FAMILY LAW
McGill Law - Spring 2014
Professor Leckey
By Silvia Neagu (with borrowing from Suzanne Amiel’s Spring 2009 summary)
Table of Contents
Introduction................................................................................................................................ 2
1. The Parent-Child Relationship..................................................................................... 3
A. De jure relationships .................................................................................................................... 4
1. Establishment .............................................................................................................................................4
Class 2 : Filiation by adoption: wanted adoption? ........................................................................................ 4
3. Unwanted Adoption? ......................................................................................................................................... 17
4. The classic model of adoption disintegrates ............................................................................................. 23
5. “Natural” parentage and filiation by blood ................................................................................................ 28
6. Filiation by blood: Secrets and family stability ....................................................................................... 41
7. Assisted conception and same-sex couples ............................................................................................... 44
7. Assisted conception and same-sex couples ............................................................................................... 46
8. A Third Parent? ...................................................................................................................................................... 54
2. Effects .......................................................................................................................................................... 58
10. Obligation of Support Cont’d ......................................................................................................................... 66
11. Welfare principle/Best interests of the child ........................................................................................ 75
12.Authority of parent over the life of the child .......................................................................................... 81
13. Authority of parents over the life of the child: the darker side ..................................................... 88
B. De facto relationships: establishment and effects mingled ......................................... 99
14. De facto parenthood .......................................................................................................................................... 99
15. De facto parenthood and alternative family forms .......................................................................... 106
II. Adult Conjugality ............................................................................................................ 108
A. De jure relationships ............................................................................................................... 108
1. Establishment ....................................................................................................................................... 108
17.Marriage ............................................................................................................................................................... 108
18. Formal Unions For Same Sex Couples .................................................................................................... 115
2. Effects ............................................................................................................................................ 124
20. Rights and Duties of Spouses ..................................................................................................................... 124
3. Dissolution ............................................................................................................................................. 129
March 21. Family Breakdown ........................................................................................................................... 129
26. Obligation of spousal Support ................................................................................................................... 137
23. Obligation of support con’d – private ordering ................................................................................. 147
B. De facto relationships: establishment and effects mingled........................................ 151
24. Pushing the boundaries of recognized conjugality: the Charter litigation for unmarried
couples ......................................................................................................................................................................... 151
26. Rethinking the push for recognition ....................................................................................................... 163
1
Introduction
Jurisdiction
- Federal: marriage and divorce s. 91(26),
- thought this should be consistent across of Cnd
o Ancillary power: can also deal with issues in the (child support, spouse support)
- Provincial: property and civil rights in the province 92(13): the solemnization of marriage
92(12)
Sources
- in CML: found in sev statutes –in Ontario: Ontario: Family Law Act; Children’s Law
Reform Act (how children’s relationships with their parents are est; abolishes the status of
illegitimacy); Child and Family Services Act
- Federal statutes: Divorce Act; Civil Marriage Act; Marriage Act (Prohibited Degrees)
- Sources of duties in Family law : consent (contract); fault; fiduciary
Crucial oppositions
- Public vs private
o Public: child protection; welfare (calculate as spouses)
o Private: right to custody & access to a child; obligation of support
- Instrumental vs non instrumental, symbolic reasons for identifying family
relationships
o Symbolic: child owes respect to parents (597); spouses bound to live together,
fidelity (392)
o instrumental: Ontario unmarried couples were first recognized for welfare
reasons bc too many single moms on welfare (non-instrumental), but then this
became an issue for same sex couples, dignity (instrumental)
- Formal vs functional bases for recognizing family relationships
o Formal: marriage and birth certificate (paper trial) as recognizing family
relationships
o Informal: obligations to informally recognized relationships (if you act ask as if
you are the parent to the child, you may owe support to the child)
- Voluntary vs Involuntary attachment of legal effects to relationships
o voluntary: marriage
o debatable: ascription of legal duties based on living together, obligations to child
(if the condom breaks, did the parent consent to have a child- some say yes,
some no)
o involuntary: child’s duties to parents
- Formal equality vs substantive equality
- [liberalism vs protectionism
- legal vs social]
Robert Leckey, “Families in the Eyes of the Law: Contemporary Challenges and the Grip of
the Past” (2009), p. 12
Legal Models for Regulating Adult Relationships in Canada
Marriage
- a status, 2 partners, formal ceremony, enter with consent
- laws attach legal effects to it: mutual support
- some legal effects are obligatory or some can be displaced by mutual agreement
- only terminated with death or dissolution of marriage
- private law model: using instruments like Ks and wills, which are instrumentally useful
for the new distribution of rights and duties
o ex two people living together can K to have property sharing laws applicable to
married people apply to them
o assumes parties know their position under the general private law and they want
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to alter it
operates in a formal way: works best when parties are equal in knowledge and
power, have resources to enable legal advice
o private ordering is the most effective at formalizing expectations that are
conscious and articulable
o like marriage, viewed as consistent with autonomy
o however: one party may be vulnerable
o ordinary rules of K may prove less adaptable than legislated family regimes
o ex: private K doesn’t allow you to change K whe circumstances change (whereas
support obligation rules do)
Ascription: legislature’s instrumental attachment of rights and duties on the basis
of particular relationships
o Can be interpersonal rights/duties or connecting ppl to the gov’t
o Ex: CML statutes ascribe duty of mutual support to couples living together
o Parties don’t have to make own rules!
o Like marriage, registration, operates well by making explicit expectations that
might be tacit and inarticulate during the relationship
o Legislature often sees one feature (ex cohabitating in a conjugal relationship for
3 yrs) as indicating the presence of a given policy concern (commitment and
interdependence associated w marriage)
o Likely both underinclusive and overinclusive
o Reflects assumption that the obligations imposed matches tacit expectations of
most ppl in such relationships. OR assumption that appetite for formal
commitment is assymetrical
o Law Commission of Cnd: it infringes on autonomy (ppl don’t’ consent, might not
be aware)
o Design choice re: rights and duties and their force!
o Legislature may make duties obligatory (where unequal power) or allow optingout
o Opting out makes sense where ascription is based on rules matching people’s
expectations
Registration: legislatively established framework of rights and obligations that parties to
a relationship can take on
o Like marriage, ascription, rights and duties can operate within public /private
law or both and reflects design choices re: content of rights and duties and
their alterable character
o also like marr and ascr – saves parties the trouble of defining their rights
o May track legal concent of marriage, but not necessarily
o Formal, consensual basis, consistnet with individual autonomy (like
marriage, private law)
o Ineffective when parties are unequal
o Instrumental content, but also symbolic (state validation – for certain classes
of intimate regimes)
o
-
-
1. The Parent-Child Relationship
The first part of the course treats relationships between children and adults who have the legal
status of parent or who attract some of the effects of parenthood. While family law historically
organized itself around marriage, today the filial relationship is more properly placed at the outset:
distinctions persist, to varying degrees, in the legal treatment of married and unmarried adult
couples, whereas laws are now chiefly indifferent as to the civil status of a child’s parents.
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The filial bond can thus be regarded as largely independent of adult relationships and is
appropriately regarded as primary. This part of the course distinguishes de jure relationships,
ones formally recognized by the law, from de facto ones, which law recognizes on informal bases.
A. De jure relationships
We begin with what can be called de jure or formally recognized filial relationships, the juridical
bonds connecting people recognized by law as parents to children. Parental status is viewed as
intrinsically, non–instrumentally valuable; it is also, as we shall see, a means by which various
effects (rights and duties) attach.
1. Establishment
A relationship of legal parenthood can be established several ways. We shall see that recognition
of parentage by contemporary law derives, in ways that can feel contradictory, from genetic
connection, intention, or relationship with a child’s mother. Establishment of parental status
is usually prospective: it typically precedes the carrying out of parent–like functions. We begin
with adoption, the mode of establishment in which intention and consent are most explicit.
Beginning this way, and not with “natural” parentage or filiation by blood, aims to dislodge the
sense evident in traditional doctrine of these latter modes as primary and of adoption as
secondary.
Class 2 : Filiation by adoption: wanted adoption?
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The function of adoption
o replaces pre-existing family bonds ; child stops belonging to one family and now
belongs to another family
o Instrumental vs non-instrumental
The adoption as mimetic filiation
Adoption as an erasure of prior ties and creation of new family
Adoption’s political effects within family law
Locating adoption: legislative choices
The most formal establishment of parent-child relationship (requires court judgment)
o Social worker evaluation
Adoption regime: core questions
Design question: extent of rigidity vs judicial discretion
Who is the guardian of children’s best interests?
-
-
Who can be adopted (child, adult)
Who can adopt (single, pair, married, alive or dead)
o both Qc and Ont: both imagine that 1 person can adopt
o ON: assumes that if two ppl are adopting they are spouses 146(4)
o QC: doesn’t assume this (546 CCQ)
o Dead: symbolic
Consent (who: child, parents, revocation, dispensation thereof)
o Child may be judicially declared eligible for adoption (559)
o where care, maintenance or education have not been taken in hand by mom/dad
for 6 months (559(2))
o Adopting parents - consent: “general consent” of adoption – parents consent to
adoption generally or “Special consent” – consent to adoption to a particular
4
-
adoption – ex: step parent adoption, note reference to de facto spouses (3 yrs)
(Art 555)
Authority – judge, administration
o In Cnd: judicial involvement
Effects (same/differnet, eliminate ties? Eliminate most ties?)
o Trial period challenges idea of finality of a judgment
Key features to observe
- Dispensation with consent
o Both regimes when parent not capable of parenting
- Question of adult adoption in Qc
- Special consent
- Spouses or inviduals
- Age gap
- Effects of adoption – and exceptions (marriage impediments)
N Kasirer, “Note: Establishing the Bond of Filiation and the Civilian Conception of Family
Relations”
Filiation
- “central pillar of the civilian conception of family relations”
- legal relationship (lien de droit) bween parent and child and from it flow civil status and
filial obligations
- rules were designed to promote stability through rigorous presumption of paternity and
different treatment for children based on parent’s married status
- filiation – a question of proof
- in 1980: diminish role of marriage, greater emphasis on biological ties
- Filiation divided into “by blood” and “adoption” , suggests meant to reflect “true” bio
relationships
o Blood: Idea it’s based on biological reality
- “Rules regarding filidation reveal a more complex constellation of policy goals” (not just
about revealing real biological ties)
o weaken presumption of paternity: in absence of act of birth, or possession of
status, a child born within a marriage or within 300 days of its dissolution or
annulment, is presumed child of mother’s husband (525)
o “a residual desire to protect the stability of marital relations is apparent”
- goal of stability within existing families – also seen with UPS (524)
o “possesson of status can be defined as social facts which tend to indicate the
relationship between parents and children.” : name, mutual recognition,
observance of obligations, treatment of child as family member by extended fam
and broader community
o UPS used in limited circumstances where not reflective of biology (524,530,532)
- Limits on proof indicate that social and legal values are more important than biological
links
o 538 precludes the establishment of a bond of filiation for persons “participating in
a parental project of another” (sperm donor)
o remains controversial whether Courts should be entitled to draw a negative
inference from a refusal to submit voluntarily to blood test
- “Filiation by adoption seems to be based upon the social value attached to healthy child
rearing as opposed to the mere fact of biological attachment”
o adoption = a formal juridical act with various stages that must be
sanctioned by a court
o doesn’t allow private adoptions, does allow adoptions based on “special” consent
(555 CCQ) for certain blood relatives
o “Is there a presumption even if adoption, which seeks to promote positive family
relations, that children are better off with relatives than with strangers?”
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Jean Pineau & Marie Pratte, La Famille , paras 487-75, pp. 749-62


int’l adoption presents specific risks to young mothers from developing countries
1993: Convention sur la protection des enfantss et la coopération en matière d’adoption
internationale (Canada signed Convention in 1994; ratified in 1996)
 Convention recognizes that adoption is not only institution of filiation, but also a measure
of protection for the child – preferable for the child to be in the new country
 Convention also allows the child to obtain a clear and definitive status, confirming with
international law.  provides a base system of cooperation between countries
o Convention designates a single body in a country “Autorité centrale”  in QC, it’s
Ministère de la Santé et des Services sociaux”
o This central authority must evaluate the adoptive parents, and provide advice if
necessary
o Authority of the country of origin takes steps to organize the departure of the
child, and the Authority of the country of destination takes care of the child’s
arrival and stay
o The Authority of the origin country must deliver a certificate of conformity
o After 6 months of being placed, adoption is announced, certificate delivered,
adoption is “reconnue de plein droit” (art 573.1 CCQ, art 23 of the Convention)
 The challenge of harmonizing the systems
in certain States, like QC, adoption is always « simple » not « pléniere »  filiation bond btw the
child and the birth parents severed
In Re Robert Paul, NY CA 1984
Facts : A 57 year old man wants to adopt a 50 year old man, after having resided continuously
together for 25 years, in homosexual relationship. They desired adoption for social, financial and
emotional reasons (ie. next of kin for medical decision-making, wills, benefits, etc).
Previous Court : Family court denied it, even if the probation investigation was favorable to men.
Said they were trying to use adoption as a way around marriage and other legal tools, and that
there were no similarity with a parent-child relationship.
Issues : Can adoption between adults for purpose other than creating a parent-child relationship
be allowed? NO
Analysis :
Majority Jensent (and three others)
- The fundamental concept of adoption is that a parent-child relationship may be
established by law, on the basis that “adoption imitates nature”.
- Where the relationship between adult parties is incompatible with the creation of a
parent-child relationship between them, the adoption process is not the proper vehicle to
legally formalize their relationship, be it hetero- or homo- sexual. It would be an
incongruous application of the adoption laws, inconsistent with their underlying public
policy.
o Any sexual intimacy is utterly repugnant to the relationship between child and
parent in our society
- Even if adults can adopt another adult (no min age requirement), the basic function
remains to create a parent-child relationship. While there are no special restrictions on
adult adoptions under the provisions of the Domestic Relations Law, the Legislature
could not have intended that the statute be employed to arrive to an unreasonable or
absurd result. This is not a functional parent-child relationship. Adoption should mirror
“nature” where possible.
- Since adoption is a statutory invention and in derogation with common law, the legislative
purposes and mandates must be observed strictly.
- Majority held that wills and business Ks could have properly served the parties’ purposes
6
Dissent (Meyer, CJ concurring):
- The majority’s decision is an undue state interference in family affairs, giving effect to the
provision not as it is written, but how it they think it should be written. Nothing in the
statute requires an analysis of the parties sexual habits.
- Under the Domestic Relations Law, the parent-child relationship is not a condition
precedent to adoption, but rather the result of the adoption proceeding.
- If the state intended to put limitations on age, consent, sexual orientation, etc, it could
have done so, but it didn’t.
- “Adoptive parent” and “Adoptive child” are defined simply as “person adopting” and
“person adopted”.
- The applicant’s motive is not against public policy.
Ratio : The fundamental principle of adoption is the legal creation of an parent(adult)-child
relationship, and this should be interpreted and applied strictly.
Comments : Happens in New York, in 1984…
Dissent tries to distinguish between this case and an adulterous relation where adoption was to
be used to pass on property, considered improper because of undue influence.
Note: no mention of symbolic value of relationship, emphasis is on instrumentality of relationship.
Note: there were other cases where there was a sexual element but it was hetero and it was cool,
ie. monsieur adopts his mistress to ensure she gets inheritance.
Leckey:
- raises questions about the function of adoption
o Does it imitate nature?
o Confirm an existing familial relationship?
o Create a legal fiction?
- Is Family law viewed
- opposability: idea that family relationships are not just about the 2 people, but have
effects on third parties. Ex: tenancy law (lease transfer etc), insurance, employment
(bereavement leave)
- The gay question aside, Robert Paul models two takes on the judicial role:
o Jasen J: honouring of perceived legislative intent, express or inferable
o Meyer J: where compatible w legislative text, adapting law to new social
situations
- Robert Paul models two views of adoption.
o 1. Jasen J’s validation of a filial relationship like those of “natural” parentage.
 but is interracial or single parent adoption “natural”
 some adoption regimes require an age difference – idea that it must look
like a natural parent-child relationship
o 2. Meyer J’s creation of “parent-child realtionship” by operation of law alone
- Epistemological stance: truth of filial bonds vs falseness, artificiality of this nonfilial
deception
- Drafting – Jasen’s adverbs (vehemence)
Arts. 543-584
Chapter II – ADOPTION
7
DIVISION I : CONDITIONS FOR ADOPTION
543. No adoption may take place except in the interest of the child and
on the conditions prescribed by law.
No adoption may take place for the purpose of confirming filiation
already established by blood.
544. No minor child may be adopted unless his father and mother or
his tutor have consented to the adoption or unless he has been
judicially declared eligible for adoption.
