Changing the Common Law

Smith v. Smith, 2011 NBCA 66, a New Brunswick family law case dealing mainly with spousal support, has a useful discussion of changing the Common Law. The Court holds:

[31] In the case before us, we need not consider whether the common law should be adapted to provide that a spousal support award which does not follow the Guidelines gives rise to an error of law. This appeal succeeds based on an error of fact. However, it is worthwhile to briefly comment on the judicial role in adapting the common law. Justice Iacobucci, speaking for the Supreme Court in R. v. Salituro, [1991] 3 S.C.R. 654, [1991] S.C.J. No. 97 (QL), stated:

[...] The courts are the custodians of the common law, and it is their duty to see that the common law reflects the emerging needs and values of our society. [para. 54]

[32] However, the Court in Salituro also cautioned against courts being overly quick in reshaping the common law:

[...] Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, supra, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society. [para. 37]

[Emphasis added.]

[33] While it is within the jurisdiction of this Court to make incremental changes to the common law, such action should be taken with great care.