Monday, March 23, 2009 See You In Tort

Maggie Gallagher over on NR Online started a bit of discussion a while back when she suggest reviving the tort of adultery (which had been "criminal conversation" in Canada). Funny, the very day before I read that I had been feeling nostalgic for those grand old torts that had been abolished over the years, the last of which were cut down by "law reform" in the 1960s. There was the tort of seduction, a cause of action for a father whose daughter had been seduced. There was breach of promise of marriage. There was alienation of affections. These old torts recognized that the damaging and sundering of covenanted personal relationships did real harm worthy of legal recognition and compensation. Although these old torts are now taken as hopelessly old-fashioned and repressed, recent times have seen the development of torts like intentional infliction of emotional distress, and this development is seen as constructive and progressive. The Family Law Reform Act of 1978 finished off the last of these "heartbalm" torts in Ontario.

Maggie's thoughts about reviving the historic tort came in response to a callout of social conservatives by NR Online's Deroy Murdock. Murdock alleged that social conservatives' interest in preserving marriage seemed to be strictly confined to fighting same-sex marriage. He noted that a Google search had shown no evidence of social conservatives denouncing, a dating site designed, it advertises itself, to help married people cheat on their spouses. None of the outspoken claimants to the title of defenders of marriage were on record as denouncing this for-profit enterprise aimed at its subversion. As I skimmed through Murdock's article I found myself wondering where such an iniquitous website could be located. Way offshore in some country with no extradition treaty, perhaps. Or maybe they would dare to operate from as close as Tijuana.. Perhaps they would even be bold enough to quarter themselves in Las Vegas. But no:
"We made tens of millions of dollars" last year, company president Noel Biderman says from its Toronto base. We are very profitable and successful."
Whoa! The City of Churches has now become Ground Zero in the war against the family. Hopeless as it may be, it behooves conservatives to try to do something about this. If the ship of decency must go down, it should go down with all flags flying.

Practical considerations suggest that a revival of the simple tort of adultery is unlikely to be a winner in Ontario. A counter-attack against the advancing anti- family armies needs to find a weaker section of the front.

But a law supporting creation of a tort of intentional third party promotion and facilitation of adultery, perhaps limited to commercial enterprises, should be something doable. And it just so happens that the law of tort is a provincial matter, and the Ontario Progressive Conservative Party is entering into a leadership campaign.

Let's find out how many PC leadership aspirants will support the creation of a tort of commercial inducement of adultery. At a minimum, their responses will show us where they stand in the war against the family.

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