test #1 Flashcards
(28 cards)
what were the facts of E v. Eve?
- Eve was a mentally disabled woman with the cognitive capacity of a much younger person
- her mother sought court permission for Eve to undergo non-consensual sterilization to prevent pregnancy
- the supreme court of Canada ruled against the sterilization, stating that parens patriae could not be used to authorize non-therapeutic sterilization
what were the legal issues in E v. Eve (Q1)?
Q1: is there a statutory authority for order?
what were the legal issues in E v. Eve (Q2a)
Q2a: If no, would the scope of parens patriae allow court to make sterilization order?
what were the legal issues in E v. Eve (Q2b)
Q2b: If yes, what is the test for using parens patriae ?
what were the legal issues in E v. Eve (Q3a)
Can parens patriae tested by best interest of the child be used for non- therapeutic procedures ?
what were the legal issues in E v. Eve (Q3b)?
Absent informed consent can sterilization be defined as therapeutic?
what are the holdings?
Ans 1: no, Ans 2a: unlimited scope yes, Ans 2b: B.I.C, Ans3a: no, Ans 3b. no
what are the reasonings in E v. Eve?
the court emphasized that sterilization is irreversible and highly invasive, was seen as a severe violation of her personal freedoms
- there was no medical necessity for Eve’s sterilization, making this non-therapeutic and should serve in her best interest not third parties
- high risk of abuse and removing any abuse from occurring to Eve
- court rejected these concerns as inadequate justification for sterilization (could not handle pregnancy, didn’t want the responsibility
why is the case significant? E v. Eve
- all individuals have the right to control their own bodies
- sterilization is an irreversible and serious medical procedure, and cannot be forced on someone without their consent unless medically necessary
- establishes that mentally disabled individuals have the same reproductive rights as everyone else
what were the facts of de perre v. edwards?
basketball player, had an affair with his wife and got Kimberly pregnant, wasn’t involved in the child’s life, the trail court ruled that kimberly have sole custody over elijah, the appellant court considered race to be a factor and ruled edwards access making his wife the third party, SCC overturned the appellant court as there was material error
what were the legal issues in the van de perre v. edwards case? Q1
Q1: what is the standard for review when appealing a C/A order?
what were the legal issues in the van de perre v.edwards case? Q2
Q2: how should racial identity be treated in determining the BIC during a custody and access dispute?
what were the legal issues in the van de perre v. edwards case? Q3
Q3: what are the rules for adding a third-party to a C/A dispute?
what were the holdings for the van de perre v. edwards case?
Q1: appellate courts cannot re-try cases to reach new BIC determination
Q2: race is not a determinative of BIC
Q3: BCCA errored in adding Mrs. Edwards
what were the reasonings behind van de perre v. edwards?
trail- focused on BIC, kim primary caregiver since birth, expressed concerns if he had been fully accepted by edwards family (step mother)
appeal- trail court failed to consider racial identity
scc- appellate court should not reweigh evidence unless material error, cannot add another party
was is the significance of the van de perre v. edwards case?
racial identity is important but shouldn’t override important factors, appeal courts cannot interfere just cuz they would have decided differently, parents cant claim racial advantage alone to win custody disputes
what were the facts of eillis v wentzell-eillis?
Laura is born in Canada, husband born in england, they had a child and lived in england, but would constantly travel between both Canada and england, mother had her daughter with her in Canada and didn’t want to come back,
what were the legal issues of the eillis v. wentzell-eillis ? Q1
Q1: did the trail judge misapply the legal test for habitual residence under the Hague Convention?
what were the legal issues of the eillis v. wentzell-eillis? Q2
Q2: did the trial judge wrongly interpret the grave risk and intolerable situation exception under Article 13b?
what were the holdings of eillis v. wentzell-eillis?
Q1: habitual residence of the child is before the wrongful removal
Q2: article 13b requires proof of serious harm, not just inconvenience or emotional difficulty
what were the reasonings behind the eillis v. wentzell-eillis case?
trail- child was habitually in both england and canada due to frequent travel, returning her would place her in an intolerable situation
appeal- habitual residence is determined before wrongful retention, no strong evidence that returning her would be grave risk of harm
scc- declined to hear the case as the appellate court was consistent with the Hague convention principles
what was the significance of case eillis v. wentzell-eillis ?
settled intention of both parents before removal, grave risk must be substantial and proven not just a general best interest analysis, custody disputes should be decided in the child’s habitual residence country
what were the facts and procedural history of Canadian Foundation v. Canada?
- the foundation challenged section 43 of the criminal code, that allows parents and teachers to use “reasonable force for disciplining children
- the foundations argued that section 43 violated children’s rights under sections 7, 12 and 15 of the charter
- the Ontario superior court (1999) upheld section 43 as it was not unconstitutional
- this case was taken to the supreme court of Canada (2004) where the government defended section 43, arguing that it was important to preserve parental authority and legal coverture over children while preventing unnecessary criminalization of parents
what were the legal issues in the Canadian Foundation v. Canada Q1?
Q1: Does Section 43 violate Section 7, 12 and 15?