545. No person of full age may be adopted except by the persons who
stood in loco parentis towards him when he was a minor.
The court, however, may dispense with this requirement in the interest
of the person to be adopted.
546. Any person of full age may, alone or jointly with another person,
adopt a child.
547. A person may not be an adopter unless he is at least 18 years
older than the person adopted, except where the person adopted is the
child of the spouse of the adopter.
DIVISION I :
CONDITIONS FOR
ADOPTION
§ 1. — General
provisions
- interests of the child
- Consent: parent’s
OR judicial consent
-no adult adoptions,
unless in loco parentis
- not an obligatory
requirement
- full age,
- alone/jointly
- 18 yr age difference!
- unless adopt as stepparent
- not obligatory
The court may, however, dispense with this requirement in the interest
of the person to be adopted.
548. Consent provided for in this chapter shall be given in writing and
before two witnesses.
-formalized consent
The same rule applies to the withdrawal of consent.
549. No child 10 years of age or over may be adopted without his
consent, unless he is unable to express his will.
However, when a child under 14 years of age refuses to give his
consent, the court may defer its judgment for the period of time it
indicates, or grant adoption notwithstanding his refusal.
550. Refusal by a child 14 years of age or over is a bar to adoption.
551. When adoption takes place with the consent of the parents, the
consent of both parents to the adoption is necessary if the filiation of
the child is established with regard to both of them.
§ 2. — Consent of the
adopted person
-
10 yrs+
>14 judge can
overide
- over 14=absolute
refusal
§ 3. — Consent of
parents or tutor
- both parents consent
If the filiation of the child is established with regard to only one parent,
the consent of that parent is sufficient.
552. If either parent is deceased, or if he is unable to express his will, or
if he is deprived of parental authority, the consent of the other parent is
sufficient.
553. If both parents are deceased, if they are unable to express their
will, or if they are deprived of parental authority, the adoption of the child
is subject to the consent of the tutor, if the child has a tutor.
554. A parent of minor age may himself, without authorization, give his
consent to the adoption of his child.
- if one parent dead
- tutor’s consent
- minor parents can
consent
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555. Consent to adoption may be general or special; special consent
may be given only in favour of an ascendant of the child, a relative in the
collateral line to the third degree or the spouse of that ascendant or
relative; it may also be given in favour of the spouse of the father or
mother. However, in the case of de facto spouses, they must have been
cohabiting for at least three years.
556. Consent to adoption entails, until the order of placement,
delegation by operation of law of parental authority to the person to
whom the child is given.
557. A person who has given his consent to adoption may withdraw it
within 30 days from the date it was given.
The child shall then be returned without formality or delay to the person
who has withdrawn his consent.
558. If a person has not withdrawn his consent within 30 days, he may,
at any time before the order of placement, apply to the court to have the
child returned.
559. The following may be judicially declared eligible for adoption:
(1) a child over three months old, if neither his paternal filiation nor his
maternal filiation has been established;
(2) a child whose care, maintenance or education has not in fact been
taken in hand by his mother, father or tutor for at least six months;
(3) a child whose father and mother have been deprived of parental
authority, if he has no tutor;
(4) a child who has neither father nor mother, if he has no tutor.
560. An application for a declaration of eligibility for adoption may be
made by no one except an ascendant of the child, a relative in the
collateral line to the third degree, the spouse of such an ascendant or
relative, the child himself if 14 years of age or over, or a director of
youth protection.
561. A child may not be declared eligible for adoption unless it is
unlikely that his father, mother or tutor will resume custody of him and
take in hand his care, maintenance or education. This unlikelihood is
presumed.
562. The court, when declaring a child eligible for adoption, designates
the person who is to exercise parental authority in his regard.
563. Every person domiciled in Québec wishing to adopt a child
domiciled outside Québec shall previously undergo a psychosocial
assessment made in accordance with the conditions provided in
the Youth Protection Act (chapter P-34.1).
564. The adoption arrangements are made by a body certified by the
Minister of Health and Social Services pursuant to the Youth Protection
Act (chapter P-34.1), unless an order of the Minister published in
the Gazette officielle du Québec provides otherwise.
565. The adoption of a child domiciled outside Québec must be
granted abroad or granted by judicial decision in Québec. A
judgment granted in Québec is preceded by an order of placement. A
decision granted abroad must be recognized by the court in Québec,
unless the adoption has been certified by the competent authority of the
State where it took place as having been made in accordance with the
Convention on Protection of Children and Co-operation in Respect
- special vs general
consent
- consent to adoption =
delegation of parental
authority until order of
placement
- can withdraw consent
within 30 days
- after 30d, can apply
to Ct
§ 4. — Declaration of
eligibility for adoption
(2) care/maintenance/
education for 6 mo.
- fam members or child
or youth protection can
declare child eligible
- presumption of
unlikelihood
- if not unlikely, can’t
be declared eligible
- designation of
parental authority
§ 5. — Special
conditions respecting
adoption of a child
domiciled outside
Québec
-psychosocial assess
- adoption agency
- need either QC
decision or one that
accords w Int’l law
9
of Intercountry Adoption.
DIVISION II - ORDER OF PLACEMENT AND ADOPTION JUDGMENT
566. The placement of a minor may not take place except on a court
order nor may the adoption of a child be granted unless the child has
lived with the adopter for at least six months since the court order.
The period may be reduced by up to three months, however,
particularly in consideration of the time during which the minor has
already lived with the adopter before the order.
567. An order of placement may not be granted before the lapse of 30
days after the giving of consent to adoption.
568. Before granting an order of placement, the court ascertains that
the conditions for adoption have been complied with and, particularly,
that the prescribed consents have been validly given for the purposes of
an adoption resulting in the dissolution of the pre-existing bond of
filiation between the child and the child's family of origin.
DIVISION II - ORDER
OF PLACEMENT
AND ADOPTION
JUDGMENT
- placement: req’s
court order
- adoption: reqs living
w child for 6 mo
- 30 days after giving
consent to adoption!
- adoption = resulting
in dissolution of
filiation bond
Where the placement of a child domiciled outside Québec is made
under an agreement entered into by virtue of the Youth Protection
Act(chapter P-34.1), the court also verifies that the procedure followed is
as provided in the agreement. Where the placement of a child is made
within the framework of the Convention on Protection of Children and
Co-operation in Respect of Intercountry Adoption, the court verifies that
the conditions provided therein have been complied with.
Even if the adopter has not complied with the provisions of articles
563 and 564, the placement may be ordered for serious reasons and if
the interest of the child demands it. However, the application shall be
accompanied with a psychosocial assessment made by the director of
youth protection.
569. The order of placement confers the exercise of parental
authority on the adopter; it allows the child, for the term of the
placement, to exercise his civil rights under the surname and given
names chosen by the adopter, which are recorded in the order.
The order is a bar to the return of the child to his parents or to his
tutor and to the establishment of filial relationship between the
child and his parents by blood.
570. The effects of the order of placement cease if placement
terminates or if the court refuses to grant the adoption.
571. If the adopter fails to present his application for adoption within a
reasonable time after the expiry of the minimum period of placement,
the order of placement may be revoked on the application of the child
himself if he is 14 years of age or over or by any interested person.
- foreign adoption still
poss even if rules not
followed
- placement order =
parental authority
- kid gets new names
- PO = no going back!!!
- termination of PO
- if adoption
application not brought
572. Where the effects of the order of placement cease and no adoption
has taken place, the court, even of its own motion, designates the
person who is to exercise parental authority over the child; the director
of youth protection who was the legal tutor before the order of
placement again becomes the legal tutor.
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573. The court grants adoption on the application of the adopters unless
a report indicates that the child has not adapted to his adopting
family. In this case or whenever the interest of the child demands it,
the court may require any additional proof it considers necessary.
573.1. Where the court, within the framework of the Convention on
Protection of Children and Co-operation in Respect of Intercountry
Adoption, grants an adoption in Québec of a child habitually residing
outside Québec, it issues the certificate provided for in the Convention
as soon as the adoption judgment becomes res judicata.
574. The court, where called upon to recognize a decision granting an
adoption made outside Québec, ascertains that the rules respecting
consent to adoption and eligibility for adoption have been observed and
that the consents have been given for the purposes of an adoption
resulting in the dissolution of the pre-existing bond of filiation between
the child and the child's family of origin.
- adoption granted
unless bad report
- Int’l rules
- decision outside of
Qc
Where the decision granting the adoption has been made outside
Québec under an agreement entered into by virtue of the Youth
Protection Act (chapter P-34.1), the court also verifies that the
procedure followed is as provided in the agreement.
Even if the adopter has not complied with the provisions of articles
563 and 564, recognition may be granted for serious reasons and if the
interest of the child demands it. However, the application shall be
accompanied with a psychosocial assessment.
575. If either of the adopters dies after the order of placement, the court
may grant adoption even with regard to the deceased adopter.
The court may also recognize a decision granting an adoption made
outside Québec notwithstanding the death of the adopter.
576. The court assigns to the adopted person the surname and given
names chosen by the adopter unless, at the request of the adopter or of
the adopted person, it allows him to keep his original surname and given
names.
DIVISION III – EFFECTS OF ADOPTION
577. Adoption confers on the adopted person a filiation which
replaces his or her original filiation.
The adopted person ceases to belong to his or her original family,
subject to any impediments to marriage or a civil union.
578. Adoption creates the same rights and obligations as filiation by
blood.
- death of adopter (but
after PO)
- assigns adopter’s last
name UNLESS
DIVISION III –
EFFECTS OF
ADOPTION
- replaces original
filiation
- same as filiation by
blood (except incest
rules)
The court may, however, according to circumstances, permit a marriage
or civil union in the collateral line between the adopted person and a
member of his or her adoptive family.
578.1. If the parents of an adopted child are of the same sex and where
different rights and obligations are assigned by law to the father and to
the mother, the parent who is biologically related to the child has the
rights and obligations assigned to the father in the case of a male
couple and those assigned to the mother in the case of a female couple.
The adoptive parent has the rights and obligations assigned by law to
the other parent.
- same sex adption
- biological relationship
If neither parent is biologically related to the child, the rights and
11
obligations of each parent are determined in the adoption judgment.
579. When adoption is granted, the effects of the preceding filiation
cease; the tutor, if any, loses his or her rights and is discharged from his
or her duties regarding the adopted person, save the obligation to
render account.
Notwithstanding the foregoing, a person's adoption of a child of his or
her spouse does not dissolve the bond of filiation between the child and
that parent.
580. Where one of the adopters dies after the order of placement is
made, the adoption produces its effects from the date of the order.
581. The recognition of a decision granting an adoption produces the
same effects as an adoption judgment rendered in Québec from the
time the decision granting the adoption was pronounced outside
Québec.
The recognition by operation of law of an adoption as provided for in the
Convention on Protection of Children and Co-operation in Respect of
Intercountry Adoption produces the same effects as an adoption
judgment rendered in Québec from the time the decision granting the
adoption is pronounced, subject to section 9 of the Act to implement the
Convention on Protection of Children and Co-operation in Respect of
Intercountry Adoption (chapter M-35.1.3).
DIVISION IV- CONFIDENTIALITY OF ADOPTION FILES
582. The judicial and administrative files respecting the adoption of a
child are confidential and no information contained in them may be
revealed except as required by law.
However, the court may allow an adoption file to be examined for the
purposes of study, teaching, research or a public inquiry, provided that
the anonymity of the child, of the parents and of the adopter is
preserved.
583. An adopted person of full age or an adopted minor 14 years of age
or over is entitled to obtain the information enabling him to find his
parents if they have previously consented thereto. The same holds
true of the parents of an adopted child if the child, once of full age, has
previously consented thereto.
- tutor’s duties
discharged
Death of adopter
- In’tl adoption
DIVISION IVCONFIDENTIALITY
OF ADOPTION FILES
- confidentiality
<14 yrs: can get info if
parents consented
An adopted minor under 14 years of age is entitled to obtain information
enabling him to find his parents if the parents and the adoptive parents
have previously consented thereto.
- >14: both sets of
parents need to
consent
Consent may not be solicited; however, an adopted minor may not be
informed of the application for information made by his father or mother.
584. Where serious injury could be caused to the health of the adopted
person, whether a minor or of full age, or of any of his close relatives if
he is deprived of the information he requires, the court may allow the
adopted person to obtain such information.
- consent cannot be
asked for
- exception if serious
injury
A close relative of the adopted person may also avail himself of such
right if the fact of being deprived of the information he requires could be
12
the cause of serious injury to his health or the health of any of his close
relatives
Child and Family Services Act, Ontario ss. 136-9, 146, 149(1), 157, 158, 160(1)
136. (1) In this Part,
PART IV- ADOPTION
Interpretation
“birth parent” means a person who satisfies the prescribed criteria;
(“père ou mère de sang”)
“birth relative” means,
(a) in respect of a child who has not been adopted, a relative of the
child, and
(b) in respect of a child who has been adopted, a person who would
have been a relative of the child if the child had not been adopted;
(“parent de sang”)
“birth sibling” means, in respect of a person, a child of the same birth
parent as the person, and includes a child adopted by the birth parent
and a person whom the birth parent has demonstrated a settled
intention to treat as a child of his or her family; (“frère ou soeur de
sang”)
“licensee” means the holder of a licence issued under Part IX
(Licensing) to place children for adoption; (“titulaire de permis”)
“openness agreement” means an agreement referred to in section
153.6; (“accord de communication”)
“openness order” means an order made by a court in accordance with
this Act for the purposes of facilitating communication or maintaining a
relationship between the child and,
(a) a birth parent, birth sibling or birth relative of the child,
(b) a person with whom the child has a significant relationship or
emotional tie, including a foster parent of the child or a member of the
child’s extended family or community, or
(c) if the child is an Indian or native person, a member of the child’s
band or native community who may not have had a significant
relationship or emotional tie with the child in the past but will help the
child recognize the importance of his or her Indian or native culture and
preserve his or her heritage, traditions and cultural identity;
(“ordonnance de communication”)
“spouse” has the same meaning as in Parts I and II of the Human Rights
Code. (“conjoint”)
Best interests of the
(2) Where a person is directed in this Part to make an order or
child
determination in the best interests of a child, the person shall take into
consideration those of the following circumstances of the case that he or
she considers relevant:
1. The child’s physical, mental and emotional needs, and the
appropriate care or treatment to meet those needs.
2. The child’s physical, mental and emotional level of development.
3. The child’s cultural background.
4. The religious faith, if any, in which the child is being raised.
5. The importance for the child’s development of a positive relationship
with a parent and a secure place as a member of a family.
6. The child’s relationships by blood or through an adoption order.
7. The importance of continuity in the child’s care and the possible effect
on the child of disruption of that continuity.
8. The child’s views and wishes, if they can be reasonably ascertained.
9. The effects on the child of delay in the disposition of the case.
10. Any other relevant circumstance.
13
(3) Where a person is directed in this Part to make an order or
determination in the best interests of a child and the child is an Indian or
native person, the person shall take into consideration the
importance, in recognition of the uniqueness of Indian and native
culture, heritage and traditions, of preserving the child’s cultural
identity.
137. (1) In this section,
“parent”, when used in reference to a child, means each of,
(a) the child’s mother,
(b) an individual described in one of paragraphs 1 to 6 of subsection
8 (1) of the Children’s Law Reform Act, unless it is proved on a balance
of probabilities that he is not the child’s natural father,
(c) the individual having lawful custody of the child,
(d) an individual who, during the twelve months before the child is
placed for adoption under this Part, has demonstrated a settled
intention to treat the child as a child of his or her family, or has
acknowledged parentage of the child and provided for the child’s
support,
(e) an individual who, under a written agreement or a court order, is
required to provide for the child, has custody of the child or has a right of
access to the child, and
(f) an individual who has acknowledged parentage of the child in writing
under section 12 of the Children’s Law Reform Act,
but does not include a licensee or a foster parent.
(2) An order for the adoption of a child who is less than sixteen years
of age, or is sixteen years of age or more but has not withdrawn from
parental control, shall not be made without,
(a) the written consent of every parent; or
(b) where the child has been made a Crown ward under Part III (Child
Protection), the written consent of a Director
(3) A consent under clause (2) (a) shall not be given before the child is
seven days old
(4) Where a child is being placed for adoption by a society or licensee,
a consent under clause (2) (a) shall not be given until,
(a) the society or licensee has advised the parent of his or her right,
(i) to withdraw the consent under subsection (8), and
(ii) to be informed, on his or her request, whether an adoption order has
been made in respect of the child;
(a.1) the society or licensee has advised the parent of such other
matters as may be prescribed; and
(b) the society or licensee has given the parent an opportunity to seek
counselling and independent legal advice with respect to the
consent.
