A Common Law of the Family? Reflections on Rick v. Brandsema

Abstract:     
The Supreme Court of Canada's judgment in Rick v. Brandsema (2009), setting aside an agreement dividing assets on divorce, merits careful study for the Court’s approach to crucial doctrinal relationships between statutory family law and the general private law as well as between federal and provincial law. It draws out what appears to be confusion about the earlier judgment in Miglin v. Miglin and its relation to the doctrine of unconscionability. It also examines the award of damages, suggesting that the Court would have provided better guidance for future judges by making a distribution under the legislation, rather than by ordering damages at common law. Next it explores questions left unanswered by Rick about the intended application of the judgment in Miglin. The Court’s reading of Miglin as having altered the common law of unconscionability poses difficulties, particularly in Quebec, where the civil law has no equivalent doctrine. Finally, the paper takes the Court’s reliance on Miglin, a judgment interpreting a federal law, in a dispute engaging a provincial statute as a point of departure for broader reflection on impulses towards harmonization and local variation as between federal and provincial family law and from one province to another.

Number of Pages in PDF File: 40

Keywords: family law, unconscionability, Rick, Miglin, federalism, common law, Canada

JEL Classification: K30, K39

Accepted Paper Series