Families and the Law in Canada: Cases and Commentary

Abstract

Calder reviews Families and the Law in canada: Cases and Commentary by Mary Jane Mossman.

Mary Jane Mossman, Families and the Law in Canada: Cases and Commentary (Toronto: Emond-Montgomery Pubs, 2004).

I. INTRODUCTION

It is hard to imagine a current textbook in family law that could meet the needs of law teachers and students from one end of the country to the other. The most apparent challenge is that family law is a complicated issue jurisdictionally given that, as a constitutional matter, the majority of family law falls within provincial jurisdiction. At a more theoretical level, family law encompasses every area of human diversity requiring sensitive discussion of issues of gender, race, class, religion, sexual orientation, disability and the intersections of all of these areas. It is also an area in which there has been phenomenal change in recent years from emerging new reproductive technologies that confront issues of biology within the family, to alternative dispute models that challenge the way that conflicts within family law are addressed in practice, to the fundamental change to the definition of marriage resulting from the legalization of same-sex marriage.2 Unless it were able to spontaneously edit itself, it is hard to envision a textbook that keeps pace.

Mary Jane Mossman's text. Families and the Law in Canada,3 acknowledges these challenges and meets them head on. She has written a book that is national in scope, feminist in outlook and almost omniscient in its engagement with current areas of change. And, in the mix, she manages to confront the way in which family law is taught in Canada, while methodically laying out challenges to the law itself.

II. THEMES AND CHALLENGES

1. What is "the family" in family law?

The central challenge of this text is signaled by its title. There is no one "family" in "family law," and in teaching, learning and practising law, the place to start is with the way in which law both regulates and constructs the family.4 Any issue or problem that one encounters in this area of law is necessarily made more complex by the nature of the family form at issue. Mossman reflects the complexity of the question "what is the family?" in the way that she has structured her text. Although the book mirrors the way that most family law courses are taught in Canada/ the first part of the book goes beyond "marriage" and instead looks at family formation and the last part of the book examines the legal consequences of relationship breakdowns for families regardless of marital status. The first four chapters establish the following: the themes that the book will address, the changing nature of marriage in Canada in light of cohabitation, the impact on family formation in Canada of changes in the law relating to parent and child relationships, and the relationship between families and the state particularly in light of issues of care and protection. The last four chapters elaborate the key themes of the book through an exploration of the processes of divorce, the division of property, spousal support and child custody, access and support.

At the outset of Chapter One, "Families and Family Law: Contexts and Themes," Mossman tells us that three of the key themes that will be explored in detail in the text are equality (in relation to both family and family members); autonomy (for individuals and families and in relation to the state); and alternative dispute resolution, including the balance between rules and discretion and the respective roles of legislatures and courts.6 These are in fact themes that resonate through the book, and are used by Mossman as a frequent touchstone. In addition, however, Mossman also uses several other important arguments and themes that weave her text into an effective teaching tool, as well as a compelling and challenging read.

2. Are families what they look like or what they do?

Mossman begins the text with the argument that it is almost impossible to talk about "the family" in Canadian law, and that contemporary definitions of family are moving more to reflect what families do rather than what they look like.7 The complexity of family forms as a result of new reproductive technologies, changes in definitions of cohabitation, the increasing acceptance of same-sex relationships, and a focus on social as opposed to biological parenthood, are all factors in this debate.8 The complexity of the debate is particularly evident in Chapter Two, "Forming Families in Canada: Marriage in the Context of Cohabitation," when she talks about the form and function of marriage as compared to cohabitation, in order to think through the extent to which family law should extend the benefits and obligation of marriage to cohabiting couples.9 Her analysis forces the reader to think about how many of the fundamental principles in family law are developed in relation to heterosexual marriage, and how the drive in Canada for the legal recognition of same-sex marriage in a civil context has revealed the differing conceptions of the nature and purpose of marriage in the 21st century.10

