An Argument for Treating Children as a ‘Special Case’

This chapter’s argument stems from the premise that legal language should speak for itself. The ‘paramountcy’ principle suggests the prioritization of children’s interests, and ‘children’s rights’ suggests some aspect of distinctiveness to children’s interests. But there is academic consensus in respect of both that children’s interests cannot and should not be prioritized over those of others. This chapter examines the justification for the contrary perspective, and for treating children as a prioritized ‘special case’ in all legal decisions affecting them.

Four key counter-arguments frame the discussion. First, the ‘social-construct’ objection: as a social construct, childhood cannot sustain the prioritization of children’s interests over those of others. Second, the ‘vulnerability’ objection: children’s vulnerability is either not unique or suggests dependency or interdependency, not prioritization. Third, the ‘family autonomy’ objection: parents’ rights and the family unit justify deference of children’s interests. Fourth, the ‘equality’ objection: equal moral consideration makes prioritization unjustifiable.

[This chapter is published in Elizabeth Brake and Lucinda Ferguson (eds), Philosophical Foundations of Children’s and Family Law (OUP 2018).  A pre-edited version is available here.]

Law Society Gazette: Letter to Editor – ‘Final and binding’ awards in family law

Setting the record straight: family law arbitration is not binding

Dennis Sheridan’s article (13 March) on family law arbitration sets out the key benefits of the new IFLA scheme but risks being dangerously misleading in one respect, namely that ‘awards’ made under the scheme are ‘final and binding’.  More worryingly, he makes this claim in relating what an appointed IFLA scheme arbitrator said to clients in the early stages of proceedings.

Just because Article 13.3 of the IFLA scheme Rules describes the ‘award’ as ‘final and binding’ subject to limited grounds of challenge and appeal, does not make it so.  Indeed, Article 13.4 of the Rules recognises that it may be necessary for the parties to apply to the courts to get an order in the same or similar terms as the award/part thereof.

It is technically incorrect to say that these ‘awards’ are binding.  Trite as it is, jurisdiction to make final financial awards is the court’s alone.  Nuptial agreements are not binding, and arbitration is not a special case.  Section 81(1)(a) of the Arbitration Act 1996 makes clear that the court’s jurisdiction is unaffected here and s25 of the Matrimonial Causes Act 1973 applies.  Even if arbitrated awards were treated as akin to s34(1) MCA 1973 maintenance agreements, so as to withstand s81(1)(a) AA 1996, s81(1)(c) entitles a court to refuse to recognise and/or enforce an ‘award’ on public policy grounds.   Any case in which a judge would reach a different result under s25 than under the ‘award’ should satisfy s81(1)(c).

Second, even if a judge would be unlikely to override an arbitrated ‘award’, it is misleading to describe that factual reality with the legal terminology of bindingness.  We do not pretend that the agreement that forms the basis of a Consent Order is binding before the order is made, so why would we do so for arbitrated ‘awards’?  Talking about ‘awards’ that are unlikely to be overridden – ‘as good as binding’? – as ‘binding’ is liable to confuse the public.  Why risk litigants misunderstanding their own legal right to apply to court for a binding order?   Further, religiously-based arbitrators understand their limits; why risk the public misunderstanding the nature of religious tribunals’ work?  The current law is based on the concern that only the court can sufficiently protect the parties’ interests in these disputes, hence only it can make binding decisions.  If we no longer think this is the case, we need to have that debate, not pretend we have already had it.

Family law arbitration may have many benefits for the right type of parties in the right type of dispute.  But a ‘final and binding’ decision is not one of them.

The Parental Support Obligation

Every jurisdiction in Canada has provided by statute for a parent to claim support from their adult child; the obligation imposed upon an adult child exists entirely in civil law since there are no corresponding criminal law provisions. The support obligation also has no history at common law. The filial support obligation originated in the Elizabethan Poor Laws as the state’s response to the difficulty of providing for the older members of the population. In Burgess, Judge Fisher stated he believed the Ontario provisions were added “to allow the State to make well-off children pay for parents in nursing homes rather than the State paying for them.” Yet, as Judge Fisher remarks, “the effect of [statutory filial support obligations] is far more sweeping.” Filial support obligations have the potential to enable any parent in need to directly claim support from their child, stepchild, grandchild, and, at least indirectly, from their child’s spouse.

To date, filial support legislation has been little used. Since 1982 there have been approximately twenty-three cases across Canada in which the issue of parents’ support has arisen, including cases that indirectly addressed this issue. The majority of these cases have arisen in Ontario (ten cases) and British Columbia (seven cases). As the population ages, and the average lifespan increases, this little-known area of law may become fertile ground for provincial governments seeking to recover the cost of caring for other people’s older relatives.

Provincial and territorial statutes are similar in their fundamental approach to the issue of parents’ support. In broad terms, an adult child is held obliged to support their parent when three requirements are satisfied: first, the parent has demonstrated the need for support; second, the parent cared for or supported the child against whom a claim is now being brought; third, the court is satisfied that the adult child is capable of providing support. The rest of this section will explore the circumstances in which the issue of filial support arises in a legal action, and the differences between various provinces’ and territories’ approaches, which relate to the necessary elements of the claim for support: who qualifies to make a claim, and against whom a claim can be made.

This paper is published as part of Nicholas Bala, Martha Shaffer, Lucinda Ferguson, “Family Law for the Older Canadian” in Ann Soden, ed., Advising the Older Client (Toronto, Ont.: Butterworths, 2005), and is also available here.