Developments in Family Law: The 2000-2001 Term

Abstract

Over the past several terms the Supreme Court of Canada has played a very active role in shaping family law policy. The Court has addressed the conceptual foundations of the obligations of financial support that attach to family relationships (both spousal support, in Bracklow v. Bracklow, and child support in Chartier v. Chartier and Francis v. Baker), contributing to the creation of a new legal landscape in which family relationships are understood to entail the assumption of significant financial responsibilities. Even more notably, the Court has contributed to the growing constitutionalization of family law, revealing an increasing willingness to require that family laws conform to the constitutional norms found in the Canadian Charter of Rights and Freedoms ("the Charter"). In M. v. H decided in the 1998-1999 Term, the Court used the equality guarantee in section 15 of the Charter to dramatically re-draw the boundaries of the family to include same-sex partners. And in New Brunswick (Minister of Health and Community Services) v. G.(J.), decided in the 1999-2000 term, the Court as a whole recognized for the first time that a parent's relationship with his or her child is a vital interest worthy of constitutional protection under section 7 of the Charter, with the result that state interventions in the relationship through child protection laws are now open to challenge on the grounds that they fail to conform to constitutional norms of fairness.

Several significant family law issues also loom on the horizon -- whether the continuing exclusion of unmarried couples from schemes of matrimonial property division violates section 15 of the Charter and the effect of spousal agreements on a court's ability to award spousal support under the Divorce Act, and more specifically, whether the test articulated by the Court in its 1987 Pelech trilogy is still good law.

Sandwiched between periods of what has been and will be significant activity on the family law front, the 2000-2001 Term was a relatively quiet one in which the Supreme Court of Canada decided only two family law cases. In Winnipeg Child and Family Services v. K.L.W., the Court dealt with the continuing implications of the constitutionalization of child protection law to which it had opened the door in the previous Term, specifically the issue of whether warrantless apprehensions violated parents' rights under section 7 of the Charter. Additionally, the court heard the more eagerly awaited and significant decision was Boston v. Boston, in which the Court dealt with the controversial and long-simmering issue of what had come to be referred to as "double dipping," although the label itself was contentious. The Court also heard a third case in the 2000-2001 Term, Van de Perre v. Edwards, but the judgment is still on reserve. The case raises the complex and controversial issue of the relevance of race and cultural heritage in custody disputes, and, more specifically, in custody disputes involving bi-racial children.