(5) Where,
(a) a child is being placed for adoption by a society or licensee;
(b) every consent required under subsection (2) has been given and has
not been withdrawn under subsection (8); and
(c) the twenty-one day period referred to in subsection (8) has expired,
the rights and responsibilities of the child’s parents with respect to the
child’s custody, care and control are transferred to the society or
licensee, until the consent is withdrawn under subsection 139 (1) (late
withdrawal with leave of court) or an order is made for the child’s
adoption undersection 146.
(6) An order for the adoption of a person who is seven years of age or
Where child an
Indian or native
person
CONSENT TO
ADOPTION
Contents
Consent of parent,
etc
- consent of every
parent for kids >16
Idem
- has to be at least 7d
old
Idem
- if child is placed with
adoption agency,
parent needs to be
informed
- parent needs to be
able to seek
counseling and indep
legal advice
Custody of child
- goes to society until
adoption order is
made
Consent of person
14
more shall not be made without the person’s written consent.
(7) A consent under subsection (6) shall not be given until the person
has had an opportunity to obtain counselling and independent legal
advice with respect to the consent.
(8)A person who gives a consent under subsection (2) or (6) may
withdraw it in writing within twenty-one days after the consent is given
and where that person had custody of the child immediately before
giving the consent, the child shall be returned to him or her as soon as
the consent is withdrawn.
(9) The court may dispense with a person’s consent required under
subsection (6) where the court is satisfied that,
(a) obtaining the consent would cause the person emotional harm; or
(b) the person is not able to consent because of a developmental
disability.
(10) An adoption order shall not be made on the application of a person
who is a spouse without the written consent of the other spouse.
(11) Where a person who gives a consent under clause (2) (a) is less
than eighteen years of age, the consent is not valid unless the
Children’s Lawyer is satisfied that the consent is fully informed and
reflects the person’s true wishes.
(12) An affidavit of execution in the prescribed form shall be attached to
a consent and a withdrawal of a consent under this section.
(13) A consent required under this section that is given outside Ontario
and whose form does not comply with the requirements of subsection
(12) and the regulations is not invalid for that reason alone, if its form
complies with the laws of the jurisdiction where it is given.
138.The court may dispense with a consent required under section
137 for the adoption of a child, except the consent of the child or of a
Director, where the court is satisfied that,
(a) it is in the child’s best interests to do so; and
(b) the person whose consent is required has received notice of the
proposed adoption and of the application to dispense with consent, or a
reasonable effort to give the notice has been made.
139.(1)The court may permit a person who gave a consent to the
adoption of a child under section 137 to withdraw the consent after the
twenty-one day period referred to in subsection 137 (8) where the
court is satisfied that it is in the child’s best interests to do so, and where
that person had custody of the child immediately before giving the
consent, the child shall be returned to him or her as soon as the
consent is withdrawn.
146.(1)The court may make an order for the adoption of a child who is
less than sixteen years of age, or is sixteen years of age or more but
has not withdrawn from parental control, and,
(a) has been placed for adoption by a society or licensee; or
(b) has been placed for adoption by a person other than a society or
licensee and has resided with the applicant for at least two years,
in the child’s best interests, on the application of the person with whom
the child is placed.
(2)The court may make an order for the adoption of a child, in the child’s
best interests, on the application of,
to be adopted
- need consent of
child over 7 yrs old!
Idem
- chance to get
counseling, indep
legal advice
Withdrawal of
consent
- 21 d to withdraw
consent
Dispensing with
person’s consent
- if will cause emo
harm
Consent of
applicant’s spouse
Consent by minors:
role of Children’s
Lawyer
- if parent is >18 yrs,
OCL
Affidavits of
execution
-formal consent
Form of foreign
consents
Dispensing with
consent
- if in child’s BI
- must warn
parent
Late withdrawal of
consent
- ok if in child’s BI
ADOPTION ORDERS
Orders for adoption
Adoption of child
- already placed for
adoption
- lived with applicant
for 2 yrs
Family adoption
15
(a) a relative of the child;
(b) the child’s parent; or
(c) the spouse of the child’s parent.
(3)The court may make an order for the adoption of,
(a) a person eighteen years of age or more; or
(b) a child who is sixteen years of age or more and has withdrawn from
parental control,
on another person’s application.
(4)An application under this section may only be made,
(a) by one individual; or
(b) jointly, by two individuals who are spouses of one another.
(5)The court shall not make an order under this section for the adoption
of, or on the application of, a person who is not a resident of Ontario.
149.(1)Where an application is made for an order for the adoption of a
child under subsection 146 (1), a Director shall, before the hearing, file a
written statement with the court indicating,
(a) that the child has resided with the applicant for at least six months
or, in the case of an application under clause 146 (1) (b), for at least two
years and, in the Director’s opinion, it would be in the child’s best
interests to make the order;
(b) in the case of an application under clause 146 (1) (a), that for
specified reasons it would be in the child’s best interests, in the
Director’s opinion, to make the order although the child has resided with
the applicant for less than six months; or
(c) that the child has resided with the applicant for at least six months or,
in the case of an application under clause 146 (1) (b), for at least two
years and, in the Director’s opinion, it would not be in the child’s best
interests to make the order,
and referring to any additional circumstances that the Director wishes to
bring to the court’s attention.
157. (1) An adoption order under section 146 is final and irrevocable,
subject only to section 156 (appeals), and shall not be questioned or
reviewed in any court by way of injunction, declaratory
judgment, certiorari, mandamus, prohibition, habeas corpus or
application for judicial review.
(1) In this section,
“adopted child” means a person who was adopted in Ontario.
Same
(2) For all purposes of law, as of the date of the making of an adoption
order,
(a) the adopted child becomes the child of the adoptive parent and the
adoptive parent becomes the parent of the adopted child; and
(b) the adopted child ceases to be the child of the person who was his
or her parent before the adoption order was made and that person
ceases to be the parent of the adopted child, except where the person
is the spouse of the adoptive parent.
(3) The relationship to one another of all persons, including the
adopted child, the adoptive parent, the kindred of the adoptive parent,
the parent before the adoption order was made and the kindred of that
former parent shall for all purposes be determined in accordance with
subsection (2).
(4) In any will or other document made at any time before or after the
1st day of November, 1985, and whether the maker of the will or
document is alive on that day or not, a reference to a person or group or
class of persons described in terms of relationship by blood or marriage
Adoption of adult,
etc
Who may apply
Residency
requirement
Director’s statement
Req’s
- for 6 mo or 2
yrs ; in BI
- less than BI if
in child’s BI
EFFECT OF
ADOPTION ORDER
Order final
Status of adopted
child
- not child of previous
parents
How relationship
determined
Reference in will or
other document
- will be included in
wills
16
to another person shall be deemed to refer to or include, as the case
may be, a person who comes within the description as a result of an
adoption, unless the contrary is expressed.
(5) This section applies and shall be deemed always to have applied
with respect to any adoption made under any Act heretofore in force, but
not so as to affect,
(a) any interest in property or right of the adopted child that has
indefeasibly vested before the date of the making of an adoption order;
and
(b) any interest in property or right that has indefeasibly vested before
the 1st day of November, 1985.
(6) Subsections (2) and (3) do not apply for the purposes of the laws
relating to incest and the prohibited degrees of marriage to remove a
person from a relationship that would have existed but for those
subsections.
160.(1)Where an order for the adoption of a child has been made under
this Part, no court shall make an order under this Part for access to the
child by,
(a) a birth parent; or
(b) a member of a birth parent’s family.
Application of
section
Exception
No order for access
by birth parent, etc
3. Unwanted Adoption?
-
Class, racial, and cultural overtones of best interests of the child
Problems with adoption: revocation of consent
1. Review – traditional model
a. A statutory derogation from the general private law
b. Consensual: consent of the parents, volition of the applicants
c. Closed/confidential
d. Full effects of filiation by blood or natural parentage
e. BIC as guiding light
f. Severance of previous kinship except for prohibited degrees for
marriage/substitution of a new family
Troubling the liberal vision of parental consent
2. Banque Mixte adoption
Banque Mixte d’adoption, The Adoptive Parents Group
 Risky way to puruse adoption – children in need of homes or “families of reception” are
not legally free to be adopted
 Similar to “Fostering with a view to adopt” in Ontario
 Kids in the Bank are identified/apprehended by the Centre Youth
 Family or reception will be made aware of “special needs”
Birth Families and visitation
 Court often grants visitation and family has to ensure they attend, usually supervised at
the youth protection
 Reception families don’t need to disclose their info to biological families, though some
feel it’s important
 “open adoption in Quebec is not legally enforceable but many families do make
informal agreements as they feel it’s important for the children to know their
17
biological families”
Legal Matters regarding the Banque Mixted
- families need to realize that it will be a long time before a child may become judicially
legal to be adopted
o although the chances are high – only 4% of children in the program are reunited
with their biological families
Process
- 1. Contact local Youth Centre.
- 2. Fill out paper work, with necessary documents
- 3. Psychosocial assessment – this will be sooner if your family “has a wide range of
acceptance of children (age, race, needs), rather than those who only want a Caucasian
newborn)
- wil ask lots of private details
- 4. Psychosocial Assessment Report: from info gathered from meetings
- 5. Waiting to be matched : newborns (2 yrs – 24 yrs); considerably less if you want an
older child
- 6. The call: you will be given info about the kid’s social and medical histories. You can
accept or turn it down. You are under no obligatin to accept
7. Placement
- you will sign K designating you as a foster family
- As the child is not legally free for adoption, the youth protection agency or the
biological parents retain parental authority over the child unless a judge decides
otherwise
8. Legal Process
- when child is placed, youth protection agency will be attempting to have the child declared
legally free for adoption
- have to show severe neglect
9. Placement Order: Once eligibility for adoption is declared, an order of placement is obtained.
“With the order of placement granted, parental authority is transferred to the adoptive
parents and the child’s name is legally changed to the family name. At this point, the child
cannot be returned to his/her birth parents.”
10. Adoption finalization! After 6 mo (or sooner), return to court for finalization. Social worker
will make report re: how the child has settled in with new family. Court will then finalize adoption.
“The child is now considered legally part of the family and all ties with his/her biological
family are severed. The child will now be given their new leal name and a birth certificate
reflecting such changes.”
CCQ, s. 559
559. The following may be judicially declared eligible for adoption:
(1) a child over three months old, if neither his paternal filiation nor his maternal filiation
has been established;
(2) a child whose care, maintenance or education has not in fact been taken in hand by
his mother, father or tutor for at least six months;
(3) a child whose father and mother have been deprived of parental authority, if he has no
tutor;
(4) a child who has neither father nor mother, if he has no tutor.
Droit de la famille – 1914, 1996, QCA
Court not bound
Facts: The birth mother of the 2 kids in question is schizophrenic, and has problems with
substance abuse, sex work, incarceration. Unlikely she will be able to take care of them by
herself. They have been placed with a foster family who wants to adopt them – are seeking for
the court to declare them eligible for adoption without the consent of the birth mother.
18
Have been with this family for 3 yrs, been “placed” for 6 yrs total. Mom originally (?) consented to
adoption. Kids see their mother from time to time and are concerned for her well-being and
recognize her as family. Lower courts did not declare them eligible for adoption.
Issue: Does the court have the power, once it has recognized that the children have been
neglected for six months (art. 559(2)), to refuse to declare the children eligible for adoption, on
the basis that it is not in their best interests?
Holding: Yes, with dissent.
Majority 1: Fish J. – children not eligible
 Agrees w Chamberland’s reasoning
 Art. 33 CcQ: every decision concerning a child shall be taken in light of the child’s interests
 Art. 543 CcQ: No adoption may take place except in the interests of the child
 Best interests of the child are the supreme consideration at every step of the adoption
process (declaration of eligibility, placement, adoption order) – (Beauregard disagreed wrt to
eligibility)
o “The entire process has a signle purpose: to determine judicially whether the
substitution of an adoptive filial bond for the failed biological one favours the interests
of the child. I do not agree that the essential justification and ultimate aim of the
entire process should be disregarded at any stage of the process.” [37]
 Court is not bound to find a child eligible for adoption once it has determined that,
according to art. 559(2), they have been neglected for six months, if it is not in best
interests of child. Presumption of not resuming care is established, but the Court still has
discretion. This presumption is secondary to the BI of the child
 Underlines that biological parents have no status after the eligibility stage
o “The eligibility stage therefore represents their last opportunity to explain to the court
why – even if they have not been able to in fact take in hand the care, maintenance
or education of a child (art. 559(2)) – it does not ineluctably follow that the child, in his
or her best interests, should be at that time declared eligible for adoption” [39]
 Not in the BI of the children for the mother to be cut out: Mother turning life around, Children
worried about her
Majority 2: Chamberland J. – children not eligible
 See art. 559 – the legislator used the permissive “may” and not the obligatory “shall” or
“must”  the court is not bound to declare a child eligible for adoption if that adoption is not
in the child’s best interests, regardless of its neglect/abandonment
 It is not in best interests of these children to be adopted, because it would cut off contact with
their blood family, which they acknowledge as family and which still acknowledges them
Dissent: Beauregard J. – children eligible
 The trial judge and experts concluded that the birth mother had neglected the children for
more than six months and was unable to rebut the presumption that it was unlikely she would
resume their care (art. 561)
 BI (543) does not have a role to play at the eligibility stage: only for placement
 J. doesn’t see how it is possible that it would not be in the best interests of the child to
be declared eligible for adoption once it has been determined that the child has been
neglected by its birth parents (although agrees that best interests of the child are supreme
concern in making the declaration of eligibility)
o The legislator gave the child a right to be adopted if neglected by birth parents : “Mais
la protection de l’interet d’un enfant ne releve pas que des juges. Le legislateur est le
premier défenseur de l’intérêt des enfants et, à cette fin, il a voulu lui offrir aux
enfrants privés de soings de la part de leurs père et mere ou tuteur la possibilité
d’être adoptés afin de trouver des soins, une famille don’t il deviant member à part
entire et tous les avantages d’une nouvelle filiation” [para 26]
o Is never in a person’s interest to be denied a right they have been accorded by the
law
o “La declaration d’admissibilité à l’adoption est quelque chose de positif pour
l’adopté; non pas quelque chose qui lui nuit” [27]
19
 Birth mom consented to the adoption
Ratio: The best interests of the child are always the paramount concern in matters of adoption (or
any decision to be taken about the child) – the court is not bound to do anything that would not
serve these interests.
3. D.F.—1914: construal of art. 559
a. Peut/may; de fait/in fact
- in fact: reference to objective approach
-
b. Codal interpretation: the place of art 543 (cf 522)
is this a general provision and first provision indicating approach to take throughout whole
chapter
The fact that 522 is at the beginning of the chapter of filiation may indicates that it applies
throughout the whole code
art 33 : non exhaustive list of factors and BI
-
c. Legislative and judicial roles re discretion and children’s best interests
(Fish vs Beauregard) [26] [37] [39]
Majority- Fish: the judge should evaluate best interests of the child on a case-by-case
basis; the child in this case has a right to know his or her family, and stay related to them
in law
Dissent- Beauregard: Legislature wanted to offer to children who are neglected the
possibility to be adopted to be taken care of, to become the member of a family and to
have the advantages of a new filiation  Emphasis on the right of the child to be taken
away from neglectful parents, benefits of adoption judges should not withhold this right
[26]
predictability of the rules is in the child’s BI, the legislature has already decided what’s in
the BI of the child (most children most of the time). The judge should not be checking on
a case-by-base basis that the rule functions in the best interests of the child.
Emphasis on losses of adoption (effacement of previous biological link)
-
contrast – CML judges more comfortable with individualized decisions
-
-
-
d. Adoption as deprivation or benefit [27]
Beauregard: does not see how once a child has been found eligible for adoption, we can
say that it is in his BI to deprive him of the advantages given to him by law
It is never in someoe’s interests, including a child, to refuse them a right they have been
granted by law
Declaration of admissibility to adoption is smth positive for the adoptee, not a
deprivation
e. Adoption as discretionary “decisions” vs. determinations of status [44] [45]
- in civil law, the difference between a distinction and a determination matters
- decision is subject to art 33 VS a determination (applying clear rules to facts)
f.
Larger questions: discretion vs rules; legislative drafters vs judges
Racine v Woods 1983 SCC (from MCA)
Facts: Mrs. Woods (Native) gave birth to Leticia; six weeks later, child was removed from her
care (problem with alcoholism). The Racines (white woman & Metis man) have been caring for
Leticia for over three years (except for short period when Mrs. Woods got her back); made an
application for a de facto adoption under s. 103 of Manitoba’s Child Welfare Act – granted, appeal
by Mrs. Woods. Mrs. Woods tried to intermittently see her child, with little success.
