A Conceptual Analysis of Unified Family Courts: A Canadian Perspective

• DOI: http://doi.org/10.1111/j.174-1617.1982.tb00081.x
• Date: 01 June 1982
• Author: Julien D. Payne
• Published date: 01 June 1982

A

Conceptual Analysis of Unified Family Courts:

A Canadian Perspective

Julien D. Payne"

Introductory Comments

Fundamental changes in the substantive

law of "Marriage and Divorce" in Canada have

been implemented in

the

last fifteen years.

Canadians have witnessed major policy shifts

in the field of divorce reform with the extension

of the "fault" grounds for divorce coupled with

the introduction of "no fault" divorce. The mar-

ried woman's right to share property acquired

during the subsistence of the marriage has

undergone radical change

as

a

result of shift-

ing judicial stances and also legislative in-

tervention. Spousal support laws have rejected

the traditional notion of fault in favour of sub-

stantial reliance on "need" and "capacity to

pay". In addition, the conventional approach to

spousal maintenance as

a

lifelong obligation in

the event of marriage breakdown has been dis-

placed by the concept of "rehabilitative"

awards.

Legislative reform in the sphere of chil-

dren's rights

is

less obvious, although there are

indicia pointing to the prospect of major

changes in the next few years.

To

take

recent

examples from the Province of Ontario, the

status of illegitimacy has now been abrogated

by statute and the child's right to independent

legal representation in wardship proceedings

has received statutory recognition. These

ex-

amples probably reflect the tip of the iceberg

with respect to prospective changes in the laws

respecting children's rights.

The aforementioned statutory reforms re-

flect the changing roles of the Canadian family

in contemporary society. The momentum of

the sexual revolution and of the women's liber-

ation movement in the

late

sixties and early

seventies has already had

a

substantial impact

on

policy makers, both judicial and legislative.

More recent demands for

"a

children's char-

'Julien D. Payne, LL.D. is a Professor

of

Law, University of

Ottowa, Faculty

of

Law, Common Law Section, Ottawa,

Ontario, Canada

KIN

6N5.

ter" have yet to come to fruition but will un-

doubtedly impact on the law in the near future.

Fundamental changes in substantive law

have not been accompanied by major changes

in the legal and judicial process. Although one

can point to the increasing use of pre-trial pro-

cedures in family law cases and to the probable

emergence of mediation as an adjunct to the

judicial process, innovative procedures and

processes have been few and of relatively

minor significance. Changes in the legal and

judicial process have lagged far behind the

recent reform of substantive rights and obliga-

tions.

It

is

predictable, therefore, that decision-

makers will focus for the next ten years or

so

on

the process of family conflict resolution, rather

than on further reform of substantive laws.

The need to view substantive law in the

context of legal procedure and the judicial pro-

cess has been fully recognized by The Law

Reform of Canada. In January,

1974,

that Com-

mission issued

its

first Working Paper entitled

"The Family Court". The Working Paper was

based, in large part, on

a

major research study

undertaken by this writer, entitled

"A

Concep-

tual Analysis of Unified Family Courts". These

two documents constitute

a

conceptual

framework for the establishment of Unified

Family Courts in Canada.

Today,

I

have been invited to speak to my

conceptualization of Unified Family Courts in

Canada. Hopefully, these comments will pro-

vide

a

basis for fruitful discussion on the future

of Unified Family Courts in the Province

of

Sas-

katc

h ewa n

.

The Need For Unified Family Courts: An

Evaluation

of

the Present Legal Process(es1

Any proposed reform of

legal

or judicial

processes necessitates an explanation

of

why

change

is

warranted. This requires an evalua-

tion of current practices.

The adjudication

of

family disputes in

Canada today

lacks

any coherent philosophical

52

CONCILIATION COURTS REVlEWlVOLUME

20,

NUMBER l/JUNE

1982