Tag Archives: Family law

Empiricism and Equality: Studying Fathers’ Rights – Robson reviews Behre at Jotwell Equality

Empiricism and Equality: Studying Fathers’ Rights – Jotwell: Equality.

Very interesting, go and have a look at the review – and the article (Kelly A. Behre, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, 21 Wm. & Mary J.  Women & L. (forthcoming 2014), available at SSRN.).

While discussions, critiques, and analysis of the equality rhetoric of the international fathers’ rights movements are not novel, Kelly Behre’s article, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, does – – – as the title promises – – – “dig beneath.” The article’s first section is an excellent overview of the equality narratives of the fathers’ rights movement, including the appeal to civil rights movements and the use of both discrimination and gender-neutral tropes. But the real contribution of Behre’s article is her exploration of the relationship between empiricism and equality. [from Ruthann Robson's explanation of why she likes the article - lots]

 

Eric v Lola: an online roundtable

We’re excited to introduce the first IFLS roundtable, designed to make a space for legal scholars to have important & timely conversations without the formality of peer review, yet still allow them more control over content than direct engagement with traditional media often does. Hope you enjoy it!

When the decision in Eric v Lola, properly known as Quebec (Attorney General) v. A, 2013 SCC 5 came out January 25, 2013, it gave all those interested in family law, equality law, the Supreme Court of Canada, and even lifestyles of the rich and famous something to dive into.  “A” had challenged the exclusion of de facto spouses from the Civil Code of Quebec (see art 401 up to art 585, here) and claimed both spousal support and property division on the basis that the legislation violated section 15.

She lost.  But it took four hundred and fifty paragraphs, and it was a split decision!  To borrow a phrase, “it’s complicated”.

                    1.  Do arts. 401 to 430, 432, 433, 448 to 484 and 585 of the Civil Code of Québec, S.Q. 1991, c. 64, infringe s. 15(1) of the Canadian Charter of Rights and Freedoms?

Answers:  McLachlin C.J. and Deschamps, Abella, Cromwell and Karakatsanis JJ. would answer yes.  LeBel, Fish, Rothstein and Moldaver JJ. would answer no.

2.  If so, is the infringement a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

Answers:  LeBel, Fish, Rothstein and Moldaver JJ. would answer that it is not necessary to answer this question.  McLachlin C.J. would answer yes.  Deschamps, Cromwell and Karakatsanis JJ. would answer that only art. 585 is not justified under s. 1.  Abella J. would answer no.

Other Coverage

Cristin Schmitz in the Lawyer’s Weekly said the ruling “muddied the waters” here.  Kirk Makin in the Globe and Mail wrote about it here.   The Montreal Gazette story was headlined “Common Law Couples do not have the same Protection, Top Court Rules” (here).  Here is the CBC. Law students took it on here (Ottawa’s Delara Emami) and here (Osgoode’s Stephanie Voudouris)   Macleans has a more…Macleansian take on the story, providing ample background in this December 2009 piece.

These stories give a flavour of the suit and the judgment(s).  While the case was essentially a section 15 challenge to the Quebec legislation which governs common law spouses after the relationship breaks down, it raiises a host of fascinating questions, about choice, about section 15, about Quebec – as I said, “complicated”.

IFLS Roundtable

So, to sort out or amplify the complexities of this case, I’m delighted to introduce the first IFLS online roundtable, and the four legal scholars who will be talking about Eric and Lola for the next few weeks.  Our panelists are Professors Hester Lessard (UVic), Bruce Ryder (Osgoode), Margot Young (UBC) and Robert Leckey (McGill).  More information about these four below.  They have agreed to submit responses to my questions, in a roundtable type format.  I will be posting the questions and responses as they happen, but the format is less “chat” like than a kind of exchange of short notes.    Huge thanks to the four panelists for agreeing to this experimental approach.
If you want to follow the postings you can check here, where I will collect all the posts.  Otherwise, if you are already signed up for the IFLS feed through email or through RSS (check the far right sidebar), they will come in your regular set of posts.

Here’s our panel.

