Particular Justice: Michel Bastarache and Family Law

AT THE FOREFRONT OF DUALITY: ESSAYS IN HONOUR OF MICHEL BASTARACHE, pp. 117-141, Nicolas Lambert, ed., Yvon Blais, 2011

33 Pages Posted: 15 Sep 2010 Last revised: 10 Jun 2011

See all articles by Robert Leckey

Robert Leckey

McGill University - Faculty of Law

Date Written: July 14, 2010

Abstract

This paper studies Michel Bastarache’s judgments in family law, specifically those appeals concerning parents and children. These judgments reveal comfort with the complexity of contemporary family life, notably through reliance on multi-factored, contextual analysis. They also show a commitment to individualized family justice as determined by trial judges, as well as sensitivity to the duty to respect the design choices of the legislative drafter. Scholarly criticisms that the Supreme Court, in Justice Bastarache’s family decisions, abdicated a leadership role by deferring too much to trial judges misunderstand his vision of judging. Moreover, such criticisms rest on unexamined assumptions about the character of legitimate judicial guidance in the family field. Justice Bastarache’s family judgments can be read as setting out broad moral guidelines, exemplifying what some scholars identify as the expressive function of contemporary law. In his refusal to squeeze child support into a single conceptual framework, Justice Bastarache shows a Fullerian commitment to pursuing a legal regime’s complex purposes. He emerges from his family judgments as a pragmatic judge, conscious of the limited capacity of rules to regulate the unruliness of family life, and confident in the necessity of individualized adjudication.

Keywords: Bastarache, Family Law, Judicial Deference, Discretion, Morality, Judicial Guidance

JEL Classification: K10, K19

Suggested Citation

Leckey, Robert, Particular Justice: Michel Bastarache and Family Law (July 14, 2010). AT THE FOREFRONT OF DUALITY: ESSAYS IN HONOUR OF MICHEL BASTARACHE, pp. 117-141, Nicolas Lambert, ed., Yvon Blais, 2011. Available at SSRN: https://ssrn.com/abstract=1677497

Robert Leckey (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada
514-398-4148 (Phone)
514-398-4659 (Fax)

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