FAMILY LAW AS FUNDAMENTAL PRIVATE LAW

Abstract

The paper takes issue with a recent emphasis on the role of litigation under the Canadian Charter of Rights and Freedoms as an instrument of family law reform and a sense that family law, constitutionalized, is no longer private law. Such emphasis suggests that reform is better done by courts than by legislatures. The paper aims to rehabilitate an understanding of family law as a core component of a jurisdiction’s fundamental private law. This understanding is, descriptively, more faithful to the Canadian experience of family law as an enterprise of governance shared by different branches of government. It is also, normatively, preferable for tackling the thorny distributive issues on the family law agenda.