Collage of professors Lessard, Leckey, Young and Ryder, first IFLS CaseChat panel

Hester Lessard joined the Faculty of Law at the University of Victoria in 1989 and was promoted to Associate Professor in 1994 and full Professor in 2007. She teaches: Constitutional Law; Feminist Legal Theories; Equality, Human Rights and Social Justice Law; and Legal Process. In addition, she teaches Legal Theory as part of the law school’s Graduate Program.  Her past and current research interests include feminist critiques of constitutional rights, the construction of family relations under the Charter of Rights, and the role of rights-based strategies and discourses in achieving progressive social change for women.

 

Bruce Ryder joined Osgoode Hall Law School’s faculty in 1987.  His research and publications focus on a range of contemporary constitutional issues, including those related to federalism, equality rights, freedom of expression, Aboriginal rights, and Quebec secession. He has also published articles that explore the historical evolution of constitutional principles and is currently researching the history of book censorship in Canada.

 

Margot Young began her teaching career at the Faculty of Law, University of Victoria in 1992 after doing graduate work at the University of California, Berkeley in the fields of feminist legal theory and reproductive technologies. Her focus quickly shifted to the areas of constitutional law, in particular, equality law and theory, and social welfare law. She has continued to teach and research widely in these areas. Professor Young is very involved in work with a number of non-governmental groups working on issues of women’s economic equality and justice. She has authoring alternative reports for the National Association of Women and the Law for the last two of Canada’s periodic reviews under the United Nations ICESCR and ICCPR. Recently she co-authored and presented to the United Nations CEDAW Committee in New York NGO reports on Canada’s and British Columbia’s failure to comply with obligations under the Women’s Convention.

 

Robert Leckey teaches constitutional law and family law, and conducts research in those fields as well as comparative law. He is working on a book tentatively titled Bills of Rights in the Common Law.  From 2002 to 2003, he served as law clerk for Justice Michel Bastarache of the Supreme Court of Canada.  He joined the Faculty of Law in July 2006 and was named a William Dawson Scholar by McGill University in 2011.  In 2010-2011, he served as director of research for the Inquiry Commission on the Process for Appointing Judges (the Bastarache Commission). He is the president of Egale Canada as well as the chair of its Legal Issues Committee.  Robert Leckey has received the Prix de la Fondation du Barreau du Québec (2007), the Canadian Association of Law Teachers’ Scholarly Paper Prize (2009), the McGill Law Students’ Association’s John W. Durnford Teaching Excellence Award (2009), the Canada Prize of the International Academy of Comparative Law (2010), and the Principal’s Prize for Excellence in Teaching (2010).


Supreme Court of Canada finally releases Eric c Lola

Lola loses.  But looks like there will be an interesting discussion of choice, finally!

Decision here.

I’ve cut and pasted in the way the court split on the constitutional questions.

 

Held (Deschamps, Cromwell and Karakatsanis JJ. dissenting in part in the result and Abella J. dissenting in the result): The appeals of the Attorney General of Quebec and B should be allowed, and the appeal of A should be dismissed. Articles 401 to 430, 432, 433, 448 to 484 and 585 of the Civil Code of Québec are constitutional.

The constitutional questions should be answered as follows:

1. Do arts. 401 to 430, 432, 433, 448 to 484 and 585 of the Civil Code of Québec, S.Q. 1991, c. 64, infringe s. 15(1) of the Canadian Charter of Rights and Freedoms?

Answers: McLachlin C.J. and Deschamps, Abella, Cromwell and Karakatsanis JJ. would answer yes. LeBel, Fish, Rothstein and Moldaver JJ. would answer no.

2. If so, is the infringement a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

Answers: LeBel, Fish, Rothstein and Moldaver JJ. would answer that it is not necessary to answer this question. McLachlin C.J. would answer yes. Deschamps, Cromwell and Karakatsanis JJ. would answer that only art. 585 is not justified under s. 1. Abella J. would answer no.

 

NiP: Debating Sharia: Islam, Gender Politics, and Family Law Arbitration

I couldn’t find a Table of Contents or contributor list. Looks interesting from the little that’s out there….

