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This paper explores Canadian family law cases involving claims of parental alienation and of family violence from 2014–2018, reporting the data on these claims, their resolution, and their impacts upon custody and access. A close reading of those cases where both alienation and intimate partner violence claims are made reveals troubling patterns in how intimate partner violence is discounted in this context. We suggest that the rise of shared parenting as a dominant norm assists in understanding why alienation has achieved such unquestioned status, and call for greater focus on safety and women’s and children’s voices.

Canadian courts have held that parents stand in a fiduciary relationship with their children. Some commentators take the view that this is an inappropriate and unwarranted extension of a set of concepts that were originally elaborated in the context of the management of property rights and other pecuniary interests. The goal of this article is to assess the characterization of parents as fiduciaries in the light of recent scholarship on fiduciary law. I argue that, while there are significant differences between the parent-child context and more established fiduciary categories, the characterization of the parent as a fiduciary toward his or her child nonetheless captures a central – indeed, a defining – element of the parent-child relationship, which is also a characteristic element of all established fiduciary relationships: namely, the possession of legal powers that are held in a managerial or other-regarding capacity for the benefit of another person. Every aspect of the traditional property-based fiduciary relationship finds its counterpart in the juridical relationship between a parent and his or her minor child. The ability of a parent to take account of his or her own interests in relation to some exercises of the parent’s decision-making powers is also found in many established fiduciary relationships. The recognition of parenthood as a fiduciary relationship leads to a better understanding of fiduciary relationships because it clarifies how such relationships are constituted, and it clarifies that they extend to any situation where one person is empowered and authorized to look after the interests of another, whether those interests be financial or entirely personal.

Should family lawyers be subject to special rules of professional conduct? This debate has resurfaced because of the 2021 amendments to the federal Divorce Act (“Act”), which imposed new professional obligations on lawyers. The suggestion is that the Act now conflicts with the Federation of Law Societies Model Code of Professional Conduct (“Model Code”), such that the Model Code needs to be amended to comply with family lawyers’ legislative professional obligations. There are also questions about whether additional guidance is needed for lawyers when representing parties who are experiencing family violence. Against this backdrop, I review the question of whether family lawyers ought to be governed by a separate code of professional conduct, suggesting that there are questions about the lawyer’s role which need to be answered before a comprehensive regulatory change can be considered. I also argue, however, that family violence concerns, specifically in relation to intimate partner violence, need to be central to discussions about professional rules and ought not wait. This paper concludes with recommendations for reform to the Model Code and questions for future debate and discussion.

This article seeks to identify the nature of vindication as a distinctive function within the English law of torts. It argues that a specific conception of vindication explains fundamental features of the law of torts, variations in the structure of different torts, as well as variations in the approach to damages from one tort to another, which are not explicable by reference to well-documented functions of torts, such as compensation and punishment. According to this conception vindication entails attesting to, affirming and reinforcing the importance of those interests that are the subject of the law’s protection and their inherent value, and by association the importance of the overlying legal rights. The emphasis on vindication varies across torts; the torts actionable per se are paradigm examples of torts that have vindication as their primary function.The focus of this article is on how the over-arching vindicatory function of a tort shapes the approach to compensatory damages. It is submitted that for torts which have vindication as their primary function damages are available for the wrongful interference with the interest protected by the tort, in and of itself. Such damages compensate for a damage that is ‘normative’ in nature, are assessed objectively, and are awarded notwithstanding whether the claimant suffers any negative psychological, physical, emotional or economic effects in consequence of the wrong. The article goes on to analyse the relationship between vindication and non-compensatory damages, including the novel head of ‘vindicatory damages’.

