Canadian Law: Key Concepts and Terminology

• Questions for Test #1 and Test #2 are cumulative and cover a wide range of topics in Canadian law.

Private Law

• Another term is civil law

Positive Eugenics

• An example is prenatal care

Alternatives to Litigation

• Mediation is a great option for parents not wanting to go to court in custody and access disputes

Constitutional Law

• The Charter of Rights and Freedoms is an example

Stare Decisis

• This legal doctrine means "to stand by things decided"

Access Parent

• A parent who has the right to spend time with their child, but does not have primary custody

Parens Patriae

• Means "parent of the nation," referring to the state's power to act as guardian for those unable to care for themselves

Best Interests of the Child (BIC)

• A legal standard used to determine what is best for a child in various legal contexts

BIC as a Threefold Concept

• Procedural rights
• Child's perspective
• Child's developmental needs

Case Brief

• The holding is the court's decision or ruling on the issue
• The reasoning is the legal rationale behind the court's decision

Buck v. Bell and E. v. Eve

• Buck v. Bell (US case) involved forced sterilization
• E. v. Eve (Canadian case), the court rejected a similar request, emphasizing individual autonomy

Muir v. Alberta

• Muir was successful in her lawsuit due to violations of her rights
• Stemmed from forced sterilization without proper consent

Race in the BIC Test

• Race should be considered as one of many factors, not the determining factor, within the BIC test

Appealed Cases

• Cases can be appealed when there is an error of law, fact, or mixed fact and law

SCC Cases

• Cases of national importance, constitutional questions, or conflicting decisions among lower courts get to the SCC

Intervener

• A party allowed to intervene in a case to provide expertise or perspective on an issue

Paras Formula

• A structured approach for analyzing the best interests of the child like considering the child's view, developmental needs and the parental abilities

Fiduciary Duty

• A legal obligation to act in the best interests of another party

Hague Convention

• An international treaty designed to protect children from abduction by a parent

Contracting State

• A country that has signed and ratified the Hague Convention

Habitual Residence

• The place where a child has a settled connection

Canada's Approach to Habitual Residence

• Canada uses a fact-based approach, considering various factors to determine a chid's habitual residence

Permanent Bureau Guide

• Aimed to promote consistent interpretation of the Hague Convention

Defenses/Exceptions

• Under the Hague Convention include grave risk of harm to the child if returned

Hague Convention Process

• Begins with an application to the central authority in the country where the child is located

Thomson v. Thomson

• Established key principles for interpreting the Hague Convention in Canada

Leading or Landmark Case

• Sets a precedent that significantly influences future legal decisions

Grave Risk

• Understood as a substantial threat of physical or psychological harm to the child

Grave Risk Internationally

• Dealt with by assessing the severity and likelihood of harm in the child's country of habitual residence

Criticisms of the Hague Convention

• Can be slow and expensive
• May not adequately protect children in all situations

Decline of Corporal Punishment

• The decline is reflected in changing laws and social attitudes

R. v. Ogg-Moss

• Ogg-Moss unsuccessfully used section 43 as it was deemed inappropriate

Public Opinion

• Shows increasing disapproval of corporal punishment in schools

UNCRC

• States that children should be protected from all forms of violence

Section 265 and Section 43

• Section 265 defines assault, Section 43 provides a defense for reasonable correction of a child

CFCYL Challenge to Section 43

• Argued that it violated children's rights to equal protection and security of the person

Charter Sections 7, 12, and 15(1)

• Section 7: Right to life, liberty, and security of the person
• Section 12: Protection against cruel and unusual treatment or punishment
• Section 15(1): Equality rights

Children's Aid Societies

• Argued that acceptance of s. 43 and corporal punishment of children had three main effects
• Normalizes violence against children and it undermines children's dignity and equality

Attorney General's Argument

• Family is the fundamental unit of society
• Dualism relies on distinguishing between private family matters and public intervention

Children's Legal Coverture

• The legal concept of children lacking full autonomy

Principle of Fundamental Justice (PFJ)

• A basic tenet of the legal system
• Best Interests of the Child (BIC) is not a PFJ

Arguments by Attorney General

• Section 43 is necessary for reasonable parental discipline

Arguments by CFCYL

• Section 43 violates children's rights

Common Law Tools

• Defenses exist to deal with trivial cases against caregivers

Necessity and De Minimis

• Legal defenses could replace s. 43 by addressing situations where minor force is used for safety/care

SCC Decision

• The majority upheld the constitutionality of section 43

Swedish vs. Canadian

• Sweden has banned all forms of corporal punishment vs
• Canada allows "reasonable" correction

Charter Section 1

• Guarantees rights and freedoms subject to reasonable limits

Oakes Test

• Used to determine if a limit on a Charter right is justified

Oakes Test Steps

• Prescribed by law, pressing and substantial objective, rational connection, minimal impairment, proportionate effect, CFCYL

Limit Prescribed by Law

• The limit must be clearly defined in law

Pressing and Substantial Objective

• The objective of the law must be important

Rational Connection

• The limit must be rationally connected to the objective

Minimal Impairment

• The limit must minimally impair the right

Proportionate Effect

• The benefits of the limit must outweigh the negative effects

Remedies for Charter Violation

• Striking down the law, reading down the law, or reading in provisions

'Read Down'

• Interpreting a statute narrowly to comply with the Charter

Guidelines for Parents

• Physical correction must be reasonable and not harmful to the child

Justice Deschamps' Criticism

• The majority weakened the protection for children

Dissenting Reasons

• Section 43 was overly broad and violated children's rights

Justices' Beliefs

• Binnie, Arbour, Deschamp believed s. 43 should have been struck down

Current State

• Corporal punishment by caregivers is still legal in Canada if it is reasonable, differing globally

Definitions and explanations of key Canadian law concepts. Topics include private law, eugenics, alternatives to litigation, constitutional law, and legal doctrines. Also covers family law terminology and the best interests of the child.