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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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La progression des droits linguistiques au Nouveau-Brunswick dans une perspective historique globale Gatan Migneault* the evolution of The linguistic situation in New Brunswick is unique in the Canadian context. Not only does the province currently offer one of the most generous and progressive legal regimes for its French-speaking linguistic minority, this regime proceeded in the … Continued
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This paper explores the progressive possibilities presented by two areas of private law – family law and tort law – in achieving economic justice for women who have been victims of domestic violence. The author first considers the role spousal support law might play in providing economic redress following abuse. While the Supreme Court of Canada’s decision in Leskun v. Leskun suggests that a court might consider the consequences of spousal misconduct when making a support order, courts remain reluctant to use support awards to address the economic impact of abuse. By contrast, tort law may appear to provide a more responsive framework for battered women. Women may use the tort of battery to seek damages to compensate for direct financial impact of the violence (e.g. medical expenses) and for indirect economic harm (e.g diminished employability). However, the challenges inherent in bringing a successful tort action mean that women rarely succeed in achieving compensation. The author concludes by considering other options (e.g. a public compensation scheme) which may be a solution for women seeking financial compensation for the harms suffered at the hands of a violent spouse.
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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.
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This article explores issues associated with mutual claims of domestic violence in the context of research on gender and violence, and in the context of litigation tactics commonly employed by perpetrators in child custody and access cases. Quotations from parents involved in such cases illustrate why accurate assessment of mutual cliams requires complete information about social context and the analysis of patterns of domination, power and control in the relationship over time. Recent developments in Canadian law ought to enhance the ability of judges to take such evidence into account. The article aims to provide a lens through which to understand and assess such cases.
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A growing body of empirical research has demonstrated that intimate partner violence is not a unitary phenomenon and that types of domestic violence can be differentiated with respect to partner dynamics, context, and consequences. Four patterns of violence are described: Coercive Controlling Violence, Violent Resistance, Situational Couple Violence, and Separation-Instigated Violence. The controversial matter of gender symmetry and asymmetry in intimate partner violence is discussed in terms of sampling differences and methodological limitations. Implications of differentiation among types of domestic violence include the need for improved screening measures and procedures in civil, family, and criminal court and the possibility of better decision making, appropriate sanctions, and more effective treatment programs tailored to the characteristics of different types of partner violence. In family court, reliable differentiation should provide the basis for determining what safeguards are necessary and what types of parenting plans are appropriate to ensure healthy outcomes for children and parent–child relationships.
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This article reviews in a comparative perspective the regulations of different Western legal Systems on the cases of absence, disappearance and the presumption of death. Continental Systems are considered in the first place, from their two main historical sources, the French and the Germanie. The common law Systems are studied then, from their origins in the English law to their developments in the American common law and other mixed jurisdictions. The effects of the declaration of presumptive death are scrutinized comparatively, under different common categories. The study ends with an analysis of the tendencies underlying the developments found in this legal institution. The first outstanding tendency is one that progressively distinguishes the cases of absence from those of disappearance, both of them frequently confused in many legislations. Another One in the development of this subject is the separation being made between the genuine cases of disappearance, with doubt about life or death, from those of a certain death lacking the evidence of the corpse. One last legislative trend the article perceives is a strong tension between a position that considers the presumption of death as a declarative judgement, rebutta-ble with the evidence of life, and a view that understands it as being a judicially constituted status, its effects ending with the appearance of the disappeared person.