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by Randy Levine & Gifty Serbeh-Dunn
Canada prides itself at home and abroad as a country made up of a cultural mosaic rather than a cultural melting pot. The mosaic is based on our belief that Canada as a whole becomes stronger by having immigrants bring with them their cultural diversity for all Canadians to learn from. The cultural melting pot, as adopted in the United States, tells immigrants that no matter who they have been in the past, upon landing on American shores, they are Americans and are expected to adopt and follow the American way.
At the heart of Canadian society is our legal system. Our legal system is based on the English Common Law model, which in turn is based on a value system that places a strict adherence to following procedural rules over the substantive matter before the Court. The Canadian model is based on precedence which means that Courts are loath to do anything that has not been done by some Court previously. This in turn makes Cana- dian Courts very slow to adapt or adopt new ideas or social mores. From a cultural perspective, the Canadian legal system takes the `melting pot' approach, which is to say that culturally unique methods of dispute resolu- tion are not accepted by our legal system. Instead, our legal system imposes its values on all who come before it. For example, in the family separation cases the courts apply English or French legal systems, yet there are varied cultures and people in Canada with different notions of what a family separation should mean or entail and that is not always reflected in court decisions. The courts are not always obliged to take cultural values in account when decisions are made.
One of the issues this dichotomy presents are how the Canadian legal system can be more flexible in accepting different values for settling disputes.
Randy Levine is a family lawyer practicing family law and mediation in Cranbrook, BC. Gifty Serbeh-Dunn is a cross cultural consultant at Wayne Dunn & Assoc.
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