20
Issue: Is it in the best interests of the child that the adoption order be upheld or that the child be
returned to her birth mother?
Holding: It is in the best interests of the child to maintain the adoption order.
Reasoning (Wilson J.):
 In a de facto adoption under s. 103 of the Act, the formal consent of the parents is not
required
 Racines did not err in keeping Leticia (even when Mrs. Woods asked for her back), nor did
they act irresponsibly with respect to her – they were acting in her best interests
 Mrs. Woods is perhaps still not capable of caring for her daughter – the Racines are
 Racial problem 0 Wilson J. finds that the race factor (concern for Leticia’s native culture)
declines in importance in comparison to the bonding that has occurred between Leticia and
the Racines (citation of expert evidence – sketchy?)
o Plus, Mr. Racine is Metis, so well equipped to help Leticia deal with any identity crisis
she may have as a teenager
 “As has been emphasized many times in custody cases, a child is not a chattel in which its
parents have a proprietary interest”
 Need to make a decision:
o “It takes a very high degree of selflessness and maturity—for most of us probably an
unattainable degree—for a parent to acknowledge that it might be better for his or her
child to be brought up by someone else.” (p 31)
o “I agree with Mr. Justice Hall that this child should not be allowed to become a
battleground—in the courts or in the media—and I believe that there is a very real
risk of this if the Court refuses to "bite the bullet".” (p 32)
 quotes Dr McRae (expert), which says that the bond now prevails over the cultural aspect
(culture might have been an issue three years ago)
o “I think the learned trial judge recognized that reality, considered all the factors
which were relevant to the determination of what was in the child's best interests
including the fact that she was of Indian parentage, and weighed them in the
balance. I cannot find that she erred in carrying out this rather difficult process.”
o “Much was made in this case of the interracial aspect of the adoption. I believe that
interracial adoption, like interracial marriage, is now an accepted phenomenon in
our pluralist society. The implications of it may have been overly dramatized by
the respondent in this case. The real issue is the cutting of the child's legal tie with
her natural mother. This is always a serious step and clearly one which ought not to
be taken lightly. However, adoption-given that the adoptive home is the right one and
the trial judge has so found in this case-gives the child secure status as the child of
two loving parents. While the Court can feel great compassion for the respondent,
and respect for her determined efforts to overcome her adversities, it has an
obligation to ensure that any order it makes will promote the best interests of her
child. This and this alone is our task.” (p 33)
Ratio: Consent of the natural parents may be dispensed with for an adoption to occur if that is in
the best interests of the child.
1. Racine v. Woods
a. Competing narratives (child-centred; colonialism-centred)
b. Psychological parenthood
c. Problem of time and uneven resources
d. Questions
Leckey on Racine:
 N.B. Manitoba legislation is distinct – possibility of de facto adoptions. 3 years spent caring
for the child dispenses with necessity of their birth parent’s consent to an adoption
o In most other jurisdictions, consent can only be dispensed with by a court
o Therefore, distinguishing Racine’s direct doctrinal relevance from its larger influence
 few adoption or parentage cases make it all the way to SCC
21



Wilson: defers to trial judge’s assessment of facts although she also distances herself from it
(says she does not agree that the mother abandoned L)
- comment that cultural significance goes down as bond increases (although this
contradicts with her saying that the father will be able to deal with identity crisis in
teenager)
- she equates interracial adoption and interracial marriage
- comments about the appropriateness of the mother’s effort to contact the child
Expert evidence is fairly accepting – she doesn’t critically evaluate what he says. Accepts
unequivocally that race and culture are unimportant when compared with mother-child
relationship
Socio-economic substratum to the case? Mrs. Woods lacked significant resources to show
how much she wanted Leticia – this incapability works against her in court.
Close reading of Racine:
a. What is the role of property discourse in the reasons (p 25; p 30 (bottom half of big para);
p 31 (middle para))?
- rhetorical significance “As has been emphasized many times in custody cases, a child is
not a chattel in which its parents have a proprietary interest;
o characterizing the mother’s use of her child
- “I think it is inappropriate to characterize the conduct of the Racines as come kind of
illegal assertion of title” (p 30)
b. Is it fair to say that Linda Woods finds herself in a bind, having done both too much
(contacting the media (p. 27)) and too little (“a ‘half-baked’ stab at breaking the
abandonment” (p. 29, last indented para))?
- a lot of focus on the little girl’s “privacy”, “very private little girl”
c.
-
Is the sense that the “ethnic and cultural background” drops down in importance (p 33)
wholly consistent with worry about an adolescent identity crisis (p 27, last para)?
legacy of colonialism is excluded
quotes trial judge regarding concern for “the venom of her anti-white feeling” and
wondered about the effect “her visible hatred for all things white” would have on her child
d. What persuasive work does the idea of responsibility do (“a very high degree of
selflessness and maturity” (p 31); “bite the bullet” (p 32)?
- Wilson comes close to suggesting she’s being selfish and immature
o “It takes a very high degree of selflessness and maturity—for most of us probably
an unattainable degree—for a parent to acknowledge that it might be better for
his or her child to be brought up by someone else.” (p 31)
- Need for Court to “bite the bullet”
o “I agree with Mr. Justice Hall that this child should not be allowed to become a
battleground—in the courts or in the media—and I believe that there is a very
real risk of this if the Court refuses to "bite the bullet".” (p 32)
e. What is Wilson J.’s relationship with the discussion of race and culture in Dr. McCrae’s
expert evidence (p 33)? How helpful is the analogy with interracial marriage (p 33)?
- she quotes Dr. McRae’s evidence (that culture doesn’t matter at this stage, motherhood
bond does) and says “I think the learned trial judge recognized that reality”
- justice Wilson doesn’t situate herself re: the expert evidence - doesn’t qualify it
Adoption Act, Manitoba, s. 73
73(1)
An application for an order of adoption may be made in the prescribed form
(a) jointly by two persons who are married to each other, by common-law partners, or by any two
persons, where at the time the application is made
(i) they are jointly caring for and maintaining the child, and
22
(ii) either applicant has had care and control of the child and has maintained the child for
at least two consecutive years; or
(b) by a person who at the time the application is made
(i) is caring for and maintaining the child, and
(ii) has had care and control of the child and has maintained the child
for at least two consecutive years.
Consent
73(2)
A judge may make an order of adoption under this Division without the consent of
anyone other than the child if the child is 12 years of age or older.
Differences:
- States conditions under which a judge can declare someone eligible for adoption, more
focus on child (599)
- Manitoba: the passing of time dispenses with parent’s consent ; not a judge. By the time
time the judge is involved, its to issue the adoption order.
Critique of BI / Sixties Scoop
- classic critique of BI that is no space for the community – what is in the BI of the
community – to have this person be part of the community
- the idea of the aunt gets swept aside : assuming parenting just by the parents
- sense that aboriginal heritage is a problem that Allan can help her manage, rather than
smth we would want her to go through
4. The classic model of adoption disintegrates
1. Information; contact/relationship
- Remember having info and no contact are different (altho Qc seems to confuse them)
2. Change: perspective and retrospective
- When our social mores change, should the FL change too?
- Time issue: will it be changed retroactively (capture adoptions before change) …or just
going forward?
- Ex if you give up a child through a closed adoption, is it constitutional to change those
rules?
3. Legislative reform and Charter litigation – Cheskes v Ont
- openness agreement (prospective change) although there has also been legislative
change affecting adoption in the past
Cheskes v Ontario (Attorney General) (2007), Sup Ct
Before the Ontario legislature amended the Vital Statistics Act in 2005, adoption information could
only be disclosed to adoptees or birth parents (health or safety reasons aside) with the
consent of both parties. The amendments had the effect of retroactively opening confidential
adoption records and allowing access to identifying information without the consent of the
person being identified ... Birth parents and adult adoptees who do not wish to be contacted can
file a "no contact" notice with the Registrar General. ... Persons who do not wish to have their
identifying information disclosed can apply to the Child and Family Services Review Board for a
non-disclosure order. Such an order will be granted only if certain preconditions are met. The
applicants were adult adoptees and a birth parent ... They objected only to the retroactive
application of those provisions, arguing that the provisions violated their rights under s. 7 of the
Canadian Charter of Rights and Freedoms.
23
Held, the application should be granted. ...
The protection of privacy is a fundamental value in modern democracies. The individual's ability
to control the dissemination of personal information is an element of the right to privacy. The
protection of privacy as a fundamental value is enshrined not only in s. 8 of the Charter, but also
in s. 7. The applicants had established a reasonable expectation of privacy, i.e., a reasonable
expectation that their adoption or birth registration information, absent health or safety reasons,
would remain private and would not be disclosed without their permission. Over the years, birth
and adoptive parents have been reassured by private adoption practitioners, children's aid
societies, social workers, lawyers and sometimes government officials that the adoption records
would be sealed and no identifying information would be released without consent. The
disclosure of birth and adoption records under the new law, in circumstances where a reasonable
expectation of privacy has been created, constituted an invasion of the dignity and self-worth
of each of the individual applicants.
Their right to privacy as an essential aspect of their right to liberty in a free and democratic
society had been violated. Neither the no-contact provision nor the non-disclosure
procedure under the new law tempered this breach of the applicants' liberty interest. The
no-contact provision does not prevent the release of information. A non-disclosure order cannot
be granted simply to protect privacy; rather, it will be granted only in exceptional circumstances
...
It is a principle of fundamental justice that personal and confidential information in which an
individual has a reasonable expectation of privacy cannot be disclosed to third parties without his
or her consent. ... The deprivation of the applicants' liberty interest under s. 7 of the Charter was
therefore not in accordance with the principles of fundamental justice. ...
4. Openness agreement
- Ont Child and Family Services Act : s. 153(6)
- L: quite unclear, it is most likely an instrument rather than a document that carries
significant legal weight
Ont CFSA, s. 153.6
Who may enter into openness agreement
153.6 (1) For the purposes of facilitating communication or maintaining
relationships, an openness agreement may be made by an adoptive parent
of a child or by a person with whom a society or licensee has placed or plans
to place a child for adoption and any of the following persons:
1. A birth parent, birth relative or birth sibling of the child.
2. A foster parent of the child or another person who cared for the child or in
whose custody the child was placed at any time.
3. A member of the child’s extended family or community with whom the child
has a significant relationship or emotional tie.
4. An adoptive parent of a birth sibling of the child or a person with whom a
society or licensee has placed or plans to place a birth sibling of the child for
adoption.
5. If the child is an Indian or native person, a member of the child’s band or
native community who may not have had a significant relationship or
emotional tie with the child in the past but will help the child recognize the
importance of his or her Indian or native culture and preserve his or her
heritage, traditions and cultural identity. 2006, c. 5, s. 40.
When agreement may be made
(2) An openness agreement may be made at any time before or after an
adoption order is made. 2006, c. 5, s. 40.
Agreement may include dispute resolution process
Openness
Agreements
24
(3) An openness agreement may include a process to resolve disputes
arising under the agreement or with respect to matters associated with it.
2006, c. 5, s. 40.
Views and wishes of child
(4) Where the views and wishes of the child can be reasonably ascertained,
they shall be considered before an openness agreement is made. 2006, c. 5,
s. 40.
5. Custom adoption (BC)
- depending on the community, effects of the adoption are seen differently (as replacing
original family or not , permanent or not…)
- s. 46(1): different because judgment happens after the adoption has already taken
place;
o departure from the idea that state is involved in adoption
o “Indian band or aborigina custom”
o (2): see history of ppl losing status through marriage et
o problem: the price of recognizing custom adoption under s. 46, but it gives
adoption the same effects as other adoptions
- there is a sense that custom adoption may be a right under s. 35 of the Constitution Act
BC Adoption Act, s. 46(1)
Custom adoptions
46 (1) On application, the court may recognize that an adoption of a person
effected by the custom of an Indian band or aboriginal community has
the effect of an adoption under this Act.
(2) Subsection (1) does not affect any aboriginal rights a person has.
Custom
adoptions
6. Bill 81 in Qc - p 55 Course pack
An Act to amend the Civil Code and other legislative provisions as regards adoption and
parental authority, explanatory notes, clauses 1-7, 22-58, 71, 71
a. Context – Rapport Lavallee – Pour une adoption quebecoise a la mesure de
chaque enfant [2007]
- variation in the legal effects of adoption???
- Pointed to reasons why the trad model needed to be update: intl adoption, older
children being adopted, gay and lesbian couples
-
b. Legislative path (avant projet de loi (2009) ; Bill 81 (2012); Bill 47 (2013) –
introduced by PQ
the reading today was the 2012 version, some changes in the 2013 one
c. Teaching and learning objectives – legislative amendment
- Leckey: there is a mismatch between the Bank of Adoption and the closed adoption norm of
the CCQ (??)
d. Close reading and discussion
- can have adoption without severance (23)
- Consent cant be dependent on openness agreement (26) (548)
- Consent is more qualified: tutor or parent specifies which type of adoption they are
consenting (28)(553)
- Strike out “by blood” in 569, when referring to his birth parents (41)
-
48 – changes to 577. Says that adoption gives adopted person “a filiation which
succeeds the person’s pre-existing parental and maternal filiation” instead of
“adoption…a filiation which replaces his or her original filiation”
25
o
although the effects of the pre-existing filiation ceases (579)
-
568.1: Best interests requirement for adoption without severance. Ct cannot grant an
order of adoption without severence UNLESS its shown its in the BI and protect
meaningful identification
- suggestion that ordinary adoption is still one with severance- slippery –
meaningful identification and BI?
- what if judges start to say that a lesbian couple adopting a child and that the filial
relationship with the father should be maintained
- judges may presume that bonds of identification shld be kept
- no legal effects associated with it – just a recognition
-names: instead of allowing replacement of named by the adopter, Ct can assign to child name
(576)
Aboriginal issues – art. 129 is amended to allow Aboriginal authority to issue Aboriginal
customary adoption certificates – needs to notify the registrar of civil status
- 1.4 What if any scope you think there might be for disute s about such an adoption to
play out in the courts?
- This changes the model of adoption – no longer the judge being the competent
authority. Not necc a third party in the community that validates it
How much judicial review will there be? BI is still in the requirements?
Leckey, Le passé de l’adopté aux frontières du droit
- This text looks at the example of domestic adoptions to better understand the institutions
that regulate it
o CML and CVL law; legal vs social practice
- 2 major ways to recognize an adoptee’s origins: 1. Open adoption and 2. Adoption
without severance of filiation see QC’s new proposed legislation
Essay will show that civilists, more than CML counterparts, underline the importance of a
juridical link in order to honour the adoptee’s origins. Will look at the relationship between
the two traditions and the non-legal, and will show that the civilian approach is actually
more nuanced than it’s categorical approach suggests.
1. Anchoring the adoptee in his past
- in Qc, only adoption model is full and closed: guarantee of confidentiality of adoption files 
conceives forgetting the child’s past and erasing the birth parents
- this view has been challenged with time
- authors asserts that a child needs truth
- current trend underlines the importance of finding roots and original parents
- 2 approaches:
1. Open adoptions : used in many CML jurisdictions in North Am
- provinces allow “accord de communication” or “ordonnance de communication
- but these don’t create rights, hence the usefulness of these tools depends on the
attitudes of the adoptive parents
2. Qc Reform: adoption without severance of pre-existing filiation
- inspired by French law, but also Cnd and American law
- unlike French adoption simple, Qc reform would eliminate all the legal effects of preexisting filiation, no obligation of contact
- symbolic: original filiation would still be on the acte de naissance
- bc of complexities, would only be open to domestic adoptions
- would decrease confidentiality, no longer try to erase adoptee’s past!
- move toward continuity, rather than severance of past
- CML jrisdictions show little appetite for reforms that would maintain the original filiation
link adter adoption
-the difference between two jurisdictions, despite both rejecting secrets, lead us to examine
26
their different expectations wrt to adoption law
2. Expectations wrt to adoption law
- comparison of CML and CVL discourses
- CVL lawyers prefer juridical ordering that is systemic and explicit
- one of the problems with “open adoptions” would be its lack of clear and precise juridical
identity - does not actually preserve a juridical link
- the two jurisdictions place different weight on aspects of family ties in this respect
- CML judges are more confortable with a significant link NOT being juridical, but
rather social. Ie, adoption judgment assumes that link with original family is not
extinguished, just the legal link!
- For CVL lawyers, recognizing the original parents, implies the existence of the law.