Debating Sharia: Islam, Gender Politics, and Family Law Arbitration

Anna Korteweg University of Toronto, Sociology

Jennifer Selby  Memorial University of Newfoundland, Religious Studies

Feminist Friday Followup

Thanks to lovely Friday afternoon audience and wonderful colleagues who presented at today’s FF.  I ate too much antipasti + cookies + banana bread, so this attempt to fulfill my promise to send out links for those interested in following up the brief samples available may fall slightly short.

 

Associate Dean Professor Shelley Gavigan presented pieces of her Something Old, Something New: Re-Theorising Patriarchal Relations and Privatisation at the Outskirts of Family Law, a shortened reprise of her presentation at this Conference in Tel Aviv.  The paper is forthcoming in Theoretical Inquiries in Law, but isn’t publicly available at the moment. I will be sure to post/tweet when it becomes available, whether through SSRN or the Journal.   She spoke about a few very interesting cases, including A.A. v. B.B., 2007 ONCA 2.  She also mentioned Angela Campbell’s work collecting the “voices” of women from Bountiful B.C.’s polygamous community.  That work is available on SSRN here.

[blackbirdpie url="http://twitter.com/#!/OsgoodeIFLS/statuses/129978399270776832"]

Professor Stephanie Ben Ishai showed us some great commercials, including the one below to open her presentation of Debtor Assistance and Debt Advice: The Role of the Canadian Credit Counselling Industry, co authored with Saul Schwartz of the Carleton School of Public Policy and Administration.  The full text is available here.

 

She also referenced former Osgoode colleague Prof. Iain Ramsay (now at Kent Law School) and his (very fun sounding) paper “Wannabe Wags and Credit Crunch Binges”: The Construction of Over-Indebtedness in the UK. In: Niemi, Johanna and Ramsay, Iain and Whitford, William, eds. Consumer Credit, Debt and Bankruptcy: Comparative and International Perspectives. Hart Publishing, Oxford. Click here for Osgoode Hall of York University Library listing, not available online.

Professor Carys Craig’s paper What’s Feminist About Open Access? A Relational Approach to Copyright in the Academy co authored with Rosemary Coombe and Joseph Turcotte, is available here, from the (open access) journal Feminists@Law – also from Kent Law School.

 

[blackbirdpie url="http://twitter.com/#!/OsgoodeIFLS/statuses/129990631652212736"]

She mentioned that people could buy or otherwise read her book, so check out this post from earlier this year, wherein she introduces the book and provides a great set of links for those new to the topic (excerpt below).

Carys suggested these articles to those intrigued by the connections between feminist theory and copyright (or IP more generally).  Carys adores alliteration, so she described these as favourite/fundamental:
Malla Pollack. “Towards a Feminist Theory of the Public Domain, or The Gendered Scope of United States’ Copyrightable and Patentable Subject Matter” William & Mary J. of Women and the Law 12 (2006): 603. Link is to Hein Online (requires account – will likely work if you are accessing from a university IP address):

the public domain is feminine because it provides essential nourishment; it is the birthing and lactating mother. As one seed becomes a plant due to the fecundity of the earth goddess, so one human sprouts poems due to the fecundity of the public domain, the daemon, the muse.”

Says Carys, “A sure way to make upper year law students shift uneasily in their seats.”    Another must-read classic (and Canadian to boot): is Shelley Wright, A Feminist Exploration of the Legal Protection of Art, 7 Can. J. Women & L. 59 (1994).  (Another Hein Online link. Apologies, but (irony?) these articles are not available “openly”.)

Since two is too few, she offered these more recent pieces as well – true to her convictions, both of these links should open for everyone.

Ann Bartow, Fair Use and the Fairer Sex:  Gender, Feminism, and Copyright Law,  Am. UJ Gender Soc. Pol’y & L., 2006,

Greene, K.J. “Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues.” American University Journal of Gender, Social Policy & the Law. 16, no. 3 (2008): 365-385

 

Final words – thank you to @MelaynaM who “won” the job of livetweeting the event from @osgoodeifls through our contest, and thank you to the students, staff and faculty who came out and listened/participated.  Comments/thoughts/suggestions always welcome.