Robert Leckey
Biographic Data
| ID | 211312 |
|---|---|
| NAME | Robert Leckey |
| GIVEN NAMES | Robert |
| FAMILY NAME | Leckey |
| SIGNATURE | LECKEY R |
| AFFILIATIONS | McGill University |
| ORCID | 0000-0003-0271-6806 |
| VERIFIED | Yes |
| TOTAL WORKS | 43 |
| TOTAL CITATIONS | 34 |
| AUTHOR COUNT | 42 |
| EDITOR COUNT | 2 |
| FIRST PUBLICATION YEAR | 2002 |
| LATEST PUBLICATION YEAR | 2025 |
| H-INDEX | 3 |
Parental union in Quebec
This paper introduces an international readership to an innovative policy response to cohabitation. Under a law passed in 2024 by the Canadian province of Quebec, unmarried cohabitants who become parents of the same child will automatically enter a ‘parental union.’ The legislature intended parental union to protect children without marrying adults by force. This new relationship form entails some of marriage’s effects, although it does not chang…
Family lawyers on cohabitation and judge-made law
This article advances debates on the limits of judge-made law to palliate legislative failure to respond to changing practice. Canadian judges have adjusted the general private law to address the situation of unmarried cohabitants. In Kerr v Baranow, the Supreme Court of Canada continued its adaptation of unjust enrichment to this end. The article reports on the first empirical inquiry into how the judgment is operating, including outside the cou…
Compromise on Parenting and Family Violence? Reforms to Canada’s Divorce Act
Child welfare, Indigenous parents, and judicial mediation
Can judicial mediation within a settler state's justice system improve the experience of dealing with child welfare services for Indigenous parents? Interviews with social workers, lawyers, and judges in the Canadian province of Quebec yield little basis for optimism. Adapting judicial mediation will not suffice to decolonize dispute resolution between Indigenous individuals and the state. Mediation fits uneasily with the severe power disparity i…
The notwithstanding clause
This article interprets the notwithstanding clause in section 33 of the Canadian Charter of Rights and Freedoms. When a legislature activates the notwithstanding clause, subsection 33(2) temporarily ensures a protected law’s ‘operation’ by preventing it from being ‘inconsistent’ with the Constitution of Canada in the sense of the supremacy clause, thereby precluding judicial remedies such as striking down. Construed in the light of its components…
Differences in a Minor Archive
In an act of minor comparativism, this Article studies feminist writings on unmarried cohabitation from Canada’s jurisdictions of the common law and civil law. It examines activist texts and legal scholarship for and against regulating cohabitants. Reading the English-language literature from the common law provinces and the French-language literature from Quebec, it reports differences in substance, in emphasis, and in what is common sense. Diff…
Legal Recognition of Non-Conjugal Families
In the preface to Nausica Palazzo’s stimulating and rigorous book, she illustrates the stakes of her project by noting that, when the harshest phase of Italy’s COVID-19 lockdown ended, in spring 2020, people in that country could exit their ‘lairs to meet – at a one-metre distance – [their] family’.1 Numerous rights, obligations, and privileges attach to the ties consecrated by our lawmakers as familial and the mismatch between our laws and the r…
Alice Margaria, The Construction of Fatherhood
Indigenous parents and child welfare
The settler state's taking of Indigenous children into care disrupts their communities and continues destructive, assimilationist policies. This article presents the perceptions of lawyers, social workers and judges of how Indigenous parents experience child welfare in Quebec. Our participants characterized those experiences negatively. Barriers of language and culture as well as mistrust impede meaningful participation. Parents experience episte…
Repugnant’
Fifty years after Canada’s partial decriminalization of gay sex, this article pursues two aims. First, it complicates understandings of the reform as a rational, liberal move to divert the criminal law from private, victimless conduct, in line with the image of removing the state from bedrooms. It does so by thematically rereading the House of Commons debates. Even the leading reformers insisted that homosexuality would remain illegal and laborio…
Libby Adler, Gay Priori
One Parent, Three Parents