This reflects civilian authors belief in law’s impact on identity
o but this way of thinking also assumes that a adoption judgment actually
extinguishes ties in all forms
- judges would use the BI to determine when to apply adoption without severance of ties
3. Relationship between legal traditions and non-law
- the critiques of CML show a desire to order family relations – show importance of positive law
- the focus on the role of the law in constructing identity aligns with the State’s desire to
control the civil status and identity of its citizens (see ban on changing your last
name/modifiying your sex on acte de naissance)
- does Qc’s focus on law forget that filiation by adoption is itself a fiction
CML judges:
- more ok with idea of not having a juridical link, this aligns itself with CML’s tendancy to
recognize a factual link/relationship
o ex: Cnd Divorce law: the factual parent has an obligation of support based on a
previous factual reality and not based on a legally recognized factual link
o CML provs: obligation of support to cml spouses. Spousal support under Divorce
law isn’t based on when marriage was, but how long they were cohabitating
o Presumption of paternity in CML provs applies to cohabitation couples
- CVL approach: when facts used to show possession of status (esp in filiation), legal
effects are only produced bc facts are seen as evidence of parentage (ie, smth legal)
- CVL law is reluctant to recognize realities outside of the statuses conferred by the CCQ
But are these generalizations about the CVL law well-founded?
- relationship between formalism and factual is more complex than we thought
Exs of when facts have an effect in civillaw
- ex: importance of placing the kid with the adoptees before the adoption judgment and the
reduction in delays when the child already lives there (556)
- the CCQ does not mean that genetic ties are also severed : adoptee still can’t marry
genetic cousin (577, para 2)
- also exception to the rule that an adult can’t be adopted, if the adoptee lived with the
adopter while a minor(545)
- 555: special consent allowed when have been living together for 3 years
Other aspects of civil law allow us to question the idea that it’s inherent in the tradition to
favour written law and formal categories
- coutume as a source of law
Conclusion
- the difficulty of getting rid of “conceptual baggage” diminishes the circulation of ideas
- is silence in CML laws = uncertainty, or a delegation to judges and families the freedom
to construct own arrangements, based on factual reality
27
5. “Natural” parentage and filiation by blood
Learning objectives
 historical overview: illegitimacy and bastardy
 the parental relationship as central ordering device of family law
 different paternities
 marriage and parentage
 basic legislative regimes for identifying parentage and filiation
 the revolutionary, and now foundational character of art. 522 and s. 1 CLRA
Review
- We looked at adoption: new scheme suggested in Quebec: 3 different approaches: 1.
Aboriginal customary adoption (someone in a community said that it had taken place); 2.
Adoption where connection with previous family is retained VS 3. adoption where all ties
are severed
Historical overview
- sharp distinctions between whether children are born within marriages (in CCQ: different
types of illegitimate children)
o CCQ: illegitimate vs legitimate distinction eradicated in 1980
o Then the CCQ took up filiation by blood idea (altho not always genetic)
- Result: Move away from total focus on marriage, some space for genetic information
- Filiation of parentage closely tied around marriage (Massie v Carriere: strong
presumption that husband is the father), used to be an irrebutable presumption
o Massie v Carriere: in the last paragraph, the judge talks about one day the Ct
being less concerned with the legal truth vs. the biological truth
- Reasons: family stability, respect for child and family
Design choices Choices
a. Administrative/non-judicial and judicial
- Always a non-contested route, what depends is extent
- admin/non-legal: act of birth. If no one contests – this becomes reality (522= equality,
523: act of birth )
o 530 indicates judicial – “action”
- Vital Statistics Act (voluntary one, admin) & CLRA (intended for litigation)
b. Voluntary vs involunrary (registration vs presumption)
- voluntary: Registration vs presumption
o registration signing up as father on birth cert
o how voluntary is presumption of paternity based on marriage? Can argue that by
marrying, you accept the presumption of paternity
o Presumption of paternity of co-habiting partner in CML provinces? (CLRA s. 8(1))
- Rules used in diff ways: to enforce obligations or to assert parentage
c. Relation between father and mother
d. Possibility for alteration
- how willing are we to change child’s parentage?
1. Scrutinizing the regimes
a. Surprises
- CCQ: language of blood, presence of marriage, voluntary acknowledgement
-
b. Recognition or creation? (proof) – fusion biology and legal status
is law’s purpose to recognize a bond or to create one? (goes back to Re: Paul)
28
o
-
-
difference between a decision (human judgment ex: art 33) vs. determination
(application of rules to facts)
 ex: determination by blood: language indicates one isn’t creating filiation,
one is proving it by legal processes (ex by act of birth)  indicates that
legislators believe parentage already exists (based on marriage or
genetic connection)
 idea that facts are applied without judge making a decision
 language indicates a hierarchy of rules: 1. Starting point: proof of
paternity by act of birth
o
UPS: 523, para 2 says it can be used to prove paternal filiation

ancient mode of proof in CVL, very informal and factual
 all about the relationship between child-adult
 jurisprudence: seen as requiring sev yrs
also informal and factual in CML: cohabitation 8.1.4
o all about the relationship between adults
Two ways to read the rules above:
o 1. Overwhelmingly married ppl are having sex with each other – presumption of
paternity makes sense. He will likely be the genetic father OR
o 2. The rules are about family stability, preserving the couple, marriage – but not
all about genetics.
o If you believe the latter, than more open to recognizing same sex parents
Genetic connection
o CCQ- Can establish filiation without a genetic bond - 1. Act of birth (voluntary);
UPS (not genetic); 3. Presumption of paternity (not genetic)
 535.1: allows Ct to order genetic test – but on the face of the code,
unclear what can be done with it!
o ON: Vital Statistics Act in Ontario: not dependent on genetics
 See MDR: argued that for male-female parents, genetics isn’t the issue,
so don’t apply those rules to me
o Rebuttable presumptions under s. 8(1) : married, cohabitating partner
o VS. Qc: not unmarried cohabitants and de facto (civilian justification - only
married couples owe each other fidelity - art. 392)
c. CLRA s. 4
- difference between maternity (idea that knowing mother is easier bc idea biological mother =
mother in social reality) & paternity (implies recognition that legal father isn’t always the genetic
father)
d. Similarities of two regimes: registration, then presumptions; administrative
route, then contestation
- presumptions are different though: 525 only for formally recognized relationships VS s.
8(1) of the CLRA includes married and cohabitating
e. Differences – married/unmarried; finality; art. 530, para. 2, in fine
children’s rights are equal once filiation is est (522): inheritance, support
o although it’s harder for the child of unmarried parents to establish filiation –
although usually act of birth establishes this; and UPS
Alterations
ON
- s. 6 CLRA: “may” – Ct might reopen based on new evidence. No criterion specified.
- Allows for alterations, based on judge’s discretion
- Indicates that finality and certainty of status is not the primary concern (unlike Qc)
QC
- Qc: a moment arrives when filiation can no longer be altered, genetic truth no longer
matters!
-
29
-
Uninterrupted possession of status: it’s a standalone means of establishing filiaton (if
no birth documentation), but also crystalizes filiation established on an act of birth when
there are disputes about filiation
530: absolute bar to litigation where act of birth and possession of status! (DF –
09358)
o Usually after two yrs
o A “lock and key” approach: impossible to change
f. Classification: voluntary/involuntary, formal/informal
- signing up on act of birth = voluntary
- presumption based on marriage = quasi voluntary
- if new evidence exists but cannot contest filiation = not voluntary
formal/vs informal
- informal: cohabitation, UPS
- formal: act of birth, marriage
Clicker questions
- Statements of the irrelevance for the child of the parents’ marital status in both the CCQ
and CLRA
o Look at placement of provisions – s. 1 of the CLRA, 522 (first provision in title on
filiation)
- 522 (equality) and 525 (presumption based on formally recognized) are incompatible?
Not necc
o both ways: no incompatibility strictly speaking bc 525 just makes it easier to
establish filiation. 522 indicates equality for children with filiation, not all children
have established filiation (see: eligibility for adoption rules)
o BUT: think of 522’s placement, some tension there
- 522 establishes equality of all children? NO! all children with established filiation.
- CLRA, s. 4(1) regards motherhood and fatherhood as equally mixes of reality and legal
fiction? NO – see notes earlier.
- The importance of marriage in a filiation or parentage context is ? 1. Greater in Qc
- The judicial discretion for altering a child’s parentage or filiation down the road is: Greater
in Ontario
- Article 525 and 535.1 are compatible?
o 525: presumption of paternity
o 535.1: possibility of genetic testing
o Tension between stability (act of birth+UPS) & genetic truth in the CCQ
Massie c Carriere, 1972, CS
ex of irrebuttable presumption that mother’s husband = dad
Facts: Woman, separated, conceived a child with a man who wasn’t her husband (Massie). He
was named on the act of birth as the father of the child. Is suing for custody of the child (woman
and her husband have custody).
Issue: Does the biological father of the child have any legal rights to the child? Holding: No.
Reasoning (Vallerand J.):
 The act of birth is proof only of the identity of the child and the identity of its mother
 The proof of paternity is made by presumption (the presumption that the husband of the
mother is the father), not by the act of birth
 Judge envisions a day when the stigma attached to illegitimate children will wane, and
the law will attach more importance to biological reality than legal reality  but for
now, the law tries to look after the best interests of the child by always giving them a
legitimate filiation
Ratio: Act of birth is not proof of paternity of child – paternity is proved by the irrebuttable
presumption that mother’s husband is father of the child.
NOTE: This is no longer good law --- see 523, para 1.
30
Jonathan Ives et al, “Becoming a Father/Refusing Fatherhood: An Empirical Bioethics
Approach to Paternal Responsibilities and Rights” (2008)
Point: Study looked at the moral sources of paternal responsibilities. Focus groups were used.
…
Results
Father-as-carer and father-as-progenitor
 fatherhood a didactic concept, can refer to both 1. Progenitor and 2. Carer
 Father-as-carer: associated roles include : disciplinarian, breadwinner/provider, guardian,
moral compass, sex role model, guide and friend
 FaC: embedded in narrative of responsibility, constructed a set of obligations to child (to
care for, to provide for, to protect)
The “good father”
 FaC more valed, had moral significance, bc being FaC requires effort
 The sense of being a “good” father was linked to being a father as carer
 A man can be a father in two ways, but can only be a “good father” in one way – by being
FaC. Man who is just a progenitor cannot be evaluated as a good or bad father
 FaP not thought of in morally evaluative terms – morally neutral
Valuing the father-as-progeniro as a means to an end
 Surprising that along with emphasis on FaC, distinctly genetic undercurrent, “which
tended to construct the father-as-progenior as the real and proper father”
 Tension for non-resident fathers: who agreed with moral preference for the FaC, but
maintained that the FaP was the “real dad”
o Idea that non-resident fathers want to be good fathers but are prevented
 Non-resident fathers carve out unique status – the real father- by focus on genetic
fatherhood, status cannot be usurped
o “The status of ‘genetic father’ is fixed and enduring in a way that the social
relationship is not, and it cannot be taken away from him”
o when there’s no social contact, “the genetic connection becomes a lifeline”
 genetic connection is valued bc it creates a natural bond, bc the likelihood of paternal
bonding through physical resemblance, seen as the “normal way” to form a family bc
deviations from norm = negative attention
 all the reasons for valuing the genetic connection are directed towards facilitating
a father as carer relationship with a child, or to protect a child from being seen as
“different” It is valued not in itself, but instrumentally but for what it is believed to do;
namely (1) to be beneficial to the child and (2) to facilitate a deeper bond between father
and child.
Being responsible – voluntary action and forseeable consequences
 men subscribe to traditional view of moral responsibility – responsible for the forseeable
consequences of our voluntary actions
 Men responsible for child he conceived not bc of genetic link, but because he caused the
child to exist (likened to Russian Roulette)
 the recipient (not the sperm donor) is resp bc he caused he child to exist
 causation generates responsibility, regardless of intention and use of contraception
 while causing a child to exist = fiscal responsibility, cannot generate responsibility to be
FaC
Responsibility to be a FaC
 responsibility created by voluntarily accepting and performing the role: did not agree
a man should walk out on child he had been fathering if he found out he wasn’t the father
 “responsible for your voluntary actions” principle : idea that father voluntarily creates a
relationship of dependency
o this is the the clearest separation between morally significant (father as
carer) fatherhood and genetic fact
o responsibility here based on social obligation, not genetic
Two kinds of responsibility: parental and material
31



paternal responsibility: all resposnsibilities voluntarily assumed as FaC
material responsibility: compulsory, comes from having caused the child to exist
hence, it is possible that a man can cause a child to exist (FaP), discharge material
responsibilities, and not be considered a father in a morally meaningful (FaC) sense bc
not discharging paternal responsibilities
Discharging responsibility as a way of earning paternal rights
 Fahter only acquires rights by discharging paternal responsibilities (being FaC) – right
to be involved in child’s life, and make decisions
 Bc invested time = earns right to be involved in life
 Non-resident father thought they had an alienable right to be involved in child’s life
Discussion
 Fatherhood as a concept seems fragmented!
 Supports the fragmentation thesis: a variety of men, standing in different kinds of
relationships to the same child, may still be recognized as father or have a significant role
to play
 Distinction between FaC and FaP suggest that men can accept that fatherhood is both a
biological and social relationship
o Moral weight to social relationship
 Consistent with literature notions of family are becoming more fluid, less emphasis on
genetics, and more emphasis on choice and the intentional construction of familial
groupings
 “what is important to fatherhood is the formation and continuation of a particular kind of
relationship, which is distinct from biological kinship.”
 Despite emphasis o caring, genetic relationship was a natural faciliatator of a robust
and enduring social relationship --- genetic relationship valued instrumentally for
what it is believed to do, rather than inherently for what it does
 Non-resident fathers – focus on genetics mirrors the equality model of rights
distribution: they have a right to be involved in child’s life is based on equal genetic
contribution
 Equity model: rights ar earned in proportion to the amount of imput made
 Rejection of the idea that paying support = right to be involved in child’s life. Needs to be
a FaC
CCQ, 522-7; 530-3, 535, 535.1
II. Filiation
522. All children whose filiation is established have the same rights and
obligations, regardless of their circumstances of birth.
Ch. 1: Filiation by blood
Division 1 – Proof of Filiation
523. Paternal filiation and maternal filiation are proved by the act of birth,
regardless of the circumstances of the child's birth.
GENERAL
PROVISION
§ 1. — Title and
possession of
status
In the absence of an act of birth, uninterrupted possession of status is
sufficient.
524. Uninterrupted possession of status is established by an adequate
combination of facts which indicate the relationship of filiation between the
child and the persons of whom he is said to be born.
525. If a child is born during a marriage or a civil union between persons of
opposite sex, or within 300 days after its dissolution or annulment, the
spouse of the child's mother is presumed to be the father.
§ 2. —
Presumption of
paternity
32
The presumption of paternity is rebutted if the child is born more than 300
days after the judgment ordering separation from bed and board of married
spouses, unless the spouses have voluntarily resumed living together before
the birth.
The presumption is also rebutted in respect of the former spouse if the child
born is within 300 days of the dissolution or annulment of the marriage or
civil union, but after a subsequent marriage or civil union of the child's
mother.
526. If maternity or paternity cannot be determined by applying the
preceding articles, the filiation of a child may also be established by
voluntary acknowledgement.
§ 3. — Voluntary
acknowledgement
527. Maternity is acknowledged by a declaration made by a woman that she
is the mother of the child.
Paternity is acknowledged by a declaration made by a man that he is the
father of the child.
Division II - ACTIONS RELATING TO FILIATION
530. No person may claim a filiation contrary to that assigned to him by his
act of birth and the possession of status consistent with that act.
No person may contest the status of a person whose possession of status is
consistent with his act of birth.
531. Any interested person, including the father or the mother, may, by any
means, contest the filiation of a person whose possession of status is not
consistent with his act of birth.
However, the presumed father may contest the filiation and disavow the child
only within one year of the date on which the presumption of paternity takes
effect, unless he is unaware of the birth, in which case the time limit begins
to run on the day he becomes aware of it. The mother may contest the
paternity of the presumed father within one year from the birth of the child.
532. A child whose filiation is not established by an act and by possession of
status consistent therewith may claim his filiation before the court. Similarly,
the father or the mother may claim paternity or maternity of a child whose
filiation in their regard is not established by an act and by possession of
status consistent therewith.
If the child already has another filiation established by an act of birth, by the
possession of status, or by the effect of a presumption of paternity, an action
to claim status may not be brought unless it is joined to an action contesting
the status thus established.
The action for disavowal or for contestation of status is directed against the
child and against the mother or the presumed father, as the case may be.
533. Proof of filiation may be made by any mode of proof. However,
testimony is not admissible unless there is a commencement of proof, or
unless the presumptions or indications resulting from already clearly
established facts are sufficiently strong to permit its admission.
