Families and the Law, Third Edition
Cases and Commentary

M.J. Mossman, Natasha Bakht, Vanessa Gruben, and Karen Pearlston   

Captus Press, ISBN 978-1-55322-387-0 (2019)
1056 pages, 1440 g, 7 X 10, $98.50 (US$78.80)
 

What constitutes a family? What role does the law play in different types of families? How have families and family law evolved in the recent years?

Families and the Law, 3e deals with all these questions and more as it aims to address new challenges faced by families as well as current legal changes that affect family relationships. As with previous editions, the third edition of Families and the Law explores how the law continues to be relevant for families in different contexts. This edition has the added advantage of drawing from the insights of other "Family Law" instructors regarding many new developments.

New to this edition:

Social and economic data (that includes updated statistics about Canadian families from the 2016 Census) as well as family law themes (that includes the changing definition of "family") serve as the foundation of the book, which is further divided into 3 main sections: family formation, legal regulation of intact families and family dissolution. Specifically this edition contains,

New material on

  • Conflict of laws and marriage
  • Economic issues and duress
  • The emerging status of polyamory in family law
  • Parentage in non-conjugal families
  • Family caregiving, "family status" in human rights statutes
  • Reforming services in family law
  • Paralegal representation in family law

New cases on

  • Living "separate and apart" as a way to prove marriage breakdown
  • Valuation and "unequal" equalization
  • Violence considered part of conduct and ability to parent
  • Imputing income in child support matters

Revisions or updates on

  • Domestic violence, elder care and abuse
  • Child protection to take account of Ontario's new Child, Youth and Family Services Act (1917)
  • The SSAGs, including commentaries and cases
  • Children's responsibilities to support parents
  • Paternity presumptions and parenting determinations in circumstances of assisted reproduction in the CLRA

Description and analysis of

  • All Families are Equal Act in Ontario
  • Proposed Bill C-78 amendments to the Divorce Act
  • Negativing requirement that adoptive parents be spouses (Re S(M), 2018 ONSC 5145)

To aid further discussion and learning, each chapter is accompanied by questions, problems and notes about additional cases. Moreover, each chapter includes bibliographic references for instructors and students that relates to different issues in the chapter.

A class-tested, carefully-considered collection of cases and commentary, Families and the Law, 3e is a stimulating learning resource, perfect as a primary or secondary text for courses on family law, legal studies, and law and society programs, and an invaluable resource for all who study family law in Canada.

Table of Contents   top

Abridged-TOC

Preface to the Third Edition
Preface to the Second Edition
Preface to First Captus Edition
Copyright Acknowledgment

Families and Family Law: An Introduction to This Book

Chapter 1
Families and Family Law: Contexts and Themes

  1. INTRODUCING FAMILIES AND FAMILY LAW
  2. “FAMILIES” IN CONTEXT
  3. “FAMILIES,” FAMILY RELATIONSHIPS, AND THE LAW
  4. THEMES IN FAMILY LAW: AN INTRODUCTION

PART 1
LEGAL REGULATION OF FAMILY FORMATION

Chapter 2
Forming Families: Marriage in the Context of Cohabitation

  1. MARRIAGE: TRADITION VERSUS CHANGE?
  2. MARRIAGE IN THE CONTEXT OF COHABITATION
  3. THE LEGAL CONTEXT FOR DEFINING THE VALIDITY OF MARRIAGE:
    THE LAW OF ANNULMENT AND THE CONSTITUTIONAL
    DIVISION OF POWERS
  4. PRINCIPLES OF THE VALIDITY OF MARRIAGE
  5. MARRIAGE AND THE NEED FOR LAW REFORM?

Chapter 3
Forming Families: Parent–Child Relationships

  1. FAMILIES AND CHILDREN
  2. “PARENT” AND “CHILD”
  3. ADOPTION: BIOLOGICAL PARENTS, ADOPTIVE PARENTS, AND CHILDREN
  4. LEGAL REGULATION OF WOMEN’S SEXUALITY:
    A BRIEF OVERVIEW OF ABORTION AND STERILIZATION

PART 2
LEGAL REGULATION OF “INTACT” FAMILIES:
CARE AND PROTECTION

Chapter 4
Families in the Shadow of the State: Responsibilities for Care and Protection

  1. “PRIVATE” FAMILIES AND LEGAL POLICIES OF CARE AND PROTECTION
  2. FAMILIES AND THE STATE: (FAMILY) RESPONSIBILITIES FOR CARE
  3. CHILDREN “IN NEED OF PROTECTION”:
    RESPONSIBILITIES FOR FAMILIES AND THE STATE
  4. ABUSE AND VIOLENCE IN INTIMATE RELATIONSHIPS:
    RESPONSIBILITIES FOR FAMILIES AND THE STATE
  5. PROTECTION FOR VULNERABLE ELDERS: RESPONSIBILITIES OF FAMILIES AND THE STATE
  6. A FINAL COMMENT: FAMILIES AND LEGAL INTERVENTION

PART 3
LEGAL REGULATION OF FAMILY DISSOLUTION

Chapter 5
Family Dissolution: Principles and Processes

  1. THE CONTEXT FOR FAMILY DISSOLUTION
  2. THE LEGAL REGIME FOR DIVORCE
  3. “NO FAULT” GROUNDS FOR DIVORCE AND BARS TO DIVORCE
  4. THE ECONOMIC CONSEQUENCES OF DIVORCE AND SEPARATION
  5. FAMILY DISSOLUTION: LEGAL PROCESSES
  6. FAMILY BARGAINING AT SEPARATION OR DIVORCE: EXPLORING THE ISSUES

Chapter 6
Families, Property, and Family Property:
Principles of Equality and Equity

