Table of Contents

Introduction............................................................................................. 7
Definition of the Family.............................................................................................................. 7
Changing Nature of Families (Stats)........................................................................................... 7
Families, Family Relationships and the Law................................................................................ 8
Sefton Holdings v. Cairns familial......................................................................................... 8
Jane Doe v. Alberta familial.................................................................................................. 8
JH v. FA 2009 ONCA.............................................................................................................. 8
Families and Legal Intervention.................................................................................................. 8
Themes in Family Law................................................................................................................ 8
Canada (AG) v Mossop (1993) SCC - functionalist...................................................................9
Hincks v. Gallardo 2013 ONSC................................................................................................ 9

The Law of Marriage...............................................................................10

History..................................................................................................................................... 10
Annulment v. Divorce; Void v. Voidable..................................................................................... 10
Constitutional Authority for Marriages...................................................................................... 10
Common Law Marriages........................................................................................................... 10
Validity of Marriages................................................................................................................. 11

1. Parties must be two persons...............................................................11

Halpern v Canada ONCA....................................................................................................... 11
Reference re: Same Sex Marriage - 2004............................................................................. 11
Saskatchewan Marriage Reference - 2011............................................................................ 11
Conflict of Laws and SS marriage......................................................................................... 12
Legal Benefits for SS couples/ M v. H.................................................................................... 12
Requirement of Union to the exclusion of all others...........................................................12

2. Capacity to Marry...............................................................................12
A) Mental Capacity................................................................................................................... 12
Durham v Durham (1885).................................................................................................... 12
Webb v. Webb (1985) Current test for capacity.................................................................12
Banton v. Banton.................................................................................................................. 12
Re Sung Estate evidence and onus of proof in re: capacity................................................12
CMD v. RRS - BCSC............................................................................................................... 13
B) Duress and Undue Influence................................................................................................ 13
Scott v. Sebright - 1886 Subjective Test............................................................................. 13
Cooper v. Crane 1891 Objective Elements.......................................................................13
Buckland v. Buckland 1967 ER move to objective test..................................................13
S(A) v. S(A) 1988 ON SUBJECTIVE TEST MUST BE APPLIED............................................13
Forced v. Arranged Marriages............................................................................................... 13
B) Limited Purpose................................................................................................................... 13

3. Capacity to Consummate.....................................................................14
Test for capacity to consummate.......................................................................................... 14

4. Prohibited Degrees of Consanguinity and Affinity.................................14

5. No Prior Subsisting Marriage...............................................................14
Knight v. Knight.................................................................................................................... 14
Disappearing Spouses.......................................................................................................... 14
Polygamy and Plural Unions................................................................................................. 14
BC Reference Case............................................................................................................... 15

6. Age and Validity of Marriage...............................................................15

Solemnization and Formalities Provincial Authority................................15
Marriage Act............................................................................................................................. 15
Curative Proviso (s.31)......................................................................................................... 15
Alspector v. Alspector 1957 ONCA..................................................................................... 15

Debora v. Debora 1999 - ONCA.......................................................................................... 15

Upadyaha v. Sehgal contrast with Alspector...................................................................... 15
Community Marriage Traditions............................................................................................ 15
Keobounphan v. Khamvongsa............................................................................................... 15
Yangaeva v. Kerstein............................................................................................................ 15
Hassan v. Hassan................................................................................................................. 16
Cao v. Le.............................................................................................................................. 16
Registered Partnerships (Civil Unions)...................................................................................... 16
Beyond Conjugality Report................................................................................................... 16
Trans Persons, Marriages and Sex............................................................................................ 16
Corbett v. Corbett 1971 contrast with re: Kevin...............................................................16
Re Kevin (2001) Australia..................................................................................................... 16
Goodwin v. UK - 2002........................................................................................................... 16

Parent-Child Relationships......................................................................16
Biological Reproduction..........................................................................17
Trociuk v BC (AG) (2003) SCC............................................................................................... 17
Gallant v. Lewis 2008 ONSC............................................................................................... 17
Role of Fathers in Creation of Families...................................................................................... 17
GES v. DLC 2005 SKCA....................................................................................................... 17

Adoption................................................................................................ 18
Child and Family Services Act................................................................................................... 18
Consent - s.137 of CFSA.......................................................................................................... 18
Re AG of Ontario and Nevins (1988) ON............................................................................... 18
Re SS (2009) Ont.................................................................................................................. 19
Openness Orders.................................................................................................................. 19
Re M(S) (2007) Ont............................................................................................................... 19
Disclosure............................................................................................................................. 19
Cheskes v. ON (2007)........................................................................................................... 19
Aboriginal Adoptions................................................................................................................ 19
Racine v Woods (1983) SCC................................................................................................. 19
H v M 1999 SCC................................................................................................................. 19
C(JMN) v. Winnipeg Child and Family Services...................................................................... 19
Aboriginal Adoption and Adoption Breakdown...................................................................... 19
International Adoption.......................................................................................................... 20

Assisted Reproduction............................................................................20
Baby M (US)......................................................................................................................... 20
AHRA, SC 2004..................................................................................................................... 20
Caufield v Wong................................................................................................................... 20
Same-Sex Partners & Assisted Reproduction............................................................................ 20
Gill v. Murray........................................................................................................................ 20
Rutherford v. ON................................................................................................................... 20
AA v. BB and CC................................................................................................................... 20
DWH v. DJR 2007 ABCA...................................................................................................... 21
C(MA) v. K(M)........................................................................................................................ 21
Access and Disclosure.............................................................................................................. 21
Pratten v. BC........................................................................................................................ 21
WW v. XX.............................................................................................................................. 21

Law and the Regulation of Intact Families................................................21

Children in Need of Protection.................................................................................................. 21
Winnipeg South Child and Family Services v. DD..................................................................22
The Charter and Child Protection.......................................................................................... 22
Winnipeg Child and Family Services v. W(KL)....................................................................... 22
Canadian Foundation for Children, Youth and Law v. Canada...............................................22
Aboriginal Children and Child Protection.............................................................................. 22
Legal Representation for Parents......................................................................................... 22
Legal Representation for Children........................................................................................ 22
Abuse and Violence in Intimate Relationships.......................................................................... 22
Behrendt v. Behrendt........................................................................................................... 23

Shaw v. Brunelle ONSC......................................................................................................... 23

Tseng v. Tseng...................................................................................................................... 23
Elder Abuse.............................................................................................................................. 23

Family Dissolution: Principles and Processes...........................................23

History and Social Context................................................................................................... 23
Divorce Act, 1985..................................................................................................................... 24
Separation and Legislative Jurisdiction..................................................................................... 24
Living Separate and Apart as Marriage Breakdown.............................................................24
Rushton v. Rushton test for living separate and apart........................................................24
Dupere v. Dupere factors to consider................................................................................. 24
Cooper v. Cooper- factors to show a separated household...................................................25
Requirement of Intent.......................................................................................................... 25
Adultery as a Ground for Marriage Breakdown..................................................................... 25
P(SE) v. P(DD) 2005........................................................................................................... 25
Thebeau v. Thebeau............................................................................................................. 25
Burbage v. Burbage test for adultery................................................................................. 25
Cruelty as a Ground for Marriage Breakdown....................................................................... 25
Statutory Bars to Divorce..................................................................................................... 25
Religious Bars to Divorce...................................................................................................... 26
Reasonable Arrangements for Children................................................................................ 26

Economic Consequences of Divorce and Separation.................................26

Limits of Family Law Reform Margrit Eichler...................................................................... 26

Legal Processes for Family Dissolution....................................................27

Collaborative Law................................................................................................................. 27
Mediation............................................................................................................................. 27
Arbitration............................................................................................................................ 27

Family Contracts....................................................................................28
Family Law Act......................................................................................................................... 28
Hartshorne v Hartshorne SCC 2004 (BC) private ordering, choice, autonomy.................28
LeVan v. LeVan ONCA 2008 test for setting aside K.........................................................29
Religion and Marriage Contracts........................................................................................... 30
Kaddoura v. Kaddoura probably not law anymore..............................................................30
Khan v. Khan 2005 ONSC................................................................................................... 30
Bruker v. Marcovitz SCC 2007............................................................................................ 30
Covenant Marriage............................................................................................................... 30
McCain v. McCain.................................................................................................................. 29
Stevens v. Stevens............................................................................................................... 29

Families, Property and Family Property...................................................30

History and Context................................................................................................................. 30
NS v. Walsh emphasizes choice, autonomy, private ordering.............................................31
QC v. A................................................................................................................................. 31

Legislative Regimes for Property Sharing................................................32

Property Sharing Family Law Act............................................................................................ 32
Skrlj v. Skrlj........................................................................................................................... 32

Process of Equalization in Ontario...........................................................32

Step 1: Valuation Date (s.4(1))................................................................33
Caratun v. Caratun............................................................................................................... 33

Step 2: Property (s.4(1)).........................................................................33

Property and Professional Degrees........................................................................................... 33
Corless v. Corless................................................................................................................. 33
Caratun v. Caratun............................................................................................................... 33
Police Debates and Degrees................................................................................................. 33
Property and Future Streams of Income................................................................................... 33
Brinkos v. Brinkos trust income is property........................................................................33
DaCosta v. DaCosta contingent interest is property...........................................................34

Lowe v. Lowe........................................................................................................................ 34
Equitable Principles and Valuation of Property.......................................................................... 34
Rawluk v. Rawluk.................................................................................................................. 34
JCM v ANA (2012) BCSC........................................................................................................ 34
Pensions and other Employment Benefits................................................................................ 34
Boston v Boston................................................................................................................... 35
Other Employment Benefits................................................................................................. 35

Step 3: Excluded Property (s.4(2))...........................................................35

Silverberg v. Silverberg........................................................................................................ 35
Gifts and Unjust Enrichment..................................................................................................... 35
McNamee v McNamee.......................................................................................................... 36
Tracing................................................................................................................................. 36
Lefevre v. Lefevre................................................................................................................. 36
The Matrimonial Home......................................................................................................... 36
DaCosta v. DaCosta.............................................................................................................. 36
Cartier v. Cartier................................................................................................................... 36

Step 4: Valuation of Property (not in FLA)................................................36

Montague v. Montague......................................................................................................... 36
Oswell v. Oswell.................................................................................................................... 36

Step 5: Deductions (s.4(1)).....................................................................36

Debts and Liabilities at V-Day................................................................................................... 37
McPherson v. McPherson ONCA affirmed in Starkman........................................................37
Sengmuller v. Sengmuller..................................................................................................... 37
Stein v. Stein SCC (BC)....................................................................................................... 37
The MH and Deductions........................................................................................................... 37
Folga v. Folga....................................................................................................................... 37
Nahatchewitz v. Nahatchewitz.............................................................................................. 37
Collier v. Torbor.................................................................................................................... 37

Step 6: Calculating the Equalization Claim (s.5).......................................37

Step 7: Unequal Shares (s.5(6))...............................................................37
Sullivan v. Sullivan................................................................................................................ 38
Braaksma v. Braaksma......................................................................................................... 38
S.5(6) and length of CH............................................................................................................ 38
MacNeil v. Pope.................................................................................................................... 38
Futia v. Futia......................................................................................................................... 38
OLRC report on s.5(6)........................................................................................................... 38
Serra v. Serra....................................................................................................................... 38
Kean v. Clousi....................................................................................................................... 38
Townshend v. Townshend..................................................................................................... 39
Ward v. Ward........................................................................................................................ 39

Possessory Rights and the MH................................................................39

Rosenthal v. Rosenthal......................................................................................................... 39
Pifer v. Pifer.......................................................................................................................... 40
Hill v. Hill.............................................................................................................................. 40
Matrimonial Property and Aboriginal Reserves......................................................................... 40
Derrickson v. Derrickson....................................................................................................... 40
Paul v. Paul........................................................................................................................... 40
Wynn v. Wynn - ON............................................................................................................... 40
First Nations Land Management Act, SC 2001......................................................................40

Equity and the Use of Trust Doctrines for CH Couples...............................40

Test for Unjust Enrichment................................................................................................... 40
Pettkus v Becker.................................................................................................................. 41
Sorochan v. Sorochan........................................................................................................... 42
Stanish v. Parasz.................................................................................................................. 42
Georg v. Hassanali................................................................................................................ 42
Peter v. Beblow test for when CT can be applied................................................................42

Kerr v. Baranow; Vannase v. Seguin...................................................................................... 43

Spousal Support.....................................................................................44
Available under both DA and provincial regimes (for CH and separated, but not
divorced spouses)................................................................................................................ 44
Definition of a Spouse.............................................................................................................. 45
Moldowich v. Pentinen (FLRA)............................................................................................... 45
Sullivan v. Letnik.................................................................................................................. 45
Hazlewood v. Kent................................................................................................................ 45
Brebic v. Niksic..................................................................................................................... 45
Parenthood and s.29................................................................................................................ 45
DaSouza v. Dasouza............................................................................................................. 45
Stoikiewicz v. Filas................................................................................................................ 46
Brunette v. QC...................................................................................................................... 46
Three Models of Spousal Support (Rogerson)........................................................................... 46
Who Should Pay................................................................................................................... 46
Messier v. Delage DA, 68 Compensatory Model...............................................................47
Pelech, Richardson and Caron Separation agreements self-sufficiency as goal of SS......47
Spousal Support in the DA and FLA.......................................................................................... 46
Divorce Act 1985...................................................................................................................... 46
Family Law Act......................................................................................................................... 47
Moge v. Moge....................................................................................................................... 47
Nock v. Nock......................................................................................................................... 48
Keast v. Keast....................................................................................................................... 48
Stevens v. Stevens............................................................................................................... 48
Bracklow v. Bracklow............................................................................................................ 49
Spousal Support Post Bracklow: The Pendulum Swings Again..............................................49
Fault and Spousal Support........................................................................................................ 51
Leskun v. Leskun.................................................................................................................. 51
Miglin v. Miglin initial applications for SS where there is an agreement..............................49
Ward v. Ward........................................................................................................................ 51
Scheel v. Henkelman s.33(4) FLA - unconscionability.........................................................51
Rick v. Brandsema 2009 SCC - BC...................................................................................... 51
LMP v. LS 2011 SCC - QC.................................................................................................... 51

Spousal Support Advisory Guidelines......................................................51

Privatizing Responsibility for Dependency................................................................................ 52
Dragulin v Dragulin (1999) Ont............................................................................................ 52

Child Custody and Access........................................................................52

History of Legal Principles.................................................................................................... 53
Divorce Act........................................................................................................................... 53
Childrens Law Reform Act major provincial legislation about custody and access.............53
Legal Custody vs. Physical Custody.......................................................................................... 53
The Best Interests of the Child N. Bala................................................................................... 53
Carton v Watts...................................................................................................................... 54
Haider v. Malach................................................................................................................... 54
Geremia v. Harb................................................................................................................... 54
ALI recommendations about custody and access..................................................................... 54
Fishback v. Fishback Conduct and ability to parent............................................................54
Violence and Abuse in relation to BIC....................................................................................... 54
Li Santi v. Li Santi 1990 ON................................................................................................ 55
Howard v. Howard 1999 ON............................................................................................... 55
Van de Perre v. Edwards Importance of Race.....................................................................55
Camba v. Sparks................................................................................................................... 55
Libbus v. Libbus 2008 ON................................................................................................... 55
Perron v. Perron.................................................................................................................... 55

BIC and Access.......................................................................................55

Craig v. Antone no presumption in favour of access..............................................................55

C/A claims by third parties......................................................................55

Arniuk v. Arniuk 1999 - BC................................................................................................. 55

Chapman v Chapman 2001 - ONCA................................................................................... 55

Religion and Access................................................................................56

Bachor v. Lehmman-Bachor 2001 ABCA............................................................................. 56
Young v Young SCC - 1993.................................................................................................... 56
Custodial Parents & Right to Relocation................................................................................... 56
Carter v Brooks (1990) Ont CA............................................................................................. 56
MacGyver v Richards (1995) Ont CA - overruled...................................................................56
Gordon v. Goertz - SCC......................................................................................................... 56
FJN v. JLN virtual access..................................................................................................... 56
Alienation................................................................................................................................. 57
Bruni v Bruni 2010 ONSC................................................................................................... 57
Role of Professionals in Custody/Access................................................................................... 57
Marko-Laschowski v. Laschowski criteria for expert assessment........................................57
Role of Children in C/A.............................................................................................................. 57
Office of the Childrens Lawyer............................................................................................. 57
Bhajan v. Bhajan................................................................................................................... 57
ADR and C/A claims.................................................................................................................. 57
Joint Custody, Parenting Plans and Parallel Parenting...............................................................57
Special Joint Committee - 1998................................................................................................ 58
Buist v. Greaves................................................................................................................... 58
Biamonte v. Biamonte.......................................................................................................... 58
Kaplanis v Kaplanis test for JC............................................................................................ 58
Warcop v. Warcop no presumption in favour of primary caregiver.....................................58
Shared Parenting in Australia (Rhoades).............................................................................. 59

Child Support.........................................................................................59
Paras v. Paras pre-CSG determinations were highly discretionary under DA......................59
Definitions of Parent-Child Relationships.............................................................................. 59
Divorce Act........................................................................................................................... 59
FLA....................................................................................................................................... 60
CLRA.................................................................................................................................... 60
Re Khan and Pinsonnealt 1979 paternity tests................................................................60
P(K) v N(P) 1998 s.10 is constitutional............................................................................. 60
The Impact of Agreements....................................................................................................... 60
Hyde v. Lange agreement doesnt preclude CS - FLA.........................................................60
Louis v. Lastman 2002 ONCA - FLA.................................................................................. 60
Parsons v. Parsons - FLA....................................................................................................... 60

Blended Families and Social Parents........................................................60

Chartier v. Chartier 1999 SCC............................................................................................ 60
Gardiner v. Gardiner 2001 NS LIMITING APPLICATION OF CHARTIER................................61
Monkman v. Beaulieu CHARTIER APPLIES TO CH (MB)........................................................61
Cheng v. Cheng.................................................................................................................... 61
Obligation to Pay Child Support................................................................................................ 61
DA........................................................................................................................................ 61
FLA....................................................................................................................................... 61

Child Support Guidelines.........................................................................62

CSG Objectives s.1................................................................................................................ 62
Who Wants to Avoid the Guidelines? Rollie Thompson.......................................................62
Determining the Amount of Support (s.3)................................................................................. 62
Middleton v. MacPherson (ABQB).......................................................................................... 62
Drygala v. Pauli ONCA 2002 imputing income.................................................................62
Riel v. Holland...................................................................................................................... 62
Extraordinary Expenses s.7................................................................................................... 62
CSG and Social Parents s.5.................................................................................................... 63
Wright v. Zaver 2002 - ONCA................................................................................................ 63
Cornelio v. Cornelio 2008 ONSC......................................................................................... 63
Split and Shared Custody ss.8 and 9...................................................................................... 63
Leonelli-Contino v Contino SCC 2005.................................................................................... 63
Undue Hardship s.10............................................................................................................. 64

Schmid v Smith (1999) Ont.................................................................................................. 64

Enforcing Child Support............................................................................................................ 64
Dickie v. Dickie 2007 SCC.................................................................................................. 64
Retroactive CS.......................................................................................................................... 64
DBS v. SRG et al................................................................................................................... 64
CSG and Reform....................................................................................................................... 64
For the Sake of Children Special Joint Committee on Child Custody and Access................64
What Were They Thinking (CS and child poverty) (Miller and Gauthier)................................65

Introduction
Definition of the Family
-

In the legal context, three approaches to defining what a family is:

o
Census definition

Used by policy makers to understand changing conditions and to design

government services; used more by legislatures than courts

Husbands and wives or CL partners with or without never married children, and
lone-parent families with their never-married children
o
Functional definition

Focuses on what families do and takes account of the functions of families;

used by legislatures as well as courts
o
Familial definition

Focuses on ideals about families, how families ought to behave or work

together or look; occasionally used in court decisions and legislative
initiatives
o
Vanier Institute definition

Any combination of 2 or more persons who are bound together over time by
ties of mutual consent, birth and/or adoption or placement and who, together,
assume responsibilities for variant combinations of some of the following:

Physical care and maintenance of group members

Addition of new members through procreation or adoption

Socialization of children

Social control of members

Production, consumptions, distribution of goods and services; and

Love

Changing Nature of Families (Stats)

-

Marriage and Cohabitation

o
Rate of marriage dropped by 23% between 1981 and 2003
o
In 2006, 16.5% of SS couples were married; children more often lived with married SS
couples than CH couples
o
CH couples now make up 15.4% of all census families doubled in past decade
Divorce and separation
o
In 2004, 37.9% of married couples divorced before 30 yrs
o
Highest rate of divorce is for marriages between 1 and 4 years
o
2006 rate for separation of married and CH couples about the same; however more
marriages than CH suggest that CH break down more regularly
Children
o
Birth rate on the rise since 2001
o
2006 20% of Canadian residents were born outside Canada highest since 1931
o
2007 62% of babies were born to married women
o
2006 12% of all couples with children were step-families
o
2006 almost 50% of adults in their 20s lived with parents in ON
Families and Family Economies
o
1976 52% of women were in the paid labour force; 82% in 2009
o
Multiple income earners is now the norm for families
o
1997-2007 strong increase in after-tax income for families
o
income inequality is on the rise
Families and Crime
o
2009 spousal violence represented 53% of violent crime in Canada; female victims in
83% of cases

o
o

Rate of family violence against children and youth increased by 23% between 1998 and
2007
Child abuse and neglect rose 125% between 1998 and 2003

Families, Family Relationships and the Law

Sefton Holdings v. Cairns familial
Facts:
Girl invites 23yo, unmarried orphan girl to live with her family in 1923, lives in house until rest of
family dies; P sues to regain property
Issue:
Is D part of the family under the Rent Act and thus allowed to stay as statutory tenant?
Held:
While family is not limited to nuclear family, must have a broadly recognizable de facto
familial nexus; two strangers can never establish an artificial family simply by acting like it
Analysis
Court holds there is a difference between living as a family member, and being a family
member
Jane Doe v. Alberta familial
Facts:
P enters CH with man, has child through artificial insemination; parties enter agreement that man
will not be father, have no rights and obligations; P seeks declaration of same, argues that
agreement contradicts settled intention under s.48
Issue:
Is the agreement effective in law (does it displace the terms of the AB FLA)
Held:
Agreement does not displace the FLA; man is held to be in place of a parent
Intention is not only determined by express statements; must infer from actions
o
Whether child participates in extended family; provision of financial support, whether
parties represent to the child and world that he is responsible for the child
Court disagrees with how P wants to define her family, substitutes its view
Analysis
Decision to withhold consent doesnt automatically displace finding under s.48
Nature of relationship between P and man makes him stand in the place of a parent
o
Relationship of interdependence with mother will create a relationship of
interdependence with the child
Critiques
Court doesnt consider relationship between man and child whether man has settled intention
of remaining with the mother is the only consideration
o
Under s.48, factors relate to relationship with child, not other parent
If court was right, women risk giving up sole parental right any time they CH with another person
JH v. FA 2009 ONCA
Facts:
P moves from St. Lucia in 2003, makes refugee claim for her and daughter denied; P is slated for
deportation, becomes involved with D, has another child; they separate, he remarries; P makes
application for non-removal order under CLRA; motion is granted
Held:
Motions judge erred in granting application; CLRA cannot be used to circumvent the IRPA

Families and Legal Intervention

-

During 20th century, intervention into the private sphere (family life) increased to protect
vulnerable individuals
o
However, the neutral nature of family law doesnt often reflect the realities (gendered
nature) of the private sphere

Usually occupied by women, who do domestic chores in support of their

husband, who earns a living.
Historically, legal and political interventions in families have been undertaken for purposes other
than protection of vulnerable individuals
o
Aboriginal children taken from their home and put in residential schools
o
Chinese immigrants who experienced family disruption because of the head tax
o
Mass evacuation of Japanese from the west coast after Pearl Harbour

Themes in Family Law

Equality
-

Equality among families and among family members have often been invoked to justify legislative
or judicial intervention
o
Resulted in abolition of concept of illegitimate children
o
Used by fathers rights groups to argue for same rights to custody and access, postseparation, as mothers
After charter, was heavily used in FL context
o
E.g fathers rights groups

Canada (AG) v Mossop (1993) SCC - functionalist

Court holds that SS partner is not entitled to bereavement leave to attend funeral of partners
father
Dissent (LHD)
o
Takes intervener to task for insisting that a central family value is procreation and that
procreation requires heterosexuality
o
It is not valid to have the capacity to procreate limit the boundaries of who can
be a family

