by J. Wilson, (Toronto, Vancouver: Butterworths, 1994)
He has done it! We now have a quarterly updated loose leaf service concerning all aspects of children and the law. However, we have, in fact, much more. We have the incisive and perceptive comments of lawyer, author and children's rights advocate, Jeffery Wilson. Wilson presents more than merely the 'black letter law'. There is analysis, policy discussion, creative arguments, and much more.
I like this book. Those practicing family law (even outside of Ontario) would be well advised to use Wilson on Children and the Law. Jeffery Wilson has been in the forefront of kids' rights since the mid 70's. He draws on his practical experience and his encyclopedic knowledge of children's law. Not only is his service a well spring of useful resources for all matters connected with family law as it relates to children, but it is also a sensitive, thought provoking work that challenges, surprises, and presents the material in an organized, careful, and at times entertaining, manner.
Mr. Wilson has enlisted the assistance of other leaders in their fields. Barbara Jackman, a leading national and international advocate in immigration law contributed chapter nine: "The Child as Immigrant". Andrew J. Freedman, a chartered accountant as well as a chartered business valuator who is well known to the Ontario family law bar for his many contributions to various publications, contributed the primary content for the income tax sections in chapter four.
The technical organization is helpful to the researcher. In the same manner as the C.E.D., paragraphs are numbered. The Table of Contents is well organized and detailed as is the Index. There is a helpful Table of Statutes, linking statutory provisions cited to the specific paragraphs in the text.
The first chapter takes a somewhat unconventional and I might say, daring, approach to "Children's Rights". Wilson starts from what he titles a "Theoretical Abstract", striving to place the concept of kids' rights within a conceptual framework. Historians and social theorists are referred to. This leads to a fascinating discussion of the applicability of International Law to the topic and its interplay with our own Charter of Rights and Freedoms. Canadian case law is examined (sparse as it may be in this area) but The United Nations Convention of the Rights of the Child also merits a detailed examination. Wilson then attempts to persuade us that the international law principles discussed should apply to domestic Canadian law, even though there is not one case which takes such an approach. This is typical of Wilson's creative approach to both advocacy and to the academic analysis of the law. Despite the cutting edge character of some of the text, Wilson's arguments have a practical bent to them, no doubt the product of his years as a practicing lawyer on the front lines. This meld of solid yet creative academic analysis to practical considerations facing the barrister is what particularly attracts me to this text.
Chapter four covers "Children and Financial Support". Again here the conceptual and historical is examined but the practical, every day concerns of the lawyer are also addressed. Can a child sue for support in his/her own right under provincial legislation and under federal legislation? How is support quantified? Are children bound by the agreements which their parents make? What is the law when considering "In Loco Parentis" and "Settled Intention"? These and other practical questions are examined, often from both the academic and theoretical as well as from the practicing lawyer's perspective. I would have liked to see a more detailed discussion at paragraph 4.8: "Acting Upon the Federal/Provincial Statutory Distinction".
Pursuing support under the Succession Law Reform Act is an important remedy for child dependants upon the death of a parent. Wilson covers this topic well starting at paragraph 4.82. He examines the interplay (in Ontario) between section 34(4) of the Family Law Act which makes a support order binding upon the estate of the payor, and the Succession Law Reform Act.
A good example of Wilson's ever questioning of the premises underlying the law can be found at paragraph 5.61. Under the heading "Civil Liability", we have a subheading: "Introduction: An Empiricist's Critique". He writes
'Kids will be kids' must have a legal parallel. However, whether one is discussing the extent of civil participation, as noted above, or the degree of civil liability, as considered below, empirical data concerning a child's psychological or physical development that one would expect to see when limitations are imposed by some upon others appear to be absent. This is especially so since such information concerning age and responsibility does exist.
There follows a footnote citing a number of works relating to child development and capacity.
Wilson on Children and the Law is an excellent resource for those simply researching some aspect of family law as it relates to children. It is also a thought provoking work for both the practicing lawyer and the academic. It melds the two streams expertly, seldom intruding unduly upon the sensibilities of one audience or the other. It accomplishes well what few other publications in family law have done. I recommend it.
- Gene C. Colman*
The website for the book is at: http://www.childrenandthelaw.ca/index.html
* Gene C. Colman practices family law in Toronto, is the former Managing Editor of the Canadian Journal of Family Law, and is a member of the journal's Advisory Board. The views expressed in the above book review are his own and not necessarily those of the Canadian Journal of Family Law.