  1. THE LEGAL AND SOCIAL CONTEXT OF FAMILY PROPERTY
  2. DEFINING A “SPOUSE” FOR FAMILY PROPERTY:
    THE SIGNIFICANCE OF MARRIAGE OR COHABITATION
  3. LEGISLATIVE REGIMES FOR PROPERTY SHARING AT MARRIAGE BREAKDOWN:
    PRINCIPLES OF EQUALITY
  4. THE PROCESS OF EQUALIZATION IN ONTARIO
  5. PART II OF THE FLA AND POSSESSORY RIGHTS IN THE MATRIMONIAL HOME
  6. COHABITING COUPLES: EQUITY AND THE USE OF TRUST DOCTRINES

Chapter 7
Spousal Support, Compensation and Dependency:
Goals, Orders and Agreements

  1. ECONOMIC ADJUSTMENT POST-SEPARATION:
    CONTEXTS AND RESPONSIBILITIES
  2. DEFINING A “SPOUSE” FOR PURPOSES OF SPOUSAL SUPPORT
  3. PRINCIPLES OF SPOUSAL SUPPORT: THE CONTEXT OF ENTITLEMENT
  4. PRINCIPLES OF SPOUSAL SUPPORT: JUDICIAL VIEWS OF THE 1985 DIVORCE ACT
  5. RETHINKING PELECH AND THE ROLE OF FAMILY AGREEMENTS
  6. A REFORM INITIATIVE: SPOUSAL SUPPORT ADVISORY GUIDELINES (SSAG)
  7. REFLECTING AGAIN ON THE POLICY CONTEXT OF FAMILY SUPPORT

Chapter 8
Children and Family Dissolution: Rights, Relationships, and Economic Support

  1. FAMILY DISSOLUTION: THE CONTEXT FOR CHILDREN
  2. CUSTODY AND CARE: PERSPECTIVES AND POLICIES ABOUT CHILDREN
    AT FAMILY DISSOLUTION
  3. CUSTODY AND CARE: DECISION-MAKING ABOUT CHILDREN
    AND THEIR “BEST INTERESTS”
  4. CUSTODY AND CARE: PROCESSES FOR DECISION-MAKING
    AND LEGAL ARRANGEMENTS
  5. CHILD SUPPORT: “PUBLIC” AND “PRIVATE” RESPONSIBILITIES?
  6. CHILD SUPPORT: DEFINING PARENT–CHILD RELATIONSHIPS
  7. CHILD SUPPORT: THE CHILD SUPPORT GUIDELINES
  8. CHILD SUPPORT: THE NEED FOR REFORM?


EPILOGUE: Families, Law, and “Family Justice”

Case Index

Instructor Resources   top

Related Resources   top

About the Author   top

Mary Jane Mossman is Professor Emerita at Osgoode Hall Law School and was appointed a University Professor, a special honour at York University. She taught courses in Property Law, Family Law, and Gender Equality, and served as Director of the Institute for Feminist Legal Studies at Osgoode 2002-2010. Her publications focus on these subjects as well as legal aid and access to justice. In addition, her interest in the history of women lawyers resulted in publication of The First Women Lawyers: A Comparative Study of Gender, Law and the Legal Professions (Hart Publishing 2006); and her book about Ontario women lawyers in the early decades of the 20th century is forthcoming. She was a faculty member at the University of New South Wales and has been appointed a Visiting Professor at universities in Canada, the United States, Australia, Japan and France. She is a recipient of the Law Society Medal, an honorary doctorate from the Law Society, and the Award of Excellence of the Canadian Association of Law Teachers. In addition, she has been involved in supporting the work of community legal clinics for many decades.

Natasha Bakht is an associate professor of law at the University of Ottawa where she has taught courses in criminal law, family law, children and the law and multiculturalism issues including women, religion and law. Prof. Bakht's legal scholarship explores the intersection between religious freedom and women's equality. Specific topics include religious arbitration in Canada, demeanour evidence and sexual assault, religious marriage and divorce. She was an active member of the Women's Legal Education and Action Fund (LEAF) from 2005-2009, advancing women's rights through litigation. She has worked with the National Judicial Institute to educate Canadian judges on matters of religion and culture. She is the current English language Editor of the Canadian Journal of Women and the Law (CJWL). Her most recent writings on the rights of Muslim women who wear the full-face veil were cited by the Supreme Court in the case of R v NS, 2012 SCC 72.

Vanessa Gruben is an associate professor and a member of the Centre for Health Law, Policy and Ethics at the University of Ottawa, Faculty of Common Law, where she teaches health law and family law. Her research focuses on the legal and ethical aspects of assisted reproduction, including the constitutionality of Canada's Assisted Human Reproduction Act, the legal relationship between egg donors and their physicians, the constitutionality of anonymous sperm and egg donation, access to reproductive technologies, and the existing gaps in provincial law for families created through third-party reproduction. Her research also includes health law more generally as well as the protection of language rights in Canada. Gruben's work is funded by the Social Science and Humanities and Research Council, Canadian Blood Services, and the Foundation for Legal Research. She is a co-editor of the fifth edition of Canadian Health Law and Policy (LexisNexis Canada, 2017).

Karen Pearlston is Professor of Law at the University of New Brunswick. Her research and teaching interests include English and Canadian legal history, history of women, gender, and the family, family law, tort law, feminist theory, reproductive justice, and gender and sexuality studies. Prof. Pearlston has a long history of social justice activism that informs her teaching and research. She works in the queer community and is an active member of Reproductive Justice New Brunswick. Her current research focus is lesbian legal history, and she has a continuing interest in family law in the 20th and 21st-centuries with particular attention to issues affecting marginalized people.