This article studies judges’ early treatment of a new law on parentage and assisted reproduction. During decades of legislative inaction, Ontario’s judges adapted the law to evolving familial practices, at times boldly. A legislative overhaul in 2016, aiming to recognize all children’s families equally and inclusively, raised the question whether judges would adopt a more restrained role post-reform. In two early cases, where the new conditions f…
Assisted dying, suspended declarations, and dialogue’s time
How long does it take the elected branches of government to study complex policy questions and develop legislation that respects constitutional rights? Judges often suspend for twelve months declarations that a law unjustifiably limits a right protected by the Canadian Charter of Rights and Freedoms. Dialogue theorists praise such suspensions for allowing the legislative and executive branches to act. This article recounts the experiences of the …
Cohabitants, Choice, and the Public Interest
Through the narrow entry of property disputes between former cohabitants, this chapter aims to clarify thinking on issues crucial to philosophical examination of family law. It refracts big questions—such as what cohabitants should owe one another and the balance between choice and protection—through a legal lens of attention to institutional matters such as the roles of judges and legislatures. Canadian cases on unjust enrichment and English cas…
Judging in Marriage’s Shadow
Cohabitation, female sacrifice, and judge-made law
This paper shares results of a study of judgments applying the common law as adapted to the cohabitation context. Specifically, the Supreme Court of Canada has held that couples who formed a ‘joint family venture’ may need to share the wealth gained during cohabitation. The study compares the couples leading to positive and negative findings of a joint family venture. Positive findings correlate with traditional markers of family and economic int…
Marital Rights
An examination of case law on forced marriage reveals that in addition to physical force, the role of emotional pressure is now taken into consideration. However, in both legal and policy discourse, the difference between arranged and forced marriage continues to be framed in binary terms and hinges on the concept of consent: the context in which consent is constructed largely remains unexplored. By examining the socio-cultural construction of pe…
Marriage, Family, and Federal Concerns
This chapter takes a broad view of the legal location of the family in the Canadian federation. We examine the interaction of the division of legislative powers—and its tension between uniformity and diversity—with other parts of our constitutional structure, such as Aboriginal rights and rights in the entrenched Charter. We look beyond formal constitutional text to consider the ways in which institutional structures and practices affect governan…
Marital Rights
Cohabitation, Law Reform, and the Litigants
Who sues when cohabiting relationships unwind, before and after reform that extends matrimonial sharing of family property to cohabitants? This article reports findings from the Canadian provinces of Saskatchewan and British Columbia, where reform aimed to divert cohabitants from claims in unjust enrichment. The article reports on a comparison of the litigants in judgments in unjust enrichment pre-reform and under the extended family legislation.…
Contextual Subjects
Realising rights here and now
A focus on utopia risks obscuring complexities in the process of realising human rights in time through institutions of governance. This article recounts judicial rituals by which judges delay the coming into effect of their conclusion that a law violates human rights. Here the more ‘radical’ approach involves insisting on rights’ enforcement now. The article also addresses a controversy around the moment when a right began to produce legal effec…
Cohabitation’s boundaries and the confines of tradition
In contrast with prescriptions for law reform for unmarried cohabitants, this article studies legislative inertia on the subject. It compares France and the Canadian province of Quebec, drawing on theoretical treatment of boundaries from critical geography, queer theory, and sociolegal work on law reform. Abstinence from legislating for cohabitants has not secured legal stasis. Informally and indirectly, ad hoc responses to cohabitation have amen…
Remedial Practice Beyond Constitutional Text