33
535. Every mode of proof is admissible to contest an action concerning
filiation.
Any mode of proof tending to establish that the husband or civil union
spouse is not the father of the child is also admissible.
1991, c. 64, a. 535; 2002, c. 6, s. 29.
535.1. Where the court is seized of an action concerning filiation, it may, on
the application of an interested person, order the analysis of a sample of a
bodily substance so that the genetic profile of a person involved in the action
may be established.
However, where the purpose of the action is to establish filiation, the court
may not issue such an order unless a commencement of proof of filiation has
been established by the person having brought the action or unless the
presumptions or indications resulting from facts already clearly established
by that person are sufficiently strong to warrant such an order.
The court determines conditions for the sample-taking and analysis that are
as respectful as possible of the physical integrity of the person concerned or
of the body of the deceased. These conditions include the nature and the
date and place of the sample-taking, the identity of the expert charged with
taking and analyzing the sample, the use of any sample taken and the
confidentiality of the analysis results.
The court may draw a negative presumption from an unjustified refusal to
submit to the analysis ordered by the court.
Ontario CLRA ss 1, 4–6, 8–10
Part I – Equal Status of Children
34
Rule of parentage
1. (1) Subject to subsection (2), for all purposes of the law of Ontario
a person is the child of his or her natural parents and his or her status as
their child is independent of whether the child is born within or outside
marriage. R.S.O. 1990, c. C.12, s. 1 (1).
Rule of
parentage
Exception for adopted children
(2) Where an adoption order has been made, section 158 or 159 of
the Child and Family Services Act applies and the child is the child of the
adopting parents as if they were the natural parents. R.S.O. 1990,
c. C.12, s. 1 (2).
Kindred relationships
(3) The parent and child relationships as determined under
subsections (1) and (2) shall be followed in the determination of other
kindred relationships flowing therefrom. R.S.O. 1990, c. C.12, s. 1 (3).
Common law distinction of legitimacy abolished
(4) Any distinction at common law between the status of children
born in wedlock and born out of wedlock is abolished and the relationship of
parent and child and kindred relationships flowing therefrom shall be
determined for the purposes of the common law in accordance with this
section. R.S.O. 1990, c. C.12, s. 1 (4).
PART II- Establishment of Parentage
Paternity and maternity declarations
4. (1) Any person having an interest may apply to a court for a
declaration that a male person is recognized in law to be the father of a child
or that a female person is the mother of a child. R.S.O. 1990,
c. C.12, s. 4 (1).
Paternity and
maternity
declarations
Declaration of paternity recognized at law
(2) Where the court finds that a presumption of paternity exists
under section 8 and unless it is established, on the balance of probabilities,
that the presumed father is not the father of the child, the court shall make a
declaratory order confirming that the paternity is recognized in law. R.S.O.
1990, c. C.12, s. 4 (2).
Declaration of maternity
(3) Where the court finds on the balance of probabilities that the
relationship of mother and child has been established, the court may make a
declaratory order to that effect. R.S.O. 1990, c. C.12, s. 4 (3).
Idem
(4) Subject to sections 6 and 7, an order made under this section
shall be recognized for all purposes. R.S.O. 1990, c. C.12, s. 4 (4).
Application for declaration of paternity where no presumption
5. (1) Where there is no person recognized in law under section 8 to
be the father of a child, any person may apply to the court for a declaration
that a male person is his or her father, or any male person may apply to the
court for a declaration that a person is his child. R.S.O. 1990,
c. C.12, s. 5 (1).
Application for
declaration of
paternity where
no presumption
Limitation
(2) An application shall not be made under subsection (1) unless
both the persons whose relationship is sought to be established are
living. R.S.O. 1990, c. C.12, s. 5 (2).
Declaratory order
35
(3) Where the court finds on the balance of probabilities that the
relationship of father and child has been established, the court may make a
declaratory order to that effect and, subject to sections 6 and 7, the order
shall be recognized for all purposes. R.S.O. 1990, c. C.12,s. 5 (3).
36
Reopening on new evidence
6. Where a declaration has been made under section 4 or 5 and
evidence becomes available that was not available at the previous hearing,
the court may, upon application, discharge or vary the order and make such
other orders or directions as are ancillary thereto. R.S.O. 1990, c. C.12, s. 6.
Reopening on
new evidence
Corresponding change of surname
6.1 (1) Any person declared under section 4, 5 or 6, as the case may
be, to be the mother or father of a child may apply to the court for an order
that the child’s surname be changed to any surname that the child could
have been given at birth under subsection 10 (3), (4) or (5) of the Vital
Statistics Act. 2009, c. 11, s. 4.
Same
(2) An application under subsection (1) to change a child’s surname
may be made at the same time that an application for a declaration
under section 4, 5 or 6 is made. 2009, c. 11, s. 4.
Best interests of the child
(3) An order under subsection (1) changing a child’s surname may
only be made if it is in the best interests of the child. 2009, c. 11, s. 4.
Presumption of paternity
8. (1) Unless the contrary is proven on a balance of probabilities,
there is a presumption that a male person is, and he shall be recognized in
law to be, the father of a child in any one of the following circumstances:
Presumption of
paternity
1. The person is married to the mother of the child at the time of the
birth of the child.
2. The person was married to the mother of the child by a marriage
that was terminated by death or judgment of nullity within 300
days before the birth of the child or by divorce where the
decree nisi was granted within 300 days before the birth of the
child.
3. The person marries the mother of the child after the birth of the
child and acknowledges that he is the natural father.
4. The person was cohabiting with the mother of the child in a
relationship of some permanence at the time of the birth of the
child or the child is born within 300 days after they ceased to
cohabit.
5. The person has certified the child’s birth, as the child’s father,
under the Vital Statistics Act or a similar Act in another
jurisdiction in Canada.
6. The person has been found or recognized in his lifetime by a court
of competent jurisdiction in Canada to be the father of the
child.R.S.O. 1990, c. C.12, s. 8 (1).
Where marriage void
(2) For the purpose of subsection (1), where a man and woman go
through a form of marriage with each other, in good faith, that is void and
cohabit, they shall be deemed to be married during the time they cohabit and
the marriage shall be deemed to be terminated when they cease to
cohabit. R.S.O. 1990, c. C.12, s. 8 (2).
Conflicting presumptions
(3) Where circumstances exist that give rise to a presumption or
37
presumptions of paternity by more than one father under subsection (1), no
presumption shall be made as to paternity and no person is recognized in
law to be the father. R.S.O. 1990, c. C.12, s. 8 (3).
Admissibility in evidence of acknowledgment against interest
9. A written acknowledgment of parentage that is admitted in
evidence in any civil proceeding against the interest of the person making
the acknowledgment is proof, in the absence of evidence to the contrary, of
the fact. R.S.O. 1990, c. C.12, s. 9.
Admissibility in
evidence of
acknowledgment
against interest
Leave for blood tests and DNA tests
10. (1) On the application of a party in a civil proceeding in which the
court is called on to determine a child’s parentage, the court may give the
party leave to obtain blood tests or DNA tests of the persons who are named
in the order granting leave and to submit the results in evidence. 2006, c. 19,
Sched. B, s. 4.
Leave for blood
tests and DNA
tests
Conditions
(2) The court may impose conditions, as it thinks proper, on an order
under subsection (1). 2006, c. 19, Sched. B, s. 4.
Consent to procedure
(3) The Health Care Consent Act, 1996 applies to the blood test or
DNA test as if it were treatment under that Act. 2006, c. 19, Sched. B, s. 4.
Inference from refusal
(4) If a person named in an order under subsection (1) refuses to
submit to the blood test or DNA test, the court may draw such inferences as
it thinks appropriate. 2006, c. 19, Sched. B, s. 4.
Exception
(5) Subsection (4) does not apply if the refusal is the decision of a
substitute decision-maker as defined in section 9 of the Health Care Consent
Act, 1996. 2006, c. 19, Sched. B, s. 4.
Ontario Vital Statistics Act, ss. 8-19
Registration of Births
Notice of birth
8. If required by the regulations, a person who attends at the birth of a
child in Ontario shall give notice of the birth in the manner, within the time and
to the person prescribed by the regulations. 1994, c. 27, s. 102 (5).
Certification of birth
9. (1) The mother and father, or either of them, in such circumstances
as may be prescribed, or such other person as may be prescribed, shall
certify the birth in Ontario of a child in the manner, within the time and to the
person prescribed by the regulations. 1994, c. 27, s. 102 (5).
Notice of birth
Certification of
birth
Same
(2) A person who finds a new-born deserted child or who has received
custody or care and control of an abandoned child and any other person as
may be prescribed shall provide such information and documentation as may
be prescribed in respect of the child and the child’s birth in the manner, within
the time and to the person prescribed by the regulations. 1994, c. 27,
s. 102 (5).
Registration
(3) The Registrar General, acting on a certification under subsection
38
(1) or information under subsection (2) or on such information as may be
prescribed or as he or she considers appropriate, may register the birth of a
child in Ontario of which he or she becomes aware. 1994, c. 27, s. 102 (5).
Additional evidence
(4) Despite the receipt of any documentation or information related to
a birth, the Registrar General may refuse to register the birth until he or she is
satisfied that the documentation or information correctly states the facts and,
for such purposes, he or she may require such supplementary evidence as
he or she considers appropriate. 1994, c. 27, s. 102 (5).
Division registrars
(5) Division registrars shall perform such duties as may be prescribed
in respect of the notification, certification and registration of births. 1994,
c. 27, s. 102 (5).
Amendment of registration
(6) The Registrar General may amend a birth registration in the
circumstances and upon application by the person or persons prescribed by
the regulations. 1994, c. 27, s. 102 (5).
Same
(7) On receiving a certified copy of an order under section 4, 5 or 6 of
the Children’s Law Reform Act respecting a child whose birth is registered in
Ontario, the Registrar General shall amend the particulars of the child’s
parents shown on the registration, in accordance with the order. 1994, c. 27,
s. 102 (5).
Same
(8) On receiving a certified copy of an order under section 6.1 of
the Children’s Law Reform Act respecting a child whose birth is registered in
Ontario, the Registrar General shall amend the particulars of the child’s
surname shown on the registration, in accordance with the order. 2009, c. 11,
s. 51.
39
Child’s name
10. (1) A child whose birth is certified under section 9 shall be given
at least one forename, subject to subsection (2), and a surname.R.S.O. 1990,
c. V.4, s. 10 (1).
Child’s name
Exception
(2) A child whose birth is certified under section 9 need not be given a
forename if the Registrar General is satisfied that,
(a) the child’s sex is undetermined;
(b) every consent required by the Child and Family Services Act for
the child’s adoption has been given or dispensed with; or
(c) the child has died. R.S.O. 1990, c. V.4, s. 10 (2).
How child’s surname determined
(3) A child’s surname shall be determined as follows:
1. If both parents certify the child’s birth, they may agree to give the
child either parent’s surname or former surname or a surname
consisting of one surname or former surname of each parent,
hyphenated or combined.
2. If both parents certify the child’s birth but do not agree on the
child’s surname, the child shall be given,
i. the parents’ surname, if they have the same surname, or
ii. a surname consisting of both parents’ surnames hyphenated
or combined in alphabetical order, if they have different
surnames.
3. If one parent certifies the child’s birth and the other parent is
incapable by reason of illness or death, the parent who certifies
the birth may give the child either parent’s surname or former
surname or a surname consisting of one surname or former
surname of each parent, hyphenated or combined.
4. If the mother certifies the child’s birth and the father is unknown to
or unacknowledged by her, she may give the child her surname
or former surname.
5. If a person who is not the child’s parent certifies the child’s birth,
the child shall be given,
i. the parents’ surname, if they have the same surname,
ii. a surname consisting of both parents’ surnames hyphenated
or combined in alphabetical order, if they have different
surnames, or
iii. if only one parent is known, that parent’s surname. R.S.O.
1990, c. V.4, s. 10 (3); 1994, c. 27, s. 102 (6).
Idem
(4) A child’s surname determined under paragraph 1, 3 or 4 of
subsection (3) may be in a masculine or feminine form. R.S.O. 1990,
c. V.4, s. 10 (4).
Idem
(5) Where the person who certifies a child’s birth indicates in the
prescribed manner that he or she wishes to give the child a surname that is
determined, not under subsection (3) but in accordance with the child’s
40
cultural, ethnic or religious heritage, the child may be given that surname if
the Registrar General approves. R.S.O. 1990, c. V.4, s. 10 (5); 1994, c. 27,
s. 102 (7).
6. Filiation by blood: Secrets and family stability
Objectives
- “blood” vs biology
- secrets and lies
1. Review : filiation by blood, natural parentage
a. A formal legal status entailing rights and obligations
b. Extra-judicial and judicial
c. Registration and resumptions
d. Formal and informal
o Informal: Ontario legislation - s. 8(1)4: recognition of parentage of ppl living
together
o Informal: Qc: s 524 : interrupted possession of status –
e. Stability
- art 530 : no one can contest parentage when there is uninterrupted status of the person and
their Birth certificate
f. correspondence w genetic link vs other
g. impact of adult conjugal relations
-- in qc, no presumption that ppl living together = parentage, unlike Ontario
h. marriage as sticky
- art 525: presumption based on marriage
Family Secrets (new materials)
2. Castelli and Goubeau, p 193
- optional reading. Conservative treatment of family law.
- “Ainsi notre legislation entend faire correspondre aussi etroitement que possible la
filiation juridique a la filiation bilogique”
- smoothing over some of the ways parentage should be established
-
Eekalar-children have the right to know their genetic connection
“truth” – interesting word choice
“Fortin appears to be unwavering in her certainty that scientifically based knowledge/truth
is best”
3. Smart (pp 125-6, 128)
 need to reconsider statements such as the truth is always better – not always the case
optional case – Pratten: superior court decision overturned at the CA. Claim against govt for not
documenting genetic information of sperm
Droit de la famille – 09358, 2009, QCCA
Facts: The appellant (Mr.) I and respondent (Mrs) B lived together as spouses. Four years later,
B gave birth to a baby. Mr. I met all of the needs of the child and after a separation, continued to
visit.
After their separation, a third party, D, called Mr. I to say he was the father of the child. After
completing a DNA test, which ruled out all likelihood that Mr. I was the actual father, he cut all ties
with the child.
Issues: Given the appellant was misled about being the actual father, should the birth certificate
be considered invalid? (No: because even if the act of birth was invalid, uninterrupted
41
possession of status is enough to determine filiation).
- Was possession of status invalid given that the appellant was lied to, and didn’t know he was
not actually the father? (No: possession of status would have been invalid say he knew
from the start he was not the biological father.)
Holding: Emphasis is on the stability of filiation and families, even in the case of fraud about the
“father’s” blood link to the child.
Ratio: This case is about blood ties. The civil code establishes filiation with the act of birth, which
is the primary way of determining filiation. Filiation is not contestable after the act of birth ,
confirmed by uninterrupted status
 The appellant argued that the interpretation of ccq 530 created an irrefutable presumption of
filiation, which was unfair in the case given the misrepresentation of the mother.
 Nonetheless, the court stated that ccq 530 is designed to promote the stability of filiation and
indirectly the stability of families. This can work well in some situations, such as if the mother
was abandoned by the biological father before birth, say she meets a new partner and he
decides to put his name on the act of birth. This emphasizes a focus on possession of status
rather than biological reality.
- note: the defs did not oppose the action at first instance . Quebec judges enforcing this
rule not the family. Shows us that 530 is iron clad!
- this is a matter of public order : why? Interesting bc social bond with child on these facts
do not exist anymore
- QCCA obviously correctly applied the rules
- no discussion of BI etc --- although the judgment talks about the importance of stability!
-
a. with reference to Ives et al, how is the word pere used in DF case [9] to [15]
of the facts
progenitor/carer/legal “father”
para 11 used as “carer” – “l’appellant s’occupe de l’enfant comme s’il est le père”
12 – progenitor – “D… Be.. telephone a l’appellant et lui dit qu’il est le père de X” and 13
– progenitor “qu’il n’est pas le père de l’enfant”
b. Uninterrupted possession of status
- --- note : needs to be est from birth
- nomen (name) : used to be more important when kids took the father’s name
- tractatus (treatment)
- fama (fame/renown/community view) : what is visible to ppl outside the family
2 functions
- filiation can be proven alone within 2 years
- deleting this – would have major implications for 530!
Division II – Actions Relating to Filiation
530 – against the proposed amendment – adding “unless serves the interests of the child”
- bad : unstability. Opening up litigation that disturbs a child’s life.
- BI : would it schew things
- a third party could contest it
- wouldn’t allow the child to contest it - just an adult ??
