Rand on family law: wives and mothers at mid-century.

• Author: Turnbull, Lorna A.
• Position: Canadian Supreme Court Justice Ivan C. Rand

In Rand's oeuvre of nearly six hundred judgments, a mere twenty or so fall within the domain of family law. This is not surprising when one considers that the 1940s and 50s were not particularly active times for litigation, reform or evolution in Canadian family law. (1) Divorce required proof of adultery, support was determined less on the basis of need or ability to pay than on the basis of marital misconduct, and custody often went to the father despite development of the 'tender years' doctrine. (2) Family law decisions that Justice Rand did write dealt with a full range of issues including adoption, alimony, custody, divorce, marital property and the presumption of advancement; but almost none of these stand out as significant in shaping the family law regime of the nation as we know it in the twenty-first century.

In roughly half of the family law decisions in the Supreme Court of Canada when he was a member, Justice Rand wrote separate reasons in support of the majority position. In a further third of the cases he simply concurred with the majority or the decisions were unanimous. In two cases he wrote dissenting judgments, and in two he wrote the majority reasons. Most of these decisions have disappeared into legal oblivion, with barely any mention in subsequent cases over the fitly-plus years since they were written. The clear exception is in the three adoption cases in which he wrote separate reasons. These are discussed in the second half of this article.

But there are four other cases that exemplify Justice Rand's general approach to family law, an approach that stands in sharp contrast to the more creative approach credited to him in areas of public law. Ian Bushnell, in The Captive Court, concluded that Justice Rand was committed to "creative jurisprudence and freedom" (3) in an era of sterility and blind acceptance of precedent. In family law, however, his deference to established precedents and the "universally accepted attitudes and working assumptions of our polity" (4) preserved the position of husbands as masters of their domestic realm and of all those who inhabited it. This conservative approach to judicial discretion was in keeping with how other scholars have characterised Rand's approach in general, considering him to be loyal to precedent and cautious in allowing legal principles to be moulded. (5) This is the approach most evident in these cases.

The first two of these four cases dealt with matrimonial property and somewhat shaped the evolution of married women's ability to gain property rights. Minaker v. Minaker (6) and Carnochan v. Carnochan (7) were cited in the 1970s by the Supreme Court of Canada when it first confronted the possibility of using the constructive trust to allow a wife entitlement to farm properties which she had helped to build and maintain. In Murdoch v. Murdoch, Martland J. specifically rejected the possibility of any judicial discretion under the married women's property legislation that would allow a claim to shared ownership of land. Referring to decisions by then more than twenty years old, he noted that there was no hint of such discretion in Minaker and that there was an implicit rejection of the existence of any such power in Carnochan. (8) Minaker concerned a wife's claim for title to the matrimonial home, and Rand stated:

The facts tend, no doubt, to excite sympathy for the wife and child, but we must resist the danger of allowing it to outrun rules too well and too long established to be disregarded.... In the early period of their married life the wife accepted the difficulties of the situation courageously and for three or four years worked in outside employment at wages; but they went into the common fund used to carry the family life from day to day. It is, I think, impossible to trace any part of the money so earned into the purchase of the land ....For...