If true, then single-parent families and childless couples would not be families

Autonomy v. Protection and Legal Intervention in Families

-

Tension between rights of individuals to act freely, and state intervention in protection of families
Increasing recognition of family as primary responsible for dependents, recognize new families to
reduce state responsibility for dependency

Family Responsibility for Economic Dependence

-

In the context of higher divorce rates, courts and legislatures have occupied themselves in
defining ongoing economic responsibilities for former families resulted in creation of postseparation families
o
Will continue to be bound together by economic obligations even after their familial ones
have dissolved

Other Themes
-

Rule-based v. judicial discretion (certainty and finality v. fairness)

o
Dewar notes tension between legislative rules and judicial discretion

FL statutes are in broad terms requires discretion in applying them

o
Recent push towards more certainty (rules)

SSAG, child support guidelines

Property sharing regime in ON provides little room for discretion

Jurisdictional Issues
o
ONSC has inherent jurisdiction in relation to some matters (property and divorce), ONCJ
has jurisidisction in relation to others (custody)

Jurisdiction and procedure differences makes it difficult for FL clients to access

them effectively

Hincks v. Gallardo 2013 ONSC

P and D get civil partnership in UK; move to Toronto, P seeks divorce and corollary relief; D claims
they were never married (UK statute created partnership, not marriage), argued conflict of laws
(validity is determined where performed)
Court finds that partnerships created in UK are marriages under DA and FLA
o
Partnership satisfies spouse requirement under legislation
o
Policy reasons

Otherwise would create separate but equal system contrary to Charter

In UK, couple didnt have a choice to get married, partnership was only thing
available

Only reason they couldnt marry was discriminatory legislation

already held unconstitutional in Canada cant perpetuate it
-

Lack of complete facts

o
Courts and lawyers are only interested in material facts

Contrary to fact that many litigants feel the need to tell their story and feel
strong injustice when this is denied
Use of experts majority cannot afford representation, but they are widely used

Constitutional Division of Powers

-

s.91(26) gives parliament power to legislate in respect of marriage and divorce

o
Only feds can legislate about divorce, and have corollary power to legislate about access
and custody
o
Power to legislate in relation to marriage is limited to the inherent capacity to marry
S.92(12) gives power to solemnize marriage to the provinces
o
Has been interpreted to include formalities

E.g. provincial requirements for marriage licenses, requisite language for valid
ceremony
S.92(13) gives provs power to legislate re: property and civil rights
o
Means that much of family law is provincial
o
B/c CH cant divorce, means that much of the law surrounding adjustment of financial and
property matters is subject of provincial law

Family Law and Facts

-

Judges and lawyers are only interested in material facts; contrary to that many FL litigants need
to tell their story and feel strong injustice when they are deprived of right to do so
Important to reflect and see whether cases present untold stories of FL

Push Towards ADR

Use of Experts
-

In many cases, there are experts in the litigation

In the FL context, experts cost a lot. In some cases, where an expert would be useful, people
simply cant afford them.
In FL cases with rich people, there are numerous experts on both sides that compete with each
other
o
Evidence of the class issues inherent in FL expert testimony
Also, in many cases, parents want to be the expert they dont want a doctor to assess the best
interests they know what the best interests are

Marriage in the Context of Cohabitation

-

Implicit view that cohabitation implies less commitment while offering many of the advantages of
marriage
CH is prevalent among Canadians in their 20s and 30s, as well as previously divorced persons,
and in QC
Recognition of CH presents a functionalism view of families BUT law doesnt treat them exactly
the same as married couples
Need for reform: ensure protection for dependency at termination, treat similar relationships
equally and avoid confusion about differing consequences (Wu)
o
Holland: putting emphasis on choice/autonomy is problematics

Cannot foresee how relationship will unfold; may be unpredictable factors

Vulnerability/dependency may develop during relationship

o
Proposed regimes (Holland):

(1) opt-in (must enter contract that they are bound by rules of marriage),

(2) opt-out (same rights and responsibilities as marriage unless they contact
out of default regime

Better balance b/w choice/autonomy v. protection for vulnerability

Default regime will provide better protection for vulnerabilities

Similarities: see theme sheet
Differences: only married people can divorce, entitlement to share in property at termination is
available to married persons but not always to those in cohabiting relationships

The Law of Marriage

History
-

Indissoluble union emerged as early as 12th century

All that was required to effect marriage was to express words in the present tense
Decree of the Council of Trent in 1563 invalidated all marriages not performed in public in
front of a priest
Ecclesiastical courts had responsibility for determining validity of marriages
Matrimonial Causes Act of 1857 abolished jurisdiction of ecclesiastical courts; gave it to
regular courts of England

10

Because ecclesiastical courts never existed in ON, many judges believed they didnt have the
power to annul marriages
o
Annulment of Marriages Act (Ontario) of 1930 allowed judges to annul
marriages

Annulment v. Divorce; Void v. Voidable

-

Annulment order can only be made where the marriage is legally invalid
o
One or more requisite elements must not exist
Divorce can only be granted where the marriage is legally valid
Void marriage is one that is non-existent in law, even if not formally annulled
Voidable marriage is one that stands in law until annulled

Constitutional Authority for Marriages

-

Parliament can regulate in regards to inherent capacity to marry

Provinces can regulate in regards to solemnization of marriage includes formalities of
marriage
Provinces can regulate in regards to property and civil rights ensures that much of FL is
provincial

Common Law Marriages

-

Do not exist in ON
Dutch v. Dutch
o
Parties split, H agrees to pay SS until W remarries; W starts CH with man; H moves to
terminate support, says W and man are in CL marriage
o
Court holds there is no such thing as CL marriage in ON all marriages have to
conform to federal and provincial statutes
However, CL marriages may exist in context of Aboriginals who marry solely according to
customary practices, not statutory requirements

Validity of Marriages
-

According to CL and federal statutes, there are 6 criteria for a valid marriage
1) Parties must be two persons
a. Used to be man and woman amended by Civil Marriages Act, 2005
2) Both parties must have capacity to consent
a. Must be free from duress, and without taking account of the reservations about or
limited purposes of marriage
3) Parties must have capacity to consummate the marriage
4) Parties must not be within the prohibited degrees of consanguinity and affinity
a. Regulated by the Marriage (prohibited degrees) Act
5) Parties must not be a partner to an existing valid marriage
6) Parties must have attained the age required for a valid marriage

1. Parties must be two persons

-

Traditional definition of capacity to marry found in Hyde v. Hyde -1866

o
I conceive that marriage, understood in Christendom, may [] be defined as the
voluntary union for life of one man and one woman, to the exclusion of all
others
Haig 1993 sexual orientation an analogous ground under s.15
EGALE CL dedfinition not subject to Charter as it was defined at confederation; either way,
saved by s.1

Halpern v Canada ONCA

Div Ct. unanimously holds that CL definition violates s.15, not saved by s.1 suspends declaration
for two years up to parliament to change such an important definition
o
Must appreciate the CL definition of marriage through charter lens appreciate changes
in societys view towards family, marriage and relationships
o
Ct rejects that OS procreation is such a compelling and central aspect of marriage in 21 st
century, post charter society, that it alone gives marriage its defining characteristic
o
CL definition is premised on procreation as the central aspect of marriage

Reasoning is no longer applicable in Canada SS can create family without

procreation, many OS couples are married without the ability to procreate

Procreation is too narrow, and too shaky, to be tenable as the legal base for
such a foundational institution in society such as marriage

11

o
o

Better to conceive of the core of marriage as a long-term, loving and conjugal

relationships (including those that do rear children)
ONCA upholds and issues immediate declaration

Didnt think that there was any harm in allowing SS couples to marry
immediately

What about corollary rights that werent dealt with by court e.g. right
to divorce?

Court didnt even mention whether it was proper for a court to

fundamentally alter such a societally central institution such as
marriage

Reference re: Same Sex Marriage - 2004

Was the legislative capacity re: capacity to marry a federal power?
Is an entrenched provision allowing SS couples to marry consistent with the Charter?
Does the Charter protect right of religious officials to not be compelled to perform SS marriages?
Court answered in the affirmative to all; declined to answer whether traditional
definition was consistent with the Charter
However, mostly symbolic as 6 provinces and 1 territory already permitted SS marriage
Civil Marriage Act

3.1 protection of freedom of conscience and religion, religious officials not required to solemnize
or permit sacred place to be used for marriages contrary to religious beliefs
Saskatchewan Marriage Reference - 2011
2009, SK drafts legislation that releases marriage commissioners from having to perform SS
marriages
SKCA holds that legislation violates s.15, not saved by s.1, three reasons
o
Would be a step backward to give SS couples the right to marry, and then allow them to
be shunned by the people charged with performing the marriages
o
Offensive to think that a governmental official could deny government services to
someone simply because they are SS
o
Would undermine a central tenet of our governmental system that the state serves
everyone equally, without providing better or poorer services to any one individual

Conflict of Laws and SS marriage

-

Civil Marriages Act allowed non-residents to come to Canada to marry

2012 SS couple married in Canada, resident in Florida and England, apply for divorce in ON
o
Government argues that couple not entitled to divorce in Canada as they were not
validly married in their places of residence (conflict of laws principle)
Government introduced Bill c-32 Amendments to Civil Marriages Act never passed
o
Non-resident couples marriage can be dissolved in Canada if they have been separated
for a year
o
Non-resident couples marriage can be dissolved if they have been living in a state that
doesnt recognize SS marriage for at least a year
o
Non-residents must apply jointly for divorce (Canadians can do it by themselves)
o
Non-resident divorces do not provide corollary relief (support, property sharing etc.)

Legal Benefits for SS couples/ M v. H

-

SCC decision, held that opposite-sex requirement for spousal support under ON FLA violated s.15,
not saved by s.1
ON introduces legislation extending benefits and obligations under 67 ON statutes to SS couples

Requirement of Union to the exclusion of all others

-

Obviously isnt true; people commit adultery all the time

Davis v. Davis
o
M and W are married; M is uncontrolled philanderer, lives with W on the weekend and
with a mistress all week
o
M argues that he doesnt have to split pension with W, because they arent married (no
exclusion of all others)
o
Court disagreed; held that they were validly married

12

2. Capacity to Marry
Law seems to start from presumption of capacity
A) Mental Capacity
Durham v Durham (1885)
Man tries to annul marriage by saying woman didnt have consent wife is hopelessly insane
Burden of showing that a person doesnt have capacity is on the party asserting it
Test:
o
Whether the person is capable of understanding the nature of the contract and the
duties and responsibilities created by it; and that they are free from any morbid
delusions about it
Webb v. Webb (1985) Current test for capacity
o
Two mental patients marry; husband tries to later annul
o
Fact that a person has a mental illness is not, by itself, sufficient to invalidate a marriage issue
is whether the person was able to give consent to the marriage
o
Current test for capacity:

Must have capacity to understand the nature of the contract and the
duties and responsibilities it entails

Doesnt mean that you have to be capable of discharging the

duties and responsibilities of marriage
Banton v. Banton
88 yo marries 31yo waitress from retirement home, signs new will transferring property to wife
o
Man had previously been declared financially incompetent
Court holds that will arent valid as man lacked testamentary capacity
Since there are no valid wills, court must determine claim to property based on validity of
marriage
Court holds that marriage was valid financial incompetence doesnt automatically mean
incompetent to marry
o
There was no duress Officient said B was happy, aware of what was happening and
knew consequences of marriage
Re Sung Estate evidence and onus of proof in re: capacity
P marries caregiver in secret two months before death, had advanced parkinsons; signed pre-nup,
but W never took it to lawyer, W withdrew 26k from his account
Court holds that marriage is invalid
o
Based on finding of doctor re: capacity and the overwhelming evidence that wife was
taking advantage of the man
CMD v. RRS - BCSC
P and D meet on vacation in Las Vegas, married within hours; W tries to annul marriage when
back in Canada, claims she was really drunk
Court holds that marriage is valid W went through deliberate and time-consuming steps
all rationally connected to entering into a marriage contract
There is a starting presumption that marriages are valid
o
Cannot be easily displaced not by intoxication

B) Duress and Undue Influence

Scott v. Sebright - 1886 Subjective Test
Woman lends $$ to man, falls into arrears; man convinces her to marry him to avoid her
bankruptcy, threatens to shoot her at ceremony if she says she isnt acting with free will
Test:
o
Wherever from natural weakness of intellect or from fear whether reasonable
entertained or not either part is actually in a state of mental incompetence to resist
pressure improperly brought to bear, there is no more consent than in the case of a
person of stronger intellect and more robust courage yielding to a more serious danger.
Cooper v. Crane 1891 Objective Elements
Action for annulment 3 years after wedding; W rejected proposals until H threatened to kill
himself; after marriage, H realizes W is poor, brings action for annulment

13

Court holds that evidence didnt demonstrate that she didnt understand what she was doing
or was coerced

Buckland v. Buckland 1967 ER move to objective test

H marries W to avoid charge of corrupting a minor while on duty in Malta
Judge grants annulment; believes that charge was falsely laid by girls family to avoid the shame
of having a pregnant daughter
Court finds that man agreed to marriage because of his fears, and that his fears, which were
reasonably entertained, arose from external circumstances, for which he was in no way
responsible
S(A) v. S(A) 1988 ON SUBJECTIVE TEST MUST BE APPLIED
Girl marries man under pressure from her parents so that man could immigrate to Canada
Court annuls marriage, finds that there was duress, specifically:
o
Girl married man after considerable pressure was applied by her parents
o
Parents were to receive 500 for having their daughter marry the man; added to this was
fact that step-father had sexually abused her
o
Girl had never lived with the man and has never had sex with him
Stands for proposition that there doesnt need to be physical force or threat of force
to vitiate consent
Test that must be applied is subjective not objective
o
It matters not whether the will of a person of reasonable fortitude would or would not
have been overborne; the issue is rather the state of mind of the applicant. To constitute
duress, it must be established that the applicants mind was so overcome by
oppression that there was an absence of free choice
Although stated as a subjective test, the court says it needs to take account of all relevant
circumstances bit of an objective element

Forced v. Arranged Marriages

-

Forced marriages are those where people are coerced into marriage against their will and under
duress
Often affects young people, being pressured by their parents to marry
Considered a human rights violation under international law
Not to be confused with arranged marriages, where the party consents to the
arrangement
Singh v. Singh 1971 ER
o
England CA distinguished economic, social, parental or cultural pressures from the legal
requirements of duress and rejected application for annulment
Singh v. Kaur 1981 ER
o
England CA rejects application where Sikh man gave into parents request to accept
arranged marriage in order to avoid familial disgrace and keep working at family
business
Cases stand for proposition that bar for establishing duress is quite high, but
threshold for capacity is quite low

B) Limited Purpose
-

Iantsis v. Papatheodorou
o
Mere fact, therefore, that parties go through a form of marriage for a limited
or extraneous purpose will not, of itself, render the marriage invalid
o
If parties marry for a limited purpose, it will be valid under the context of family law

Means that at the end of these marriages, there will still be rights and
obligations
Immigration law allows the government to challenge the marriage under the IRPA

3. Capacity to Consummate
-

Requirement derives from early marriage practices; continued as CL requirement in England and
then in Canada
However, no requirement of proof that marriage has been consummated, just need capacity
o
Has been abolished in some jurisdictions, e.g. Australia
In recent times, litigation about this requirement is usually in the context of immigration
marriages
Problems with requirement
o
Obviously focused on the ability to procreate rejected as the defining feature
of marriage in Halpern

14

Is inappropriate in a country that has allowed SS marriage marriage without

the inherent ability to procreate
Often involve public airing of private sexual practices
Courts are often faced with conflicting evidence with little means to corroborate it; turns
into issue of witness credibility
Thus, in ruling, decisions may reflect individual judges ideas about what
constitutes normal or reasonable actions in OS relationships

o
o
o

Test for capacity to consummate

Gajamugan v. Gajamugan
1. Impotence must exist at the time of marriage;
2. The capacity pleaded must be such as to render intercourse impractical;
3. The incapacity may stem from a physical or mental or moral disability; and
4. The impotence must be incurable

4. Prohibited Degrees of Consanguinity and Affinity

-

Traditionally, prohibited degrees at CL were set out in Archbishop Parkers Table of 1563
Was incorporated into Ontario law through the Annulment of Marriages Act
1990 federal government enacts new legislation concerning prohibited degrees Marriage
(Prohibited Degrees) Act especially s.2(1) and s.2(2)
o
affirms that persons cannot marry in they are related lineally or if they are siblings, but
allows persons such as uncles and aunts to marry

5. No Prior Subsisting Marriage

-

Criminal offence in Canada for a married person to go through another form of marriage with
another person s.293 CC
Becomes complicated on context of conflict of laws married in one jurisdiction, divorced in
another jurisdiction

Knight v. Knight
ON man obtains divorce from first wife in Mexico, marries second wife in Pennsylvania; gave
evidence that he married in PN because ON didnt recognize his Mexican divorce
When he divorces second wife, argues that she doesnt get anything because his second marriage
was void because ON didnt recognize his first divorce
Court holds that 2nd marriage is void, but holds that public policy grounds necessitate court to
determine issues of property and support

Disappearing Spouses
-

Arose after WWII when many spouses disappeared and people didnt know if they were married or
not
S.9 of ON Marriages Act allows subsequent marriage to be solemnized where the first spouse has
disappeared, but does not end the prior marriage
o
Probably because if it ended the prior marriage, it would be an intrusion into federal
jurisdiction

Polygamy and Plural Unions

-

Family Law Context

o
Civil Marriages Act requirement of two persons means that marriages in Canada cant be
with more than two people
o
However, FLA defines spouse to include polygamous spouses, but only where the
marriage was concluded in a jurisdiction where such marriages are legal
Criminal Law context
o
S.293 of the Code makes it a criminal offence to marry or enter into a conjugal union
with more than one person at the same time

BC Reference Case
Court holds that s.293 infringes religious freedom, but that it is saved by s.1
o
Children under 18 at time of union are excluded from application of s.293
S.293 does not require that the union involve a minor or occur in the context of dependence,
exploitation, abuse of authority, a gross imbalance of power or undue influence

15

6. Age and Validity of Marriage

-

Federal government has not legislated an age requirement governed by the CL

o
CL principles, derived from ecclesiastical principles are still in force

Marriage of children under 7 are void

Marriage of male between 7-14 or female between 7-12 are voidable when the
children become of age

Marriage of underage parties becomes validated if they continue to cohabit

after reaching age of capacity

Solemnization and Formalities Provincial Authority

Banns, licences, permits, authority of marriage officers, parental consent, witnesses, registration

Marriage Act

S. 4 no marriage except under authority of marriage licence

S. 5 if age of majority may obtain licence provided no lawful cause to hinder solemnization
S. 6 if consent required and not available or withheld, can apply for order dispensing
S. 7 no licence or solemnization if lacking mental capacity to marry (includes intoxication)
S. 17(1) publication of banns: intention to marry proclaimed in audible voice during service
S. 20 religious officials registered to solemnize marriage
S. 21 register of who may solemnize marriage
S. 22 cancellation of registration (deemed no longer to have qualifications)
S. 23 notice of person that is registered in newspaper
S. 24 judge or justice of the peace may solemnize marriage
S. 24(3) no particular form of ceremony required
S. 25 at least two witnesses required to affix names to entry in register
S. 31 curative proviso: if not all requirements met, marriage valid if: (1) good faith, (2) intend
to comply with Act, (3) no legal disqualification to marry, (4) cohabit as married after ceremony

Curative Proviso (s.31)

Alspector v. Alspector 1957 ONCA
Parties marry according to Jewish law, didnt get license; H didnt believe he needed one because
they planned to live in Israel; 7 years later, H has stroke, family challenges validity of marriage
Court finds that parties intended to be validly married by Jewish and ON law if there is
intention to marry, and the 4 conditions of s.31 are met, the marriage will be deemed
valid
Debora v. Debora 1999 - ONCA
Couple married in religious ceremony that they both knew wasnt valid; 7 years later have a valid
marriage; divorced later
Court held that, for equalization purposes, the date of marriage was the valid marriage
date
In Alspector, evidence was that the wife didnt know that they needed a license good faith; in
this case, evidence was that the wife knew that they needed a license not in good
faith
Upadyaha v. Sehgal contrast with Alspector
Court holds that marriage (done according to Hindu tradition) was not valid because they didnt
comply with ON law, especially the requirement to get a license; s.31 didnt apply because they
didnt live together after the ceremony as a couple

Community Marriage Traditions

Keobounphan v. Khamvongsa
Parties married by way of traditional Chinese tea ceremony
Court holds that this is not a valid marriage
Yangaeva v. Kerstein
Couple has marriage negotiations in Tel Aviv, but no ceremony
Court rejects claim that they were married; holds that there is need for evidence of an
identifiable time and place for a marriage to occur

16

Hassan v. Hassan
Parties participated in Islamic marriage ceremony; however man participated by phone through
an agent, and woman wasnt present in the room; ALTA refuses to issue marriage certificate,
instead they get one in Pakistan
Court holds that marriage ceremony in ALTA was not valid
Cao v. Le
Couple meets and lives together in Vietman; no formal ceremony but family and friends consider
them to be married; marriage is registered in Vietnam, but certificate is not signed by parties and
there is no date on it
Court holds that there was a valid marriage in accordance with the law of Vietnam (place of
marriage) and that the marriage was recognized by all as such, and so they were validly
married

Registered Partnerships (Civil Unions)

-

Pre-2005, number of provinces created arrangements for registered partnerships

o
Permits individuals to choose to be included in legal rights and responsibilities of
marriage
Benefits
o
Shows respect for SS couples and OS couples by allowing SS couples to enter into
pseudo-marriage unions, while preserving the religious sanctity of marriage

Others think that it perpetuates a separate but equal mentality

o
Registration schemes are often promoted because they offer autonomy and equality to
couples have to opt in

However, they require couples to opt-in

Criticism that opt-in schemes provide less protection to vulnerable

parties than opt-out arrangements; however, better for personal
autonomy

Beyond Conjugality Report

o

Marriage should not be marker for determining rights/responsibilities

State should recognize and support personal adult relationships of care and
interdependence (not always conjugal)

Adult siblings, friends,

Trans Persons, Marriages and Sex

Corbett v. Corbett 1971 contrast with re: Kevin
Court held that a marriage was void between a man and a male to female trans persons
because:
o
the biological sexual constitution of an individual is fixed at birth (at the latest)
and cannot be changed, either by natural development or organs of the opposite sex, or
by medical and surgical means
Court holds that each individual has a true sex and that it cannot be changed
Re Kevin (2001) Australia
Court concluded that a female to male transsexual was validly married as a man to a
woman
Court holds that there is no good reason to hold that the definition of a man, which includes postop trans people, shouldnt be extended to the marital context
o
Concept of marriage should not be frozen in time
One of the first commonwealth decisions that rejected the Corbett test
Goodwin v. UK - 2002
European Court of Human Rights overrules Corbett
Held that the decision violated persons right to privacy and to marry pursuant to the European
Convention on Human Rights

Parent-Child Relationships
-

Families are created by parent-child realtionships as well as relationships among adults

o
Relations are usually of more permanence and provide a biological root to
defining family
Different ways to create a parent-child relationship

17

Biological
Adopted
Assisted reproduction

Questions of legal status of the child on birth

Child has two donor parents, a surrogate, and two intended parents
Definitions often do not conform to everyday notions about parents and children
As well, different statutes employ different for the meanings of the terms
Given all of the legal problems defining and regulating familial relationships, Fineman suggests
that mother-child should be the central factor in defining a family
o
If we make M-C relationship the central element of the family definition, single-parent
families wouldnt feel as if they are the exception, and not the norm
o
o
o

Biological Reproduction
Trociuk v BC (AG) (2003) SCC
Facts:
-

Under s.3 of Vital Statistics Act, mothers could register birth of child and list father as
unacknowledged and register childs surname as hers alone for any reason; P and mother
cohabit until after kids are born, then split
P sought mandamus for registering his name as father of the kids, order changing the kids
surname, and a declaration that s.3 infringed s.15 of the Charter

