(Mis)Placed Justice: Justice, Care and Reforming the ‘Best-Interests-of-the-Child’ Principle in Canadian Child Custody and Access Law

THE 'PLACE OF JUSTICE', PP. 44-66, Law Commission of Canada, ed., Winnipeg: Fernwood, Copyright Fernwood Publishing, 2006

23 Pages Posted: 27 Sep 2010 Last revised: 9 May 2016

Date Written: 2006

Abstract

In this chapter, the author argues that placing justice at the heart of Canadian custody and access law has ethical consequences. In particular, the detached objectivity of liberal legalism’s concept of justice imposes upon families a model of family life that ignores the contextual realities of child rearing and parenting. In such a system, little space is left for recognition of caregiving or the subjectivity of actual family life. The author questions the central place of justice in Canadian custody and access law and suggests, drawing on a feminist ethic of care, that it is care, not justice, that should form the wider framework within which custody and access decision-making should take place. After explaining her use of the terms “justice” and “care” in the context of custody and access law, she discusses why the justice paradigm is flawed and why an ethic of care might be a more appropriate paradigm within which to make custody and access decisions. Consideration is given to how Canadian custody and access law might be reformed to better incorporate an ethic of care, including whether the “best-interests-of-the-child” test is capable of incorporating such an ethic, and finally whether the best interests test might need to be abandoned in favour of a model less tied to a justice framework.

Keywords: social justice, sociological jurisprudence, ethic of care, best interests of the child, child custody law, family law

Suggested Citation

Kelly, Fiona, (Mis)Placed Justice: Justice, Care and Reforming the ‘Best-Interests-of-the-Child’ Principle in Canadian Child Custody and Access Law (2006). THE 'PLACE OF JUSTICE', PP. 44-66, Law Commission of Canada, ed., Winnipeg: Fernwood, Copyright Fernwood Publishing, 2006, Available at SSRN: https://ssrn.com/abstract=1653967

Fiona Kelly (Contact Author)

La Trobe Law School ( email )

La Trobe University
Bundoora, VIC 3083 3142
Australia

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