THE CHANGING FAMILY, RIGHTS DISCOURSE AND THE SUPREME COURT OF CANADA
AbstractIn the past few decades, family law has changed significantly while it has risen dramatically in profile. Recent Supreme Court cases on family law have attracted great public interest. The author argues that the increased profile of family law is tied to the monumental impact of the Charter and the rise of rights discourse in Canada and that, driven by this rights culture, the Supreme Court has increasingly become a leader in the reform process. The author canvasses Supreme Court family law jurisprudence, following its development from the relatively uneventful 1960s, through the watershed verdict in Murdoch v. Murdoch, to the turn of the twentieth century. The growth of a rights culture is traced through cases concerning family property, divorce, custody, support, reproductive autonomy and child' protection issues. By the 1990s, the Supreme Court is suggested by the author to have taken on a central role in the formation and development of family law that it did not play before. The author suggests that family law increasingly reflects in microcosm the most fundamental social issues and tensions facing Canadian society. It is further suggested that the Charter has influenced the development of family law in fundamental ways, giving family law has an increasingly public aspect. The author argues, therefore, that family law can no longer be characterized as an area of law simply falling within the domain of private law.
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