Issue:
Does s.3 of the VSA infringe s.15
Held:
S.3 violates s.15; not saved by s.1
Analysis
S.3 drew a distinction on the enumerated ground of sex, and that P was subject to differential
treatment because of the distinction (could be unacknowledged by mother, not transfer his
surname to kids)
o
Result of the legislation was that fathers (relative to mothers) were disadvantaged
in determining their kids names and having their particulars included in the birth
registration
o
Also, court found that s.3 allowed for mothers to arbitrarily exclude fathers from
registration and participating in the naming
NB: SCC didnt order the changing of the triplets last name they were 7 years old at
the time, would confuse them etc.
Notes
Court recognized genetic relationship as sole basis for establishing parental rights
o
Such focus on biology for defining parenthood is problematic in context of assisted
reproduction
In every respect, except for adding sperm, P did not act as a father (didnt live together, kids were
born almost year after they split), yet he still won
After case, amendments were made
o
Recent amendments to VSA dont alter the ability of the mother to list the father as not
acknowledged
o
However, provisions must be read with s.9(6) which allows the Registrar General to
amend the birth certificate if an application is made
o
NB: provisions do still exist that allow a mother to name children on their own
Gallant v. Lewis 2008 ONSC
Father applied for an order changing childs surname to a hyphenated one after mother
unilaterally registered the birth
Father had daily access to child; mother opposed the application only because she was the
primary care-giver and that the child lived with her
Court grants application; holds that it would be unfair to enforce the naming provisions of
the VSA where the SCC had found analogous provisions in the BC legislation to be
unconstitutional
Also of note, court recognized that it had no statutory authority for ordering a hyphenated name
asserted its parens patriae jurisdiction

Role of Fathers in Creation of Families

-

In Trociuk and Gallant, judges seem to run on the reasoning that a father is necessary for the
existence of a family

18

Many commentators suggest that this view is unwarranted and perpetuates patriarchy
and ignores the factual reality of the cases
Note again that in trociuk, father didnt want day-to-day access or custody
o
They didnt want any of the responsibilities of being a father, but still insisted on putting
their names on the child
o

GES v. DLC 2005 SKCA

M and W were involved in special, non-sexual relationship over 12 years; W wanted children, M
didnt; W gave birth via assisted reproduction; M babysat the kids, visited them regularly;
eventually M applied for access and custody
SKQB held that M, W and twins constituted non-traditional family unit and that there
was emotional benefit to having M be part of childrens lives granted an order for
access
On appeal, SKCA overturned TJ, said that while man was more than a baby sitter he
was much less than a parent
Notes
o
Trial decision was the first time a non-relative or non-step parent had been awarded
access
o
Possible that the court was trying to be progressive in recognizing a non-traditional
family unit

However, more possible that the access was designed to provide the
twins with a father and to rectify the non-traditional family unit
situation

Adoption
-

CL didnt recognize adoption; adoption only became legally recognized after enactment of
statutes
o
CL was focused on the biological descent of property
Early 20th century adoption legislation was aimed at two concerns
o
Avoiding the stigma of illegitimate children
o
To help childless couples complete their family

In the context of these goals, secrecy was imperative continued in todays

legislation
Effect of the statute was to eliminate legal relationship between child and birth parents and
create legal relationships with adoptive parents
Two routes for adoption
o
Involuntary child is removed from home because is in need of protection by CAS
after court order; children are usually placed in foster homes if needs be, will become
wards of the Crown
o
Voluntary mother (in some circumstances both parents) must give written consent to
adoption; all parental rights are terminated when order is made

Child and Family Services Act

S.1 defines paramount purpose of the statute

o
Promoting best interests, protection and wellbeing of children
Part V - Adoption
S. 136(2) BIC test- factors to be considered:
o
Physical, mental, emotional needs and appropriate care/treatment to meet those needs
o
Physical, mental and emotional level of development
o
Childs cultural background
o
Religious faith
o
Importance of positive relationship with parent and a secure place as family member
o
Relationships by blood or through an adoption order
o
Importance of continuity in care and effect of disruption
o
Childs views and wishes if reasonably ascertained
o
Effects on child of delay in disposition of the case
o
Any other relevant circumstance
S. 136(3) BIC in aboriginal child context (must consider importance an uniqueness of
heritage, traditions, preserving cultural identity)
S. 137 defines parent for adoption consent purposes (mother, father if he falls in FLRA category)
S. 143 termination of access orders (ex. biological grandparents) for an adopted child
S. 145 (3) disclosure arrangements: openness
S. 158 status of an adopted child and adoptive parents erases the biological connection

19

Consent - s.137 of CFSA

Mothers consent is expressly required; fathers consent only required if within one category
o
S. 8(1) of CLRA presumed to be father if married or within 300 days after
separation/divorce child is born (similarly for cohabiting spouses)
Right to consent for father if demonstrated interest in child
o
Courts refuse to extend rights to fathers unless efforts made to identify parental status

Re AG of Ontario and Nevins (1988) ON

Mother executed consent for adoption, swore that father was a non-parent under Child and
Family Services Act; TJ raised constitutional question about validity of s.137 that required mothers
consent for adoption, but only required the fathers consent if he was married to, or cohabited
with the mother
Court holds that s.137 doesnt violate s.15; if did, saved by s.1
o
Only category of father that was not considered a parent was a male who, by casual
sex impregnated a girl and then demonstrates no sense of responsibility for the
consequences of the sex
o
Court found that differential treatment was ok, because mothers and fathers were not
similarly situated [pre-Law s.15 test]

Mothers have responsibility to children out of physical necessity they carry it

and give birth to it; the casual fornicator who fucks and leaves cant be said to
be in a similar situation
Re SS (2009) Ont

W becomes pregnant as a result of relationship with co-worker; M doesnt know that a child is
born; W registers birth, lists fathers first name, place and date of birth;
W puts child up for adoption, is placed with adoptive family; adoptive parents apply for an
adoption order
Given that W knows who H is, should the father be notified of the existence of his kid, and the
adoption?
Court holds that there is no duty to notify other parent under s.137; adoption granted
o
No express requirement that mother notify father of adoption if he is not a parent under
s.137

Would be too onerous to have mothers track down casual fornicators

o
In the ordinary course, it would be in the best interests of the child to allow for
notice where the relationship is more than casual, but less than permanent,
where the father is easily located, and there isnt a concern for safety

Court is suggesting that legislative change is desirable

Openness Orders
Concept of open adoptions has steadily gained traction in ON
2006 ON enacts s.136(3) of CFSA to allow for openness orders
Re M(S) (2007) Ont
Agreement between birth father and birth mother and her lesbian partner
Court grants adoption order to lesbian partner allows her to become co-mother; however, court
refuses to enforce part of agreement that gave residual custody rights to father

Disclosure

Courts had denied applications by birth mothers for identifying information

2005 Adoption Information Disclosure Act age of majority could apply for identifying information
but if no contact notice filed then request subject to written undertaking not to contact (criminal
prosecution and $50,000 fine)

Cheskes v. ON (2007)
Four applicants argue that opening of confidential adoption records on retroactive basis violated
s.7, not saved by s.1
Court agrees;; holds that portion of Vital Statistics Act violates s.7 guarantee of privacy
In 2009, ON re-enacts portion of Vital Statistics Act, with disclosure veto for adoptions
before 2008 and birth parents and adopted children can file no contract notices

Aboriginal Adoptions
-

Some legislation allows First Nation to have a veto over adoption of aboriginal children by nonnatives
o
Criticized because of instances where there is a willing non-native adoptive family, no
willing native adoptive family, and the first nation exercises veto over adoption 0 child is
essentially left in limbo

20

Real victim is the child will end up in a foster home instead of a permanent
home

Racine v Woods (1983) SCC

Aboriginal girl taken at 6 weeks by CAS, placed in foster home (with metis father); girl then
returned to mother; foster parents visit, on second visit, take girl home with them; weeks later
mother shows up demanding child; TJ grants adoption order to foster parents, CA overturns
SCC
o
CA was wrong to overturn TJ no error in his decision
Holds that CA shouldnt interfere with TJs decision re: BIC; over time, aboriginality as
a factor will fade, and bonding with adoptive parents will become a more important
factor
H v M 1999 SCC
American couple adopt native girl, who has a child; child discovers biological grandparent in BC,
goes to live with him; grandparents are concerned for safety, apply for custody; aboriginal
grandfather challenges
TJ awards custody to grandparents; CA overturns citing legislative trend of keeping native kids
with native families
SCC
o
TJ did not err in his analysis, CA was wrong to overturn
o
Aboriginality is one factor, is not determinative of issue
C(JMN)
-

v. Winnipeg Child and Family Services

Non-native parents apply for guardianship over native child
Awasis Agency (native CAS) intervenes and wants child to be transferred to their custody
Court grants guardianship application notes that child has been in their care for 2/5 years of
child life

Aboriginal Adoption and Adoption Breakdown

-

Adoption of aboriginal children much more likely to end in adoption breakdown than other
adoptions
Many attribute it to double burden of aboriginal adoptees they are exposed to the
negative stereotypes re: Indians in white society, and arent exposed to any of the
positive influences of aboriginal culture and values
o
Native children dont become integrated or accustomed to non-aboriginal culture in the
way other children do.

International Adoption
-

22% of international adoptions come from China; 10 from Ethiopia and 8 from Haiti
o
However, these countries are starting to more heavily regulate international adoption
decrease in adoptions
International adoptions raise concerns about economic and political power
o
Exporting of children as a commodity from poor nations to rich ones

Assisted Reproduction
-

Availability of new forms of AR have necessitated reconsideration of existing assumptions

underlying FL principles
Much of change in this area of law has been judicial; legislatures have been reticent except QC,
has relatively comprehensive legislative scheme
Comparing Adoption and AR
o
Adoption process is defined in statute, and is effected by court order
o
AR is fairly unregulated, administered in medical clinics; no judicial oversight
o
However, many accept that adoption should be more regulated than AR recognition of
greater challenges in raising child that is not biologically related to you
OLRC: released report in 1985, recommended that contract be only enforceable if endorsed by
court (to protect getational mother)
Issues
o
Protecting the gestational mother and the applicant parents
o
Emergence of black market for eggs, sperm
o
Mix-ups in fertility procedures lack of regulation and oversight
o
Disputes over frozen embryos ethical dilemma of how to discard life

Baby M (US)
Parties enter into AR contract; gestational mother runs away with child; S sues to enforce contract

21

TJ upholds K, orders mother to turn over child; TJ overturns K is unenforceable on public policy
grounds, but applying BIC, S should have custody

AHRA, SC 2004
Federal legislation, regulates and criminalizes aspects of AHR
Constitutional challenge launched by QC, AB, SK, NB # of sections struck, but s.7, which
prohibits commercial surrogacy was upheld
Caufield v Wong
P asks friend to provide sperm ; sign contract that clinic cannot dispose of left-over material
without consent of both parties; after birth, parties disagree about disposing of material
Court refuses to enforce contract, embryos belong to the mother

Same-Sex Partners & Assisted Reproduction

Gill v. Murray
Two SS partners of birth mothers argue that Vital Statistics Register discriminates as they refuse
to automatically register SS couples have to get adoption orders; for OS couples, VSA would
automatically register fathers, even without evidence of parentage
Court finds that VSA scheme is discriminatory
o
Only SS couples are questioned as to biological relationship with child; not OS couples
o
Discriminates against children of SS couples by denying right to have parents named on
birth registration
Rutherford v. ON
Lesbians challenge VSA; seek declaration of parentage under s.4 of CLRA
Court declines to use PP jurisdiction no legislative gap
However, finds that scheme violates s.15, not saved by s.1
o
Compare to OS fathers they can be listed as parents, even if they arent (e.g. married
to mom at birth); SS partners cant; no rational connection between excluding SS couples
and goal of prompt and accurate birth registration
AA v. BB and CC
B and C are parents of D; A and C are SS partners, recruit B to provide sperm; A seeks declaration
of parentage; TJ: no jurisdiction for order, CLRA legislative language is singular (the father); no
room for PP jurisdiction
ONCA finds legislative gap, employs PP jurisdiction can have three legal parents
o
Purpose of CLRA was to remove disabilities of illegitimate children
o
Changing nature of society, rise in SS couples has created gap in CLRA (definition of
parent is too narrow); legislature didnt intend for this gap (cant have discriminatory
intent)
DWH v. DJR 2007 ABCA
Gay couple and lesbian couple agree to parent children, one for each couple; biological parents
were the same for both; after gay couples split, other three deny access of non-biological parent
Court grants access in recognition of parenting work, but declines to make declaration
of parentage
C(MA) v. K(M)
Lesbian couple get MK to provide sperm for child; sign K confirming intent to seek declaration of
triple-parentage; lesbians then restrict access of MK, brings motion for access (granted); Lesbians
bring motion for adoption, and dispense with MKs consent
Court declines to (a) make adoption order, (b) dispense with consent
o
Not in the BIC child recognizes MK as part of family, has contact with his extended
family; would be unfair to child to alter character of her family
o
As well, couple invited MK to be part of childs life; cant go back now

Access and Disclosure

Pratten v. BC
P argues that Adoption Act (which allowed adult adopted children to obtain info on birth parents)
was discriminatory as it didnt provide similar mechanism for AR children; BCSC declares parts of
AA unconstitutional orders injunction against destruction of AR records
BCCA overturns
o
Act is concerned with people who were alienated from their birth parents as a result of
change in legal status; isnt the same for children of AR

22

WW v.
-

XX
W provides sperm to X; sign agreement that W gives up all parental advice, but neither seek ILA
After birth, W seeks declaration of parentage and access
This was a motion for interim access DENIED
o
Trial was only a few months away, best to be decided there
o
If he granted the motion, may influence outcome of trial
o
Child never knew father, impossible to tell what disclosure might to do it

Law and the Regulation of Intact Families

-

Law has tendency to place things beyond its reach, by privatizing responsibility for regulating
those activities to the families
o
However, decision to regulate is as deliberate as decision not to
Paradox: state defines certain this as private and then uses that definition as justification for
non-intervention
o
E.g Childcare rising labour force participation of women has created need for
replacement of responsibilities they used to have
o
However, in spite of calls for national day-care program, care of children remains a
privatized responsibility

Children in Need of Protection

-

S.1 of the Child and Family Services Act identifies the paramount purpose of the Act as promoting
the best interests, protection and well-being of children
Part III of the Act provides the framework for legal intervention to protect a child mandates that
decision about children in need of protection must focus on the best interests of the child
o
S.37(2) provides a list of the circumstances in which a child will be in need of
protection

Includes conduct or neglect in the past as well as a risk of future harm

o
S.37(3) defines the factors to be taken into account when a decision maker is
deciding what is in the best interests of a child
o
S.37(4) states that where the child is an aboriginal, importance of preserving the
childs cultural identity must be taken into account
o
S.57 permits a court to make an order for crown wardship
In making determinations of what is in BIC, courts must make value judgments about
parenting and community standards
While the scope of what constitutes a child in need is expanding, implementation is conditional on
availability of professional and financial resources, which are shrinking
o
Creates frustration of social workers which can then reflect on their assessments of
parents abilities are seen as working against, not with the parents

Winnipeg South Child and Family Services v. DD

Parents have child, are grossly inept (try to kill kid twice); social services visit daily, all say that
parents will never be capable, is placed in foster home; P brings application for wardship
Court finds child is in need of protection; wardship is in BIC
o
Child suffered emotional and physical harm; medical experts say that parents will never
be fit
NB: note then tension between wanting to preserve integrity of family and protecting
the child

The Charter and Child Protection

Winnipeg Child and Family Services v. W(KL)
SCC dismisses appeal of woman whose child was apprehended without a warrant, pursuant to
child protection statutes
Court agrees that apprehension w/o warrant is a grave intervention in family, but
requirement of ex post facto hearing within few days satisfied PoFJ under s.7
o
Need for swift intervention to protect childs life or health dictates that fair and prompt
hearing after the fact is the minimum required by s.7
Canadian Foundation for Children, Youth and Law v. Canada
Court holds that s.43 of the Criminal Code (which provides exception to assault for
parent/teachers who use reasonable force in disciplining a child did not violate s.7 or s.15 of the
Charter

23

Aboriginal Children and Child Protection

-

Historical challenges re: aboriginal children, especially the residential school problem, has
resulted in ongoing challenges and dislocations for Aboriginal families
S.1(2) of the Child and Family Services Act states that one of the purposes of the act is to
recognize that Aboriginal people, where available, should be entitled to provide their own family
and child services

Legal Representation for Parents

-

Often parents will be required to produce evidence in support of their case, retain expert
witnesses represents an expensive and dauting challenge
Parents may also need to be represented at all stages of the process due to the inherent power
imbalance between them and the CAS
NB v. G(J) -SCC
o
Held that state should have provided legal aid to mother who was at risk of losing her
child
o
Held that failure to provide state funded counsel in certain situations amounted to an
infringement of s.7 security of the person

Legal Representation for Children

-

S.38 of the CFSA allows for the court to order representation of the child when it is desirable to
protect the childs interests
Each province has an office of the childrens lawyer to provide legal representation to children in
family law cases
Continues to be a debate about the role of the childrens lawyer- are they amicus, an advocate or
a guardian ad litem?
o
ONCA has held that the role of the childrens lawyer is to be an advocate for their
position

Abuse and Violence in Intimate Relationships

-

Over past 20yrs, crim law has come to appreciate that spousal violence is not private matter,
but FL has not kept pace (even though violence is present in of all separations)
In 1993, 50% of Canadian women reported violence by known men; 15% against current partner
Legal Responses
o
State intervention has emphasized that violence remains a criminal matter resulted in
push to mandate prosecution (even against Vs wishes) and to establish special courts
o
Family Statute Law Amendment Act, 2009- Amends FLA to allow no-contact orders to
ensure application under Part I (property) and II (MH) is dealt with justly
o
2011 ON creates model for integrated FL and spousal abuse court (Integrated Domestic
Violence Court)
o
Several provinces have enacted legislation to provide civil relief to victims of spousal
violence

Have allowed for ex parte orders in emergency situations to grant exclusive

possession of the home and no-contact orders

Reinforces view that spousal violence is not private issue

However, legislation reinforces gender neutrality in relation to violence

not true, is mostly men

Courts have required high threshold for making order (Behrendt); usually
need concrete precipitating event before court will act
Critiques
o
Emphasizes that there must be systemic response to a systemic issue, rather than
focusing on individual circumstances of women who claim violence

Behrendt v. Behrendt
W brings application for sole possession of MH, files affidavit claiming mental and physical abuse
against her and children; doesnt have money to relocate; H files affidavit, says W is verbally
abusive, overbearing; son files affidavit in support of father
Court denies application can only be granted in most clear an necessary
circumstances (b/c will make one party homeless)
Three months later, H kills W and himself
Critiques
Many criticized Charron for her dismissive views of the nature of the allegations
presumably because there wasnt any overt violence, the case was less pressing
Charron placed weight on the contradictory evidence of a son who didnt live in the house
anymore no weight should be given to someone who wasnt in a position to observe the
situation first hand
Charron took the age of the children as a factor to be considered runs on the assumption
that its ok if older children are exposed to violence

24

Absence of affidavits form the daughters

o
Questions about whether this was deliberate move form the lawyer who knows
that judges have particular disdain for parents that involve children in court cases

Shaw v. Brunelle ONSC

Court ordered aggravated and general damages to a victim of spousal violence
o
Reflects the views of newer judges appointed to family law courts who have had
significant judicial education about domestic violence
Tseng v. Tseng
Court awarded 275K to wife who was victim of spousal abuse

Elder Abuse
-

Legal intervention to protect vulnerable elderly people is a recent development

o
Trend is partly tied to aging population
Includes: physical, financial, mental abuse and neglect
Elder abuse is connected with multiple factors on four levels of interaction:
o
Personal factors

E.g. perceptions of dependency on the part of the elderly

o
Interpersonal factors

E.g. unresolved past conflicts and power struggles

o
Situational factors

E.g. overburdening of middle-aged caregivers

o
Socio-cultural factors

E.g. ideologies of the elderly as non-contributing members of society

Majority of abusers are male, although there are many instances of daughters abusing parents
Most abuse is caused by family members, although not uncommon for caregivers and social
service providers
o
Many instances occur in retirement homes,
Most prevalent form of abuse was material victims are persuaded to give up their money, sign
over title to their homes or subjected to undue influence

Family Dissolution: Principles and Processes

-

Over 1/3 of Canadian marriages end in divorce

o
Rates for CH are unknown, but thought to be higher

History and Social Context

First divorce legislation was the UK Divorce and Matrimonial Causes Act, 1857
o
Transferred jurisdiction for divorce from the ecclesiastical courts to the Divorce and
Matrimonial Causes Court, and introduced divorce into English law
o
Was transferred into Canadian law, although NFLD and QC still required to obtain a
parliamentary divorce
Divorce Act, 1968
o
First piece of divorce legislation in Canada

Provided two grounds for divorce: one group related to fault (cruelty, adultery),
one related to no fault (e.g. if one spouse was abandoned)
Divorce Act, 1985
o
Repealed 1968 Act, made a number of procedural changes

Introduced only one ground of divorce marriage breakdown

Necessary to prove breakdown in one of three ways: 1 year period of

separation, adultery or cruelty

Permitted one or both parties to apply for a divorce

Unlike marriage, which occurs on a fixed date, separation usually occurs over a period of time
According to Payne, lawyers need to be cognizant of the three crises that can occur on marriage
breakdown, and the coping strategies that partners often employ to mitigate them
o
Emotional crisis, economic crisis, and a parenting crisis
Harm-ism insists that the greatest harm to a child is the divorce of their parents ignores the
fact that poverty, poor housing and domestic violence may have made the life of the marriage
much more harmful to the child than the dissolution

Divorce Act, 1985

S. 3 residency requirements: must be resident in province at least one year prior to

proceeding

25

S. 8(1) defines marriage breakdown (one-year separation, adultery or cruelty) divorce can be
an application by either or both spouses
S. 8(2)(b)(ii) calculation of period living separate and apart
S. 8(3) both physical separation and intention to live separate and apart
S. 8(3)(b)(ii) not to take into account a period or periods of cohabitation totalling not more than
90 days resumed for purposes of reconciliation
S. 9, 10 lawyer must promote reconciliation, discuss reconciliation, mediation, marriage
guidance
S. 11 once marriage breakdown proven, must investigate if any bar to divorce
S. 11(1)(b) must satisfy that reasonable arrangement for children have been made
S. 12 -14 order of divorce with legal effect of dissolving marriage
S. 21.1 can take action where one spouse refuses to remove religious barriers to remarriage

Separation and Legislative Jurisdiction

-

In cases where there is a divorce order and then subsequent application for corollary
relief
o
Where a divorce court has issued an order for divorce and corollary relief

A subsequent order made pursuant to provincial legislation would not have any
effect Hall v. Hall
o
Where a divorce order does not include an order for corollary relief

Express contradiction test would validate any provincial order made before or
after the divorce order
o
Where there is an order pursuant to provincial legislation and then a subsequent order
for divorce and corollary relief

Any portion of the divorce order that is inconsistent with the provincial order will
be paramount

Living Separate and Apart as Marriage Breakdown

-

s.8(2)(a) stipulates that marriage breakdown occurs after living separate and apart for one year
s.8(3) defines the circumstances of both the physical separation and the intention to live separate
and apart (2 elements)
However, doesnt mention whether spouses can live in the same house and be separate and
apart

Rushton v. Rushton test for living separate and apart

H and W live in same apartment, have different bedrooms, never have sex; lived together b/c
were joint caretakers of apartment building and had to live together
Court holds that what matters is the withdrawal form the matrimonial obligation with
the intent of destroying the matrimonial consortium
Mere fact of co-habitation is not enough to say they arent living separate and apart

Dupere v. Dupere factors to consider

H and W separate, W leaves; W moves back in for a month (no sex, separate rooms), they move
twice together and then W leaves
Court holds that they are not living separate and apart communicated often, discussed
and agreed on issues about kids, vacations etc.