- a radical injection of discretion that isn’t there elsewhere

Leckey: may be smart to situate “truth” in the larger context (inequality btw partners in
relationships)
Carol Smart, “Secrets and Lies” 2007
 While it was once entirely normative to treat paternity as a matter of pragmatic, rather
than biological truth, it’s impossible to hide secrets about biological paternity
 English common law has been party to a certain amount of deceit about paternity, in the
42
interest of the welfare of children
o presumption of legitimacy through which it was maintained that a child born to a
married woman was the legal child of her husband  the effect of bastardizing a
child could be devastating both socially and economically
o until methods of scientific testing of paternity started to be developed, a husband
couldn’t bastardize a child of his wife if there was any evidence that he could
have had intercourse with her at the relevant time
 Is scientifically based knowledge/truth really best?
 Gender agendas re: paternity secrets:
o fathers became increasingly interested in establishing paternity
o mothers may be less enthusiastic about DNA testing b/c of the fear of rejection of
both the child and of themselves
 Modern cultural distaste for secrets applies also to cases of adoption, where adoptive
parents are increasingly required to be open about a child’s origins
 “Secrets may be felt to be necessary for the preservation of relationships and the ‘truth’
may be taken to be less important than stabilizing fictions”
 As far as genetic truths are concerned, it’s clear that both law and family policies have
shifted to accommodate the new trend with remarkable speed
o e.g. multiple parents
 possible incongruence btw what is seen to be a progressive policy based on genetic
truths and/or the recognition that several people may have a legitimate interest in the
child, and the way in which many couples think that family life should be ordered and
lived
“changing the rules – whether about which secrets to keep or which to reveal, does not transform
relations of power between classes, genders and generations.”
CCQ – 525, 530, 535.1
525. If a child is born during a marriage or a civil union between persons of
opposite sex, or within 300 days after its dissolution or annulment, the
spouse of the child's mother is presumed to be the father.
§ 2. —
Presumption of
paternity
The presumption of paternity is rebutted if the child is born more than 300
days after the judgment ordering separation from bed and board of married
spouses, unless the spouses have voluntarily resumed living together before
the birth.
The presumption is also rebutted in respect of the former spouse if the child
born is within 300 days of the dissolution or annulment of the marriage or civil
union, but after a subsequent marriage or civil union of the child's mother.
DIVISION II - ACTIONS RELATING TO FILIATION
530. No person may claim a filiation contrary to that assigned to him by his
act of birth and the possession of status consistent with that act.
No person may contest the status of a person whose possession of status is
consistent with his act of birth.
535.1. Where the court is seized of an action concerning filiation, it may, on
the application of an interested person, order the analysis of a sample of a
bodily substance so that the genetic profile of a person involved in the action
may be established.
However, where the purpose of the action is to establish filiation, the court
may not issue such an order unless a commencement of proof of filiation has
43
been established by the person having brought the action or unless the
presumptions or indications resulting from facts already clearly established by
that person are sufficiently strong to warrant such an order.
The court determines conditions for the sample-taking and analysis that are
as respectful as possible of the physical integrity of the person concerned or
of the body of the deceased. These conditions include the nature and the
date and place of the sample-taking, the identity of the expert charged with
taking and analyzing the sample, the use of any sample taken and the
confidentiality of the analysis results.
The court may draw a negative presumption from an unjustified refusal to
submit to the analysis ordered by the court.
CLRA, s. 6
Reopening on new evidence
6. Where a declaration has been made under section 4 or 5 and evidence
becomes available that was not available at the previous hearing, the court
may, upon application, discharge or vary the order and make such other
orders or directions as are ancillary thereto. R.S.O. 1990, c. C.12, s. 6
Reopening on
new evidence
7. Assisted conception and same-sex couples
MDR c Ontario (Deputy Registrar
Vital Statistics Act Regulation 1093 s. 2(1) “assisted conception”, 2(2)2
Philippe Malaurie & Hugues Fulchiron, La famile, 4ed ,
CCQ, arts 538-41
Chapter 1.1 Filiation of Children born of assisted procreation
538. A parental project involving assisted procreation exists from the moment a
person alone decides or spouses by mutual consent decide, in order to have a
child, to resort to the genetic material of a person who is not party to the parental
project.
538.1. As in the case of filiation by blood, the filiation of a child born of assisted
procreation is established by the act of birth. In the absence of an act of birth,
uninterrupted possession of status is sufficient; the latter is established by an
adequate combination of facts which indicate the relationship of filiation between
the child, the woman who gave birth to the child and, where applicable, the other
party to the parental project.
This filiation creates the same rights and obligations as filiation by blood.
538.2. The contribution of genetic material for the purposes of a third-party
parental project does not create any bond of filiation between the contributor and
the child born of the parental project.
44
However, if the genetic material is provided by way of sexual intercourse, a bond
of filiation may be established, in the year following the birth, between the
contributor and the child. During that period, the spouse of the woman who gave
birth to the child may not invoke possession of status consistent with the act of
birth in order to oppose the application for establishment of the filiation.
538.3. If a child is born of a parental project involving assisted procreation
between married or civil union spouses during the marriage or the civil union or
within 300 days after its dissolution or annulment, the spouse of the woman who
gave birth to the child is presumed to be the child's other parent.
The presumption is rebutted if the child is born more than 300 days after the
judgment ordering separation from bed and board of the married spouses,
unless they have voluntarily resumed living together before the birth.
The presumption is also rebutted in respect of the former spouse if the child is
born within 300 days of the termination of the marriage or civil union, but after a
subsequent marriage or civil union of the woman who gave birth to the child.
539. No person may contest the filiation of a child solely on the grounds of the
child being born of a parental project involving assisted procreation. However,
the married or civil union spouse of the woman who gave birth to the child may
contest the filiation and disavow the child if there was no mutual parental project
or if it is established that the child was not born of the assisted procreation.
The rules governing actions relating to filiation by blood apply with the necessary
modifications to any contestation of a filiation established pursuant to this
chapter.
539.1. If both parents are women, the rights and obligations assigned by law to
the father, insofar as they differ from the mother's, are assigned to the mother
who did not give birth to the child.
540. A person who, after consenting to a parental project outside marriage or a
civil union, fails to declare his or her bond of filiation with the child born of that
project in the register of civil status is liable toward the child and the child's
mother.
541. Any agreement whereby a woman undertakes to procreate or carry a child
for another person is absolutely null.
Ban on
surrogacy K
Exercise 1: Filiation and Parentage ANSWERS
1. Y was born in Trois-Rivières. You are seeking to prove the paternal filiation of Mr X
towards Y. You have an act of birth declaring Mr X to be the father of Y. You also have
an adequate combination of facts which indicate that Mr X is Y’s father. How do you
prove the paternal filiation?
-
Act of birth; it is the primary mode of proof as indicated by art. 523 C.C.Q, para 1
523, para 2: UPS is a secondary mode of birth (in absence of act of birth)
2. After Mr X’s paternal filiation towards Y was proven in Question 1, Mr Z, a lover of the
child’s mother, seeks to claim paternity of Y. May he do so?
- No. Filiation consistent with act of birth and possession of status is incontestable:
art. 530 C.C.Q, para 2. Here, UPS operates to ironclad the contestation of filiation.
3. Alter the facts in Question 1: Mr X is proven by the act of birth to be the father of Y, but
no adequate combination of facts so indicates. Can Mr Z seek to claim paternity of Y?
45
Yes. A filiation proven by act of birth alone may still be contested: art. 531, para. 1
C.C.Q.
4. In order to bring his action to claim status as Y’s father, what must Mr Z also do? He
must join an action contesting the status already established: art. 532, para. 2
C.C.Q.
5. S is born in Chicoutimi on 3 July 2006 to a woman called W. Her husband’s name is H. At
that time he had been absent for some eleven months. W makes a declaration of birth,
registering herself as the mother. She declares no father. Has S a father? H is
presumed the father: the child was born within a marriage. Art. 525, para. 1 C.C.Q.
Para 2 separation indicates judicial separation (not just the fact you haven’t had sex)
6. Suppose that H is presumed to be the father of S. If he has until 15 October 2009 to rebut
that presumption, what do we know about the period between the child’s birth and 15
October 2008? What happened on 15 October 2008? H must have found out on 15
October 2008 about the birth; during the time prior he must not have known, since
the presumed father’s prescription period for challenging his paternity is one year
from his becoming aware of the birth: art. 531, para. 2 C.C.Q.
7. F and G are married but, five years ago, they obtained a judgment ordering separation
from bed and board. F gives birth to a child. She declares only herself as parent on the
declaration of birth. No adequate combination of facts points to G as the father. He is
presumed to be the father. What must have happened? They must have voluntarily
resumed living together before the birth: art. 525, para. 2 C.C.Q.
8. A and B live together in Laval for several years. Seven months after they cease living
together, A gives birth to a child, C. A declares herself the mother. If B is presumed the
father, what do we know about A and B? They must be married or civilly united. The
presumption applies only to a married or civil union spouse: art. 525, para. 1
C.C.Q.
9. Alter the facts: If A and B had lived together in Sudbury, would we know the same thing
about them as in Question 7? No. Under CLRA s. 8(1)1 or 8(1)4, respectively, they
might be married or simply have lived together in a relationship of some
permanence.
10. J and K are married spouses living in Boucherville. K is killed suddenly on 8 January
2007. Though it seems sudden to her friends and relatives, on 12 June 2007, J
remarries, this time to L. On 15 September 2007, she gives birth to a daughter. J
declares herself the mother. There is a presumed father; who is it? L, in virtue of art.
525, para. 3 C.C.Q. (child born within three hundred days of dissolution of marriage
but mother having remarried: husband at time of birth the presumed father).
11. If the parties lived in Ontario, what would the answer be? There would be no presumed
father. CLRA s. 8(3): no presumption made where there are conflicting
presumptions.
7. Assisted conception and same-sex couples
Objectives
- parental projects and two parents of the same sex
- Charter challenges versus legislative reform
- Different legislative approaches
1. Review / stability and secrecy
3. Design challenges: choice: what problems do traditional regimes pose for the lesbian couple
intending to parent?
46
 legal matter of tying in the second woman
 what’s the role of the sperm donor? (making the genetic father not be the second parent)
4. Institutional differences: Charter challenges v legislative amendment
 CML: Charter (M.D.R.)
o Charter remedy doesn’t allow judge to enact comprehensive regimes
o litigation is fact-specific
MDR c Ontario (Deputy Registrar General) 2006 Ont SC
Facts: Lesbian parents seeking to register both women on the Statement of Live Birth of their
children born through assisted reproduction – not permitted. Claim that the Vital Statistics Act
violated s. 15 of the Charter and constituted discrimination on the basis of sex/sexual orientation.
Refused right to voluntarily register as parents bc they were obviously not father of the child.
Issue: Does the VSA violate s. 15 of the Charter? Holding: Yes.
Reasoning (Rivard J.):
 Appropriate comparator group: heterosexual non-biological fathers who planned a pregnancy
with a spouse using assistive reproductive technology
o No one was asking them any questions when they signed up on the birth certificate
 Distinction on the basis of sex/sexual orientation  the gay women are being asked
questions but the straight men aren’t
 Para 259: problem at the remedy stage – necessary to redfine who can be a child under the
VSA
 Para 260: must focus on individuals who had an intent to parent prior to conception and
who were in a spousal relationship with the birth mother
 judge suspends remedy for 12 months; leaves it up to legislature to decide
Ratio: Homosexual parents should have the same rights as heterosexual parents under s. 15 of
the Charter.
Quotes:
[259] As I see it, the key problem at the remedy stage is having rejected the argument that a
child's parents at birth must be her biological parents, it becomes necessary to re-define who can
be a parent under the VSA. I can think of the following ways of conceptualizing who those parents
might be:
(1) biological parents
(2) individuals who have an intent to parent at the time of birth (and possibly who
evidence such an intent)
(3) individuals who have an intent to parent prior to conception -- i.e., who use artificial
reproduction
(4) individuals in a spousal or other relationship of permanence with a biological parent
(5) the parent acknowledged by a birth parent
(6) some combination of the above.
[260] In this case, all of these different conceptions of who is a parent are implicated. For the
purposes of this case, it was appropriate to focus on individuals who had an intent to parent prior
to conception and who were in a spousal relationship with the birth mother. However, that is not
to say that these two factors are necessary to determine who is a non-biological parent. Rather,
they were markers of parentage present in this case. Ultimately, it should be the role of the
legislature to consider which of these factors, or other factors I have not considered, should be
used to expand the definitions of mother, father or parent in the VSA in order to protect the rights
of lesbian co-mothers.
Leckey on MDR:
 N.B. The result of this case was to partially invalidate the VSA and the rules on voluntary
acknowledgement  did not change any of the rules on presumptions of parentage
47


The Legislature’s response was not to amend the VSA  they passed amendments to
regulation allowing second mothers to sign up on birth certificates (very under the radar,
keeping the debate at bay)
o It was kind of back-door way to change the system: Ontario government did not show
a lot of appetite for public debate of the matter
Equality as sameness
Vital Statistics Act Regulation 1094, s. 2(1) “assisted conception”, 2(2)2
2. (1) In this section,
“assisted conception” means conception that occurs through a means other than sexual
intercourse;
“other parent” means a person whom a child’s mother acknowledges as the other parent,
who wishes to be acknowledged as the other parent and who agrees to certify the
statement with respect to the child where the father is unknown and conception occurred
through assisted conception;
“statement” means a statement mentioned in subsection (4) respecting the birth in Ontario of a
child.
(2) Subject to subsection (3), for the purposes of subsection 9 (1) of the Act, either of the
following groups of persons, and no other persons, are required to certify the birth in Ontario of
a child:
1. The mother and the father of the child.
2. The mother and the other parent of the child.
Leckey: notice how the legislature says “mother and the other parent” – compared to QC legislation that
acknowledges the reality of having “two mothers”
Quebec’s regime
 QC: family law is a product of legislative amendments
 these modes of changing the law
 until 2002, medically assisted reproduction was popular until legislature realized not all
assisted reproduction was “medical”
 there is a one-year window where the second mother cannot oppose attempt to assert
fraternity by the other sperm donor
 later in case law, it is established that the donor must be aware that he was acting in that
capacity
 notice the passive voice in 538, para 2 – unclear whether donor can establish filiation OR
whether mother has to do so
 mostly, the litigation has centred around evidence
 541: “absolute nullity” – social interest at stake (compared to relative nullity)
 K cannot be specifically enforced
Characterization (formal/informal ; voluntary/involuntary)
 QC - Presumption of parentage = less voluntary
o Same assumptions made in filiation are reproduced for lesbian couples
 MDR case: voluntary parenting, very much limited to assisted procreation
 QC – other regimes considered
o QC - no end to a parental project
 Beginning of parental project:
o 538: comes into effect by mere “consent”  much debate about when consent
happened / didn’t happen
 Filiation as against alternative avenues
o QC legislator could’ve dealt with other avenues
Clicker / Comparison discussion
1. ON’s post-MDR rules and QC’s Chp I.1 are functionally equivalent
48
 ON leaves non-birth mother more vulnerable
2. ON’s rules lead to lesbians becoming mothers voluntarily (only)
3. QC’s rules can lead to lesbians’ becoming mother voluntarily AND involuntarily
4. A female couple’s relationship or civil status matters to the available parentage rules in QC
only.
1. The chapter added in 2002 would better have been numbered II.1. True or false?
 If it was in II.i it would’ve been annexed in adoption
o filiation = extrajudicial decisions (act of birth / status)
o people who are angry say that there is now “fictitious filiation” that is dressed up
as “real filiation”
2. QC’s Chapter is radical or conservative – or both?
3. Is art. 538.2, para 2 sensible? NO
 Says that sperm donation is done by sexual intercourse, a bond of filiaton can be
established between the child and the father. And the spouse of the birth mother cannot
invoke UPS and act of birth to oppose – only in the year following the birth!
 538.3 is sensible? – presumption of parentage during marriage/civil union/300 yrs for
parental project
1. A major criticism of the 2002 reforms was that they privatized or contractualized filiation,
contrary to art 2632 CCQ and the general commitment to civil status as a matter of public order.
Compare the scope for adult volition and choices in Chapters I and I.1 of the title on filiation.
 Leckey: criticism of this kind naturalizes the idea of filiation by blood uncritically, but
filiation by blood is not completely “natural”
o filiation by blood: married couple’s decision (when the child is created by mother
+ lover)  assumes that marriage leads to filiation
2. Which is preferable: Ontario’s post-M.D.R. position, by which the second woman
becomes a parent by registration, or Quebec’s approach, by which less formal and
voluntary means (namely, uninterrupted possession of status and presumption of
parentage) may also establish her filiation?
