Has Adultery Come Back to Family Law?

Brenda Cossman
Wednesday, December 6, 2006

Adultery is making a comeback.  It’s not that it ever really went away as a practice.  But, suddenly, everyone is talking about it.  Whether it’s the scarlet letter projected onto Belinda Stronach, named as the other woman in Tie Domi’s divorce, or the Supreme Court of Canada’s ruling in Leskun, it is even sneaking back into family law. 

The divorce revolution, with the move towards no-fault divorce, was supposed to banish adultery from legal relevance.  Couples got married, after a dozen or so years, had affairs, got divorced and remarried.  Adultery not only stopped being an irredeemable sin, but it was no longer to be used as a ground for divorce, or as a consideration in awarding spousal support or deciding child custody.  Like in a Woody Allen film, it increasingly came to be seen as a regrettable but necessary step on the road to serial monogamy.  Adultery lost its sense of moral outrage.   

But, with the push back from the divorce revolution and the culture of easy divorce that it has allegedly fostered, adultery is creeping back into the public mind.

And Daddy Makes Three... Or Maybe Not

Brenda Cossman
Wednesday, May 30, 2007

What makes a person a parent?  Biology and adoption for sure.  But, what about step parents?  When does a person who is not related to a child by blood or adoption become a parent, with legal rights and responsibilities?

The law has long held that a person might be found to ‘stand in the place of a parent’ if they treat the child as a member of their family.  Child support obligations,  as well as custody and access rights would then be recognized.

So, for example, a woman comes into a new relationship with a child, and her new partner treats the child as a child of his or her family.   Over time, the law might well decide that the partner is a step parent.

But, what if the partner doesn’t want to be a parent.  And what if the mother doesn’t want the partner to be a parent either?  Can they stop the law from imposing step parent status?

Adam Sandler and the Politics of Same Sex Marriage

Brenda Cossman
Wednesday, August 8, 2007

Adam Sandler’s new film I Now Pronounce You Chuck and Larry is causing quite a stir.   In the film, Chuck (Adam Sandler) and Larry (Kevin James) are New York fire fighters (it doesn’t get any more heroic) who enter into a sham gay marriage.  Although the film might not to be everyone's taste (typical Sandler slapstick comedy with lots of homophobic jokes thrown in for good measure), it may tell us alot about the politics of same sex marriage in America.

In the film, Chuck and Larry are both very, very straight, but Larry needs to get married to secure some employment benefits for his children.  They try a domestic partnership first, but it turns out to not be enough.  So, they come to Canada, get hitched, and go back home as a ‘married’ couple.The rest of the story plays out in the typical slap stick comedy form:  a specialist (Steve Buscemi) investigates the couple to see if they are “really” gay, Chuck falls for the lawyer (Jessica Biel) but can’t do anything about it because he is supposed to be gay, the guys at the firehouse shun the gay boys, blah, blah, blah.   Eventually, it all turns out well, with the guys at the firehouse seeing the error of their ways and support Chuck and Larry.  The real gay folks get married, and the real straight folks end up with straight folks, and everyone is supposed to feel good.

Unreasonable Adoptive Mothers: Adding Insult to Injury

Brenda Cossman
Thursday, August 21, 2008

The Federal Court of Appeal has created a new creature.  She’s called the “reasonable adoptive mother”.  Apparently, this creature shouldn’t be demeaned in any way by the fact that biological mothers get almost four months more employment leave from work than adoptive mothers. 

According to the Court, the ‘reasonable adoptive mother’ would recognize that the “physiological and psychological experience resulting from pregnancy and childbirth make biological mothers more deserving of time with their new babies than adoptive mothers.  She would know that the Canadian government has considered her needs, and given her some time off work and given her some time off, so that she has “in no way been excluded from Canadian society”.  In its words, “the reasonable adoptive mother would not feel demeaned by the granting of the maternity benefits to biological mothers”.

Shooting Down Polygamy Law Not Necessarily A Slam Dunk

Lorraine Weinrib
Tuesday, January 13, 2009

The following commentary by Professor Lorraine Weinrib was published in the Toronto Star, January 13, 2009.

The attorney general of British Columbia has announced criminal prosecutions against two leaders of the Fundamentalist Church of Jesus Christ of Latter Day Saints for breach of the Criminal Code prohibition against polygamy. The decision to prosecute follows years of deliberation on the appropriate response to harms attributed to polygamy as practised within the community in Bountiful, B.C.

Examination of some of the concerns raised in the media over the past week may provide some clarity as the prosecution proceeds.

Family Pluralism

Mohammad Fadel
Thursday, July 2, 2009

I have recently posted a draft of a chapter to be published in a forthcoming work on family law pluralism (Marriage and Divorce in a Multicultural Context: Reconsidering the Boundaries of Civil Law and Religion, Joel A. Nichols, ed., Cambridge University Press, Forthcoming 2010) to my ssrn page (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1421978).  Against the background of the controversy engendered by the proposal in Ontario by some Muslims to use the Ontario Arbitration Act to resolve family law disputes among Muslims using binding arbitration, I have attempted to lay out an argument as to why a liberal system of family law - at least one that is committed to a version of political liberalism - is required to recognize at least a limited amount of autonomy within the family, and to that extent, it cannot have a categorical objection to the recognition of binding family law arbitrations, at least to the extent that it would otherwise recognize and enforce private agreements within the family (whether pre-nuptial agreements or separation agreements) of the parties to the arbitration. 

Prof. Brenda Cossman named a Fellow of Royal Society of Canada

Thursday, September 6, 2012
Brenda Cossman

The Faculty of Law congratulates Prof. Brenda Cossman on her election as a Fellow of the Royal Society of Canada, in recognition for outstanding scholarly work. Cossman is one of 71 new Fellows to the RSC, who span a wide range of disciplines and academic backgrounds.

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