This article advances the comparative constitutional literature by examining the exercise of remedial discretion in rights litigation. It compares how the Supreme Court of Canada and the Constitutional Court of South Africa remedy unconstitutional legislation under their respective, relatively new, bills of rights. It uses an internal legal approach and, rejecting universalism and convergence, it pays attention to difference in constitutional tex…
Introduction
Groups seeking equality sometimes take a legal victory as the end of the line. Once judgment is granted or a law is passed, coalitions disband and life goes on in a new state of equality. For their part, policy-makers may assume that a troublesome file is now closed. The After Equality project arises from the sense that law reforms made under the banner of equality invite fresh lines of inquiry. It takes a judgment, law, or other measure not as a…
Indigenous parents and child welfare
The settler state's taking of Indigenous children into care disrupts their communities and continues destructive, assimilationist policies. This article presents the perceptions of lawyers, social workers and judges of how Indigenous parents experience child welfare in Quebec. Our participants characterized those experiences negatively. Barriers of language and culture as well as mistrust impede meaningful participation. Parents experience episte…
Assisted dying, suspended declarations, and dialogue’s time
How long does it take the elected branches of government to study complex policy questions and develop legislation that respects constitutional rights? Judges often suspend for twelve months declarations that a law unjustifiably limits a right protected by the Canadian Charter of Rights and Freedoms. Dialogue theorists praise such suspensions for allowing the legislative and executive branches to act. This article recounts the experiences of the …
Marriage and the data on same-sex couples
With analytical and methodological aims, this paper raises the difficulties of studying how well the financial frameworks governing marriage and divorce might serve the catchment group of same-sex couples to whom they are henceforth available. It calls for disaggregating the legal content of marriage for the purposes of analysis. By reference to the empirical social science, it then sets out the basis for challenging the assumption that access to…
Face to face
This paper uses queer theory, specifically literature on Bowers v. Hardwick, to analyze debates over legislation proposed in Quebec regarding covered faces. Queer theory sheds light on legal responses to the veil. Parliamentary debates in Quebec reconstitute the polity, notably as secular and united. The paper highlights the contradictory and unstable character of four binaries: legislative text versus social practice, act versus status, majority…
Where the Parents are of the Same Sex
Where the Parents are of the Same Sex': Quebec's Reforms to Filiation Get access Robert Leckey Robert Leckey * *Faculty of Law and Institute of Comparative Law, McGill University. Search for other works by this author on: Oxford Academic Google Scholar International Journal of Law, Policy and the Family, Volume 23, Issue 1, April 2009, Pages 62–82, https://doi.org/10.1093/lawfam/ebn014 Published: 29 January 2009
Relational Contract and Other Models of Marriage
This article proposes relational contract as a model for analyzing marriage under Canadian law. In contrast, in Bracklow v. Bracklow, the Supreme Court of Canada recognized two "competing" models of marriage and three models of spousal support. The difficult policy issues in the law of spousal support relate not to a tension between different models but instead go to compensation, including reliance and expectations. This article uses relational …
Infiniment plus de choses dans la vie que dans la loi
Ce texte rappelle qu'une réforme des règles relatives à la filiation visant à faire une place à deux parents de même sexe ne pourrait simplement refléter les pratiques sociales ; au contraire, elle les influencerait aussi de différentes manières. En s'appuyant sur les recherches et les débats qui ont été principalement publiés en anglais, il compare les régimes mis en place au Royaume-Uni et au Québec afin de reconnaître la maternité des couples …
Two Mothers in Law and Fact
The Practices of Lesbian Mothers and Quebec's Reforms
Depuis 2002, le Québec permet à un enfant de voir deux parents de même sexe inscrits à son acte de naissance. Le présent article vise à instruire le lectorat canadien anglophone des réformes relatives à la filiation ayant eu lieu au Québec en 2002. Il tente également d'enrichir le discours doctrinal de cette province, où l'approche positiviste semble encore prédominer. Il adopte par ailleurs une démarche fermement anti-homophobe et féministe, fai…
