Contracting Claims and Family Law Feuds

Abstract

Contracting Claims and Family Law Feuds Robert Leckey Assistant Professor, Faculty of Law and Institute of Comparative Law, McGill University. I. Introduction Canadian family law scholars typically abstain from spinning grand narratives. They do not cram legislative and judicial changes into a linear transformation from status to contract. Unlike their private law colleagues in contract and tort, they do not regard their field as periodically rising or falling, nor are they troubled by the prospect of its collapse into a neighbouring field. Its boundaries appear reasonably well defined, although they have proved sufficiently porous to absorb dimensions of public law, notably constitutional rights litigation and acknowledgement that social assistance and taxation policy affect the family in law. In recent years, it is perhaps to scholars working within a feminist tradition that family law owes its grandest claims. Some scholarship gives the sense that family law is gripped by a Manichaean struggle between atomistic liberalism and a socially contextualized feminism. Within this narrative, liberalism presupposes abstract, formally equal subjects bargaining in the marketplace. Feminism, by contrast, sees the complex ways that individuals are enmeshed in relationships, their options constrained by ideology, gender, and socio-economic forces. Feminist family law scholars have adopted this narrative to analyse matters such as spousal support and child custody. Scholars deployed this narrative in responding to two Supreme Court of Canada judgments concerning private ordering by spouses. In challenges to separation and prenuptial agreements, the majority enforced both contracts.1 In doing so, the majority judges speak repeatedly of [End Page 1] autonomy and choice. In each case, dissenting judges would have set aside the agreement in acknowledgement of its unfairness given the social context. The prevailing story about these judgments in the legal literature draws on the narrative just sketched, regarding them as unequivocal defeats for women. In a historiographical twist, it is not the victors but commentators who ally themselves with the losers who are writing history. In both cases, goes the story, the majority ideologically holds people to their so-called choices, producing family law subjects as abstract choosing agents. Call these majority judges the 'enforcement' camp. By contrast, the dissenting judges take a richer view of negotiation and consent. They conclude that, contextual factors considered, the applicants did not make choices to which they can appropriately be held. Call these judges and the scholars who have published their approval of them the 'anti-enforcement' camp.2 Their contextually sensitive criticism of 'autonomy' and 'choice' recalls a line of feminist political theory concerned with relational autonomy and relational rights, about which more will be said presently. Another story about these judgments, arguably more persuasive, has not yet been told. In this account, the positions of the majority and dissenting judges are much closer. The second story observes that both majority and minority reasons acknowledge the influence of people's contexts and relationships upon their choices. All the judges explicitly adopt a contextual method and sharply distinguish the scenario of negotiating spouses from commercial settings. Both sets of judges also maintain the necessity of chalking out some scope for individual choice. According to this other story, differences arise at the point of subjecting the facts to a contextual methodology and normative principles that are more or less shared. It is this article's ambition to tell this second story. On one level, it rereads the judgments for doctrinal family law purposes, arguing that the differences between the majority and the dissenting justices are relatively small. On another level, the article scrutinizes the 'overarching framework'3 that opposes abstract liberalism to contextualized feminism. In the service of this scrutiny, the article enlists relational theory. In elaborating the second, alternative story of the two judgments, this article will argue that the majority and dissenting reasons in Miglin and Hartshorne demonstrate convergence upon crucial elements of relational [End Page 2] theory. Those points on which the judges disagree are internal to relational theorists' concerns. Demonstrating that the majority and dissenting judges disagree...