Developments in Family Law: The 2003-2004 Term

Abstract:     
This term was a quiet one for family law. The Court released only one decision that focused squarely on family law, Hartshorne v. Hartshorne, and one other decision, Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), in which family law issues were raised peripherally. Ostensibly, Hartshorne v. Hartshorne raised a fairly narrow issue of statutory interpretation involving the British Columbia Family Relations Act. Section 65 of that Act permits courts to depart from the terms of a marriage contract by reapportioning property between the spouses if, in the court's view, the division of property agreed to in the contract would be "unfair" having regard to a list of factors? The narrow issues before the Court were the interpretation to be given to "unfairness" in this context and whether the marriage contract the Hartshornes signed on their wedding day fell afoul of this standard.

In Canadian Foundation for Children, Youth and the Law v. Canada (Attomey General), the case known colloquially as the "spanking case", the issue before the Court was whether section 43 of the Criminal Code, which provides a defence to parents and school teachers who apply "corrective" force against children, violated children's rights under the Charter. While primarily a criminal/Charter case, the decision is of interest to those concerned with family law for its discussion of the need to ensure that the family is not subject to state intervention through the criminal law for forceful actions of reasonable correction.

Number of Pages in PDF File: 33

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