Cohabitation and Comparative Method
The paper intervenes in current policy debates on unmarried cohabitation and comparative law debates on methodology. It adopts a culturally alert, discursive methodology of comparison to study regulation of unmarried cohabitation under the common law and civil law as well as the effect of an entrenched right to equality protecting against marital status discrimination. It identifies not different legislative solutions to a common problem, but dis…
The notwithstanding clause
This article interprets the notwithstanding clause in section 33 of the Canadian Charter of Rights and Freedoms. When a legislature activates the notwithstanding clause, subsection 33(2) temporarily ensures a protected law’s ‘operation’ by preventing it from being ‘inconsistent’ with the Constitution of Canada in the sense of the supremacy clause, thereby precluding judicial remedies such as striking down. Construed in the light of its components…
One Parent, Three Parents
This article studies judges’ early treatment of a new law on parentage and assisted reproduction. During decades of legislative inaction, Ontario’s judges adapted the law to evolving familial practices, at times boldly. A legislative overhaul in 2016, aiming to recognize all children’s families equally and inclusively, raised the question whether judges would adopt a more restrained role post-reform. In two early cases, where the new conditions f…
Realising rights here and now
A focus on utopia risks obscuring complexities in the process of realising human rights in time through institutions of governance. This article recounts judicial rituals by which judges delay the coming into effect of their conclusion that a law violates human rights. Here the more ‘radical’ approach involves insisting on rights’ enforcement now. The article also addresses a controversy around the moment when a right began to produce legal effec…
Introduction
Groups seeking equality sometimes take a legal victory as the end of the line. Once judgment is granted or a law is passed, coalitions disband and life goes on in a new state of equality. For their part, policy-makers may assume that a troublesome file is now closed. The After Equality project arises from the sense that law reforms made under the banner of equality invite fresh lines of inquiry. It takes a judgment, law, or other measure not as a…
Strange bedfellows
This article addresses important, neglected questions of legal craft in relation to rights challenges to legislation, especially equality claims. It considers the perspective from which to assess multiple parts of a complex scheme in a challenge under the Canadian Charter of Rights and Freedoms. Is the challenge best framed against the scheme as a whole – all or nothing – or against the separate parts? The framing or perspective can have serious …
Law Reform, Lesbian Parenting, and the Reflective Claim
The article aims to complicate efforts to make law fit or catch up to social practices. It scrutinizes the ‘reflective claim’ using the case study of recognition of parenting by lesbian couples. Reforms in the United Kingdom’s Human Embryology and Fertilisation Act 2008 and the Canadian province of Quebec’s civil code are compared with empirical work from the social sciences on lesbians’ family practices. The reflective claim rests on problematic…
Relational Contract and Other Models of Marriage
This article proposes relational contract as a model for analyzing marriage under Canadian law. In contrast, in Bracklow v. Bracklow, the Supreme Court of Canada recognized two "competing" models of marriage and three models of spousal support. The difficult policy issues in the law of spousal support relate not to a tension between different models but instead go to compensation, including reliance and expectations. This article uses relational …
Employing Fairness
L'auteur, à partir de l'exemple de la pratique des grandes entreprises de payer à leurs employés des primes basées sur leur performance, fait état de deux types de contraintes s'appliquant aux employeurs: d'une part, les règles imposées par la loi; d'autre part, les recommandations des manuels de gestion des ressources humaines. Le droit considère les primes à travers le prisme étroit et traditionnel des règles portant sur les modalités de rémuné…
Profane Matrimony