Court enunciates principles to take into account (Cooper)

1. Great care must be exercised in considering the evidence and each case must be
decided on the facts
2. There can be a physical separation within one dwelling unit
3. A case is not taken out of the statute just because one partner stays in the house for
economic purposes
4. To meet the statute there must be both (a) a physical separation and (b) a withdrawal of
one or both spouses from the matrimonial obligation with an intent to destroy the
matrimonial consotirum
5. Cessation of sexual intercourse is not determinative
Cooper
-

v. Cooper- factors to show a separated household

Spouses occupying separate bedrooms
Absence of sexual relations
Little, if any, communication between the spouses
Wife providing no domestic services for her husband
Eating meals separately
No social activities together

26

Requirement of Intent
-

Calvert v. Calvert
o
Court grants wifes application for divorce, even though she was represented by a
litigation guardian
o
Court identifies three levels of capacity related to divorce proceedings (in order of lowest
threshold for capacity, to highest)

Capacity to separate, capacity to divorce and capacity to instruct counsel

Adultery as a Ground for Marriage Breakdown

Was once quite important to divorce law if a wife was adulterous, there was no obligation for the
husband to pay support
In early 20th century, courts held that adultery involves the possibility of introducing into the
family of the husband a false strain of blood meant that artificial insemination was considered a
legal form of adultery
P(SE) v. P(DD) 2005
W applies for divorce on basis of adultery; H admits to having sex with another man
NB: 1965 DA listed homosexuality as a ground for divorce, not included in 1985 DA
Court holds that all that is needed to prove adultery is evidence of an intimate sexual
relationship outside of the marriage
o
Court rejects traditional definition of adultery Charter and Civil Marriages Act means
that law must reflect reality of SS marriage and SS adultery
Thebeau v. Thebeau
Court applies P(SE), holds that it is discriminatory to confine the statutory definition of adultery to
heterosexual acts
Court holds that equal treatment means equal obligations and the acceptance of equal
consequences
o
Consequence of infidelity shouldnt be confined to OS couples to do so would grant
license to SS persons to be sexually unfaithful
Adultery now applies to both SS and OS couples
Burbage v. Burbage test for adultery
Husband brought petition for divorce argued adultery
o
Argued that wife had spent numerous nights at another mans house
o
Wife admitted that she spent the nights, but that there was no sex and that the man was
impotent; man asserted that impotence was due to a botched surgery earlier, however
the surgeon was now dead
To prove adultery, must show (1) evidence of opportunity and (2) evidence of
inclination will lead to a rebuttable presumption that there was infidelity

Cruelty as a Ground for Marriage Breakdown

-

Knoll v. Knoll subjective test for proving cruelty

o
Occurs where one spouse by their conduct, causes wanton, malicious, or unnecessary
infliction of pain or suffering upon the body, the feelings or emotions of another
o
Must look to the effect of the conduct upon the mind of the complaining
spouse. What constitutes cruelty in a given case must depend upon the
circumstances of the particular case having due regard to the physical and
mental condition of the parties

Statutory Bars to Divorce

-

Bars were developed historically to ensure the integrity of the legal process of divorce when the
grounds were based on fault
o
Spouses often created evidence of adultery with the use of a willing 3 rd party
Under the Divorce Act, three bars remain to divorce under s.11

Occurs when marriage breakdown is proven, but the bar prevents the court
from ordering the divorce
o
Collusion

Absolute bar to divorce, defined in s.11(4) of the Act

Occurs when spouses manufacture evidence to prove breakdown

o
Condonation

Condonation refers to a spouse forgiving the guilty spouse and resuming

cohabitation
o
Connivance

Connivance relates to a spouse who promotes or encourages, even passively,

the commission of adultery

27

Religious Bars to Divorce

-

S.21.1 allows a court to take action where one spouse refuses to remove the religious bars to
divorce
o
Court may dismiss applications filed by the recalcitrant spouse and strike out their
pleadings and affidavits
o
Section was heavily lobbied by Jewish community in response to Get requirement

Reasonable Arrangements for Children

-

Newer ground, enacted in 1985

S.11(1)(b) stipulates that there must be reasonable arrangements for the support of children
before a court will grant a divorce order
o
What is considered reasonable is usually determined in accordance with the child
support guidelines in each province
Should we assume that if someone is paying support, that this is a reasonable arrangement? Or
should a court investigate further
o
E.g. H and W are married; H absconds, W starts new relationship with man who would
support them; W brings application for divorce
o
Court refuses to grant divorce because wife didnt seek support against the H didnt
make reasonable arrangement

Economic Consequences of Divorce and Separation

-

On divorce, family economy may be permanently shattered

o
While dependency may exist in marriage, is often masked by the marriage
separation/divorce will unmask the dependency

Limits of Family Law Reform Margrit Eichler

-

Argues that there is a shift away from a patriarchal model of the family to a individual
responsibility model of the family
Eight characteristics of the patriarchal model
1. Household and family are treated as being identical
2. As a consequence, the husband is equated with a father, and the wife a mother
3. The family is treated, administratively, as a unit
4. Father is seen as responsible for the economic well-being of the family
5. Mother is seen as responsible for the household and personal care of the family
members, especially children
6. Conversely, the father is not seen as responsible for the household and personal care of
the family, especially childcare
7. The mother is not seen as responsible for the economic welfare of the family
8. Society may give support to a man who supports his family, but is not responsible for the
economic wellbeing of a household with a father, and the personal care/childcare where
there is a mother
The individual responsibility model
1. Share the first three characteristics of the patriarchal model
2. Both husband and wife are seen as responsible for their own support as well as that of
the other
3. Both parents are seen as responsible for the personal care/child care of the family
4. Society may give support to families, but in principle is not responsible for either
economic wellbeing or personal care where either parent is present
a. Problematic because wife may be limited to personal care role while in the
family, has no economic means but wife will still be responsible for their
wellbeing
Part of the attraction of the IR model is that it is premised on notion of sex equality
However, it allows for a decrease in societal contributions to families can allow for individual
burden of a single parent to double
o
Where under the P model, the state would have stepped in where either parent was
absent, the presence of either parent is enough to negate state intervention under the IR
model
Eichler advocates for a third model, the social responsibility model
o
Premised on three assumptions

Every adult is considered responsible for their own economic well being. Where
this is impossible, the responsibility shifts to the state to support, not to another
family member

For an adult in need of care, whether because of permanent or temporary

handicap/illness, it is the responsibility of the state to take care of the costs

28

The costs of raising a child are shared by the father, the mother and the state,
irrespective of the marital status of the parents

Legal Processes for Family Dissolution

-

Because Canada has a no-fault divorce scheme, it has the unintended effect of shifting arguments
about their marriages etc. to disagreements about corollary relief
o
May have the effect of creating contested property issues even in the divorce is
uncontested
Term ADR is a misnomer in family law most proceedings are conducted by ADR, if anything
litigation is the alternative process
Even in litigation context, conference, settlement and negotiation are heavily emphasized s.9 of
DA, mandatory education session for person who file for divorce
Must always remember (in context of ADR)
o
Power imbalances, representation issues, privacy issues, financial issues, precedential
value
Issues of representation
o
Problems of self-represented and unrepresented litigants; 60% of FL litigants are
unrepresented

Creates problems for judges and lawyers

Where one party is represented, and the other isnt, makes it hard for the
representing lawyer, and hard for judge to remain impartial
o
Civil Legal Needs Project ON

81% of those who experience a FL problem tried to get a lawyer; 30% had
problems getting representation
Issues in Privacy
o
IN some provinces, there has been an increasing amount of privacy BC no longer posts
all decisions; only those that have precedential value and de-identify factors
o
QC has legislation precluding the identification of family law litigants
o
In ON, parties have to move for a sealing order or order changing the Style of Cause to
initials
o
MEH v. Williams ONCA

Meh was the spouse of Russell Williams; in divorce application, she wanted to
make it private

TJ granted the application for complete privacy; media challenged the

completeness of the order

ONCA somewhat sided with media confirmed the TJ order wheich prevented
publication of personal information (SIN, phone number, bank records) but
released the rest

Collaborative Law
-

Lawyers dont directly interact with each other, they coach the parties who then negotiate they
are not advocates, they become coaches
o
They assist the parties to reach their own agreement
Requirements to ensure that parties reach the agreement
o
There must be complete transparency and full disclosure

Different from typical lawyer negotiation where they only strategically disclose
o
If the CL process breaks down, the lawyers who do the CL will not litigate the matter if
needs be or engaged in different stages of negotiation parties will be referred to other
lawyers

Breakdown of CL may lead to a lot of unrepresented litigants already paid a

lawyer, dont want to do it again

Mediation
-

Neutral 3rd party who seeks to facilitate settlement between the parties
o
Parties may or may not be represented
Preferred by the government of Ontario has instituted projects in all family courts so that when
you arrive, parties are approached and instructed about mediation
Advantages
o
Client-controlled decisions, avoiding trial, produces agreeable settlements, help to create
long-term working relationship, privacy
Disadvatanges
o
Lack of precedential value, power imbalance, secrecy, violence and abuse

Arbitration
-

Like mediation, but arbitration will result in a binding decision made by a decision-maker

29

Akin to a private court parties and their lawyers come to arbitration, present case and
then arbitrator makes an order
Advantages
o
Privacy no reported decision
o
Mutual consent of the parties as to the decision maker
Disadvantages
o
Power imbalance, lack of precedential value, secrecy
Religious Arbitrations
o
Big shit made about the Ontario Institute of Islamic Civil Justice
o
FLA now has requirement re: arbitration

E.g. can only arbitrate if each party has ILA not necessary for mediation
o

Family Contracts
Family Law Act

S.
S.
S.
S.
S.
S.

2(10) permit domestic contract about any matter in FLA unless specifically prohibited
33(4) can set aside provisions if unconscionable
51 arbitration must be in accordance with law of Ontario or another Canadian jurisdiction
55 not enforceable unless in writing, signed by parties and witnessed
56(4)(a) can set aside if failure to disclose assets or debts
56(4)(b) can set aside if party failed to understand nature and consequences of contract
o
Independent legal advice not required
S. 56(4)(c) can set aside on basis of the law of contract
S. 56(5)-(7) can set aside K is religious bar was used as leverage
S. 59 rules relating to arbitration (59.6 enforce if in writing, independent legal advice, etc.)
Part IV five kinds of domestic contracts: separation agreements, family arbitration agreements,
marriage contracts, cohabitation agreements, paternity agreements

Hartshorne v Hartshorne SCC 2004 (BC) private ordering, choice, autonomy

H and W marry (H is partner at law firm where W is student); H wants pre-nup; W gets ILA, tell her
the agreement is grossly unfair, tells her not to sign it, and that court probably wouldnt enforce
it; W signs with proviso that it wasnt voluntary and was done under Hs influence
At separation, W seeks to set aside K as unfair under BC legislation
TJ: W succeeds; TJ doesnt finds duress, coercion or other K vitiating element, but finds that it was
unfair under s.65; BCCA affirms
SCC: K should not be set aside; emphasis on private ordering, autonomy and choice
Majority:
o
Starts from principle that separation agreements should not be set aside lightly
o
Court concludes that in some situations marriage Ks should be given more deference
(they embody the expectation of the parties at the outset) and in some situations,
separation Ks should be given more weight (they reflect the reality of the parties
situation at separation)
o
Doesnt decide whether to treat marriage K and separation agreement the same
o
Central Question: how accurately, at the time of K, the parties predicted their
situations on separation, whether they truly considered the impact of their decision, and
whether they adjusted the K throughout the marriage to adapt to changing realities
Court emphasizes the need for parties to reasonably rely on their agreements

Majority finds that the separation unfolded as the parties had intended to
remain completely independent had no sharing of $$$, all assets remained in
Hs name; W undertook all the childcare and didnt work anymore
o
Where the parties have anticipated with accuracy their personal and financial
circumstances at the time of distribution, and where they have truly considered the
impact of their choices, then, without more, a finding that there Agreement operates
unfairly should not be made lightly
o
Test to determine if agreements are unfair

First, court has to award entitlements under the agreement, and from other
sources (e.g. child and spousal support)

Second, court must determine if the agreement operates fairly

Court must consider:

o
Financial and personal circumstances of the parties, and how
they evolved over the marriage

If they are the same at separation as when the K was

signed, harder to prove unfairness

30

o
o
o

Receipt of ILA
(in this case, as well, s.65 factors)

Re: ILA

Majority W got really good advice, signed it anyway, so whe knew what the
consequences

However, MM thinks that majority missed some of the point lots of factors that
show that the agreement was not signed without pressure from the H
o
Application

Majority determines that the agreement was not unfair

Spousal support would be sufficient for the W to survive and would

continue the financial arrangement they had

Wife had ILA that said that the agreement was unfair: not fair to let her
sign it and expect that, push comes to shove, a court will set it aside
Dissent (deschamps)
o
Dissent rejects the majoritys emphasis on the time the K was signed

More important is whether the agreement is substantively fair at the time of

application to the court

Fairness only really matters when the shit hits the fan
o
Proper approach is for the judge to weigh the factors under s.65 and treat intention as
only one factor among many

Original intention is problematic most people assume that their marriage wont
breakdown, and so consent to K may be based on assumption that the risk is
low
o
Believes that there were numerous factors that showed that W was vulnerable

Marriage was two days after the K was signed; W sought changes to agreement
but H said no; W had already been at home for 2 years and they had a 20
month child together all show that there was a severe power imbalance
Critiques
Apparent that majoritys reasoning assumes that marriage contracts are no different than any
other contracts, and should be dealt with according to K principles
Majoritys conception of fairness is concerned with the unfairness that would result if people
couldnt rely on contracts, rather than concern with the substantive fairness of the agreement
concluded
Majority completely ignores the impact of the emotionally laden nature of contracting within the
marital context
o
Instead, viewed the K as if it was concluded as a product of unfettered and autonomous
choice
Majority views the K as reflecting the intention of both parties, as opposed to the reality (it only
reflected Hs intention)
On the majoritys interpretation, the less H shared with W during the marriage, the more fair it
was, as that was their original intention when signing the K
LeVan v. LeVan ONCA 2008 test for setting aside K

H and W live together for a year, marry; H makes 52K a year, but has 30 million in assets; signed
agreement that excluded W from claim over any of Hs business assets

W received advice from one lawyer (tells her not to sign K is grossly unfair), and then from
another lawyer (who was referred by Hs lawyer and who previously acted for Hs lawyer), only
consults for an hour (gets shitty advice), and then signs the contract

On separation, W sought to set aside agreement as H had failed to disclose significant assets
MM: this is a case where the H is a son of a person who is forcing his children to get marriage
contracts to protect the family wealth (same as McCain)
Court holds that fairness of the agreement is to be considered when TJ exercising his
discretion second stage

Court (citing Demchuk) enunciates test for setting aside marital K in ON

1. Court must consider whether the party seeking to set aside the agreement can
demonstrate that one of the provisions in s.56 of the FLA has been met
2. Court must consider whether it is appropriate for it to exercise discretion and set aside
the K (an assessment of fairness)
a. Based on the facts of every case
b. Consider concealment of asset or material misrepresentation,
c. Can consider farirness of the agreement
Application
o
Failure to disclose doesnt automatically render K void, but TJ decided to exercise
discretion because of other factors:

W didnt understand the nature and consequences of the K (s.56(4)(b)

31

Court says this is Hs fault she couldnt have understood what legal
rights she was waiving without fully appreciating the extent of Hs
wealth
W didnt receive adequate legal advice
H misrepresented the nature and the terms of the K to W (s.56(4)(d)
H failed to disclose all assets (s.56(4)(a)

Ws initial lawyer asked for disclosure, but didnt get it

H interfered with ILA by referring W to another lawyer

McCain v. McCain
Parties divorce, H is worth 500 million; at marriage, H;s father forces all children to sign pre-nup or
will disinherit them; W testifies that if she didnt sign it, her family would suffer greatly; under K,
W waived all rights to property and SS
W applies to have K set aside claiming it was unconscionable had no way of knowing what she
was giving up in signing it;inadequate financial disclosure; H admits that W was under some
duress, given Hs fathers threats
TJ: W had no choice but to sign it (or take on burden of disinheritance) duress
o
K had severability clause TJ severs SS section awards SS to W, transfers title to MH
and two cottags to W
MM: McCain seems to go against Hartshorne in this case she had no choice but what
about Hartshorne?
Stevens v. Stevens

H and W married for 16 years; H owns companies; H and W have family trust that holds assets, W
put 900k inheritance into the trust ; H has affair with mistress; couple reconciles, but W goes to
lawyer, drafts K that she gets her 900K back and that H would get interest in the home

Lawyers screw up K, gives H all of home, H and his lawyer know this, dont say anything

W seeks to have K set aside for fundamental mistake, unconscionability, and that she lacked
capacity

TJ: K is void for mistake (H knew and didnt tell) no consensus ad idem
o
W was bipolar at time of K, was under extreme mental stress, unable to appreciate
nature and consequences (K is void for unconscionability)

Religion and Marriage Contracts

Kaddoura v. Kaddoura probably not law anymore
Court asked to enforce Mahr (traditional payment under muslim marriage contract)
Holds that Mahr is unenforceable; cites 1905 case: any monetary element in a marriage K is an
unacceptable taint
Khan v. Khan 2005 ONSC
Court upholds Islamic marriage K, but holds Ws waiver of SS to be unconscionable
o
Deference should be given to religious and cultural laws. But if cultural groups are given
complete freedom to define family matters, they may tread on the rights of individuals
within the group and discriminate in ways unacceptable in Canadian society
Court upholds the contract, but makes sure that it is in line with civil obligations why they sever
the waiver of spousal support
Bruker v. Marcovitz SCC 2007
Jews marry and then get divorce; K stated that upon divorce, H would receive G; H refuses for 15
years, W sues for damages couldnt remarry or have children in jewish faith
TJ: agreement is enforceable, W is entitled to damags
CA: obligation is a religious one, not enforceable in civil courts
SCC: Holding agreement enforceable and awarding damages does not violate Ps
religious freedom
Fact that the agreement had religious aspects doesnt immunize K from judicial scrutiny
o
Court is not undertaking judicial review of religious principles, or what a rabbinical court
would do
o
Once you take a religious obligation and insert it into a separation agreement, courts are
simply giving force to the language of the contract, they arent enforcing a religious
obligation
Court finds that enforcement of a promise to give a get is in accord with public policy- furthers
religious freedom, equality, and right to divorce and remarry
o
Public interest in equality and promoting religious freedom of W outweighs claim of H
that to enforce it would interfere with his religious freedom

32

Covenant Marriage
-

In LA and other southern states, couples who believe no-fault divorce is immoral can get
covenant marriage
o
Permits spouses to enter into marriage as a permanent and binding obligation, and
requires spouses to take all steps to preserve the marriage

Creates the question of whether these couples would be able to seek a divorce
in another jurisdiction this would be the problem, may be a matter for conflict
of laws

Families, Property and Family Property

History and Context
-

Before 19th century, CL doctrine of coverture on marriage, women and men became one legal
person and all the womans property became the mans
First legislation to reform married womans property was in NB in 1851
1859 ON starts enacting statutes in relation to married womans property
Late 1970s all CL province in Canada enact statutory reforms for property sharing at breakdown
of marriage catalyst was Murdoch
o
Necessary as divorce rates escalated after the Divorce Act, 1968 allowed for no-fault
divorce
OLRC argued that opposite-sex cohabiting couples lived in functionally similar relationships and
legislation should treat them similarly
o
Four policy justifications

Functional similarities between married couples and opposite sex CH couples

Reasonable expectations of family members

The need to compensate economic contribution to family well being; and

Relationships between family law and social assistance law

o
Recommended an approach to extend legislative protection to CH couples, but allow optouts

Balance individual choice and public policy (protection of vulnerables)

CH and Property Sharing

NS v. Walsh 2002 SCC
D and CH partner separate; D claims SS and CS and declaration that Matrimonial Property Act
(MPA) was unconstitutional for failing to furnish presumption of equal division of property for CH
couples
Majority (Bastarache)
o
Concludes that the MPA provides differential treatment between married and OS
CH spouses; and that marital status is an analogous ground: Miron

Court distinguishes Miron

Miron was concerned with how a third party was treating the family
unit; in this case, legislation is regulating relationship between parties
to the marriage
o
However, rejects that the distinction had the effect of demeaning personal dignity

Reliance on functional similarities between the two groups to support the

extension ignores the distinct range of traits, history and circumstances of the
two groups
o
Application of MPA only to married spouses reflects and corresponds to differences
between married and CH spouses

Clear from evidence that some CH make conscious choice not to marry and take
on the obligations of marriage premised on liberty of CH to make
fundamental choices in their life

To treat CH and married couples the same would presume a

commonality of intention and understanding in CH couples that is not
there

If they want, CH couples can marry, or enter into a domestic contract if

they wish to access the property sharing regime
To extend the Act automatically to unmarried couples limits their
freedom of choice

33

Quotes Wu in support of differing expectations and realities between married and CH

(although Wu recommended extending regime to CH)

CH tend to be shorter, are seen as trial marriage, can be deliberate substitute

for marriage
o
Majority holds that CH spouses still have access to constructive trust and spousal
support, so there is recourse for CH couples
o
Majority emphasizes choice and autonomy, and the initial intention of the
parties
Dissent (LHD)
o
Non-recognition of CH couples suggests they are not worth of the same recognition
solely because they arent married
o
It matters not what choice they made, but the economic consequences of the
breakdown of their relationship
o
Increased CH rate dictates need for functional equality
o
Both married and CH couples have identical needs on family breakdown, so why is there
a distinction
o
Initial intentions are of little consequence like dissent in Hartshorne, no one goes into
relationship thinking that it will end
o
Goal of matrimonial property regimes, and family law generally, is redistribution of
economic resources on breakdown of family
o
Looks to preamble of the Act, previous SCC decisions on family property and the
prevention of poverty all point to one purpose of the Act recognize problems that
erupt on marriage breakdown, and to fix them no principled reason to exclude CH
couples- they experience the same stuff
o
Just because a portion of CH couples become CH to avoid marital obligations, not a
reason to deny the benefit of equal sharing to all
o
Rejects the majoritys emphasis on choice

Entering a CH may not be a choice of both parties; if one wants to marry, but
stays a CH because the other one doesnt want to marry, did they really make a
choice to enter into a CH
o
While constructive trust remedies are available, failure to extend the statutory regime
suggests that such relationships are, because of marital status, less worthy of respect,
recognition and value
o

QC v. A
SCC

A CH with wealthy man in QC; she wants to get married, he doesnt; marriage K she gets the
house but no support/property sharing; complete absence of statutory protection for CH couples
in QC re: property on breakdown
A challenges the exclusion of CH couples from Civil Code property regime as discriminatory under
s.15
TJ: s.15 is violated, not saved by s.1; upheld on appeal
Court rejects NS v. Walsh s.15 reasoning based on old test
Abella (maj on s.15)
o
that [the exclusion from the legislative regime] imposes a disadvantage is clear, in my
view: the law excludes economically vulnerable and dependent de facto
spouses from protections considered so fundamental to the welfare of
vulnerable married or civil union spouses outweighs right to contract
However, 5 judges held that s.1 was not contravened (4 had found that s.15 was not violated)
Court comes to same conclusion as in Walsh CH not presumptively entitled to property, spousal
support, was saved by s.1
Thompson on QC v. A
o
Practical effect is to leave the FL landscape as it always was the Walsh outcome
(exclusion of CH couples form the matrimonial property regime) is the same in the rest of
Canada (outside QC)
o
Marks the end of an era in family law abandons a functional approach to family and
adopts a formalist approach; completely ignores the interests of kids in CH relationships
o
Abella (dissent) applies functional approach

If it walks, talks and behaves like a married family

o
Believes that the functional approach in family law is dead

Comparing NS v. Walsh with QC v. A

Majority (Bastarache) in Walsh is picked up in Lebels dissent
o
Emphasis on choice
LHDs dissent in Walsh is picked up by majority in QC
o
What is relevant is not the reasons that parties choose to CH in the first place, but the
economic consequences of a CH at separation

34

Goal of family property regime is to reorganize family entitlements at separation

fundamental to these goals is recognition that, b/c of divided labour role, one spouse
may be dependent
Indicates that court is changing perspective re: permissibility of excluding CH from regimes
o
However, court is still holding on to choice as a paramount concern
NB: wealth of the parties may have skewed in favour of choice and autonomy b/c they
presume that vulnerable spouse is not in sufficient need of protection
o

Legislative Regimes for Property Sharing

-

S.5(7) of FLA codifies presumption that on breakdown, contributions of the spouses are
equal
o
Rebuttable, but must show that inequality of contributions was extreme
Fundamental question: should spouses share the property, or share the value?
o
Some provinces have schemes that divide property, in ON, is based on value

BC: s.56(2) of Family Relations Act states that each spouse is entitle at
separation to a one-half interest in all family assets as tenants in common

Property Sharing Family Law Act

Some provinces divide property, others divide value (Ontario)

S. 1(1) definition of spouse in terms of marriage for property equalization/matrimonial home
o
Spouse = either of two persons married to each other
S. 2(1) default regime can be contracted out of
S. 4(1) broad definition of property
S. 4(2) exclusions for some property not included in NFP (pre-marriage property)
o
Special treatment of matrimonial home
S. 5(1) equalization of value approach (money payment based on value, not technically division
of property)
S. 5(6) limited discretion to ensure certainty and efficiency
S. 5(7) presumption of equal contributions b/w spouses and entitlement to equal share
o
Childcare, management and financial responsibilities are joint responsibilities (deemed
equal contribution) and entitled to equal share of family property or its value
(equalization of NFP, subject to equitable considerations)

Skrlj v. Skrlj
Mandatory language of property regime (s.5(6)) leaves no discretion to decide
spouses affairs in accordance with TJs conception of fairness except where
unconscionability

Process of Equalization in Ontario

1.
2.
3.
4.
5.
6.
7.

