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But what is judicial guidance? Debating Canadian judgments on children

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The paper contributes to debates on the role of appellate judges in the uncertain field of family law. It takes as point of departure recent judgments by the Supreme Court of Canada regarding children. Repeated scholarly criticisms that the judgments provide inadequate guidance for trial judges and lawyers call for scrutiny: the criticisms overlook live debates on the appropriateness of judicial deference to legislative instrument choice, as well as the difficulty of judicial rule making in a fractious field where little social consensus obtains on key distributive questions. Family scholars might fruitfully explore constitutional theorists' work on human rights, institutional expertise, and deference. It is also worth reading the judgments' moral signals against the backdrop of research on regulation and social norms. Perhaps the judgments provide guidance, but not of the expected kind.

Keywords: children's law; comparative family law; deference; discretion; family law; instrument choice

Document Type: Research Article


Affiliations: Faculty of Law, McGill University, Montreal, Canada

Publication date: December 1, 2010

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