Category: Family Law

(2010) Research paper commissioned by the Law Commission of Ontario.

A paper surveying the literature and reform options for Ontario’s family law system.

Cost-Benefit Analysis of Family Service Delivery: Disease, Prevention, and Treatment

(2010) Osgoode Hall Law Journal, Vol. 48, No. 2, pp. 287-336 (Peer-reviewed).

This article compares the law of custody and access disputes with the procedure used to resolve them. I argue that there is a fundamental contradiction between these two things. The former focuses on the interests of the children involved to the exclusion of all else. The latter, however, is controlled by and designed to protect the rights and interests of the adult parties to the dispute. Despite their doctrinal centrality in custody and access law, children are usually silent and invisible in custody and access procedure. To resolve this contradiction, I propose a focus on the costs and benefits of parenting litigation for the children involved. Too much parenting litigation occurs which has more costs than benefits for them. We should curtail some of these cases, and apply the proportionality principle to others. Finally, these children should have a stronger voice when decisions are being made about their future.

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Whose Best Interests? from Noel Semple on Vimeo.

A brief video presentation based on this paper.

(2010) Canadian Family Law Quarterly, Vol. 29, No. 1, pp. 1-25.

There are two possible forms of evidence in a custody or access (visitation) case which is determined through adjudication. First, the judge may hear from the adult parties and the witnesses whom they choose to call. Second, the judge may hear “children’s evidence,” which comes either directly from the child, or from a neutral professional with child-related expertise. To assess the prevalence of children’s evidence in Canadian custody and access litigation, the author conducted a quantitative survey of 181 reported decisions from 2009. The central finding was that only 45% mentioned any form of children’s evidence. Among the various varieties of children’s evidence, assessments (also known as child custody evaluations) were much more common than legal representation of children or direct evidence from children. The paper concludes by contrasting the primacy of the child in custody and access doctrine with the reality that the children involved appear to be effectively silent in the majority of the adjudicated cases.

Download from SSRN