Les débats récents concernant le mariage des couples de même sexe appellent à une réflexion plus large sur la rivalité entre les normes qui prétendent gouverner le mariage. Lors de ces débats, deux prétentions prirent l'avant-scène: l'une voulant que la loi suprême du mariage se trouve dans les traditions religieuses, et l'autre selon laquelle le mariage civil serait purement séculaire et trouverait sa loi suprême dans la Charte canadienne des dr…
Contextual Subjects
Acknowledgments1 IntroductionPART ONE: FAMILY LAW 2 Thick Subjects in the Past 3 Contextual Subjects in the Present 4 Contracting and Disputes within Relational Theory PART TWO: ADMINISTRATIVE LAW 5 Thin Subjects in the Past 6 Contextualism Emerges 7 Administration and Relational Norms 8 ConclusionNotesWorks CitedCasesLegislationIndex
Where the Parents are of the Same Sex
Where the Parents are of the Same Sex': Quebec's Reforms to Filiation Get access Robert Leckey Robert Leckey * *Faculty of Law and Institute of Comparative Law, McGill University. Search for other works by this author on: Oxford Academic Google Scholar International Journal of Law, Policy and the Family, Volume 23, Issue 1, April 2009, Pages 62–82, https://doi.org/10.1093/lawfam/ebn014 Published: 29 January 2009
Cohabitation and Comparative Method
The paper intervenes in current policy debates on unmarried cohabitation and comparative law debates on methodology. It adopts a culturally alert, discursive methodology of comparison to study regulation of unmarried cohabitation under the common law and civil law as well as the effect of an entrenched right to equality protecting against marital status discrimination. It identifies not different legislative solutions to a common problem, but dis…
Queer Theory
Chapter 1. Introduction, Robert Leckey and Kim Brooks Part 1: Constitution Chapter 2. Queer Theory, Neoliberalism and Urban Governance, Jon Binnie Chapter 3. Regulating 'Perversion': The Role of Tolerance in De-Radicalizing the Rights Claims of Sexual Subalterns, Ratna Kapur Part 2: Representation Chapter 4. Cinema of Queer Desires: Bombay Cinema and Emergent Sexualities, Shohini Ghosh Chapter 5. Post-Apartheid Fraternity, Post-Apartheid Democrac…
But what is judicial guidance? Debating Canadian judgments on children
The paper contributes to debates on the role of appellate judges in the uncertain field of family law. It takes as point of departure recent judgments by the Supreme Court of Canada regarding children. Repeated scholarly criticisms that the judgments provide inadequate guidance for trial judges and lawyers call for scrutiny: the criticisms overlook live debates on the appropriateness of judicial deference to legislative instrument choice, as well…
Language and Judgment's Reach
This is a review essay on The Limitation of Charter Rights: Critical Essays on R. v. Oakes (Luc Tremblay and Gregoire Webber eds., 2009), a collection celebrating the 20th anniversary of the Supreme Court of Canada's leading judgment on proportionality and limits on rights guaranteed by the Canadian Charter of Rights and Freedoms. The essay reflects on language in Canadian constitutional law, both the importance of the words used in talk about ri…
Law Reform, Lesbian Parenting, and the Reflective Claim
The article aims to complicate efforts to make law fit or catch up to social practices. It scrutinizes the ‘reflective claim’ using the case study of recognition of parenting by lesbian couples. Reforms in the United Kingdom’s Human Embryology and Fertilisation Act 2008 and the Canadian province of Quebec’s civil code are compared with empirical work from the social sciences on lesbians’ family practices. The reflective claim rests on problematic…
The Practices of Lesbian Mothers and Quebec's Reforms
Depuis 2002, le Québec permet à un enfant de voir deux parents de même sexe inscrits à son acte de naissance. Le présent article vise à instruire le lectorat canadien anglophone des réformes relatives à la filiation ayant eu lieu au Québec en 2002. Il tente également d'enrichir le discours doctrinal de cette province, où l'approche positiviste semble encore prédominer. Il adopte par ailleurs une démarche fermement anti-homophobe et féministe, fai…
Two Mothers in Law and Fact
Transforming Law's Family
Marriage and the data on same-sex couples
With analytical and methodological aims, this paper raises the difficulties of studying how well the financial frameworks governing marriage and divorce might serve the catchment group of same-sex couples to whom they are henceforth available. It calls for disaggregating the legal content of marriage for the purposes of analysis. By reference to the empirical social science, it then sets out the basis for challenging the assumption that access to…
Face to face