For corrective justice, liability is the consequence of the parties' being correlatively situated as the doer and sufferer of an injustice, and the remedy is seen as undoing that injustice to the extent possible. Combining consideration of legal doctrine and private law theory, this article applies the framework of corrective justice to gain-based damages for torts. Within this framework, restitutionary damages ought to be available only insofar as they correspond to a constituent element in the injustice that the defendant has done to the plaintiff. The radical proposal that allows restitutionary damages for any wrongful gain is unsatisfactory because it fails to link the damages that the plaintiff receives to the normative quality of the defendant's wrong. In contrast, dealings in another's property give rise to such damages because the idea of property includes within the owner's entitlement the potential gainsfrom the property's use or alienation. Restitutionary damages should not be seen as serving a deterrent or punitive function; such a function cannot account for why the plaintiff, of all people, is entitled to the defendant's gain. Properly understood, even situations where the plaintiff's wilfulness or calculation increases the damage award fit within the framework of corrective justice. The corrective justice approach thus repudiates the notion that restitutionary damages are occasions for the promotion of social purposes extrinsic to the juridical relationship between the parties.

Jan Cowie, 1994 58-2 Saskatchewan Law Review 357, 1994 CanLIIDocs 497

Alongside the dominant law and economics and corrective justice approaches to tort law, a new genre of tort theory based on principles and perspectives of social justice has come into its own and deserves recognition. Social justice tort theory starts from the premise that tort law reflects and reinforces systemic forms of injustice in the larger society and maintains that the compensatory ideal of tort law cannot be extricated from these larger systems. It is multi-dimensional and intersectional, recognizing that the impact of injury lands intersectionally, sometimes changing the intensity of the injury or distorting the nature of the injury. Social justice tort scholars have examined torts in gendered and racialized contexts, as well as in ordinary cases that seem to have little to do with systemic injury. In addition to feminist and critical race theory, they have borrowed from critical disability studies, queer theory and political economy. Their work demonstrates how tort law unfairly distributes damages, fails to provide adequate relief for victims of sexual assault or for people who suffer racial insult and discrimination, and erases maternal and reproductive harms. In their work, we can see common deconstructive moves (an emphasis on disparate impacts and devaluation; a teasing out of cognitive bias; and a critique of exceptionalism in tort doctrine) as well as guiding principles for reconstruction (incorporating victims’ perspectives; treating boundaries between civil rights law and tort law as permeable; and enhancing dignity and recognition).

McGill Law Journal Revue de droit de McGill PRIVACY, CORRECTIVE JUSTICE, AND INCREMENTALISM: LEGAL IMAGINATION AND THE RECOGNITION OF A PRIVACY TORT IN ONTARIO Thomas DC Bennett* This article considers the nature of com- mon law development as exemplified by the re- cent privacy case of Jones v. Tsige. The author focuses on Jones, in … Continued

Many scholars have offered theories that purport to explain the whole of the law of torts. At least some of these theories do not seem to be specific to a single jurisdiction. Several appear to endeavor to account for tort law in at least the major common law jurisdictions or even throughout the common law world. These include Ernest Weinrib's corrective justice theory, Robert Stevens's rights theory, and Richard Posner's economic theory. This article begins by explaining why it is appropriate to understand these three theories as universal theories of tort law and why it is important that they be so understood. This explanation draws upon various overt claims (or other strong intimations) made by the theorists themselves to the effect that this is how their respective accounts should be understood. The article then proceeds to test these theories, all of which are leading accounts of tort law, against the evidence in Australia, Canada, the United Kingdom, and the United States. The parts of tort law on which we focus are (1) the breach element of the action in negligence, (2) the law that determines when a duty of care will be owed in respect of pure economic loss, (3) the law that governs the availability of punitive damages, (4) the defense of illegality, and (5) the rule in Rylands v. Fletcher and its descendants. The article concludes that none of the theories is a satisfactory universal account of tort law. All of them suffer from significant problems of fit in that they cannot accommodate (often even approximately) the areas of law that we discuss. Although each of the theories contains a great many valuable insights, they all nonetheless fall well short of accomplishing that which they are held out as providing. In the course of this analysis, the article explains why this is an appropriate line of criticism and identifies the degree of lack of fit that we regard as being “significant.”