The demands of cohabitating couples and the drive for same-sex marriage, amongst other examples, are used by Mossman to theorize the question - how do we understand what constitutes "the family" in family law? And, although this theme is evident in each chapter of the book, a good example is found at the outset of Chapter Three, "Forming Families in Canada: Relationships of Parent and Child." In this chapter Mossman uses Martha Fineman's polemic that family law should be structured around the mother-child unit as the natural or core family unit to understand the power that the heteronormative view of the family holds." Mossman then uses Fineman's example to question the way in which the conventional understanding of family is primarily horizontal, sexual and intergenerational, and the ways in which the normative model of the heterosexual and nuclear model of family is perpetuated.12

The question of "what is a family" is one that Mossman continues throughout her book in both the family formation and relationship breakdown components of the text. We see, for example, in Chapter Six, "Families, Property and Family Property: Principles of Equality and Equity," that she uses the question of the nature of marriage to try and understand what it is that guides the division of property principles throughout Canadian law.13

3. How does law's regulation of the family impact on our understanding of what constitutes a family?

The question of how the law impacts upon differently situated families is also used both to structure the text, and to challenge the reader. To this end, the text includes an argument that families in Canada are both created and regulated by law, and that the scope of family law "needs to take some account of relationships between families and the state."14 Mossman acknowledges the growing complexity of identifying boundaries within family law; but also seeks to confront the places in which law is used to constitute and investigate the family, and some families more than others. To this end, Chapter Four, "Families in the Shadow of the State: Responsibilities of Care and Protection," is a defining chapter of the text. Although courses in family law are most frequently organized around the axes of marriage and divorce, Mossman sets out the argument that law's regulation of intact families is often not considered family law.15 Here she explores the tension between one of the key themes in family law, the way in which the state supports families as units entitled to autonomy, privacy and respect, and the state's interest in ensuring the protection of vulnerable members of families.

With Chapter Four Mossman weaves into her text important issues of child care,"' child protection,17 child sexual abuse,18 spousal violence against women19 and elder abuse.20 Her choice of case-law and supporting secondary materials enables her to complicate the accompanying analysis with an investigation of how economic and ideological restructuring in Canada has had an impact on vulnerable members of families.21 In so doing, Mossman provides the researcher and student of family law with a treasure trove of sources and references across ideological divides, with attention to issues of the practice of family law.22 This chapter, and the section on child protection in particular, is an important example of the way in which the text manages to critically examine subjects that may not ordinarily find their way into a family law curriculum.

4. How does the law impact differently on differently situated families?

The key theme of equality, identified at the outset of the text, is a constant in this feminist text and the way in which family law is gendered in Canadian law is a central organizing theme.23 The diversity of issues addressed, and the sensitivity with which they are addressed, makes this textbook almost essential reading for all those who study family law in Canada. Issues of race, class, sexual orientation, poverty, Aboriginality, nationality, transsexuality, age (including children and elderly parents), infuse each section of the text. For example, in Chapter Eight, "Children of Divorce: Rights, Relationships and Support," Mossman builds on her earlier analysis of the roles that family members play within relationships to highlight the principles that should guide the law on marital and relationship breakdown. Mossman argues that looking at harm from the perspective of children is key, but at the same time, it is important in this area of family law to recognize the impact of separation and divorce on the caregivers of children.34 With reference to earlier sections of the text, Mossman is able to craft an argument that confronts the reader with questions of why there is no primary caregiver presumption in Canadian law.25

In addition to examining the feminist debates in child custody, the chapter also looks at issues of international law,26 conduct and the ability to parent,27 gay and lesbian parents and a child's best interests,28 issues of race and the contrast with similar issues in the adoption context,29 and religion,30 constantly tying these themes to the other, broader themes of the book. Each chapter in the book is rich and complex, while continuing to read like a one-on-one conversation between a teacher and her student.