This paper uses queer theory, specifically literature on Bowers v. Hardwick, to analyze debates over legislation proposed in Quebec regarding covered faces. Queer theory sheds light on legal responses to the veil. Parliamentary debates in Quebec reconstitute the polity, notably as secular and united. The paper highlights the contradictory and unstable character of four binaries: legislative text versus social practice, act versus status, majority…
Must equal mean identical? Same-sex couples and marriage
This paper pushes against the successful rhetoric of formal equality by which same-sex couples are the same as different-sex couples and opening existing regimes of marriage to them best recognises their equal moral worth. Drawing on social science research that indicates differences in the economic organisation of same-sex couples, the paper explores the possibility that a different marriage regime for the spouses' reciprocal duties might combin…
Strange bedfellows
This article addresses important, neglected questions of legal craft in relation to rights challenges to legislation, especially equality claims. It considers the perspective from which to assess multiple parts of a complex scheme in a challenge under the Canadian Charter of Rights and Freedoms. Is the challenge best framed against the scheme as a whole – all or nothing – or against the separate parts? The framing or perspective can have serious …
Infiniment plus de choses dans la vie que dans la loi
Ce texte rappelle qu'une réforme des règles relatives à la filiation visant à faire une place à deux parents de même sexe ne pourrait simplement refléter les pratiques sociales ; au contraire, elle les influencerait aussi de différentes manières. En s'appuyant sur les recherches et les débats qui ont été principalement publiés en anglais, il compare les régimes mis en place au Royaume-Uni et au Québec afin de reconnaître la maternité des couples …
Introduction
Groups seeking equality sometimes take a legal victory as the end of the line. Once judgment is granted or a law is passed, coalitions disband and life goes on in a new state of equality. For their part, policy-makers may assume that a troublesome file is now closed. The After Equality project arises from the sense that law reforms made under the banner of equality invite fresh lines of inquiry. It takes a judgment, law, or other measure not as a…
Introduction
Contextual Subjects
Realising rights here and now
A focus on utopia risks obscuring complexities in the process of realising human rights in time through institutions of governance. This article recounts judicial rituals by which judges delay the coming into effect of their conclusion that a law violates human rights. Here the more ‘radical’ approach involves insisting on rights’ enforcement now. The article also addresses a controversy around the moment when a right began to produce legal effec…
Cohabitation’s boundaries and the confines of tradition
In contrast with prescriptions for law reform for unmarried cohabitants, this article studies legislative inertia on the subject. It compares France and the Canadian province of Quebec, drawing on theoretical treatment of boundaries from critical geography, queer theory, and sociolegal work on law reform. Abstinence from legislating for cohabitants has not secured legal stasis. Informally and indirectly, ad hoc responses to cohabitation have amen…
Remedial Practice Beyond Constitutional Text
This article advances the comparative constitutional literature by examining the exercise of remedial discretion in rights litigation. It compares how the Supreme Court of Canada and the Constitutional Court of South Africa remedy unconstitutional legislation under their respective, relatively new, bills of rights. It uses an internal legal approach and, rejecting universalism and convergence, it pays attention to difference in constitutional tex…
Marital Rights
An examination of case law on forced marriage reveals that in addition to physical force, the role of emotional pressure is now taken into consideration. However, in both legal and policy discourse, the difference between arranged and forced marriage continues to be framed in binary terms and hinges on the concept of consent: the context in which consent is constructed largely remains unexplored. By examining the socio-cultural construction of pe…
Political science (39 works) · Sociology (35 works) · Law (28 works) · Law (27 works) · Multicultural Socio-Legal Studies (19 works) · Psychology (14 works) · Legislature (13 works) · Family law (12 works) · Gender Studies (11 works) · Law and economics (11 works)