The Supreme Court and the New Family Law: Working Through the Pelech Trilogy

Abstract

The trilogy of family law decisions, released by the Supreme Court of Canada on 4 June 1987, represents perhaps the most important statement of the past two decades by Canada\u27s highest court on this rapidly changing area of law. Although decided under the repealed Divorce Act of 1968, judicial analyses of support and domestic contracts are likely to be little altered under the 1985 Act. Furthermore, that these cases reveal the Court\u27s underlying philosophy of the new family law as a whole suggests a significance that transcends specific amendments to the Act. With respect to the outcome of each individual case, specific pronouncements of legal doctrine, and the Supreme Court\u27s apparent understanding of the central features and purposes of the new family law, this comment is largely critical of the decisions. In particular, three arguments are made. First, while the Court\u27s conceptualization of support conforms to the norms of the new family law, the majority demonstrates insufficient sensitivity to the real barriers to the economic independence of spouses disadvantaged by a division of functions within marriage, and/or enduring consequences of the marriage. Second, the majority\u27s inadequate inquiry into the application of contract law principles to the family context and its related failure to distinguish clearly between the separate subjects of support and domestic contracts at issue in each case contribute to its formulation of a confused and inappropriate test to govern the exercise of judicial discretion under the Divorce Act to overlook the terms of a domestic agreement. Third, leaving aside this highly problematic test, the Court\u27s general posture of considerable deference to the terms of such agreements is neither required under the Act nor consistent with the central principles animating the new family law. An alternative approach to this exercise of the Court\u27s jurisdiction is then advanced. Finally, this comment considers the implications of the decisions for future cases involving domestic contracts