| Since the late 1960's, Canadian child custody law has been undergoing a revolution. This revolution involves the replacement of "ruled-based" adjudication according to mechanical presumptions concerning fault and gender by a more "discretionary" form of adjudication according to the "the best interests of the child" principle. "Discretionary" justice is thought to be more attentive to the welfare of children than "rule-based" justice. For some commentators and judges, however, the "best interests" test jeopardizes predictability of the law, as well as the authority of custody agreements and court orders. In this view, the elevation of "discretionary" justice in the court's application of the "best interests of the child" test has not, in fact, served the best interests of children from broken homes; rather, it has jeopardized their welfare by demanding that judges make determinations in matters that are essentially "indeterminate." Accordingly, the "best interests" revolution has generated a counter reaction in favour of renewed legal presumptions. Ironically, the judges who wish to move in this direction disagree about which presumptions to apply, thus exacerbating the very legal uncertainty they deplore. |