5. How can a current text possibly encompass a constantly shifting law?

There are few criticisms that one can bring to this text that are not foreseen by the author herself. One is the pace at which changes in family law have happened, particularly in the past two years. It seems unlikely that a text published in 2004 could be useful beyond its published date. However, many of the key areas of change have been presciently addressed. The most obvious example is same-sex marriage, and the many changes that will inevitably result, transforming a law that has been defined solely in heterosexual terms. Mossman has anticipated these changes, and has built into her analysis the likely outcome of legal reforms in this area.31

Other issues that are presently gaining momentum are also included, and can at least be the starting place for in-class discussions. These include, for example: Shari'a tribunals in Ontario;32 the likely challenge to the Criminal Code prohibitions on polygamy as a result of the practices of the community of Bountiful, B.C.;33 the growing significance of transsexuality as a human rights issue;34 new reproductive technologies and the impact of assisted reproduction on understandings of parenthood;35 the introduction of spousal support guidelines;36 and new approaches to dealing with resolving disputes in family law such as collaborative family law.37

6. Is there a crisis in family law?

This last issue, alternative dispute resolution, is an issue that Mossman particularly singles out for attention, and the text reflects that emphasis. Not only does she carefully set out the key substantive legal issues informing Canadian family law, but she challenges the reader to think through the best procedural means for resolving those issues. In doing so, she highlights that family law is in a state of some crisis in Canada, with the adversarial nature of resolution of disputes central to that crisis.38 Each chapter of the text includes some attention to law reform initiatives39 and to complicating the various ways in which disputants can reach a resolution of their issues. In the process, she introduces her readers to new approaches that are developing in family law such as mandatory mediation and collaborative family law, while simultaneously raising concerns about the appropriateness of those and other models given the variety, complexity and emotion surrounding family law disputes.

7. Is there a movement towards a national family law?

Although Mossman acknowledges at the outset that a textbook of this nature could not possibly offer a comprehensive analysis of family law principles in all provinces,40 she sets up an argument that continues through the book about the ways in which family law is progressing towards national uniformity, especially in the common law provinces and sometimes in civil law Quebec as well. Her argument is evident even in the chapter focused on the area most driven by provincial law, division of property. Using B.C. as a comparator, she moves through the elements of Ontario's legislative regime"41 while still asking the kinds of questions that each provincial jurisdiction should ask of itself. Although the primary statutory regime under review is Ontario's, the questions of why and how people enter family relationships, and the fairness of property division law at the breakdown of those relationships, are ones that teachers, students and readers should ask themselves regardless of jurisdiction.

III. ORGANIZATION OF THE TEXT

Substantively the book is comprehensive, cutting edge and diverse in its sources, but the structure and organization of the text is also of great assistance to reader, whether student or teacher. Each subsection ends with a list of suggested readings, and each chapter ends with a much larger selection of most of the key writings in the area. As well, most subject areas include some comparative analysis with other common law and civil jurisdictions, including the U.S., the U.K., E.U. Countries, Australia and New Zealand. For students and researchers, it is a goldmine.

The text does not focus solely on case-law, and as such reinforce the primary nature of litigation. Mossman uses law reform commission reports and examples of lobbying initiatives to broaden her source materials. And although cases, excerpts from key academic commentators, and her own incisive questioning make up most of the text, Mossman also includes the practice element of family law. Issues such as access to legal aid, alternative dispute resolution, and legal representation in child protection, for example, offer insights for practitioners as well.

The text is also continually referencing itself, linking earlier arguments and debates from one aspect of family law to the next. One fabulous example is the recent Supreme Court of Canada case of Walsh v. Bona.42 This case is referenced in six different chapters and although the issue in the case is whether or not excluding cohabiting couples from provisions of provincial law that mandate a presumption of equal division of property at divorce is discriminatory, Mossman uses this case as an example of the challenge posed to our understanding of family by cohabitation,43 as a means for exploring judicial views about marriage and cohabitation,44 as an example of a recent case in which issues of autonomy and fairness in family bargaining was considered by the Supreme Court of Canada,45 as an illustration of the ways in which spousal support and division of property should be considered as different means of achieving post-separation economic adjustment for all former spouses,46 to complicate that extent to which the Supreme Court of Canada's holding should influence the law on in loco parentis parents,47 and, of course, as an illustration of how the failure of the Charter challenge brought by Susan Walsh to the Nova Scotia Matrimonial Property Act has economic consequences for cohabiting couples in Canada.48

