University of Toronto Law School Faculty Blog

Prof. Mohammad Fadel on Family Pluralism

I have recently posted a draft of a chapter to be published in a forthcoming work on family law pluralism (MARRIAGE AND DIVORCE IN A MULTICULTURAL CONTEXT: RECONSIDERING THE BOUNDARIES OF CIVIL LAW AND RELIGION, Joel A. Nichols, ed., Cambridge University Press, Forthcoming 2010) to my ssrn page (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1421978).  Against the background of the controversy engendered by the proposal in Ontario by some Muslims to use the Ontario Arbitration Act to resolve family law disputes among Muslims using binding arbitration, I have attempted to lay out an argument as to why a liberal system of family law - at least one that is committed to a version of political liberalism - is required to recognize at least a limited amount of autonomy within the family, and to that extent, it cannot have a categorical objection to the recognition of binding family law arbitrations, at least to the extent that it would otherwise recognize and enforce private agreements within the family (whether pre-nuptial agreements or separation agreements) of the parties to the arbitration. 

Unreasonable Adoptive Mothers: Adding Insult to Injury

The Federal Court of Appeal has created a new creature.  She’s called the “reasonable adoptive mother”.  Apparently, this creature shouldn’t be demeaned in any way by the fact that biological mothers get almost four months more employment leave from work than adoptive mothers. 

According to the Court, the ‘reasonable adoptive mother’ would recognize that the “physiological and psychological experience resulting from pregnancy and childbirth make biological mothers more deserving of time with their new babies than adoptive mothers.  She would know that the Canadian government has considered her needs, and given her some time off work and given her some time off, so that she has “in no way been excluded from Canadian society”.  In its words, “the reasonable adoptive mother would not feel demeaned by the granting of the maternity benefits to biological mothers”.

And Daddy makes three...or maybe not

What makes a person a parent?  Biology and adoption for sure.  But, what about step parents?  When does a person who is not related to a child by blood or adoption become a parent, with legal rights and responsibilities?

The law has long held that a person might be found to ‘stand in the place of a parent’ if they treat the child as a member of their family.  Child support obligations,  as well as custody and access rights would then be recognized.

So, for example, a woman comes into a new relationship with a child, and her new partner treats the child as a child of his or her family.   Over time, the law might well decide that the partner is a step parent. 

But, what if the partner doesn’t want to be a parent.  And what if the mother doesn’t want the partner to be a parent either?  Can they stop the law from imposing step parent status?

That is the issue in a case currently seeking leave to the Supreme Court of Canada.   In Jane Doe v. Alberta, a professional woman was in a cohabiting relationship with a John Doe.  She said she wanted to have a baby.  He didn’t.  Jane Doe decided to have a child on her own, through alternative insemination from an unknown sperm donor.  A child was born.  Jane Doe and John Doe want to continue their relationship, but neither of them want John to be a parent.  They want to enter into a contract that says that she’s the parent, and he’s not.  Jane Doe says that her parental liberty rights under section 7 of the Canadian Charter of Rights and Freedoms should allow her to do so.

Has Adultery Come Back to Family Law?

Adultery is making a comeback.  It’s not that it ever really went away as a practice.  But, suddenly, everyone is talking about it.  Whether it’s the scarlet letter projected onto Belinda Stronach, named as the other woman in Tie Domi’s divorce, or the Supreme Court of Canada’s ruling in Leskun, it is even sneaking back into family law. 

The divorce revolution, with the move towards no-fault divorce, was supposed to banish adultery from legal relevance.  Couples got married, after a dozen or so years, had affairs, got divorced and remarried.  Adultery not only stopped being an irredeemable sin, but it was no longer to be used as a ground for divorce, or as a consideration in awarding spousal support or deciding child custody.  Like in a Woody Allen film, it increasingly came to be seen as a regrettable but necessary step on the road to serial monogamy.  Adultery lost its sense of moral outrage.   

But, with the push back from the divorce revolution and the culture of easy divorce that it has allegedly fostered, adultery is creeping back into the public mind.

Three views on Leskun v. Leskun

Three University of Toronto faculty members, each an expert in family law, have written commentaries in three different newspapers, on three consecutive days, about the recent Supreme Court of Canada decision Leskun v. Leskun. Each faculty member takes a different perspective on the decision.

Brenda Cossman, National Post: "Cheaters beware"

Carol Rogerson,The Globe and Mail: "Divorce ruling is far from faulty"

Martha Shaffer, Toronto Star: "Top court muddies divorce law"

Room in the Bed for Everyone

A few weeks ago, an odd thing appeared on the New York Times weddings page. There were three wedding announcements, but the same husband appeared in each one. It took a few moments for you to realize that it was actually an ad for the premiere of Big Love, HBO's new drama series on polygamy (which runs on The Movie Network in Ontario).

The series is created and produced by creative and romantic partners Mark V Olsen and Will Scheffer, two gay men who are rather obviously and provocatively riffing on the controversies around same-sex marriage.

The mock announcements nicely demonstrate the connection: the New York Times has been announcing gay and lesbian unions since 2002, two years before same-sex marriages were legal anywhere in the US. A wedding announcement in the New York Times is the ultimate sign of arrival, status writ large - even if there is nothing legal about it. The fake announcement of the three fictitious Big Love marriages played on the same gap between cultural and legal recognition.