National Post

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Wednesday, March 24, 1999

L'Heureux-Dube expected to take a 'lead role'
Feminist perspective

Marina Jimenez
Southam News


Supreme Court of Canada justices, from left, back row: Frank Iacobucci, Jack Major, Michel Bastarache, and Ian Binnie. Front row: Peter Cory, Claire L'Heureux-Dube, Chief Justice Antonio Lamer, Charles Gonthier, and Beverly McLachlin.

The firm hand and feminist perspective of Madam Justice Claire L'Heureux-Dube are expected to guide tomorrow's Supreme Court of Canada ruling on the troublesome issue of a spouse's financial obligation to a former spouse who falls ill.

Normally an outsider, Judge L'Heureux-Dube tends to rule with the majority on matters of family law, and is the most likely jurist to deliver the decision in the case of Marie Bracklow and Frank Bracklow, say legal scholars.

"Judge L'Heureux-Dube has a lot of interest in family law matters and a very good understanding of those matters," says Roxanne Mykitiuk, a professor at York University's Osgoode Hall who specializes in family law. "I'm sure she'll take a lead role, even if it's not in writing, but in trying to influence her colleagues."

Peter McCormick, a political science professor at the University of Lethbridge who has studied the Supreme Court, adds: "She doesn't very often deliver the decision of the court, but on family law, she's more often with the majority and more often delivering."

But earlier this year, Judge L'Heureux-Dube took the unusual step of writing a separate opinion in a landmark "no-means-no" sexual assault case, which centered around a young woman who claimed she had been sexually assaulted during a job interview.

In her decision, Judge L'Heureux-Dube sharply criticized the earlier decision of Alberta Court of Appeal Justice John McClung, for promoting "archaic myths and stereotypes." Judge McClung had pointed out that the victim was not naive, but a single mother who wore shorts to the interview. Judge McClung said the victim did not present herself in a "bonnet and crinolines."

Judge L'Heureux Dube's ruling led Judge McClung to criticize her publicly and, although he later apologized, he did say he had wanted to chide her for her "consistent anti-male response" in her judgments.

The Bracklow case centres on Mrs. Bracklow's claim that her former husband of six years should pay her $400 a month in maintenance. The B.C. woman suffers from obsessive compulsive disorder, making it impossible for her to work, and says her condition worsened after her marriage broke down.

Few family law cases make it to the country's top court, making it difficult to predict the bent of the nine Supreme Court jurists in this area of law. But Prof. McCormick believes that Judge L'Heureux-Dube will build on earlier rulings, and extend the implications of support after marriage breakdown.

It was Judge L'Heureux-Dube who penned the majority Supreme Court decision in a 1992 landmark case that changed the way support payments are made, ruling that women must be compensated for sacrifices made during marriage. The court ruled that Andrzej Moge had to pay his former wife $150 a month indefinitely even though the couple had split 19 years earlier. The Supreme Court ruled that Mrs. Moge, a 55-year-old part-time cleaner, continued to suffer economic hardship from the marriage breakdown. Her support payments had to reflect this, as well as the advantages that her husband had received during the marriage.

The judgment also opened the door to the possibility that support payments could be based entirely on need, and not on compensation.

It is widely expected that Judge L'Heureux-Dube will refer to the compensatory model of support laid down in this watershed case and clarify the issue of support based on need. In the words of one Toronto lawyer, she will "continue down the road she's been on" and require Mr. Bracklow to pay his ex-wife support.

Some Supreme Court watchers expect tomorrow's ruling to be unanimous, even if two judgments are written, which is what happened with the Moge case. Others say there may be a split.

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