IV. CONCLUSION

This textbook is an invaluable resource for those of us who teach family law in Canada. The criticisms that one might bring to bear on this text are ones that often are leveled against textbooks, criticisms of what is not included, more than what is.49 The scope of this textbook is comprehensive and more than could be included in any one semester family law course. However, in my view, there is still not enough attention to issues of disability in a text that pays considerable attention to issues of diversity. As well, I felt conflicted about Mossman's use of the idea that what one has after divorce is a "post-divorce family unit." Mossman employs this concept to structure the second half of the text, and yet it is not until Chapter Seven, "Spousal Support and Post-Separation Dependency: Legislative Objectives, Judicial Orders, and Private Agreements," that this concept is unpacked, and the explicit linking to privatization of responsibility for family breakdown is explored.50

Ultimately, the book's greatest strength is that it speaks directly to its audience, and to the diversity of its audience. The book is dedicated to her students, and it is evident that the author has drawn on years of teaching family law to develop a resource of value to those most likely to read it. But the book also speaks directly to those of us who teach family law in Canada. There are numerous places in the book where Mossman sets out hypothetical to elaborate the issues she is addressing and in so doing inspires class exercises.51 Finally, the book speaks directly to those who have been critical of the way that family law is taught in Canada. This thoughtful, rigourous and feminist text, provides both "statistics on the socio-economic status of women, men and children and social theory which helps us to understand the role which law plays in social change."52

Mary Jane Mossman has been a key figure in theorizing the changes in Canadian family law, as her extensive publishing, teaching and activism demonstrates. This textbook draws on all of that background. It is also an extraordinarily gracious book as is demonstrated by Mossman giving the last word in her text to another author writing in the area, Susan Boyd. The book ends by reminding us all, "[t]he challenge for twenty-first century scholars is to assess what the role of family law can be within a less clearly status-based system, but one that rests on various social hierarchies still related to persistent, if shifting, power relations of gender, race, class and sexuality."53

Footnote

1 With thanks to Sharon Cowan and Benjamin Berger for editorial comments, and to my family law class at the University of Victoria, fall 2004 for inspiration. Gillian Calder is an Assistant Professor at the University of Victoria.

2 The oft-cited definition of marriage is from Hyde v. Hyde and Woodmansee, [1866] 1 L.R. 130 (Div. and Mat. Causes) at 133: "I conceive that marriage, as understood in Christendom, may ... be defined as the voluntary union for life of one man and one woman to the exclusion of all others." Cited in Mossman, infra note 3 at 84.

3 Mary Jane Mossman, Families and the Law in Canada: Cases and Commentary (Toronto: Emond Montgomery Publications Ltd., 2004).

4 As Susan B. Boyd writes, "[s]uch contradictions raise the question of whether one family law can accommodate the variety of familial forms now existing, both within and outside the traditional, heterosexual, nuclear definition of family." Susan B. Boyd, "Legal Regulation of Families in Changing Societies" in Austin Sarat, ed., The Blackwell Companion to Law and Society (London: Blackwell, 2004) 255 at 266, cited in Mossman, supra note 3 at 786.

5 Reg Graycar notes, albeit in the Australian context, that family law courses are primarily structured to deal with marriage and then divorce. She writes, "[y]et marriage and divorce law has generally remained a closed system: while the better books (and law school courses) now raise issues of violence in family relationships as part of 'family law', it is still uncommon to see a family law course that deals broadly with legal modes of regulating subsisting familial relationships rather than merely with the law of marriage, divorce and what are often called 'ancillary' matters (that is, property and children)." Reg Graycar, "Family Law: Law Reform by Frozen Chook: Family Law Reform for the New Millennium?" (2000) 24 Melbourne U.L. Rev. 737 at 740.

6 Mossman, supra note 3 at 3.

7 Ibid, at I. A jurisprudential example of the function vs. form discussion can be found in the majority reasons of McLachlin J. (as she then was) in Miron v. Trudel, [1995] 2 S.C.R. 418 at paras. 169-170.

