and Best - a members. More specifically, family law is becoming more important case involving a narrow but important issue of pension valuation ­ in addressing the economic dependency of women and children at was the Court divided in opinion. The term appears to represent a precisely the same moment as the welfare state is being dismantled, significant retreat from the multiple concurring and dissenting and any form of public financial assistance is becoming more and opinions that has characterized many of the family law rulings in more elusive. recent terms.· This is not an entirely new theme within family law. Commenta­ tors have been observing the increasing tendency of the courts and legislatures to reinforce private familial responsibilities, while FAMILY SUPPORT OBLIGATIONS IN AN ERA OF II. cutting back on any public responsibility for the social costs of PRIVATIZATION raising families.' The driving force behind this privatization In the 1998-99 Term, the Court has handed down what might be unquestionably lies with the legislatures. But, the support trilogy of cast as a new trilogy in support law. Three of the family decisions ­ the 1998-99 Term demonstrate the creeping influence of the new Chartier, Bracklow and M. v. H. - deal with the question of support emphasis on fiscal conservatism and private familial responsibility obligations, specifically, with the question of who has support on judicial decision-making. Sometimes, this new fiscal conservatism obligations for whom.' The new trilogy reflects an expanding notion is explicit in the text of the decisions. Other times, it lies just of familial responsibility, bringing more and more individuals within beneath the surface. the reach oflegal support obligations. In each decision, the Court has expanded the reach of support obligations - of step-parents, of individuals whose ex-spouses fall ill, and of same-sex couples. Each decision represents a notable change in the law of support obliga­ tions. And together, the trilogy represents a significant trend in • See Susan Boyd "(Re)placing the State: Family, Law and Oppression" (1994), • Best u. Best (1999), 49 RF.L. (4th) 1 (S.C.C.) 9 Canadian Journal of Law and Society 39 who has argued that • For a discussion ofthe division amongst the justices in family law, see Bailey "lilncreasingly...courts and administrative arms of the Canadian state are reinforcing "Developments in Family Law: The 1995-96 Term", [19971 8 S.C.L.R 447, and certain private familial responsibilities for women's poverty, in the name of feminist "Developments in Family Law: 1996-97 Term", [19981 9 S.C.L.R 389. The Court values and, in part, in response to feminist struggle in the courts, while diminishing appears to have made a concerted effort towards unanimity in its equality rights public societal commitment to alleviating that poverty." See also Eichler "The Limits ruling in Law u. Canada (Minister of Employment and Immigration), [19991 S.C.J. of Family Law Reform or, the Privatization of Female and Child Poverty" 7 Cdn. Fam. No.12, a theme which then runs through much of its family law jurisprudence this Law Qtrly. 59; Luxton "Feminism and Families: The Challenge of Neo-Conservatism" term. in Luxton, ed., Feminism and Families: Critil:al Polil:res and Changing Practices 1 A fourth support law decision, Hil:key u. Hickey (1999), 46 RF.L. (4th) 1 (1997); Fraser and Gordon "A Genealogy of Dependency: Tracing a Keyword of the (S.C.C.), deals with the question of the approach to be taken by appellate courts in U.S. Welfare State" in Fraser, Justice Interruptus: Criti<:al Reflections On the reviewing spousal and child support orders, and is discussed separately below. Postsocialist Condition (1997). Electronic copy available at: http://ssrn.com/abstract=1144210 (2000), 11 S.C.L.R. (2d) Family Law 437 436 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) Court, began by reviewing the two lines of authority as to whether a 1. Child Support person can unilaterally withdraw from a relationship in which he or Chartier v. Chartier' addressed the question of the child support she stands in the place of the parent. In the first, represented by obligations of step-parents. The couple lived togethe: for two years, Carignan v. Carignan," and followed by the Court of Appeal in this and were then married for a year. There was one chIld, Jeena, born case, a person standing in the place of a parent can unilaterally during the relationship. The wife also had a daugh~er, Jess~ca, fr?m' withdraw from the parental relationship." In the second line of a previous relationship. The husband played an actIve role In c~mg authority, represented by Theriault v. Theriault," the courts have for both children during the relationship and, as the Court descnbed, held that a person cannot unilaterally withdraw, but rather, a court "was a father figure" for Jessica. The parties had considered must look to the nature of the relationship to determine if a person proceeding with an adoption, but did not do so. They did however does actually stand in the place ofa parent. IS falsely amend Jessica's birth registration to indicate th.at t~e Justice Bastarache disagreed with the ruling in Carignan. He held husband was Jessica's biological father. When the relationshIp that once a person is found to stand in the place of a parent, he or between the parties broke down, the father acknowledged in a she cannot unilaterally withdraw from that relationship.