Determine the valuation date (s.4)

Determine what property was owned by each spouse on v-day (s.4)
Determine whether any property constitutes excluded property (s.4(2)); note tracing in s.4(2)
Assign values to property
Determine the value of deductions (s.4)
a. Debts and liabilities at v day; and
b. Value of property that each spouse brought into the marriage
Calculate each spouses NFP NB: This represents a debt owing, not an entitlement to
property
Assess any claim for entitlement to more than one half of the difference (s.5(6))

Step 1: Valuation Date (s.4(1))

-

Earliest of 5 dates:
o
Date of separation with no reasonable prospect of reconciliation
o
Date of divorce order
o
Date of order of nullity
o
Date when one spouse commences action for improvident depletion of assets
o
Date prior to date of death of one spouse

35

Caratun v. Caratun
M left W; W held out hope for 3 years that he would come back; CA says this is unreasonable
V-day is the day he walked out; stands for proposition that v-day is determined
unilaterally; spouses dont have to agree that the relationship is over

Step 2: Property (s.4(1))

-

property means any interest, present or future, vested or contingent, in real or personal property
and includes,
o
(a) property over which a spouse has, alone or in conjunction with another person, a
power of appointment exercisable in favour of himself or herself,
o
(b) property disposed of by a spouse but over which the spouse has, alone or in
conjunction with another person, a power to revoke the disposition or a power to
consume or dispose of the property, and
o
(c) in the case of a spouses rights under a pension plan, the imputed value, for family
law purposes, of the spouses interest in the plan, as determined in accordance with
section 10.1, for the period beginning with the date of the marriage and ending on the
valuation date; (bien)
s.4(3) onus of proof in relation to claims for exclusions or deductions is on the party
asserting them

Property and Professional Degrees

Corless v. Corless
- TJ holds that law degree is property, but has no value in NFP, b/c it could not be transferred, being
personal to the owner
Caratun v. Caratun
W helps H immigrate, supports him while he gets DDS; after graduation, he leaves
TJ: License and right to practice are property, but shouldnt be included in NFP resorts to trust
principles
ONCA: Professional degrees are not property within s.4
o
Nature of license is incompatible with definition of property:

Degree is not a tranferable right

Requires the personal efforts of holder in order to be of any value

Valuation would be too speculative, requires determination of probability of

success in practice, length of physical and mental capability to do the work,
competition in practice, etc.

Police Debates and Degrees

-

Some argue that family law should approach property not as things, but as relationships
o
Courts should inquire about the appropriate relationship envisaged by the FLA between H
and W with respect to sharing in the benefits of the right to practice dentistry
Some argue that court should adopt principles applicable to partnerships
o
Courts wont allow people to enter into partnerships that are a sham without recourse, so
why should it be any different for a sham marriage
BC has followed ON in rejecting professional degrees as property

Property and Future Streams of Income

Brinkos v. Brinkos trust income is property
TJ concludes that income from trust was not property
ONCA: Income from a trust is property within s.4 but remember to deduct value of the
trust before marriage
DaCosta v. DaCosta contingent interest is property
H is great-grandson of wealthy American; receives contingent interest in his estate after other
relatives die
ONCA: contingent interest in an estate constitutes property under s.4
Lowe v. Lowe
H receives WSIB (1) for life based on injury that impaired ability to work; and (2) as a supplement
for his low income until 65
Court holds that disability payments are income, not property under s.4 can be
calculated in SS, but not NFP

36

Purpose of payment is to substitute for income (more like future income stream based on
personal service, than future income stream from a trust)

Equitable Principles and Property

Rawluk v. Rawluk
Parties separate; before trial, property increases significantly in value; W brings application for
remedial CT for of the increase in value
Court holds that FLA did not displace CT principles available in addition to FLA
remedies
Majority (Cory) deals mainly with whether statute extinguished CT
o
Two lines of cases in ON: (1) CT still exists; and (2) FLA fully addresses UE in FL context
and displaced CT
o
Holds that CT was preeminent in FL; without express language displacing it, cannot be
o
said to have happened express language of resulting trust didnt displace CT
o
Structure of the Act contemplates the continued existence of CT

Preamble refers to equitable settlement

Definition of property is wide enough to contemplate legal and equitable

property

S.10 allows court to declare ownership and possession of property shows that
remedial CT is not displaced
o
NB: CT arises on the inequity, not the application if finding of CT, it goes back
to when inequity started
Dissent (McLachlin)
o
CT is not a property right, but a proprietary remedy for UE, and should only be applied
where there are no statutory remedies
o
FLA provides a complete scheme to deal with family property no need for
recourse to CT

Both CT and FLA remedies are geared towards same end (equitable settlement)
only difference is that FLA remedy is $$$, and CT creates proprietary interest
o
CT is inappropriate on the facts enrichment was due to value of property there is no
corresponding deprivation; Ps contribution has nothing to do with increase

Think about the converse: if the value went down, could D go after P for
compensation? (policy reason)
o
Problem is ONs rigidity in v-day calculation; other provinces have better scheme that
allows TJ discretion
OLRC released report after: from perspective of efficiency and simplicity, should
o
Preclude spouses from applying for CT, but give TJ discretion to amend EQ
when value fluctuates
o
Get rid of resulting trusts in FL context (picked up in Kerr)
JCM v ANA (2012) BCSC
Lesbians separate, argue over what to do with left-over sperm straws; JCM wants to keep them,
ANA wants them destroyed
Court concludes they are property, must be divided between parties
o
Each got 6, court orders JCM to buy of the last straw
BIOLOGICAL MATERIAL CAN CONSTITUTE PROPERTY

Pensions and other Employment Benefits

-

Until 2012, confusion about how to value pensions FLA gave no guidance
Family Law Statute Amendment Act (came into force 2012)
o
Amended definition of property (current one)
o
Allows for determination of the imputed value of a spouses interest in a plan, in
accordance with Pension Benefits Act
o
Made clear that CPP benefits are excluded property
o
Allows for lump sum transfer to spouse of EQ
Two types of pensions
o
Defined contribution plan: employer and employee make fixed contributions; at end,
take $$ and buy annuity thats what employee gets

Easy to value; can see the value at any date

o
Defined Benefit Plan: includes a set benefit that person will receive at end of
employment; e.g. Ontario teachers

Value is based on best 5 years

Harder to valuate dont known when benefits will begin, if they will begin, how
long they will last, and can never know the interest rate

37

Boston v Boston
Parties separate; H includes value of pension in EQ valuation; years later, W claims SS payable
out of pension (double-dipping)
Court holds that part of pension earned after separation would be considered in
determining SS (avoids double dipping)
Law Commission of Ontario: Reasoning is flawed as it treats pensions as unique form of
property, when problem of double dipping extends to any income-producing asset that has been
taken into account in EQ process
Other Employment Benefits
McTaggart court holds that disability pension formed part of NFP because the pension was
paid in respect of work done by H, not as compensation for his disability
Bremer v. Bremer Court of Appeal holds that sick leave benefits have to be included in the NFP
Birce portion of a severance package attributable to post-separation wages is not to be included
in NFP
Lecke v. Lecke employment severance received after separation, which was not contemplated
during marriage, does not form part of the NFP
Trendle v. Trendle any portion of a damages award that relate to compensation for wages during
CH or marriage must be included in NFP

Step 3: Excluded Property (s.4(2))

Excluded property
(2) The value of the following property that a spouse owns on the valuation date does not form
part of the spouses net family property:
1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third
person after the date of the marriage.
2. Income from property referred to in paragraph 1, if the donor or testator has expressly stated
that it is to be excluded from the spouses net family property.
3. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of
guidance, care and companionship, or the part of a settlement that represents those
damages.
4. Proceeds or a right to proceeds of a policy of life insurance, as defined under the Insurance Act,
that are payable on the death of the life insured.
5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4
can be traced.
6. Property that the spouses have agreed by a domestic contract is not to be included in the
spouses net family property.
7. Unadjusted pensionable earnings under the Canada Pension Plan. R.S.O. 1990, c. F.3, s. 4 (2);
2004, c. 31, Sched. 38, s. 2 (1); 2009, c. 11, s. 22 (5).
NB: value of excluded property that is gifted is assessed as of v-day, not value when gifted
opposed to premarriage deduction, which is valued at the time of marriage
Silverberg v. Silverberg
At issue is value of Ws jewelry that she received from boss; was having affair with boss, claimed
that jewelry was in lieu of cash bonus
Court holds that jewelry represented both gift and salary; however, W didnt provide
proof that it was a gift and thus excluded none of the value is excluded

38

Gifts and Unjust Enrichment

-

If H gets a gift from third party, but then deposits it in joint account/gifts half to spouse he can
still exclude his half, but she cannot exclude it (Cartier)
If you get a gift (e.g. painting), and the gift increases in calue the whole asset is excluded, not
just the value when you got the gift
If the gift involves money, you have include the interest that has accumulated since date of gift

McNamee v McNamee
Hs father owns large business, froze estate and collapsed it into holding company so that he
could give shres to children; H and W are completely integrated economically (share all expenses
and debts, assets held jointly); father executes deed of gift of shares to H states that it wont be
part of NFP and wasnt to benefit the wife; H never saw declaration, assumed gift would be for
joint enjoyment
TJ: Shares didnt constitute a gift no intention to gift or acceptance as H didnt know
terms, father didnt divest himself of power over the shares; was a gift for
consideration
ONCA: the shares are an excluded gift TJ confused intention to gift and motivation in
freezing the estate; sends back for new trial as TJ didnt consider Ws UE argument (would be UE if
excluded)

Tracing
-

Allows for assets bought with gifts or inheritances received from 3 rd parties after the date of
marriage to be deducted from NFP calculation
Has large implications for use of inheritance and gifts if you use it to invest, it will
be deductible; but if you use it to buy/pay mortgage on MH, then not deductible
creates perverse policy incentives

Lefevre v. Lefevre
Court traced funds received by H to an inheritance and personal injury settlement to purchase of
a home, which became matrimonial home
Could not deduct inn spite of being traced to inheritance was used to buy MH (not
deductible)

The Matrimonial Home

-

Defined by s.18 of FLA

All matrimonial homes must be included in NFP, regardless of whether gift or
inheritance
Can have multiple MHs; s.20 allows couples to designate MH

18. (1) Every property in which a person has an interest and that is or, if the spouses have separated,
was at the time of separation ordinarily occupied by the person and his or her spouse as their
family residence is their matrimonial home. R.S.O. 1990, c. F.3, s. 18 (1).
DaCosta v. DaCosta
H claims right to exclude value of a house bought with inheritance; W claims it is MH, cannot
exclude
Court finds that house was never MH can exclude the value
o
W went only once or twice during marriage; parties were never there overnight; W never
cooked there
Cartier v. Cartier
H receives gift of land from mother after marriage; eventually sells land and buys investment
properties (title held by H and W JT)
When a spouse transfers gifted or inherited property into joint names, they lose the
exclusion to the extent of the gift made to the other spouse
H could trace the amounts not gifted back to the inheritance, so can exclude

Step 4: Valuation of Property (not in FLA)

-

Usually done by having experts testify as to value

Courts usually accept the FMV as the proper valuation

39

Montague v. Montague
ONCA: value of land is the highest price attainable in an open market between
informed and prudent parties acting at arms length
ONCA holds that value of polluted land is $0 because the cost of clean-up exceeded the value of
the land no negative property values
Oswell v. Oswell
Parties are arguing about valuation of furs and jewels; have dueling experts
Highlights the difficulties in valuation of property

Step 5: Deductions (s.4(1))

-

Two types of deductions contemplated by FLA

o
Debts and liabilities relating to property owned at V-day DOES NOT INCLUDE
THOSE RELATED TO ACQUISITION OR SIGNIFICANT IMPROVEMENT OF MH
o
Value of property owned on date of marriage, after deducting debts and liabilities
at the date of marriage

Is a net value (e.g. H owns 10k car, bought with 2k loan, net value is 8k)

NB: can have negative pre-marriage property, resulting in addition to NFP at vday
Cannot trace deductions
o
E.g H owns 100k home, become MH, worth 300k at v-day cannot deduct any amount

H owns 100k home, sells it, buys MH which is valued at 300k at v-day must
include 300k in NFP, but can deduct value of first home

Debts and Liabilities at V-Day

McPherson v. McPherson ONCA affirmed in Starkman
Disposition costs are not deductible in absence of evidence of plan for disposition, but
reasonable disposition costs can qualify as debts and liabilities
Sengmuller v. Sengmuller
Overriding principle that liabilities with regard to MH should be shared equally between H and W
If parties can show property will be disposed of at particular time, then is not
speculative and should be allowed as deductible liability
Parties must adduce evidence from which TJ can assess likely time of disposition, likely
costs of disposition and present value of the costs as of V-DAy
Stein v. Stein SCC (BC)
Affirms TJs decision that contingent tax liabilities on properties should be shared equally
between H and W on basis of fairness

The MH and Deductions

Folga v. Folga
Status of MH is not immutable, can change
Nahatchewitz v. Nahatchewitz
H and W marry and move into Hs home; W leaves Canada to get citizenship status and H sells
home
ONCA: home is not ordinarily occupied by family as residence H is entitled to deduct value
as pre-marriage property
Collier v. Torbor
W buys land, builds house in 1991; uses $$ loaned from holding company to build house; Ws
house becomes MH during marriage; W owed 513K in loan at date of marriage, claims right to
deduct from NFP
Court concludes that she cannot deduct debt from NFP b/c loan was essentially a
mortgage on what would become the MH

Step 6: Calculating the Equalization Claim (s.5)

-

s.4(5) provides that if spouses NFP is a negative value, will be deemed to be zero
o
Meant so that, at most, other spouses EQ payment will be half of their NFP

40

However, FLA fails to account where pre-marriage property debts are larger than assets (premarriage property is a negative value)
o
Where there is a debt at date of marriage, will be added on top of the value of
property at vday (two negatives become positive)
o
E.g. 20k debt at marriage; 100k at v-day

NFP = 120k (100,000 [-20,000]) makes sense, cause to end up with 100k,
you had to receive 120k

Step 7: Unequal Shares (s.5(6))

(6) The court may award a spouse an amount that is more or less than half the difference between
the net family properties if the court is of the opinion that equalizing the net family properties would be
unconscionable, having regard to,
(a) a spouses failure to disclose to the other spouse debts or other liabilities existing at the date
of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouses net family property
were incurred recklessly or in bad faith;
(c) the part of a spouses net family property that consists of gifts made by the other spouse;
(d) a spouses intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is
disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other
liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or
improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).

Provides discretion to TJs to vary amount of EQ in egregious circumstances but must meet
high threshold of unconscionability

Sullivan v. Sullivan
W supports H and children with only small contributions by H; most of Ws NFP is business that
she built and derived income from
Court held that it would be unconscionable to allow H to share in equity of business as
his contribution had been nil
Braaksma v. Braaksma
Unconscionability is a higher threshold than inequity

S.5(6) and length of CH

MacNeil v. Pope
ONCA: cohabitation in s.5(6) includes pre-marital and marital CH
Futia v. Futia
Parties married less than 2yrs; W alleges mental and physical cruelty as the cause of her leaving
marriage; H holds most of assets
Court rejects argument that it should look to conduct of H as cause of short marriage
Would be unconscionable to allow W to get large portion of Hs assets

41

RAISES THE ISSUE OF WHETHER COURTS SHOULD TAKE INTO ACCOUNT THE REASON
FOR THE SHORT DURATION OF MARRIAGE

OLRC report on s.5(6)

Recommended expanding discretion for TJs in EQ context
o
Allow judges to vary an EQ payment to recognize a significant post v-day increase in
value if necessary to ensure an equitable outcome

Would remove the need for CT litigation and offer more flexibility than altering
v-day
Serra v. Serra
At v-day, H has interest in business worth 9-11 million; at time of trial, value is 2.6 million b/c of
market conditions; H claims unequal division; if not, EQ payment will be more than he actually has
TJ rejects argument market driven, post-separation decline in value cannot be taken into
account under s.5(6)
ONCA holds that court may take a post-separation change in value of asset and
surrounding circumstances under s.5(6) where:
o
The circumstances giving rise to the change in value relate (directly or indirectly) to the
acquisition, disposition, preservation, maintenance or improvement of property; AND
Equalizing the NFP would not be unconscionable
NO requirement of fault-based conduct to trigger s.5(6)
o
Since no fault requirement, no principle reason that market forces shouldnt be taken
into account Target of s.5(6) is unconscionability, regardless of whether it
stems from fault-based conduct or not
NB: Because of this decision, commentators suggest there are 3 important dates to valuation:
date of marriage, v-day, and date of trial
Kean v. Clousi
W seeks unequal EQ b/c of drop in value of TD investment account; account was in her name, but
created at insistence of H
Court applies Serra, finds that it would be unconscionable to make W shoulder entire
burden b/c (a) was created at Hs insistence, (b) was for the purposes of maintaining
the MH and (c) was principally managed by H
Townshend v. Townshend
H claims support and EQ payment; W argues that Hs investment of child savings in Nortel
constituted depletion within s.5(6); H wants to deduct gifted car and 25k from mother, as well as
interest in land sold before marriage, but $$ received after
TJ:
o
Investment in Nortel wasnt reckless depletion; but since W used her $$$ to
replace child savings, would be unconscionable to include that in NFP
o
Car was not deductible: paid brother $400 for it
o
25k is not deductible: was initially a gift, but lost exclusive character when it was
deposited into their joint account
o
Land is not deductible: no evidence to support that $$$ was given to him, and not
them jointly
ONCA:
o
Half of 25k can be deducted: lost entitlement to other half when deposited in joint
account
o
Car is deductible (was a gift), minus 400 used to reimburse brother for tires
o
Land is deductible: Doesnt matter what happened with $$ after the marriage, all that
matters is the character on the date of marriage was his alone, so he can deduct
Ward v. Ward
W gets 200k gift from mother during marriage; H persuades her to use 180k of it to pay off
mortgage; after, H leaves and buys condo
W seeks unequal EQ in of 90K (amount that H benefitted, as joint debtor in paying off debt)
TJ finds that the circumstances are unconscionable
o
W wouldnt have paid off mortgage if she knew H would leave her; no evidence of ILA or
knew of consequences in paying off mortgage; would be unconscionable to have equal
division
ONCA affirms TJs ruling
Dissent:
o
TJ improperly focused only on one asset (the gift) and failed to address the central issue
under s.5(6) whether the division of NFP would be unconscionable, rather than
treatment of one asset
o
TJ improperly relied on factors relating to spousal support in determining EQ (TJ had held
that W had compromised earning capacity by staying home and raising children)

42

TJ misstated the Ws earning capacity

Possessory Rights and the MH

-

Governed by Part II of the FLA

Meant to ensure that both spouses have rights to possession of MH, regardless of title
S.24: governs orders for exclusive possession includes consideration of BIC and evidence of
violence
Because of restricted definition of spouse under Part II, MH PROVISIONS DO NOT APPLY
TO CH COUPLES

24. (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19
(spouses right of possession), the court may on application, by order,
(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the
period that the court directs and release other property that is a matrimonial home from the application of
this Part;
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children.

Rosenthal v. Rosenthal
W applies for exclusive possession of MH has 2 grown kids and 1 living with her; she couldnt
support herself, H couldnt pay SS; W argued that her living standards shouldnt be affected by
ability of H to pay
Court rejects application didnt fall in factors under s.24(3); in the best interests of all to
sell the house
Pifer v. Pifer
W applies for interim possession, claims that H is alcoholic, smokes and then leaves propane
heater on after going to bed; H and W argue constantly, W claims is having an effect on children
Court finds it is in BIC for W to have exclusive interim possession
Hill v. Hill
H and W are married for 30+ years; W makes intent to separate known; H starts harassing W,
sending her notes that he will evict her; H spends most of his time at the cottage, only goes home
for his daily nap from work; W seeks exclusive possession
Court assesses 3 factors under s.24(3)
o
(c) Financial position of both spouses H has more assets, W can least afford to
move
o
(e) Availability of other suitable and affordable accommodation there is no
evidence from either party ignore
o
(f) Any violence committed by a spouse

Court holds that violence in this context must be such that it makes
continuation of joint CH in the MH impractical not limited to physical
violence: H has made the MH incapable of being shared
OLRC Report on Family Property Law

matrimonial home is more than a valuable asset, spouses develop emotional attachment to it

43

right to occupy matrimonial home satisfies one of the basic needs of individuals in society, need for
accommodation
equal division of property frequently results in forced sale of couples family residence
legislature should introduce a more limited amendment to ensure al changes in capital value of home
are included in NFP of owner
recognizes special contribution to preservation and maintenance of a shared family residence made
by many non-titled spouses
recommended eliminating matrimonial home for purpose of deduction and exclusion

Matrimonial Property and Aboriginal Reserves

Derrickson v. Derrickson
SCC holds that BC family legislation doesnt apply to reserves interjurisdictional immunity
Paul v. Paul
SCC holds that BC legislation cannot be used to grant occupancy rights in MH located on
aboriginal reserve
Wynn v. Wynn - ON
Court applies Paul, holds that it cannot make order for exclusive possession
However, it makes in personam remedy, doesnt make reference to property, but restrains
husband from interfering with wifes possession of the house
First Nations Land Management Act, SC 2001
Allows First Nation to enter into agreement with government and then is required to establish
rules and procedures governing use, occupation and possession of aboriginal lands, and the
division of interests of such lands, in the event of marriage breakdown

Equity and the Use of Trust Doctrines for CH Couples

Test for Unjust Enrichment
1.
2.
3.

4.