8 An example of how changing definitions have disrupted dominant discourses of family and the new emphasis of function over form can be found in Brenda Cossman, "Lesbians, Gay Men, and the Canadian Charter of Rights and Freedoms" (2002) 40 Osgoode Hall L.J. 223 at para. 59.

9 Mossman, supra note 3 at 50.

10 Ibid, at 87-88.

11 Martha Albertson Fineman, The Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies (New York: Routledge, 1995) at 3, 5-6, cited in Mossman, supra note 3 at 133-134.

12 Mossman, supra note 3 at 134.

13 Ibid. at 369.

14 Ibid. at 221-222.

15 Ibid.

16 See for example, Lene Madsen, "Citizen, Worker, Mother: Canadian Women's Claims to Parental Leave and Childcare" (2002) 19 Can. J. Fain. L. 11, included in Mossman, supra note 3 at 223-230.

17 See for example, Gove Inquiry into Child Protection (BC), Report of the Gove Inquiry into Chilli Protection in British Columbia, vol. 1 (Vancouver: Ministry of Social Services, 1995) included in Mossman, supra note 3 at 235.

18 See for example, Minister of Social Services for Saskatchewan v. A.J. and C.J. (1987), 58 Sask. R. 246, 10 R.F.L. (3d) 69 (C.A.), included in Mossman, supra note 3 at 266-271.

19 See for example, Behrendt v. Behrendt (6 March 1990), Ottawa, included in Mossman, supra note 3 at 283-284.

20 See for example, Manitoba Law Reform Commission, Adult Protection and Elder Abuse (Winnipeg: Manitoba law Reform Commission, 1999) included in Mossman, supra note 3 at 291-292.

21 Mossman, supra note 3 at 229.

22 See, for example, the discussion of evidence and legal representation that arise specifically in the context of child protection cases, Mossman, supra note 3 at 243.

23 The text offers a diverse array of secondary source materials. Many of the key feminist family law theorists in Canada are included and cited by Mossman as she sets out the main doctrinal arguments in each chapter of the book. see for example inclusion of works by: Susan B. Boyd; Shelley Gavigan; Martha Bailey; Martha Shaffer; Hester Lessard; Margaret McCallum; Diana Majury; Brenda Cossman; Mary Jane Mossman; and Carol Rogerson domestically; and the international writings of: Carol Smart; Helen Rhoades; Martha Fineman; and Hilary Astor, amongst others.

24 Mossman, supra note 3 at 634.

25 Ibid, at 633-635.

26 See for example. Convention on the Rights of the Child, GA Res. 44/25, annex, 44 UN GAOR, Supp. No. 49, UN Doc. A/44/49 (1989) at 167, entered into force Sept. 2 1990. Included in Mossman, supra note 3 at 654-655.

27 See for example, Fishback v. Fishback (1985), 46 R.F.L. (2d) 44 (Ont. Dist. Ct.), included in Mossman, supra note 3 at 662

28 See for example, Bezaire v. Bezaire (1980), 20 R.F.L. (2d) 358 (Ont. C.A.), discussed in Susan Crean, In the Name of the Fathers: The Story Behind Child Custody (Toronto: Amanita Publications, 1988) and included in Mossman, supra note 3 at 669-672.

29 See for example, Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, 204 D.L.R. (4th) 257, included in Mossman, supra note 3 at 675-678.

30 See for example, Young v. Young, [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193, discussed in Martha J. Bailey, "Custody, Access, and Religion: A Comment on Young v. Young and D.P. v. C.S." (1994) 11 Can. Fam. L.Q. 317 and included in Mossman, supra note 3 at 684-689.

31 Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes, 1st Sess., 8th Parl., 2005, (assented to 20 July 2005), S.C. 2005, c. 33, s. 2: "Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others."

