Shifting Scrutiny: Private Ordering in Family Matters in Common-Law Canada

Frederik Swennen (ed.), Contractualisation of Family Law – Global Perspectives (Dordrecht: Springer, 2015) 93–112.

28 Pages Posted: 24 Nov 2015

See all articles by Robert Leckey

Robert Leckey

McGill University - Faculty of Law

Date Written: April 16, 2015

Abstract

This paper surveys the place of contract or private ordering in the family law of the Canadian common-law provinces. While a certain space for legally effective private arrangements is evident respecting the vertical, parent-child relations of family law as well as the horizontal ones of adult intimate relations, there are limits. The common law sources studied may not frame those limits as explicitly as the civil law’s constraints based on public order and good morals. Yet principles such as the court’s abiding jurisdiction to order support for a former spouse and the imperative of safeguarding the best interest of a child significantly constrain private ordering. On the matter of procedural contractualization or private ordering, the proliferation of programs and forms of dispute resolution complicates the picture. There is an impulse to foster out-of-court settlement of family disputes, balanced against certain controls. The overall observation is that efforts to protect vulnerable individuals and to assert the public interest in these common-law jurisdictions take the form of heightened scrutiny or review powers bearing on the products of private ordering, rather than the demarcation of zones in which contract is forbidden.

Keywords: family law, contract, private ordering, common law Canada

JEL Classification: K19

Suggested Citation

Leckey, Robert, Shifting Scrutiny: Private Ordering in Family Matters in Common-Law Canada (April 16, 2015). Frederik Swennen (ed.), Contractualisation of Family Law – Global Perspectives (Dordrecht: Springer, 2015) 93–112.. Available at SSRN: https://ssrn.com/abstract=2692258

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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