There must be an enrichment of one party

There must be a corresponding deprivation of the other
a. Housework can be a deprivation where you forgo other compensation (Peter)
There must be an absence of a juristic reason for the enrichment
a. Two step test (Kerr)
i. Is there an established category of juristic reason?
1. E.g. benefits conferred by gift or obligation
ii. If not consider reasonableness of parties expectations and policy
considerations to determine whether enrichment is unjust
b. Is satisfied where one person in a relationship tantamount to spousal prejudices herself
in the reasonable expectation of receiving an interest in property and the other person
freely accepts benefits conferred by the first person in circumstances where he knows or
ought to have known of that reasonable expectation, it would be unjust to allow the
recipient of the benefit to retain it (Pettkus)
c. If no category is present, consider the legitimate expectations of the parties and moral
and policy arguments about whether the enrichments are unjust (Kerr)
Must show a connection between the claimants contributions and the property clear
proprietary relationship (Sorochan)
a. Need not be in the acquisition of property; can relate to the preservation, maintenance,
or improvement of property may also suffice (Sorochan)
b. However, housework is not enough to establish the connection (Stanish)

If UE, then must determine the remedy

-

Three Remedies
o
Monetary (quantum meruit)

Will be inadequate where there is special link between claimants efforts and
property (Peter)

Must consider (Cory in Peter):

Whether Ps entitlement is relatively small re: value of property

Whether D is able to pay P without selling the property

Whether P has special attachment to property

44

Hardship to D if P gets rights in the property

If QM is appropriate, consider mutual conferral of benefits (Kerr)

Proprietary appropriate where UE is in relation to property

Must show a connection between the claimants contributions and the property
clear proprietary relationship (Sorochan) - THRESHOLD

Need not be in the acquisition of property; can relate to the

preservation, maintenance, or improvement of property may also
suffice (Sorochan)

However, housework is not enough to establish the connection

(Stanish)

Once threshold is met, amount of contribution governs extent of CT

(proportionate); use value survived (increase in value), not value received
(fee for services) (Peter)
Joint Family Venture (monetary, value survived)

(a) Must show a JFV in fact

(b) Must show link between Ps contributions and the accumulation of wealth or
assets

Remedy should be calculated on the basis of the share of those assets

proportionate to the claimants contributions (Kerr) value survived approach
(based on increase in value of assets during length of relationship)

JFV: where the joint efforts of the parties are linked to the accumulation of wealth, the UE should be
thought of as leaving one party with a disproportionate share of the jointly earned assets
Look to four factors
o
Mutual effort in the family venture

Did they pool efforts and work; decision to have and raise kids; length of
relationship
o
Economic integration of the parties

The more extensive, the more likely a finding of JFV

o
Actual intent

Express/inferred; did they hold themselves out as married?, hold property

jointly?
o
Priority of the family

E.g. leaving workforce to care for family, foregoing career and school
advancements
Pettkus v Becker

P and D are CH, work together in a bee keeping business; as a result of their success, end up
buying more properties; no agreements as to how property would be shared, all property was in
his name; P contributed over 14 years of labour and $$$ to the business

TJ awards 40 beehives and 1500%; ONCA awards interest in lands owned by D

SCC
o
No resulting trust, because there was no common intention (D had testified to such at
trial)
o
Court finds that CT may be appropriate

Must be a finding of UE (first 3 elements): Rathwell

Must be an enrichment of one party

o
D had benefit of 19 years of unpaid labour

Corresponding deprivation
o
P ended up with nothing for 19 years of labour

Absence of a juristic reason

o
Court holds that where one person in a relationship
tantamount to spousal prejudices herself in the
reasonable expectation of receiving an interest in
property and the other person freely accepts benefits
conferred by the first person in circumstances where
he knows or ought to have known of that reasonable
expectation, it would be unjust to allow the recipient of
the benefit to retain it

Highly discretionary

Court enunciates 4th element causal connection

o
There must be a some connection between the acquisition of
property and the corresponding deprivation
o
No reason in principle that CTs cannot be applied to CH couples

45

Court rejects argument that legislature chose to exclude CH couples from the property
sharing regime UE has existed since the courts of chancery; if the legislature didnt
want the courts to use this approach, they could have said so

However, since UE had never been used in a domestic context until then,
arguable that the legislature didnt even think that they would be used
o
Court rejects Ds estoppel argument (that by giving her money and beehives when she
walked out, she is estopped from seeking more)

Person is not estopped by accepting a sum of money, the amount of which is

not negotiated, thrown at ones feet there was no agreement
o
Court holds that CT is appropriate
Minority
o
Agreed in the result, but felt that resulting trust could be applied (P had made financial
contributions to the relationship, and there was common intention that they would be
used for the benefit of both parties
o
Clear that they were uneasy about introducing CT into domestic context in their view, it
didnt have to be done; and would imbue judges with power to apply palmtree law inly
test for UE would be TJs appraisal of what is unjust
NB
o
Remember that Becker never got a cent committed suicide as protest against unjust
legal system

All the money she recovered went to legal fees

o
Highlights the problem of CT is it proper to make a recalcitrant spouse a trustee for the
other?
o
Note a finding of UE is not automatically followed by imposition of a CT must find that
CT is appropriate remedy (think Rawluk)
o

Sorochan v. Sorochan
After 40 years of CH, woman sought interest in land owned by man; however, man had owned
almost all the land before the CH arose
Lower courts rejected claim as there was no clear connection between the acquisition of property
and the Ps labour
SCC: While there needs to be a link between the property and the claimants deprivation, doesnt
always have to take the form of contribution to acquisition of property A contribution relating
to the preservation, maintenance, or improvement of property may also suffice must
have a clear proprietary relationship
Stanish v. Parasz
Housework is not enough to establish a nexus between property and enrichment
Georg v. Hassanali
CH relationship for 15 years; woman provided extensive services to tenants of apartment building
that H owned and household and personal services to him
Court finds that UE is obviously present; however, decline to impose CT find that $$$ is
appropriate remedy
Peter v. Beblow test for when CT can be applied
Parties are in CH for 12 years; P cared for children, D owned the house; before relationship, D got
housekeeper to do what P did; P sought CT in relation to home they lived in or $$$
BCSC allowed claim- gave her full interest in the house; BCCA reverses
SCC:
McLachlin J (Majority)
o
Finds that the first two elements of UE are met

Childcare and housekeeping services were an enrichment; P suffered a

deprivation for lack of compensation
o
Rejects Bs argument that P had assumed role of wife and step-mother and that UE
should not recognize these as they arise from love and affection

Domestic services can be considered an enrichment (as they are part of a

normal family relationship)

To do otherwise downplays the importance of services to other spouse

and to family

Otherwise would systematically devalue the contributions which

typically women make to the family economy
o
Third element is satisfied: UE is made out
o
Remedy

CT principles in commercial and FL context are the same

Not good to have two sets of principles; also not necessary as in

application the right result will emerge

46

Jurisprudence doesnt support two UE regimes (Pettkus, Rathwell,

Sorochan)

On finding of UE, two awards are possible: quantum meruit and CT

Must first make recourse to $$ remedy; can apply CT where

(a) the $$$ remedy must be inadequate and

o
Will be inadequate where there is special link between
claimants efforts and property

(b) there has to be a nexus between the services rendered and

the property - threshold
o
Once the test is met, amount of contribution governs the
extent of the CT msut be proportionate

Must use value survived approach amount of

increase in value in property; not value received
fee for services
o
Application

Court finds that the TJ applied the test correctly must look to all of the assets
to determine what is a just amount looking at all the assets, they found she
contributed ~25k, because house was worth ~23k, it was proper to give her full
interest in the house
Cory J (Minority)
o
Agrees that there is UE
o
However, disagrees that there isnt distinction between CT in commercial and FL cases
o
CT doctrine should not be as rigidly applied in FL cases because of unique context

Should have more discretion in determining remedy disagrees that there

must be direct link between efforts and property/ limiting trust to where $$$
would be inadequate

All about expectations reasonable to believe that spouses

expect, on breakdown of marriage, that they will be entitled to
some of the property, not a fee for services rendered during
the relationship

Must consider:
o
Whether Ps entitlement is relatively small re: value of
property
o
Whether D is able to pay P without selling the property
o
Whether P has special attachement to property
o
Hardship to D if P gets rights in the property

Agrees with value survived approach

McLachlin v. Cory
o
McLachlin wants to apply principles in a technical manner; Cory wants more flexibility

M: apply same UE and CT principles in commercial and FL cases

Not good to have two sets of principles; also not necessary as in

application the right result will emerge

Jurisprudence doesnt support two UE regimes (Pettkus, Rathwell,

Sorochan)

C: FL is special context, need flexibility

Necessary to show link b/w property and UE in commercial cases;

maybe not so in FL different expectations of parties
OLRC recommended that:
o
FLA should apply to CH automatically, with opt-out provision
o
Shouldnt use CT in FL, would be better for certainty

Kerr v. Baranow; Vannase v. Seguin

In both cases, long relationships and both contributed to mutual wellbeing; in Vanesse, V left job
at CSIS and moves to maritimes to further Ss interests; in Halifax, they had kids, V takes care of
them; eventually, S ends business and they move back to Ottawa

In V, TJ found no unjust enrichment for the first (before moving) and last period (after moving back
to Ottawa) of CH, but UE when V moved to Halifax to further Ss career; TJ holds that V is entitled
to half of property; ONCA reverses, and gives monetary award

Ratios:
o
Resulting trust no longer applicable in the resolution of domestic cases

Doctrinally unsound, notion of common intention may be highly artificial,

common intention resulting trust came about as a misreading of English cases,
and constructive trust is a much better remedy
o
Monetary award for UE is not limited to a quantum meruit/fee-for-services approach

Fails to reflect reality of lives of CH dont all fit categories of QM and CT

47

Inconsistent with inherent flexibility of UE and equity need recourse to

different remedies for all the different circumstances

Wasnt demanded by Peter

Ignores historical basis of QM

o
Mutual conferral of benefits

Where appropriate remedy is QM, then can consider mutual conferral at defense
and remedy stages; dont consider it under 3 step test
o
Parties reasonable expectations

Has role to play at second stage of juristic reason analysis

o
Where there is a JFV, monetary award should be calculated on the basis of the share of
those assets proportionate to the claimants contributions
o
To be entitled to a $$ award arising from JFV

Must show that there was a JFV

And that there is a link between his or her contributions and the accumulation
of wealth

If there is no link between contributions and property, is inappropriate

to apply CT
Remedies
o
Can either be monetary or proprietary
o
Monetary

Court rejects limited fee for services approach; adopts JFV value survived
approach calculate on basis of overall increase in couples wealth during
relationship

Pure FFS fails to reflect reality of lives of CH couples; is inconsistent

with flexibility of equitable remedies, wasnt mandated by courts
judgment in Peter, ignores the historical basis for QM claims
o
Proprietary remedies remain unchanged
Court enunciates 3rd remedy for when UE falls outside recognized categories of (1)
provision of unpaid services and (2) unrecognized contribution to acquisition etc. of
property: JFV
o
In cases of a joint family venture, where the joint efforts of the parties are linked to
the accumulation of wealth, the UE should be thought of as leaving one party with a
disproportionate share of the jointly earned assets because a lot of relationships are
JFVs, it would be artificial to do a detailed accounting of what each spouse has
contributed
o
The $$$ remedy should reflect the overall accumulation of wealth (not just the QM
remedy for services rendered)
Test for Joint Family Venture resulting in UE (no presumption of JFV)
o
Claimant must show that

(a) there is a JFV and

Look to evidence under four headings

o
Mutual effort

Indicators such as pooling of efforts and teamwork,

decision to have and raise kids, length of relationship
o
Economic integration

More extensive the integration of finances, economic

interests and wellbeing, more likely to have engaged
in JFV
o
Actual intent

Can be express or inferred, but not what the couple

ought to have intended

Whether they held themselves out as married, held

title to property jointly, etc.

However, actual intent may negative existence of JFV

o
Priority of the family

E.g leaving the workforce to help the family,

foregoing career and educational advancement,
accepting underemployment to balance family needs
o
Remedy is highly discretionary factors are very discretionary

(b) there is a link between their contributions and the accumulation of

wealth
o
Quantification of JFV award

Where the claimants contributions are linked to the generation of wealth, a $$

award for UE should be calculated according to the share of the
accumulated wealth proportionate to the contributions
o
Application

48

TJ was correct different reasons, but upholds the same decision

Spousal Support
-

Available under both DA and provincial regimes (for CH and separated, but not divorced spouses)
Implications of SS
o
Separated couple must continue to interact opposite to clean break theory
o
Contributes to creation of post-separation families
o
Privatizes responsibility for post-separation dependency (not the state)
While SS and EQ may interact, not appropriate to view them as interchangeable methods of
achieving post-separation economic adjustment
o
Property regime is seen as once and for all (no readjustment); SS can be readjusted or
terminated depending on necessity; can be applied for years later
o
Because property can be excluded, some judges have used SS to balance the parties
o
SS orders are dependent on the means of the spouses to pay them
History
o
Traditionally referred to as alimony, and only available to innocent wives

Available in the ecclesiastical courts as a time when divorce was relatively rare

Arose b/c H had duty to provide economic support for his innocent wife
existed when divorce was based on fault (usually adultery of H)

Definition of a Spouse
-

Under Parts I and II of FLA, spouse is limited to married persons

Under Part III (SS), there is expanded definition applies to married spouses and CH who meet
requirements of s.29

s.29 spouse means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to
each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.

Moldowich v. Pentinen (FLRA)

There are 7 elements to determining whether he couple is in a conjugal relationship

1. Arrangements for Shelter: Live under same roof? Sleeping arrangements? Other
occupants?
2. Sexual and personal behavior: Sexual relation (if not why)? Fidelity? Feelings towards
each other? Communicate on personal level? Eat meals together? Assist with problems or
during illness? Gifts on special occasions?
3. Domestic Services: Conduct and habit for preparing meals, washing clothes, shopping,
household chores, domestic services?
4. Social Activities: Joint participation in neighborhood/community activities? Relationship and
conduct towards member of respective families?
5. Attitude and conduct of community to each and as a couple
6. Financial Arragments: Arrangements for necessaries (food, clothing, shelter, recreation,
etc.)? Arrangements concerning property acquisition/ownership? Special financial
arrangement?
7. Attitude and conduct concerning children
Sullivan v. Letnik

P and D are business associates, become lovers; eventually P moves into Ds house but is still
married outside; expand business to Cleveland, buy a house jointly, purchase two farms, one in
the name of the company, the other jointly; eventually they end business relationship but still
sleep together; talked about marriage; held themselves out as married (had a picture in the news
paper), sends 50-60 greeting cards to my wife H says that he didnt mean it, he did it because
she wanted it; W claims SS, H claims relationship wasnt continuous

Whether couple is separated is question of intent, not geography

o
Couple held themselves out as married; brief cooling off periods =/= separated

49

Hazlewood v. Kent
P and D have relationship for ~7 years; have two children; relationship was exclusive, but they
lived in separate homes; man named W as spouse for health benefits and had discussed marriage
in the future
Separate living quarters is not determinative of relationship of some permanence
One of strongest indicia on intention to be treated as family is existence of children
born to couple when combined with element of financial support between parties, should be
considered of some permanence
Brebic v. Niksic
M and W CH for 18 months, planned to marry in February, but was killed in a MVA in December; P
wanted to sue driver for damages, but her right to sue depended on being a spouse within the
FLA; they hadnt lived together for 3 years, and they didnt have a child; P challenged section as
violative of s.15
ONCA: s.29 does not violate s.15 any deleterious effects are outweighed by having
objective standard by which individuals and courts can determine when state-imposed support
obligations and rights of action arise

Parenthood and s.29

DaSouza v. Dasouza
Court holds that 6 month CH after divorce was of some permanence not relevant that the
children were born prior to period of CH
Stoikiewicz v. Filas
Man lives with W for 6 weeks over 19 month period; she says shes pregnant, he dumps her
Discussions of marriage gave relationship a touch of permanence within s.29
o
But b/c of shortness of relationship, SS only for 12 months
Brunette v. QC
M and W share accommodation out of financial necessity were in a relationship of
interdependency but they did not have an intimate relationship
QCSC held that the relationship was not spousal because it was not sexual

Three Models of Spousal Support (Rogerson)

-

No clear consensus as to what should be the basis for spousal support

o
Many different types of marriages, and differing views about the nature of the marital
relationship
o
Lack of consensus is reflected in differing regimes under DA and FLA and in court
decisions

Different objectives and factors to be considered, not all are complimentary

Supports a range of rationales for support

Three models for the basis of support
o
Needs and Means (Income Security Scheme)

Based on economic need; irrelevant if marriage created the need

Assumes familial responsibility to provide support for dependency

Doesnt mandate minimum level of support usually thought of as standard of

living during marriage
o
Compensatory/Loss of Opportunity model

Based on compensating a spouse for economic disadvantages suffered as a

result of marriage, and advantages which they conferred to the other spouse
during marriage

E.g. foregoing economic/academic advancement or labour force participation to

perform family responsibilities/childcare
o
Spousal Independency/Clean Break Model

SS should recognize end of marriage and encourage economic disengagement

of the parties and assumption of self-support

Best accords with concept of no-fault divorce; no one is at fault, just

need to move on

Amount should be minimal to encourage parties to move on

Model
Compensation
Need
Contract

Orders
Messier
Moge
Bracklow

Agreements
Pelech
Miglin
Rick, Stevens, McCain

50

Clean Break

Messier (dissent)

Pelech

Who Should Pay

State
Messier (Lamer) after a certain amount of time,
unemployed spouse is just like unemployed citizen

Family
Messier (maj)
Moge
Bracklow
Stevens; Miglin (even though they dont directly
address it)

Spousal Support in the DA and FLA

Divorce Act 1985

S. 15.2(1) order for support (reasonable sum) as the court thinks reasonable
S. 15.2(3) can impose terms, conditions or restrictions in the order as court thinks fit and just
S. 15.2(4) factors: condition, means, needs and other circumstances of each spouse including:
length, functions performed by each, any order, agreement or arrangement relating to support
S. 15.2(5) precludes considering misconduct in marriage in making order for spousal support
S. 15.2(6) objectives:
o
Recognize any economic advantages or disadvantages to the spouses arising from the
marriage or its breakdowns
o
Apportion between the spouses any financial consequences arising from the care of any
child of the marriage over and above any obligation for the support of any child of the
marriage
o
Relieve any economic hardship of the spouses arising from the breakdown of the
marriage; and
o
In so far as practicable, promote the economic self-sufficiency of each spouse within a
reasonable period of time
S. 15.3(1) priority for child support
S. 17(1) authority for a court to vary, rescind or suspend an order for support
S. 17(4.1) change in condition, means, needs or other circumstances must be considered

Family Law Act

S. 30 obligation of spousal support according to a means and needs assessment

S. 33 order for support
S. 33(4) setting aside domestic SS contracts for unconscionability or if results in social
assistance
o
Basically privatizes social assistance
S. 33(8) purposes of order for spousal support
S. 33(9) factors for amount and duration of spousal support
S. 33(10) spousal support obligation exists without regard to the conduct of either spouse
o
Unless unconscionable conduct to constitute obvious/gross repudiation to
relationship
S. 36 provisions regarding applications under FLA if there is DA application
S. 37(2) variation if appropriate & material change in circumstances or new evidence available

Messier v. Delage DA, 68 Needs and Means Model

Parties married for 12 years; W was awarded custody of children and spousal support; H supports
W for 5 years (during which she gets masters degree), H applies to vary the support on the
grounds that, though she wasnt employed, she now had the skills to be, and that 5 years was
long enough for her to get her affairs in order
TJ reduces quantum and a termination date was provided
QCCA reverses decision re: termination date; support must continue indefinitely
SCC
o
TJ erred in disregarding actual circumstances of the parties, and QCCA was correct
o
Stands for proposition that family is to provide support post-separation
Dissent (Lamer)
o
Emphasizes that SS is rehabilitative in nature and that each spouse has obligation to
become self-sufficient Clean break
o
The duty of the spouse for SS is limited in the case of retrainable persons to
the retraining period
o
After a certain amount of time, responsibility shifts form family to state

51

A divorced spouse who is employable but not employed is in the same position
as other unemployed citizens. The problem is a social one and it is therefore the
responsibility of the government rather than the former husband

Pelech, Richardson and Caron clean break agreement

IN P, spouses were married for 15 years, had 2 children; signed separation agreement that
stipulates that W receive lump sum over 13 months in full satisfaction of their maintenance
After divorce, Ws mental and physical health deteriorates she cant work anymore, eventually
becomes destitute; H becomes rich W applies for variance
TJ allowed application ordered 2000 per month; BCCA overturns; SCC confirms BCCA decision
SCC (Wilson):
o
Spousal support should not continue indefinitely (clean break) after certain
point, it is responsibility of the state for dependents
o
Agreements should be accorded considerable deference Absent a radical
change, agreements must be given considerable deference
o
To get support/variation in context of agreements: MUST SHOW A CAUSAL
CONNECTION BETWEEN INABILITY TO SUPPORT ONESELF AND THE MARRIAGE
H and W made the decision to marry and they made the decision to terminate their marriage.
Their decisions should be respected. Only where an application seeking maintenance or an
increase in the maintenance establishes that they have suffered a radical change in
circumstances flowing from an economic pattern of dependency engendered by the
marriage should the court exercise its relieving power
Moge v. Moge Equitable distribution of resources to alleviate economic consequences - order
H and W are married for ~20 years; both worked outside home; W was cleaner and did all chores
and housework. Parties separate, H ordered to pay spousal and child support; H remarries, has
money; W goes on UI, brings order to vary support; when she starts working again, H brings
application to terminate support
TJ allows application, terminates support; CA reverses
Majority (LHD)
o
Distinguishes Pelech no separation agreement in this case support was due to court
order, so no deference
o
Rejects needs and means test (self-sufficiency) as sole basis for spousal support under
DA

Was based on improper distinction between traditional v. modern marriages

Doesnt account for the four factors is only one of the four factors, and
doesnt have priority and only as far as practicable

After Pelech, courts saw self-sufficiency as the preeminent factor; LHD is telling
them to stop Pelech only applied to its facts
o
Basis of SS is a fair distribution of resources to alleviate the economic
consequences of the marriage or its breakdown series of policy based
decisions

Must compensate for economic loss

Must apportion advantages/disadvantages from marriage and breakdown with

regard to standard of living during breakdown

Consider: compensation, childcare, post-separation need, and goal of

promoting self-sufficiency

Must consider 4 objectives under s.15.2(6)

o
(The Primary responsibility for support should fall on the family, not on the
state)
o
LHD then highlights how the self-sufficiency model has resulted in the feminization of
poverty couldnt have been parliaments intent

Women are usually responsible for child care, even after marriage diminished
earning capacity with which an ex-wife enters the labour force after years of
reduced or non-participation in it will be difficult to overcome when career
choice is reduced due to the necessity of remaining within proximity to schools,
not working late, remaining at home when the child is ill, etc. The former
husband who is not awarded custody encounters none of these impediments

Results from gendered division of labour; resulted in large disparity re:

male v. female post-divorce poverty

SS model has disenfranchised many women in the court room and countless
others who may simply have decided not to request support in anticipation of
their remote chances of success
Application

52

Applying the four factors, W has sustained economic disadvantage from the marriage or
its breakdown, child care impacted her ability to make an income, failed to become selfsufficient notwithstanding her efforts entitled to support
Concurring (McLachlin)
o
Agrees with majority opinion but bases it on statutory interpretation the need to
consider all four factors under the DA rules out the strict self-sufficiency model that H
argued for
Critiques
o
Represents a victory for women to extent that it acknowledges economic disadvantages
created by gendered division of labour in family
o
However, decision creates other problems

Creates uncertainty about how to assess fair compensation for economic

conseuqneces of the marriage

Discretion and malleable legal standards make predictability hard

Risks reinforcing tradition of privatization as the norm, rather than moving to

collectivist notions of income security

Decision doesnt address larger issue of why women need support doesnt
account for why Ms. Moge needed it immigrant, few skills, little English
contributed to inability to gain self-sufficiency as much as being a woman
o
Moge reversed trend towards minimalist SS awards
o
Decision seemed more focused on preventing post-separation povery than providing fair
compensation to women for unpaid housework

As a result, will be those that demonstrate most need and who will experience
most hardship that will get support women who are young, have skills will not
get as much (even though they are still responsible for childcare)
o
Compensatory message of Moge is being reshaped into a message of the obligation of
family members, rather than the state, to provide for economic need post-divorce
o

Nock v. Nock
Parties separate, H loses job after separation, probably wont get another b/c of learning disability
H is entitled to support b/c of divorce, lost income security net that was his wife, ergo
suffered hardship which flowed directly from the breakdown of marriage
Keast v. Keast
W worked as nurse while H trained to become a doctor, took care of the home while he was at
school; after separation, W loses job and goes on UI because of physical and mental breakdown
Court orders compensatory support for life must recognize the physical, psychological and
financial sacrifices that W made in support of Hs career
Stevens v. Stevens
Court orders retroactive compensatory SS for life economic consequences of the
breakdown are to be shared equally (Moge); W sacrificed earning potential to raise kids and
further Hs career
Bracklow v. Bracklow three bases for SS - order
H and W marry after CH for 4 years; joint economic arrangement; however, W suffers mental
health problems and H support her during marriage; couple separates and W hasnt worked since
separation, will probably never work again obtains small interim support order
TJ holds that no economic hardship befell W as a result of marriage or breakdown and there was
no express or implied agreement for mutual support; however, because H had agreed to pay
some support, TJ orders support for 2 years
Court highlights two models of marriage
o
Independent/clean break model based on equality and independence of spouses,
encourages rehabilitation

Supports compensatory theory of SS

Appropriate where there is low level of interdependency; marriage of equals

goal in these cases is self-sufficiency
o
Mutual Obligation view marriage creates interdependencies that cannot easily be
unraveled (interdependence of two co-equals);

Supports non-compensatory model

Recognizes that economic circumstances of parties become so intertwined that

you cant have clean break not unfair to ask for support; that responsibility
falls to the spouse, not the state; and the artificiality of thinking that all spouses
can go from married to single with no problems
Three models of support
o
Compensatory (self-sufficiency model)

53

Based on clean-break theory of divorce former spouse compensates for loss

suffered during marriage (restitutionary) and then moves on with life
o
Non-compensatory (social obligation model)

Based on social obligation model primary responsibility for support falls on

ex-partner, not on state follows that there is ongoing payment to replace lost
income of other partner

