Developments in Family Law: The 2002-2003 Term

Abstract

The 2002-2003 term was a very significant one from the family law perspective. After two terms of relative quiet on the family law front, the Supreme Court of Canada decided three very important family law cases that will significantly influence on-going developments in this ever-changing and controversial area of law: Nova Scotia (Attorney General) v. Walsh, Miglin v. Miglin and Trociuk v. British Columbia (Attorney General). All three cases raised important issues of policy that had been percolating within the family law system for many years - in Walsh, the justifiability of the continued exclusion of unmarried couples from legislative schemes providing for division of matrimonial property; in Miglin, the effect of domestic contracts on spousal support obligations under the Divorce Act; and in Trociuk, the rights of unmarried fathers with respect to the registration and naming of their children. Two of the cases, Walsh and Trociuk, also involved on-going issues related to the impact of the Canadian Charter of Rights and Freedoms in shaping family law.

In all three cases the Supreme Court of Canada's decisions were a surprise, overturning strong rulings in the appellate courts below and reversing what seemed to be emerging patterns in family law, and indeed previous trends in the Court's own family law jurisprudence. Even more surprising, given the controversial nature of the these decisions, the Court was not strongly divided in any of the three cases.

When put together, the three family law decisions released in the 2002-2003 term signal significant shifts in family law policy at the Supreme Court of Canada level. These decisions reveal diminishing support for the functional approach to the regulation of the family that has dominated family policy in Canada both at the legislative and judicial level. They signal the re-emergence of significant elements of formalism in defining the family, whether in the form of marriage (with respect to spousal status) or biology (with respect to parental status). A new and strong emphasis on individual choice and autonomy in the structuring of family relationships is emerging.

The three family law cases of this term graphically reveal the contested terrain of modern family law. This is an area of law structured around a series of intractable tensions between public and private; freedom and obligation; protecting the vulnerable and respecting autonomy; the symbolic attraction of gender equality and the reality of gender difference. The result is an unstable area of law characterized by constant shifts in policy as the appropriate balance between competing values is sought.