32 In a section examining the cost of legal services, problems and panaceas, Mossman discusses concerns with use of arbitration tribunals pursuant to Ontario's Arbitration Act, S.O. 1991, c.17, and in particular a current proposal to establish such tribunals in the Muslim community, Mossman, supra note 3 at 327. For a current exploration of this issue in more depth see: Natasha Bakht, "Family Arbitration Using Sharia Law: Examining Ontario's Arbitration Act and its Impact on Women" (2004) 1 Muslim World Journal of Human Rights 1.

13 Mossman discusses the issue of polygamy when looking at the common law requirements for a valid marriage. In this context she raises the current issue of Bountiful, B.C. and the possible freedom of religion challenge to the Criminal Code prohibitions, as well as the little known provisions of the Ontario Family Law Act, infra note 41, s. 1(2) that recognize valid polygamous relationships entered into outside of Canada within Canadian law.

34 Mossman, supra note 3 at 109-116. While not included, the case of Vancouver Rape Relief Society v. Nixon et al. (2003), 22 B.C.L.R. (4th) 254, 2003 BCSC 1936. appeal heard by the B.C.C.A. in April 1995 is an important case in this area. For a good comparative analysis of the concepts of sex and gender in the context of transsexuality see: Sharon Cowan, '"Gender is No Substitute for Sex': A Comparative Human Rights Analysis of the Legal Regulation of Sexual Identity" (2005) 13(1) Fem. Legal Stud. 67.

35 Mossman, supra note 3 at 190-206.

36 Ibid. at 626-630. Since the book's publication, the draft proposal of the Spousal Support Guidelines has been released, and the Guidelines have been applied by courts in Canada. The guidelines can be found at: htlp://www.justice.gc.ca/e/depl/publ/spousal/project/index.html and the most authoritative discussion to date can be found in Yemchuk v. Yemchuk, 2005 BCCA 406. Although the text sets up the spousal support guidelines, and includes an excerpt from the background paper, this is an area that is fast changing and would have to be supplemented by family law teachers.

37 Mossman, supra note 3 at 328-330.

38 Ibid. at 4-5, 39-45. I acknowledge, with gratitude, the influence of Ken Carradine, "Collaborative Family Law: A Theoretical Perspective on its Emergence and Implications for a System in Crisis," an unpublished student paper, on my thinking in this regard.

39 See, for example, Special Joint Committee on Child Custody and Access, For the Sake of the Children (Ottawa: Parliament of Canada, 1998), cited in Mossman, supra note 3 at 725-730.

40 Mossman, supra note 3 at v.

41 Family Law Act, R.S.O. 1990, c. F.3.

42 Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, 2002 SCC 83.

43 Mossman, supra note 3 at 12.

44 Ibid. at 52.

45 Ibid. at 343.

46 Ibid. at 506.

47 Ibid. at 750.

48 Ibid at 375-393.

49 It seems to be a common theme in book reviews, to want authors to have included even more than they have, even when the review is overwhelmingly positive on what the author has included. See for example, Elizabeth Sheehy, "Sexual Assault, by Christine L.M. Boyle" ( 1985) 17 Ottawa L. Rev. 671 at 674.

50 Mossman, supra note 3 at 507. See the way in which the notion that there is a "post-divorce family unit" is used by Cory and Iacobucci JJ. in Thibaudeau v. Canada, [1995] 2 S.C.R. 627 at 702 to justify denying Suzanne Thibaudeau's claim; and a discussion of the "post-divorce family unit" in Susan B. Boyd, "Child Custody, Relocation, and the Post-Divorce Family Unit: Goertz v. Gordon at the Supreme Court of Canada" (1997) 9(2) C.J.W.L. 457.

51 This teacher, for example, was inspired by Mossman's linking of collaborative family law and the Hartshorne decision at pp. 328-343 to create a class exercise in which students used collaborative family law principles to draft pre-nuptial agreements for their clients; and by Mossman's discussion of proposed changes in child custody law at pp. 725-733 to create a class exercise in which students argued needed changes in child custody law in front of a "Royal Commission."

52 Susan B. Boyd, "Teaching Policy Issues in Family Law" (1989) 8 Can. J. Fam. L. 11 at 15.

53 Boyd, supra note 4 at 267, cited in Mossman, supra note 3 at 786.