Arises from the existence of the marriage itself

o
Contractual

Based on the fact that parties can always contract their obligations to each
other
Case stands for enhanced judicial discretion must take account of a number of
factors and variables
o
Quantum of support award, as far as amount and duration, will vary according to the
facts of the case must also take account of factors within the marriage (e.g. length of
marriage, contribution within the marriage, spouses financial ability) however, no
factors (length of marriage, or need) will be determinative
Application
o
Holds that language of 15.2(6) relieving economic hardship as a result of the breakdown
of the marriage creates a basis for awarding support to someone who has suffered
deterioration of health P is entitled to non-compensatory support
The primary responsibility for support after separation falls on the family, not the
state

Spousal Support Post Bracklow: The Pendulum Swings Again

-

Bracklow had effect of broadening basis for SS beyond Moge

Most important part of case is message that there is no one model or philosophy for determining
entitlement to SS
Bracklow had overall negative impact in cases of marriages w/ children w/ caregiver
compromising earning capacity, but being ok after separation After, TJs always applied
Bracklow (which allowed them discretion) and not Moge (which highlighted compensatory
support)
Decision did little to advance the law only clear ruling is that SS is not strictly compensatory,
but didnt deal at all with entitlement to support

Miglin v. Miglin Must Balance DA factors against freedom to contract - agreement

H and W divorce, execute separation agreement where wife got matrimonial home, H got lodge
(family business), W got children and 60k in CS, both agreed to waive any claims to SS. After a
year, W brings initial application for SS under s.15.2; TJ grants SS for five years, upheld by CA
SCC: Fairly negotiated agreement that (1) represents the intentions and expectations
of the parties and (2) that complies with the objectives of the DA should be accorded
considerable weight
Majority (Bastarache/Arbour)
Court rejects Pelech test
o
Parliaments recognition of competing principles under the Act makes Pelechs emphasis
on clean break and self-sufficiency as preeminent factor inappropriate
o
Emphasis on self-sufficiency isnt consistent with Moge or Bracklow
o
Language of new DA doesnt create the need for a change threshold
Court holds that agreements shouldnt be always determinative, or given no weight- need a
contextual approach
o
TJ must balance objective of equitable sharing of the conseuqneces of marriage
and breakdown and parties freedom to arrange their affairs as they see fit

Court recognizes that freedom to choose and autonomy is important, but must
be counterbalanced with fairness considerations must recognize unique
bargaining context, but also that parties are free to order their affairs
Analysis
o
Stage 1

Court must look to the circumstances in which the agreement was

negotiated and executed to determine if there is any reason to
discount it; look to two factors

Circumstances of Execution
o
Were they any circumstances of oppression, pressure, or other
vulnerabilities?
o
What were the conditions of the negotiation? Duration? Was
there professional assistance?
o
Dont look for unconscionability as under contract
o
Do not presume an imbalance of power or that stronger party
took advantage of weaker party

54

Dont presume that presence of stress means that parties are

incapable of consenting to agreement
o
Court should consider agreement as a genuine mutual desire
to finalize the terms of the separation
Substance of the agreement does it comply with DA?
o
Must determine the extent to which the agreement takes into
account the factors and objectives listed in the D
o
Only a significant departure from the general objectives of the
Act will warrant intervention must only be substantial
compliance
o
Even if agreement is not in substantial compliance, doesnt
mean that entire agreement must be set aside
o

Stage 2

Court should assess extent to which enforcement of the agreement still reflects
the original intention of the parties and the extent to which it is still in
substantial compliance with the Act

Only a substantial change in circumstances should warrant

intervention by the court

Applicant must show, in light of new circumstances, that the

agreement no longer reflects the parties intentions at the time of
execution and the objectives of the Act but doesnt have to show that
change was radically unforeseen or there is a causal connection to
marriage but must show that circumstances were not
reasonably anticipated by the parties

Courts focus should be on the agreements continued correspondence

to the parties original intentions

Court should recognize that these agreements are contracts

and should be respected
Application
o
Both parties got extensive ILA, no evidence of vulnerability that wasnt compensated
o
Agreement took into account changing circumstances of the parties and foresaw that the
circumstances of the parties would change
o
W argued that in giving up the lodge business and without H renewing her consulting
contract, she would be without income

Agreement foresaw this

Dissent (LeBel J)
o
Held that Moge and Bracklow stood for proposition that it is inappropriate to defer to a
support agreement based on unrealistic assumption about party autonomy
o
Found that to apply contractual standard for setting aside agreements was inappropriate
in FL context too rigid and inappropriate in a context where parties are not arms length;
shouldnt have to have such a high standard to set aside agreements
o
Recognizes that inequalities in bargaining position are not gender neutral women are
most often economically disadvantaged and who is often the financially dependent
spouse through the marriage
o
Appropriate threshold for overriding agreements is whether the agreement is
objectively fair at the time of application

Based on the language of the statute and is rounded in sound policy that
reflects the circumstances under which the agreements are made

Allows court to intervene regardless of whether inequality arose at the

formation of agreement or at time of application does it really matter where it
came from?

Majoritys view is problematic artificial distinction between when the

agreement was made and when the application was made inadequate to deal
with the inherently prospective nature of separation agreements single
standard is preferable
Application
o
Found that there was substantial inequality H got the lodge, W got the house; even
though the assets were of similar value, the lodge produced income and thus was more
valuable W got the shaft
Annotation (James McLeod)
o
Majoritys attempt to elevate s.9 of DA (provision giving credence to agreements) to a
substantive rule promoting statutory settlement objective was not convincing

While s.9 reflects a policy of reducing unnecessary litigation, it hardly promotes

finality, certainty and autonomy as the majority held
o
Majority places considerable weight on the length of the negotiations but didnt
consider whether because of the length, W was worn down and acceded to an unfair
agreement
o

55

Ward v. Ward
After separation, H and W enter into collaborative process; eventually sign Memorandum of
agreement that settled affairs, said it was subject to final drafting a separate agreement
Agreement included lump payment of 250k by H to W; later W starts proceedings for SS
TJ: MoA was not binding contract, subject to further agreement W can get SS
ONCA reverses: W was represented by counsel, knew nature and conseuqneces of MoA, knew
that Hs salary fluctuated and that he had no control over it
Court hold that wording of preamble, fact that parties had reached agreement of all
essential terms of separation and conduct at the time were consistent with finding
that they had reached a final and binding settlement

Unconscionability and SS Agreements

Scheel v. Henkelman s.33(4) FLA - unconscionability
Parties enter into agreement, waive spousal support claims; W bring claim for spousal support; TJ
upholds waiver
ONCA reverses holds that Ws old age, inability to work and minimal pension, in context of Hs
assets of 2.5 million, would be unconscionable orders SS
Rick v. Brandsema 2009 SCC - BC
Parties separate, enter into agreement which was drafted with intermittent ILA; W brings
application to set aside agreement on grounds of unconscionability: H concealed assets and
exploited her mental instability
TJ: agreement was unconscionable, H exploited Ws mental instability during negotitations, had
failed to disclose assets
SCC: agreement is unconscionable sets aside agreement
o
Singularly emotional environment involved in FL negotiations requires special care to
ensure fair distribution without exploitation
o
There is a duty to provide full and honest disclosure of all relevant financial info if not,
more likely to be set aside
o
Holds that deference should be given to K, but only if both parties come to table
with all the information they need
Notes:
o
Case created confusion as it was based on EQ doctrine of unconscionability, whereas
Miglin was focused exclusively on statutory interpretation
o
Equitable reapportionment (Rick) may not be appropriate where the statute provides for
a basis for reapportioning assets
o
Raises problems for QC no CL doctrine of unconscionability in QC
LMP v. LS 2011 SCC - QC
Parties separate, enter into consent order H pays SS and CS; 4 years later, W brings application
to vary order (Hs $$$ went up), H brings application to terminate
TJ, QCCA passage of time relieved H of obligation to pay support
SCC:
o
Miglin only applies to initial applications for support this is an application for
variance
o
There must be a material change in the partys position before an application
to vary can be brought

Fault and Spousal Support

-

Distinction between s.15.2(5) of DA and s.33(1) of FLA

o
Both say that you cannot take misconduct during marriage into account
o
However, FLA states that you can consider conduct in determining quantum
where there is misconduct that amounts to a gross repudiation of the marriage
agreement

Maury, 1979 Conduct must be exceptionally bad, such as to have reasonably

expected to destroy the marriage

Leskun v. Leskun
W loses job, cashes out RRSP to put him through MBA, suffers back injury and H tells her that he
wants to divorce so that he can marry another woman
On divorce, court orders support until W could return to fulltime work; 2003 H brings application
to terminate because he is unemployed rejected because W had yet to find work
BCCA affirms decision holds that, unrelated to the misconduct in Hs actions, there were
numerous grounds for continuing support (age of wife, poor health)
SCC affirms BCCA decision

56

o
o
o

Misconduct cannot be considered when determining support under DA

However, there is a distinction between considering the misconduct itself and
the effects (emotional) of the misconduct can consider latter
There is no legal duty to achieve self-sufficiency, and failure to do so is not a breach of a
duty, and is only one factor to be considered in determining SS

Spousal Support Advisory Guidelines

-

Were introduced in 2008 to promote certainty and predictability in orders for support
o
Also helped negotiations to avoid litigation
SSAGs are advisory only; unlike CSGs which are mandatory
o
Do not deal with entitlement, do not provide grounds for reopening agreements

Do apply to interim orders and initial determinations of SS

o
Only address quantum and duration
Reasons: uncertainty had increased (was undermining legitimacy of SS); many TJs declined to
order support because quantifying it was too difficult, CSGs had demonstrated advantages of
average justice (opposed to individualized justice), availability of sophisticated software
Objectives: reduce conflict and encourage settlement, create consistency and fairness, reduce
costs and improve efficiency, provide basis for further judicial elaboration
Two formulas
o
Without child support

Relies heavily upon length of marriage (or relationship)

Based on idea of merger over time

1.5-2% of difference b/w gross incomes for each year of marriage to maximum
of equalization, duration = .5-1 year for each year of marriage (indefinite after
20 years or if longer than 5 years when years of marriage and age of recipient
added together = 65+ - rule of 65)
o
With child support

Reflects economic disadvantages that often flow from assuming primary childcaring role assumption of post-separation child-care is more important
than length of relationship

Leave recipient with 40-46% of joint net income after child support, initially
indefinite but ranges intended to structure process of review and variation and
limit cumulative duration (limits based on length of marriage and ages of
children)

Privatizing Responsibility for Dependency

-

Current FL principles emphasize responsibility of families to provide post-separation support

Problems
o
Some people do not have families
o
Some do not have families that have economic capacity to support dependents
In early 20th century, provinces enacted legislation for support obligations for parents
o
S.32 of FLA obligation for adult children who have the ability to provide support for a
parent in need if the parent cared for or provided support for the child

Dragulin v Dragulin (1999) Ont

Daughter wins the lottery, father applied for support; TJ grants support
Three issues under s.32
o
Capacity to give support daughter had job, savings and just won the lottery
o
Care and Support from Parent

Court held that language in statute is not conjunctive need only provide
support or care

Act doesnt include defence of misconduct or fault

Doesnt take into consideration the nature or quality of the current interaction
between child and parent
o
Need of Parent

Claim of parent must be based on need, not want

Child Custody and Access

-

Research shows that divorce and separation create real problems for children
o
Parents may project feelings about family dissolution onto child
o
Children in disrupted families have increased incidences of poverty, problems in school
In UK, Childrens Act abandoned terms of custody and access requires parents to continue
parental responsibilities post-separation

57

Bill C-22 attempted same thing reflected view that while relationships may end,
parenthood is forever

History of Legal Principles

Early 19th century fathers got access; Lady Talfourds Act (1839) permitted access and physical
custody to mothers for children of tender years (under 7)
Early 20th century courts recognize tender years doctrine; however, mothers were subjected to
scrutiny to ensure that their conduct was proper
1960s -80s push for equality, Charter promoted parental equality;; however, mothers were still
subject to scrutiny enhanced fathers rights
Equality Debate: BiC is so malleable that may reveal hidden societal assumptions about
mothers and fathers and what is in BIC
o
Cases often reflect ideology of good mother will assume primary custody, will sacrifice
work and social life for child mothers who depart from this are treated suspiciously by
courts

Divorce Act

S. 16(1) general authority for making orders about custody and access
S. 16(2) interim orders
S. 16(3) person other than spouse may not make an application without leave to the court
S. 16(4) provides authority for joint custody, can grant the order to any 1 or more persons
S. 16(5) access = right to make inquiries and information about health, education, etc.
S. 16(6) permits terms and conditions on custody and access (definite or indefinite) as court
sees fit
S. 16(7) about orders for relocation if custodial parent wants to move
S. 16(8) court only needs to consider best interests of the child no list of factors
S. 16(9) past conduct is irrelevant unless it affect the ability of a person to act as a parent
S. 16(10) friendly parent principle: child should have as much contact with each, consistent
with BIC, must consider willingness of each for whom custody is sought to facilitate contact
S. 17(1) court may vary, rescind, or suspend (a) support order or (b) custody order

Childrens Law Reform Act major provincial legislation about custody and access

S. 20(1) except as otherwise provided, mother/father equally permitted to custody and

access
S. 20(2) custody = rights and responsibilities and must be exercised in BIC
S. 20(3) if 1+ entitled to custody any one of them can exercise rights and responsibilities
S. 20(4) living with 1 = right to custody suspended until agreement/order specifies otherwise
S. 20(5) access = right to visit, be visited, make inquiries, info on health, education and welfare
S. 20(7) entitlement subject to alteration by order or agreement
S. 21(1) parent or other person may apply for order respecting custody or access (no leave)
S. 21(2) application must accompany affidavit containing care/upbringing plan, info about
involvement in family proceedings or criminal proceedings and other relevant factors
S. 24 merits for custody and access all about BIC
S. 24(2) factors for BIC: (a) love, affection and emotion of connection in childs life, (b) childs
views and preferences if reasonably ascertained, (c) length of time child has been in stable
environment, (d) ability of each to give guidance, education and necessaries of life, (e) plan
proposed by each for childs care and upbringing, (f) permanence and stability of family unit, (g)
ability of each person to act as parent, (h) relationship by blood or adoption order b/w party and
each person party to the application
S. 24(3) past conduct only be considered in accordance with (4) or relevant to ability as parent
S. 24(4) consider whether violence or abuse against spouse/child/other member of household
S. 30(1) can appoint someone to assess childs needs and willingness of parties to deal
S. 31(1) may appoint person selected by parties to mediate any matter in order
S. 35(1) may grant order against anyone if reasonable grounds to fear safety or child safety
S. 36 non-communication order

Legal Custody vs. Physical Custody

-

Legal Custody: Parent has legal author to make decisions concerning health, education, welfare
(usually includes choice of faith)
Physical Access: right to spend time with child, receive information about childs situation
Joint custody: both spouses have legal authority to make decisions for children in relation to
health, education, welfare

58

Parallel parenting: Court orders that include parenting plans as well as authority for a parent
with physical custody to make decisions about child during the time child is in parents care

The Best Interests of the Child N. Bala

-

Canadian court decisions and statutes are all premised on the principle that decisions about
children should be based on BIC
However, there are limitations to the principle
o
Is Paradoxical: While focusing substantive decision making on the BIC, it encourages
a decision-making process that is often harmful to the child
o
Vague: Some argue that the principle is so vague that it is meaningless allows for wide
TJ discretion on what is essentially a balancing of virtues

TJ has little direction as to how to exercise the discretion

No direction in statute

No clear societal consensus as to what is in the BIC

Some argue that the principle allows judges to inject bias into decisions
o
Feminists argue that it allows TJs to hide biases against women that dont adopt
traditional roles
o
Fathers rights group argue that it allows TJs to make biased decisions against men
o
SS couples argue that it allows TJs to hide bias against homosexuals
BIC encourages litigation and is therefore harmful to children

Carton v Watts
Father applies for sole custody, claims that W is alcoholic and previous problem child shows that
she is not fit to be a parent; W claims that F is controlling
W gives testimony, is hesitant in answering
o
H says this is evidence of fabrication; TJ says this is evidence of her being in a controlled
relationship finds that she has suffered emotional abuse
Court holds that in BIC, W should have custody
o
If F had custody, would use it to control W; W is more likely to allow access than viceversa

Finds that child would be subjected to a life with a controlling, rigid

individual
o
Social worker said that problem child was not Ws fault, was just a problem child

Failure with one child doesnt disentitle her to the opportunity to raise
another

She may drink, but wont interfere with ability to raise son
o
Finds that W is more credible than H

H had a one-sided view of the relationship, is controlling and found evidence to

be coloured as one might expect from such a person
Haider v. Malach
Principle that appellate courts will not intervene in trial decisions absent a clear error
of law or overriding factual error
Geremia v. Harb
Parties had been litigating issues for years 25 orders, court record of 2000 pages
Court holds that parties must get leave of ONSC before litigating anymore
Is this decision really about the BIC, or what is in the best interests of the court

ALI recommendations about custody and access

-

Report highlights tension between goals of predictability and the fairness of

individualized decision making
o
Predictability helps to reduce litigation and strategic and manipulative behaviour by
parents
o
However, predictable outcomes arent good unless sound; need to have room for
individualized decision making
Recommended creation of parenting plans in all cases
Recommended redefining the BIC test:
o
Primary objective is to serve the BIC, by facilitating all of the following

Parental planning and agreement about custody and upbringing

Continuity of existing parent-child relationships

Meaningful contact with both parents

Caretaking relationships by those who love the child, place high priority of
its needs

Security from conflict and violence

Avoidance of prolong uncertainty respecting arrangements for the chil

o
Secondary objective is to achieve fairness between the parties

59

Fishback v. Fishback Conduct and ability to parent

Parties separate because W is bored; H gets new partner who is capable, W gets new partner that
is inept
TJ: BIC state that child should go with father
o
Hs new partner is capable, shows love for child and both seem willing to put the
interests of the child ahead of theirs
o
Ws new partner is a flake, no guarantee that they will put interest of child ahead of
theirs

Violence and Abuse in relation to BIC

-

SS.24(4) and (5) of CLRA require consideration of violence towards spouse, child or anyone in
the household in determining ability to parent no similar expression in DA
Renaud v. Renaud violence is a relevant factor in determining BIC; marked departure as
previous cases didnt consider inter-spouse violence to be relevant

Li Santi v. Li Santi 1990 ON

W left home with child because of abuse, sought custody
Court said there must be clear and cogent evidence of abuse none in this case
Howard v. Howard 1999 ON
W left matrimonial home with child to flee abuse
Court said that self-help remedy is bad; but that W custody and interim possession of
MH was in BIC
Van de Perre v. Edwards Importance of Race
P is white woman; D is black basketball player, seeks custody of child; TJ grants custody to W;
BCCA says that Ds wife should join and seek joint custody
SCC: BCCA was wrong to intervene no clear error of law in TJs reasoning
Race of the child is only one factor to be considered among many is not
determinative
o
Race is tied to culture, identity and emotional well-being should be encouraged to
identify with both racial heritages
Camba v. Sparks
W was given custody of child because she was more attentive to fathers cultural background
than vice versa
Libbus v. Libbus 2008 ON
H is catholic, lives in Uxbridge, W is jew; W wants to move to Thornhill so that children can have a
jewish identity both agreed to raise children as Jews
Court hears from experts that say that Jewish identity is not only about religion, is about culture
important to be in a Jewish community
Court grants custody to W Hs parenting plan was not good because children would struggle to
maintain jewish identity; H never converted, grandmother was catholic wouldnt be able to
raise the kids as jewish TJ runs on assumption that religious identity deserves some
priority remember Van de Perre race is only one factor among many
Case shows how hard it is for TJs to tackle questions of identity and how TJs own
identity bears on the determination TJ was jewish
Perron v. Perron
W is anglo; F is fraco, wants kids enrolled in French-only program (kids are in immersion); TJ
grants custody to W with no order regarding the language of education
ONCA holds that TJ erred in not considering whether order regarding language of
education was in BIC (was a material error in which they could intervene) however, 2 years
had passed, in BIC to keep them in the same school

BIC and Access

Craig v. Antone no presumption in favour of access
-

Court holds that there is no presumption in favour of access for either parent; access is
determined solely based on BIC and there is an evidentiary burden on both parties
While access should be granted in absence of any danger to the child, if the evidence shows
that it is not in BIC to be with parent, then doesnt matter whether there is violence or
not

60

While it may be generally presumed that it is in BIC to have contact with both parents, if the
evidence shows otherwise, shouldnt grant access

C/A claims by third parties

-

Amendments to CLRA in 2009 s.21 allows parent or any other person to apply for custody
o
Person must submit proposed plan for parenting, information regarding any other FL
proceeding, and any other relevant information
S.16(2) (3) of DA allows 3rd parties to join litigation, but must have leave of the court

Arniuk v. Arniuk 1999 - BC

Court holds that grandparents are appropriate parties under DA proceedings had been primary
caretakers of child
Threshold under DA is whether other claims are frivolous or vexatious and whether in
BIC to grant leave
Chapman v Chapman 2001 - ONCA
Court denies grandmother application for access family was intact and they were trying to
restrict her access
Court will not override parental decision in absence of evidence that parents are not
acting in BIC

Religion and Access

Bachor v. Lehmman-Bachor 2001 ABCA
Custodial parents authority is clear has the sole and primary responsibility to oversee all
aspects of day-to-day life, including religion of the child
Young v Young SCC - 1993
F is Jehovah witness, trying to get children to solicit; custodial W objects and wants to limit access
Court holds that custodial parent has the right to decide on religion

Custodial Parents & Right to Relocation

Carter v Brooks (1990) Ont CA
TJ awards custody to mother, but holds that not in BIC to move far away from father, TJ
restricts right of parent to move with child no inherent right of the custodial parent
to move
MacGyver v Richards (1995) Ont CA - overruled
W is in new relationship and wanted to move for Hs new job
Deference must be shown to custodial parents decision to move except in exceptional
circumstances
Gordon v. Goertz test for variation of custody/relocation
H and W live in SK; divorce, W is given custody with access to H; W wants to move to Australia to
become a dentist; H seeks custody or order restricting W from moving; TJ dismisses application,
CA upholds
Court endorses Carter no inherent right of the parent to move, in BIC to move to
Australia with W
Where an application under the DA for change in custody and access
a. Threshold: Parent seeking to move must establish a material change in
circumstances affecting the child; must be:
i. Change in needs, means circumstances of child, or ability of parent to
meet them
ii. Change that materially affects the child; and
iii. Was not foreseen or could not have been reasonably contemplated by
TJ who made initial order
b. If met, TJ embark on a fresh inquiry
2. TJ then embarks on fresh Focus of inquiry must be on BIC, not interests and
rights of parents involved
a. Inquiry is not limited to material change (e.g. the move), but must consider all
factors bearing on a childs interests

61

b.

