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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 paper traces the history of the "legal family" in Canada, the development of the laws governing marriage and the recognition of other familial relationships, and discusses some of the challenges presently facing lawmakers, both legislators and judges, in this area. One theme of this paper is that marriage and the family are not static institutions, but rather their social and legal significance have changed over the course of history in response to changing beliefs, values, behaviors, social structures, technology and demographics. Another theme is that the broad movement towards formal gender equality has had a profound effect on the legal treatment of marriage and the family. However, in most contemporary marriages there is still a differentiation of gender roles, and women continue to be vulnerable in the event of separation. Familial relationships based on marriage and biological ties are still very significant in Canada, but there is more social and legal recognition of a range of non-traditional familial relationships than in most other countries, including non-marital opposite-sex cohabitation, same-sex marriage, social parentage and more recently multiple parentage arising from the use of artificial reproductive technology. Despite the recognition of a more diverse range of family forms, and the adoption of a functional and flexible approach to the definition of legally significant familial relationships, monogamous conjugality is likely to remain a central concept of Canadian law, and Canada seems unlikely to extend legal recognition to polygamy.
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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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