There is no presumption in favour of the custodial parent evidentiary

onus on both
3. Factors to be considered in cases of relocation
a. Existing custody relationship; existing access arrangement; desirability of
maximizing contact with both aprents; views of the child; reason for move only
if relevant to ability to meet childs needs; disruption to the child of a change in
custody; disruption to the child as a result of removal from family, school and
community
Court holds that TJ was right to allow custody to mother, but removed barriers to
access could be effect in Oz or Canada
Concurring (LHD)
o
Disagrees wit stance on the rights of custodial parents
o
Any restriction on rights of custodial parents should be exception, not the rule onus
should be on non-custodial parent to show that the move is not in the BIC and
that custody should be varied

Only where there is agreement or order that restricts changing the childs
residence should onus shift to custodial parent
Critique
o
Decision requires highly discretionary decision making by judges
o
Cases decided on principles have show that economic issues and class may affect
judicial decision making
o
Harder question arises when parents dont have the $$$ to make long-distance
access work

FJN v. JLN virtual access

Court allows mother to move to US, but orders her to buy video equipment to allow for virtual
access for father allows unlimited phone, email and message at reasonable hours

Alienation
Bruni v Bruni 2010 ONSC
Parties are hostile, mother completely and irreversibly alienates daughter from father
Court holds that BIC to stay with mother, eliminates access for father
o
Alientation was so severe that it would never be repaired

Role of Professionals in Custody/Access

S.30 of CLRA allows for appointment of expert to provide assessment of needs of the child and
ability and willingness of parents to meet those needs
Levine assessments shouldnt be ordered in every case; even if one is ordered, is still the job
of the court to determine BIC
Linton Must be a clinical issue to justify appointment of assessor
Delisle - It is beyond the scope of assessors functions to attempt to mediate party disputes

Marko-Laschowski v. Laschowski criteria for expert assessment

Purpose of assessment is to (1) identify the needs of the child and (2) provide information
as to which parent is best able to meet those needs
Under s.30, CLRA:
1. Court has discretion to order C/A assessment where it appears that it would be
materially helpful
2. There must be some evidence upon which to base the exercise of the discretion
3. Sole consideration remains the BIC
4. Assessment is a factor to be considered with all the evidence in determining BIC
5. Court must determine the BIC
Applicant has onus of justifying request for assessment

Role of Children in C/A

-

Four ways in which childs view can be submitted to court (Stefureak)

o
Through an assessor who has been in contact with child
o
Through the parties and witnesses in providing hearsay evidence
o
By means of an interview with the judge outside the chourt
o
By having the child provide direct evidence

Office of the Childrens Lawyer

-

CJA allows OCL to asssit court in two ways

o
S.89(3.1) OCL can provide legal representation to child

62

Courts have been reluctant to use this drags kids into litigation
S.112 OCL can investigate, report and make recommendations to court in C/A
proceeding

Bhajan v. Bhajan
Court cannot order the OCL to take a case, can only make a request
o
Language in CJA is permissive, not mandatory
o
Would overburden the OCL if it could be ordered

ADR and C/A claims

-

s.31 of CLRA mandates court to appoint mediator at partys request and attempt to reach
agreement
s.9 of DA provide encouragement for mediation and ADR
Limits
o
Concerns about power imbalance, especially where there is violence/abuse

Agreement may not be fair, may be coerced will still lead to litigation
o
How should BIC be defined in ADR context?
Access to Legal Advice and FL bargaining
o
ON policy is geared towards diverting FL issues away from courts

FL Information Centres - provide information and referrals at courts

Mandatory Information program lawyer and mental health specialist talk

about process of separation and divorce

2 hour, free mediation for litigants on the docket

Subsidized mediation services

Joint Custody, Parenting Plans and Parallel Parenting

JLC: parents share authority to make decisions re: health, education and welfare
o
Rise in JLC because (Boyd)

Judges dont have to make hard decisions, allows them to defer to social science
experts

ADR/influence of psychs and social workers stress importance or dual contact

o
JC should only be ordered in exceptional circumstances, rarely present in custody
litigation (Baker)
JPC: arrangement where parents spend substantially equal time with child
Parenting Plans: Arrangements for physical care of children, may stipulate time spent with each
parent, holiday arrangements, communication and connection with extended family
o
Goal is to set out arrangements at the beginning in hopes of preventing future
disputes
Parallel Parenting: arrangements for decision making by parents; may incorporate
arrangements in parenting plans, will also determine decision making authority
o
Generally occur where parents cant communicate or cooperate; both parents will have
equal rights and status, but will exercise them independently from each other

Special Joint Committee - 1998

o

Pros of ADR

Reducing time, money and effort on litigation, clear the courts up

Reducing conflict between separating parents

Capacity to include children and other interested parties

Limitations

Concern about situations with power imbalance, abuse and violence

Mandated mediation may put many women/children at risk

Recommendations

Parents be encouraged to attend at least one mediation session

Methods should be structured to screen and identify family violence,

vulnerability

Resulting plan must contain measures to ensure safety and security of parents
and children

Buist v. Greaves
Parties are lesbians, D has a child, P leaves D; D wants to go to Vancouver with child for new job;
P seeks order for joint/sole custody
Court holds that it is in BIC to be (1) with biological mom and (2) in Vancouver
o
(1) D was the childs primary caregiver; child would become upset if detached too long

63

This isnt exceptional case where JC should be ordered bond is less with P,
relationship is too acrimonious
o
(2) House was already sold, would have to move anyway; sibling was going to V, there
were excellent health facilities
Ratio: JC shouldnt be imposed against the parties wishes
Sexual orientation of the parents is not relevant to determination of BIC

Biamonte v. Biamonte
Court dismisses application for JC because parties are not in agreement on JC
Where parties are not in agreement on JC, cannot be ordered
Kaplanis v Kaplanis test for JC
TJ grants JC to parents, orders ongoing counselling, M appeals, ONCA grants SC to mother; F
wanted parallel parenting, but parties were unable to communicate
Simply because both parents are fit does not warrant a JC
TJ erred in ordering counseling, no authority in statute
Test: There must be some evidence before the court that, despite their differences, the parents
are able to communicate effectively with one another
Critique
o
Two trends after Kaplanis

Courts are denying JC b/c parents cant communicate, when it should be denied
because of problematic parental conduct

Courts are denying JC, but ordering equal split of time between each

If JC is not in BIC, how can spending equal time in households that

dont communicate, or are in open conflict?

Equal split presents amazing potential for parents to continue battling

each other
Warcop v. Warcop no presumption in favour of primary caregiver
W applies for SC b/c she was primary caregiver
Court holds that joint custody is appropriate are able to communicate, cooperate and are
civil
o
Worried that order for SC simply because she was primary caregiver would be proxy for
discredited tender years doctrine

Any preference for primary caregiver must be based on evidence, not a

presumption
Shared Parenting in Australia (Rhoades)
Studies after Australia abolished categories of access and custody
Concludes that: intended effects failed to materialize
o
Parents continue to structure affairs around concepts of C/A
o
Litigation has increased; new terminology is foreign to most parents
Reasons
o
Logistical difficulties of co-parenting across two households
o
Perception of lawyers and judges that new situation was old wine in new bottles
o
Overriding reason is that separation process is not conducive to cooperation
between former spouses especially those that recourse to legal system
Argues that vision of shared parenting is fundamentally flawed
o
Marginalizes womens concerns about violence; marginalizes children from violent home
o
Ignores diverse reality of families treats them all as same
o
Reforms created paradox by encouraging ongoing relations while imposing right of
contact that assumes a static arrangement
o
Sense that the reforms were a cynical exercise, a sympathetic response to
complaints of a particular constituency without real commitment to bringing
cultural change

Child Support
-

Are meant to minimize effects of separation on the financial security of children

Pre-CSG
o
Variability of CS orders created concern about fairness and consistency (Rogerson)

Obvious disjuncture between principles articulated and actual outcomes re:

quantum of CS

Most CS awards arent high enough to meet Paras standard or even

equal SoL between households

Typically, custodial household is left with 40-80% of income of N-C parent

64

Problematic if custodial parent repartners (3 person household) and NC only has to support himself
o
Concerns about tax treatment of CS awards

Prior to 1996, they were included in income of C parent, and deductible by N-C
parent

Thibaudeau SCC holds that inclusion/deduction regime doesnt violate s.15 by

disadvantaging primarily women
CSG were enacted in 1997
o
While they reflect social commitment to ensuring child well-being, also show emphasis
on privatizing family support (Carborne)

Also represent shift from H-W relationship to P-C relationship as defining

element of family obligation

Paras v. Paras pre-CSG determinations were highly discretionary under DA

Established that:
o
CS should be set at level that maintains child at pre-divorce standard of living
o
Costs of achieving that standard should be apportioned between parents in
proportion to their respective incomes
Critique
o
Requires considerable discretion to determine standard of living
o
Assumes continued existence of sufficient resources to maintain pre-D SoL

Definitions of Parent-Child Relationships

Courts have been very generous in determining who is a child highly discretionary
Legislation doesnt really have definition of mother; pretty self-evidence
At CL, persons could be recognized as in loco parentis would be recognized as legal parent

Divorce Act
-

s.2(1) child of the marriage is child of two spouses or former spouses who:
o
(a) children under age of majority who have not withdrawn from parental charge
o
(b) children of age of majority who are unable to leave parental charge because of illess,
disability or other cause
s.2(2) child of the marriage is a child of two spouses if (social parent definition)
o
(a) they both stand in place of a parent, or
o
(b) one is parent and other is in place of parent

Courts have held that these sections must be applied in BIC distinction from
in loco parentis

FLA
-

s.1(1) parent includes person with settled intention to treat child as child of their family
s.31(1) creates obligation to support unmarried child who is a minor, or is over the age of
majority and is enrolled in a full time educational program
o
Courts have allowed children in part-time programs to qualify

CLRA
-

S.
S.
S.
S.

1(1) person is the child of his or her natural parents

1(2) person is the child of his or her adoptive parents
1(4) status of illegitimacy abolished
4 allows for a declaration that a person is the mother or father of the child
o
Remember AA v. BB, CC no limit on number of mothers or fathers
S. 5 where no person recognized under s. 8, any person can apply for a declaration of
paternity
S. 8 presumption of fatherhood unless contrary proven on BoP if :
o
Married at birth, married but terminated within 300 days before birth, married after birth
and acknowledges himself as natural father, cohabiting with some permanence at birth
or within 300 days of birth, person certified as father under VSA, found or recognized to
be father by a court
S. 10(1) in proceeding, can grant leave to obtain a blood test and submit results in evidence
S. 10(4) if you refuse to blood test, court can draw inferences as it sees fit

Re Khan and Pinsonnealt 1979 paternity tests

s.10 of CLRA allows court to grant leave for paternity test
Factors to be considered:
o
Were the parties married at the time the children were born?
o
Did the parties CH of some duration when, or shortly after, child was born?
o
Did parties admit sexual interaction near time of conception?

65

Can the applicant show a prima facie case of putative fatherhood through affidavit or
other evidence?

P(K) v N(P) 1998 s.10 is constitutional

Court holds that s.10 did not infringe s.7 of Charter
o
Doesnt authorize forcible taking of DNA, only allows court to grant leave
o
If leave is granted, party can still refuse to take the test
o
Only result of refusal to take test is that court can draw adverse inference

The Impact of Agreements

Hyde v. Lange agreement doesnt preclude CS - FLA
Parties sign separation agreement waiving child support claims; child is in school and brings
application for support
Court holds that agreement by parents doesnt preclude applications for support
agreements is not in BIC; was entitled to s.31 support (full-time education)
Right to support is childs right, not impacted by parent not exercising access or
separation agreements (access is completely unrelated to issue of child support)
Louis v. Lastman 2002 ONCA - FLA
Brothers claim for retroactive CS against natural father (Mel Lastman); mother had signed
agreement releasing father from obligation decades ago in return for 25k lump sum
Court holds that there is no legal basis for application not under age of majority, not
enrolled in fulltime education
However, court holds that it may be possible that fiduciary claim for CS outside
legislative scheme may be possible where there is need
Parsons v. Parsons - FLA
Daughter (24yo in medical school) claims support from father, despite no ongoing relationship
Court holds that all that matters is that child is child of marriage, no need for ongoing
relationship; P qualifies for child support but limits it to one year

Blended Families and Social Parents

-

While DA and FLA allow for person standing in place of parent or with settled intention there is
no definition of such

Chartier v. Chartier 1999 SCC

Parties separate after having one child, W has child from previous relationship, H is step-parent;,
H is in place of parent according to DA; TJ holds that H severed relationship with step-child and
owed no support
SCC
o
Highlights two lines of reasoning

Carignan person in place of parent can make unilateral withdrawal from

parental relationship (MBCA)

Theriault- person cannot unilaterally withdrawal from parental relationship

(ABCA)
o
Court holds that persons in place of parent cannot unilaterally withdraw from
parental relationship at separation (affirms Theriault)

Historically, persons in loco parentis could unilaterally withdraw; current social

values have changed, shouldnt be allowed to walk away form children

Focus of the DA is on the BIC cannot be in BIC that natural or social

parents be able to unilaterally abandon them
o
For natural parents, biology is basis for parentage; in case of step parent, it is the
voluntary assumption of the role that warrants the imposition of support obligation
o
Court says that Hs intention is only one factor among many DA makes no
mention of intention, Carginan was dependent on CL, was wrongly decided

Court must also infer intention from actions

o
To determine in person is in place of parent:

Must take into account all factors, viewed objectively

Intention (express or implied through action) but not determinative

Childs participation in extended family

Whether person provides $$$ for child

Whether person disciplines child as parent

66

Whether person represents to child, family and world that they are
parent

Nature or absence of childs relationship with biological parent

o
Court holds that once in loco parentis, child must be treated as ones
biological or adopted child
Critique (Prof. McLeod)
o
While court says that step-parents should be able to terminate relationship with child,
ruling doesnt actually do this

SCC assumes that continuing financial relationship will necessitate a social

relationship
o
Adult relationships dont always necessitate commitment (must be 3yrs), so should
courts impose long-term financial obligations who was pleasant to a partners child for a
time?

Surprising that short relationship wont give rise to SS claim, but will for CS claim
o
Possible consequence is parties contracting in short relationships or parents attempting
to minimize contact with partners child
o
After ruling, appear that the only way to avoid long-term $$$ commitment is to
avoid any relationship with the child

Gardiner v. Gardiner 2001 NS LIMITING APPLICATION OF CHARTIER

F brings application that wife is in loco parentis for his two kids from previous marriage; biological
mother had remained in contact, father and nanny did most of day-to-day care, and W didnt
expend $$$ on the kids
Court holds that W is not in loco parentis five year relationship with child didnt warrant
long term financial obligation
Monkman v. Beaulieu CHARTIER APPLIES TO CH (MB)
Parties CH for 4 years, W has 4 prior kids, one calls F dad and has no connection with biological
father
Court holds that no difference between standing in place of parent (provincial
language) and in loco parentis (federal language)
Court holds that Chartier applies to CH couples
o
Rising numbers of CH and growing trend to extend legal obligations to children
regardless of legal status of adult relationships
Crucial element is relationship between child and adult, not between adults
Cheng v. Cheng
Court holds that FLA doesnt preclude grandparents being social parents where there is a settled
intention on their part

Obligation to Pay Child Support

DA

S. 15.1 allows courts to make orders for child support

S. 15.1 (3) in making order must do so in accordance with applicable guidelines (CSGs)
S. 15.3(1) priority is given to order for child support

FLA

S. 31 every parent has obligation to provide support for minor unmarried children and also
children who have reached the age of majority but are enrolled in full time education
S. 33(1115) orders for support should be made with consideration of child support guidelines

Child Support Guidelines

-

Promulgated 1 May, 1997 as regulations under DA in response to complaints that many in

similar situations were paying varying amounts
Basic principles were applied to statutory schemes FLA, OReg 463/11
Upon introduction of CSG
o
Tax inclusion/deduction scheme was abolished
o
Enforcement measures were strengthened
o
Guidelines are mandated in court orders, but not settlement agreements
Are considered more efficient, and reduce financial and emotional costs of resolving FL disputes
S.1 - objectives:

67

(a) ensure fair standard of support; (b) to reduce conflict and tension by making
CS orders more objective; (c) to improve efficiency of legal process; (d) to
ensure consistent treatment of children and spouses in similar circumstances
s.3 presumptive rule that CS is to be paid according to provincial tables, based on payors
income and number of children
s.7 list of special or extraordinary expenses that are added to table amounts
Allow for adjustment based on:
o
Sharing of expenses by biological and other parents (s.5)
o
Split custody (s.8)
o
Shared custody (s.9)
o
Undue hardship (s.10)
o

CSG Objectives s.1

-

(a) ensure fair standard of support; (b) to reduce conflict and tension by making CS
orders more objective; (c) to improve efficiency of legal process; (d) to ensure
consistent treatment of children and spouses in similar circumstances

Who Wants to Avoid the Guidelines? Rollie Thompson

-

Argues that practitioners have only embraced the objectives of certainty and consistency, and
have ignored adequacy and efficiency (BD); or have focused on A and E, and ignoring C and C
(AC)
o
Lawyers are happy to just apply the guidelines without any heed to the consequences
o
BD lawyers believe that C/C will lead to A/E not true
Believes that to be effective, there must be limits on contracting out shouldnt allow parties to
contract around the CSG
o
Believes that courts play a large role in policing this by:

Using the CSGs as minimums for quantum of support

Using the CSG formulas for variations up and down from the CSG

Demanding more detailed financial reporting

Determining the Amount of Support (s.3)

-

While based on the CSG, determining quantum involves judicial discretion

S.19 allows TJs to impute income to a payor of CS where they intentionally forgo income

Middleton v. MacPherson (ABQB)

Court trying to figure out the quantum of Ws income to determine CS
Example where application of s.3 is not straightforward
Drygala v. Pauli ONCA 2002 imputing income
Court holds that intentionally under s.19 is satisfied where the payor chooses to earn less than
they are capable or chooses not to work when they can
S.19 doesnt apply where, through no fault or act of their own, spouse is laid off,
terminated, or given reduced work
There is no bad faith requirement in s.19
Riel v. Holland
H was electrician; gave up work to take salaried position so that he could spend more time with
children
ONCA upholds TJ decision to impute higher income to him in determining CS
o
MM: Court is trying to demonstrate that they prioritize BIC

Extraordinary Expenses s.7

-

Allows addition, exercised on TJ discretion of all or part of the following expenses:

Extraordinary expenses include:
o
(a) child care
o
(b) Premiums for medical and dental care
o
(c) health-related expenses not covered by insurance
o
(d) primary or secondary education
o
(e) post-secondary education
o
(f) extra-curricular activities
s.7(1.1) was added to clarify extraordinary expenses as amounts that: exceed those that the spouse
requesting an amount for the extraordinary expenses can reasonably cover, taking into account that
spouses income and the amount that the spouse would receive under the applicable table
Tried to make determinations less discretionary

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CSG and Social Parents s.5

5. Where the spouse against whom a child support order is sought stands in the place of a parent for a
child, the amount of a child support order is, in respect of that spouse, such amount as the court considers
appropriate, having regard to these Guidelines and any other parents legal duty to support the child.

Authorizes court to determine appropriate amount of CS payable by person standing in loco

parentis/ in place of parents
o
However, doesnt provide any guidance as to apportioning CS between biological and
social parents
Cannot be relied on by natural/adoptive parents to reduce their quantum of CS (Wright)

Wright v. Zaver 2002 - ONCA

Parties separate, sign minutes of agreement no access by father, 4k lump for CS; W remarries,
new H treats daughter as his own; they separate, and new H brings application against father in
relation to initial child
TJ holds that biological/adoptive parents cannot rely on s.5 to reduce their amount; ONCA
confirms
Biological and adoptive parents may not rely on s.5 to reduce CS, even though there is
a social parent as a result of re-partnering
Enactment of the CSG constituted a material change that would allow variation of CS
Cornelio v. Cornelio 2008 ONSC
H brings application to terminate support, DNA test showed he wasnt the father of child claimed
misrepresentation and fraud
Despite lack of biological connection, if person treats child as their own, they will be in
loco parentis if it is in BIC question to ask is whether relationship that existed at the
time the family was functioning was one where the parent treated the child as their
own
Right to CS is right of child and independent of parents own conduct; children saw him
as parent, in BIC to receive support from him
Rogerson: We do not have a clear idea why we are imposing support obligations on step-parents; TJs
have divergent views on why step parents should have the same obligations as natural parents

Split and Shared Custody ss.8 and 9

-

S. 8 applies where there are multiple children, each residing with one parent (split custody)
o
Determine amount owed by one parent for child residing with other parent; then vice
versa; amount payable will be the difference between the two
S.9 applies where there is shared custody
1. Calculate time spent with each parent
2. If time with payor parent is 40% of total time, then they must pay
Meloche v. Kales s.9 analysis starts from presumption that custodial time is initially 100% of
time, and that access parent must occupy 40% of that time to qualify
Sirdevan even if child is in care of nanny per one parent, still counts as time for that parent

Leonelli-Contino v Contino SCC 2005

Parties agree to JC; child lives with mother daily, with generous acces by father; F agrees to CS of
500; M enrolls in night course, father takes care for extra night, moves to decrease quantum of
support
TJ grants motion, reduces quantum; DIVCT overturns, says quantum determined in BIC; ONCA
reversed formulaic approach of TJ didnt account for disctretionary requirement under s.9(c);
DivCT went too far with discretion, lacked predictability
SCC:
o
Discretionary approach is appropriate

Language emphasizes flexibility and fairness necessary to exercise discretion

to achieve this
Annotation (Thompson)
o
Step-by-step for determing quantum under s.9
1. Determine the Simple Set-Off Amount of each parents table amount
2. Review child expense budgets (determine increased costs of shared custody
arrangements)
3. Expenses should be apportioned between parents in accordance with respective
incomes
4. Distinguish between intial orders or agreements and variations
Critique (Thompson)

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o
o

No explanation for courts award of 500/month

Shows that decisions under s.9 are highly discretionary

Problem in this case is that mother bought a larger house in reliance of CS, and that in
fact she made more than the husband

Makes case fact specific, in spite of effort to establish general principles

Expectation on parties to disclose all financial information may be too onerous for parties
who cant afford lawyers, etc.

Undue Hardship s.10

-

s.10 permits variation of CS amount on basis of undue hardship

o
Variation will be denied if applicant household has a higher standard of living than the
other household
o
In this way, it is the relative standard of living, not the relative level of income that must
be compared must be supported by cogent evidence; high burden

Schmid v Smith (1999) Ont

Father live in UK, mom in Canada; F claims undue hardship because of (1) high expenses in
relation to access in Canada, (2) legal duty to support child (3) higher cost of living in UK
Court holds:
o
(1) this does constitute undue hardship; (2) this only applies to children not of the
marriage; this child is of the marriage, so no UH; (3) F failed to show how higher cost of
living has affected him negatively no UH
However, notwithstanding (1), standard of living is higher in his household than Ws no
variation

Enforcing Child Support

-

Study of Family Court in Toronto in 1986 found that 82% of orders were in default
CSG have emphasized privatization of responsibility for dependence post-separation
o
Government has assumed role of enforcing orders can rescind licenses, etc.
Family Responsibility and Support Arrears Enforcement Act if in default for three months and
arrears are >300, then ON will report you to creditors

Dickie v. Dickie 2007 SCC

F ordered to pay CS, flees to Bahamas; in arrears of 700k
Returns to Canada, is cited in contempt of court order
ONCA allows appeal from order requiring him to post security
SCC: courts can refuse to hear appeals from parties with outstanding FL orders

Retroactive/Recalculating CS
-

s.39(1) allows for annual recalculations in CS based on the payors income

Before there were recalaculation schemes, there was the situation of arrears where payors
income would go up, but there would be no recalculation

DBS v. SRG et al
SCC upholds decisions allowing retroactive child support in ALTA
Majority:
o
Must have holistic view of situation and must balance payors interest in certainty and
childs need for fairness
o
Should consider: reason for delay in seeking support, conduct of payor parent, childs
past and present circumstances, potential for hardship
Abella (concurring)
o
CS is a right of the child and a joint obligation of the parents
o
Entitlement to CS beings with income increases and no role for blameworthy conduct and
no necessity to demonstrate hardship

CSG and Reform

For the Sake of Children Special Joint Committee on Child Custody and Access
Recommended abolition of custody and access not followed; but many people raised concerns
about CS, so felt necessary to include
CSG are generally viewed as a positive way to improve predictability with regard to quantum
However, some problems

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o
o
o

o
o

CSGs force parents to pay for post-secondary education, where no obligation exists for
intact families people thought that ought to be changed
Table amounts are determined based on payors income with no account for recipient

If recipient has good income, payor still has to pay in accordance with the tables
Discretionary 40% rule was inappropriate and arbitrary how do you determine what
40% of time means? recommended graduated scale, not cliff of 40%

Most argue that it should be 20-40%

CSGs are mandatory; parents arent free to opt-out seen as unnecessary restriction on
freedom of parents to arrange their affairs, post-separation
Interaction between CS and public assistance

In ON receipt of CS may diminish entitlement of recipient to social assistance

Parent may be deemed to have received CS even if they havent this could
result in a reduction in public assistance, even though they dont have the
money

What Were They Thinking (CS and child poverty) (Miller and Gauthier)
Reinforces point that most people recognize that CS does not alleviate child poverty
b/c is so much tied to payors income
Many saw CSG as means to alleviate child poverty
o
However, where payor parent is of little means, CSG do little more than perpetuate
poverty post-separation
o
Exacerbates poverty because of the extra costs of splitting one household into two
While CS is useful to share financial difficulties pursuant to divorce, it is unlikely to
bring a large proportion of divorced custodial parents out of poverty
CS may not even go to child, may go to make up for clawed-back social assistance in
this way, CS represents the privatization of social assistance
Tackling child poverty requires a public approach, not a public initiative that privatizes
the responsibility

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