CCQ, arts. 538-41
CHAPTER I.1
FILIATION OF CHILDREN BORN OF ASSISTED PROCREATION
538. A parental project involving assisted procreation exists from the moment
a person alone decides or spouses by mutual consent decide, in order to have
a child, to resort to the genetic material of a person who is not party to the
parental project.
CHAPTER I.1
FILIATION OF
CHILDREN
BORN OF
ASSISTED
PROCREATION
538.1. As in the case of filiation by blood, the filiation of a child born of
assisted procreation is established by the act of birth. In the absence of an act
of birth, uninterrupted possession of status is sufficient; the latter is
established by an adequate combination of facts which indicate the
relationship of filiation between the child, the woman who gave birth to the
child and, where applicable, the other party to the parental project.
This filiation creates the same rights and obligations as filiation by blood.
538.2. The contribution of genetic material for the purposes of a third-party
parental project does not create any bond of filiation between the contributor
and the child born of the parental project.
However, if the genetic material is provided by way of sexual intercourse, a
The birth
mother’s
spouse can
establish
filiation by
49
bond of filiation may be established, in the year following the birth, between
the contributor and the child. During that period, the spouse of the woman who
gave birth to the child may not invoke possession of status consistent with the
act of birth in order to oppose the application for establishment of the filiation.
538.3. If a child is born of a parental project involving assisted procreation
between married or civil union spouses during the marriage or the civil union
or within 300 days after its dissolution or annulment, the spouse of the woman
who gave birth to the child is presumed to be the child's other parent.
uninterrupted
possession of
status
The presumption is rebutted if the child is born more than 300 days after the
judgment ordering separation from bed and board of the married spouses,
unless they have voluntarily resumed living together before the birth.
The presumption is also rebutted in respect of the former spouse if the child is
born within 300 days of the termination of the marriage or civil union, but after
a subsequent marriage or civil union of the woman who gave birth to the child.
539. No person may contest the filiation of a child solely on the grounds of the
child being born of a parental project involving assisted procreation. However,
the married or civil union spouse of the woman who gave birth to the child may
contest the filiation and disavow the child if there was no mutual parental
project or if it is established that the child was not born of the assisted
procreation.
The rules governing actions relating to filiation by blood apply with the
necessary modifications to any contestation of a filiation established pursuant
to this chapter.
539.1. If both parents are women, the rights and obligations assigned by law
to the father, insofar as they differ from the mother's, are assigned to the
mother who did not give birth to the child.
540. A person who, after consenting to a parental project outside marriage or
a civil union, fails to declare his or her bond of filiation with the child born of
that project in the register of civil status is liable toward the child and the
child's mother.
Signaling this
regime is for
lesbian moms
Leckey:this is
“filling in the
gap”
541. Any agreement whereby a woman undertakes to procreate or carry a
child for another person is absolutely null
Malaurie & Fulchiron
a. Parenté and parentalité
b. The place of rights discourse (droits subjectifs vs. general interest)
c. Fact and law
d. Reality and fiction
e. Filiation: expression of the “fundamental human reality by which identity derives from the
encounter of the male and female sexes” vs. legal bond between the child and the adult
who plays a parental “role”
Philippe Malaurie & Hughes Fulchiron, La Famille at paras 1432-7
Philippe Malaurie & Hugues Fulchiron, La Famille, “Homoparentalité”
 The sexual relationships of the adults in a child’s life don’t have much to do with the child –
and even less have anything to do with the legal relationships the child has with those adults
 The very word “homoparentalité” (English translation?) confuses parentage and parenting
 Homosexual parenting should be treated according to the common law of filiation when it
concerns a child of one of the partners (from a previous relationship, adoption, etc)
50

Authors argue, however, that when the child results from a parental project between 2 gay or
lesbian partners, need to separate parentage from parenting
o Parentage is a biological, not a social, fact  child finds their roots in that biology
o There can be no homosexual “parentage” in the strict sense of the term
Authors argue that in the name of giving adults rights TO the child we are ignoring the rights OF
the child – the right to know their biological parentage as well as social parents (essential element
of our humanity)
Rosel’s summary
The sexual relationships of the adults in a child’s life don’t have much to do with the child – and
even less have anything to do with the legal relationships the child has with those adults
Parentage (parenté) / Parenting (parentalité)
 parentage – biological link (close to filiation)
 parenting – more fluid; « fonction culturelle de prise en charge, de protection et
d’éducation d’un enfant »
The place of rights discourse
 droit objectif v droit subjectif
 droit subjectif  only enforceable against one particular party
o M & F argue that droit subjectif is irrelevant in the filiation context
o CVL scholars argue that equality is irrelevant in a filiation context (family is
« inherently » equal  inequality btw generations, men and women, etc)
 droit objectif  general right (close to s 1 / Oakes test / general concern towards society)
Fact and law
 rejecting legal reform b/c different facts of family reality exist
Reality and fiction (la filiation dénaturée)
 filiation holds up the “reality” even when something like uninterrupted status might
establish fatherhood
 filiation” expression of the ‘fundamental reality by which identity derives from the
encounter of the male and female sexes” v legal bond btw child and the adult who plays a
parental ‘role’
« Homoparentalité »
 ambiguous term – deliberately mixes the notions of parentage / parenting
Possibilities:
 child of one of the partners, born from the partner’s previous union (in this sense, this is
“parenting”)
 child born during the couple’s union (through artificial insemination or IVF, sperm donor,
etc), but only one of the couple is listed as the parent – if one of the partners wants to
establish filiation with the child (this is a question of parentage)



Homosexual parenting should be treated according to the common law of filiation when it
concerns a child of one of the partners (from a previous relationship, adoption, etc)
Authors argue, however, that when the child results from a parental project between 2 gay or
lesbian partners, need to separate parentage from parenting
o Parentage (parenté) is a biological, not a social, fact  child finds their roots in that
biology
o There can be no homosexual “parentage” in the strict sense of the term
Authors argue that in the name of giving adults rights TO the child we are ignoring the rights
OF the child – the right to know their biological parentage as well as social parents (essential
51
element of our humanity)
Notes: acknowledging a “pre-legal reality” – for a system that identifies so much with the
legislature
Robert Leckey, “Law Reform, Lesbian Parenting, and the Reflective Claim” (2011)
-Article explores complex relationship btw empirical evidence of social practices and wellintentioned law reform
Two arguments for lesbian parents
 liberal equality claim – both lesbian partners should get parental status b/c they are
similar to hetero couple (equality-as-sameness)
 reflective claim – law must “catch up” and “acknowledge that children of lesbian couples
have two mothers from the beginning”; focus is btw the vertical gap btw law and social
life
o This claim has received less scrutiny than is warranted
Two stabs at reform
UK

Human Fertilisation and Embryology Act (2008)
o lesbians having a child may both acquire parental status, but only the one who
gives birth becomes a “mother”
o lesbian / civil partners may both attain recognition as child’s legal parents
o for couples who are not in civil partnership, a woman other than the mother may
be granted parental status only if she was treated at a licensed clinic
Quebec
 mutual consent of spouses to have a child via genetic material of a third party gives rise
to “parental project” (art 538 CCQ)
 contributing genetic material creates no bond of filiation btw contributor and the child born
(art 538.2 CCQ)
 parental status of second mother more easily established when she is the birth mother’s
spouse (arts 538.3, 114)
Situating the reforms
 UK: amended an existing health statute addressing treatment, “tinkering at the margins”
 QC: major impetus was formal equality for same-sex couples  germane to QC’s nationbuilding where its treatment of sexual minorities was distinguished from the rest of the
country
The practices of lesbian mothers
 unequal positions of biological and non-biological mother
o non-birth mothers often felt invisible as mothers
o certain strategies for legitimating the parental role (esp the role of the nonbiological mother)  selecting donor that would resemble the parent, naming
practices, having the non-b mother breastfeed, etc
o non-b mothers called by first names or other special nicknames
 Number of parents
o two-parent max in both countries got some support
 in some cases, women connected this limit to reducing the risk of losing
the child or decision-making authority
o in other studies, majority of women supported the child having three or more
parents, if the parties agreed to do so before conception
52
Material limitations of the reflective claim
 range of lesbian fam practices can’t serve as a direct model for legal reform
 family practices in question are not transparently knowable; no unmediated access to the
experience of lesbian families b/c empirical research is normative and theory-laden
 law as a blunt instrument: translating reality into law is inevitably a process of
simplification and distortion
Law and Social Practices’ Entwinement
 “It is facile to speak of the ‘choice’ resulting from reform without acknowledging that the
obtainment of new possibilities redirects energies and desires” (340)
 complex models may be harder to use, and generate more uncertainty and disputes
 informal norms will infuse space of decision-making
Conclusion
 likelihood that some observable practices of lesbian parenting bear the imprint of
heterosexist and homophobic legal and social conditions means that such practices can’t
be taken uncritically as a plumb-line for legislative policy
two avenues for further research: empirical study of lesbian parents in jurisdictions where they
have secured status; observing the impact of legal status on the use of social and biological
strategies for asserting the maternity of the birth mother’s partner
ON regime
 voluntary and deliberate (VSA)
QC regime
 actual practices of lesbian parenting takes a lot of planning
 no written agreement
 what was intrusive: adoption regime (convincing a judge to adopt the child)
 Preserving the 300-day limit that was in filiation – this biological distinction is still saved
o substantive equality is saved by mirroring everything
Review:
- last day: through litigation or legislative reform
- Charter decision in MDR:
- Ontario amendment focused on extrajudicial and voluntary recognition
o But doesn’t include other aspects : no presumption on the basis of relationship
between the adults, no ability to “nail” someone with parentage against their will
- Vs Quebec (Ch 1.1): reproduces as much as possible the rules on parentage by blood
(ex. 300 day rule to rebut the presumption based of parentage – based on the idea that
people aren’t sleeping together).
o This is applied to assisted procreation concept as well
o Remarkable for how closely everything is copied
o QC approach: achieve substantive equality by mirroring filiation by blood
o Instead of rethinking the whole regime (for ex whether presumption of paternity
based on marriage makes sense)- copied everything (civil union and presume
parentage)
o “very particular type of equality”
o other exs: art 393: no one changes their name on marriage (public order).
o Idea that rules can produce equality in a specific way ?
- Problems with Quebec assisted reproduction regime: place of the donor by sexual
intercourse, purely consensual character of the donor, doesn’t tell us evidence of consent
to be a donor (ex requ’ing writing, witnesses). Leckey: they didn’t do that bc different sex
couples dnt sign documents before conceiving.
o Sociological info: lesbian couples actually plan ahead unlike some
heterosexual couples
53
-
Like Ontario, provides for parentage from birth. VS adoption: requires BI analysis by the
judge
o Intact lesbian couples can establish parentage without expense, delay and
invasiveness
8. A Third Parent?
Objectives
- parens patriae jurisdiction
- filling gaps
- recognizing a third parent
Three parents?
1. the BC regime
- s. 30: provides that a child can have three legal parents through extrajudicial process
- codifies the AA v BB case from Ontario
BC Family Law Act, s. 30
Parentage if other arrangement
30
(1) This section applies if there is a written agreement that
(a) is made before a child is conceived through assisted reproduction,
(b) is made between
(i) an intended parent or the intended parents and a potential birth mother who agrees to be a
parent together with the intended parent or intended parents, or
(ii) the potential birth mother, a person who is married to or in a marriage-like relationship
with the potential birth mother, and a donor who agrees to be a parent together with the
potential birth mother and a person married to or in a marriage-like relationship with the
potential birth mother, and
(c) provides that
(i) the potential birth mother will be the birth mother of a child conceived through assisted
reproduction, and
(ii) on the child's birth, the parties to the agreement will be the parents of the child.
(2) On the birth of a child born as a result of assisted reproduction in the circumstances described
in subsection (1), the child's parents are the parties to the agreement.
(3) If an agreement described in subsection (1) is made but, before a child is conceived, a party
withdraws from the agreement or dies, the agreement is deemed to be revoked.
Quebec Regime – parental project
- does not need to be written
- language indicates only parents (not
donor) are part of parental project
- 548(2)(2): idea that someone might
change mind after child’s birth
BC Family Law Act, s. 30
- requires writing
- possibility that there can be 3 parties
- written agreement needs to be made before
conception (although you could backdate an
agreement)
- allows for withdrawal from project
- agreement revoked upon death
Leckey: should a regime that allows three parents be limited to a progenitor (sperm donor)
- third parent is clearly radical (not just 2 lineages), but still tied to blood
- this regime allows: a hetero couple with a sperm donor; and also a gay couple w
surrogate ( 30.1bi) – but if they had an egg donor too … ?
54
-
there’s still a limit of 3
but clearly the scenario they had in mind was a lesbian couple w egg donor
it would be harder to argue that there’s a legislative gap in a case like this bc the gov’t
would have tried to legislate regarding all the possibilities available
2. the parens patriae jurisdiction, for child in danger or legislative gap: a third avenue in
addition to legislative amendment/interpretation and Charter challenges – features
relative to other routes
- an discretionary jurisdiction (equitable power): allows the court to act in the BI interest of
the child
- Different routes to deal with this:
o 1. Legislative interpretation allows the desired result: due to ambiguity, terms
change over time, Charter values
 implication – applies to all
o 2. Charter challenge (R v MDR)
 implication – Charter remedy applies to all
o 3. parens patriae – discretionary decision about one particular child. Does
not create a generally applicable rule.
 It is still precedent: a lawyer can argue that a lawyer should exercise
parens patriae jurisdiction similarly in the future
 unsure if parens patriae applies in Qc
 Can only be invoked where there is no legislation in effect on a subject
(i.e. where a legislative gap exists)  an intentional gap does not qualify,
it must be an inadvertent omission, something overlooked by the
legislature
 Parens patriae jurisdiction of the court comes into effect when people fall
through the cracks of the legal system
Buist v Greaves, headnote and paras 33-35
Facts: Buist & Greaves were in a same-sex relationship when Greaves conceived and gave birth
to Simon (both planned the birth and shared in all aspects of Simon’s life). Broke up (affair by
Buist), and Buist is claiming sole or joint custody of Simon and an order that he cannot be
relocated (Greaves offered job in Vancouver). Buist also seeking a declaration that she is
Simon’s mother. Simon has special needs.
Issues: 1. Can Buist have custody? 2. Can Buist be declared Simon’s 2nd mother? Holding: 1. &
2. No.
Reasoning (Benotto J.):
 Not in best interests of Simon for Buist to have joint custody and for him to not move with
Greaves to Vancouver (she is his primary caregiver, excellent facilities for him there)
 Buist is asking for a declaration that she is Simon’s “mother” pursuant to s. 4 of CLRA (in
addition to Greaves, not in substitution for)
 The use of the definite article “the” in the provision indicates that the drafters of the
legislation did not consider that more than one person could be a child’s mother
o Judge says he thus does not have jurisdiction to declare Buist Simon’s mother
 Furthermore, even if he did, J. would not exercise his discretion to do so: the declaration is
dependant upon the proof that, on the balance of probabilities, a mother-child relationship
exists  has not been proven here.
o Simon does not consider Buist his mother  Greaves
Ratio: Ontario Court claims it does not have the jurisdiction under the Children’s Law Reform Act
to declare a woman a child’s second mother.
-
Note: in CML, you can be held to support obligations even if you are not the legal parent
(as occurred in this case)
obiter in para 35: recognizing a “mother” – reveals assumptions about motherhood
55
-
-
seen as problematic that kids don’t call them mama, not being faithful to the child’s
mother,
o Establishing paternity is not based on whether he is a good father = NOT same
standard
o Suggestion that evidence that would establish motherhood is using a gendered,
heteronormative standard
o Academic writing says that mothers are held to a higher standard than fathers
Judge concludes that he would not recognize second mother even if the statute allowed
him
Why does it matter here that the child already has a mother? Buist was not looking to be
declared sole mother, but second mother
The fact that the child already has a mother would not be a bar to a father looking for
status
AA v BB (2007) ONCA
Facts: A.A. and her same-sex partner C.C. started a family with the help of B.B. – all agreed that
it would be in child’s best interests if BB stayed involved in the child’s life. AA (not the birth
mother) wishes to be recognized as child’s 2nd mother, but does not wish to proceed by way of
adoption, which would efface BB. Application for declaration of parentage by AA.
Issue: Does the court have jurisdiction, either under the CLRA or its inherent parens patriae
jurisdiction, to grant the declaration, thus effectively recognizing three legal parents to a child?
Holding: Yes (parens patriae).
Reasoning (Rosenberg J.A.):
 Importance of a declaration of parentage: allows parent to fully participate in life of
child, ensures child’s inheritance, citizenship, lineage, declared parent can make decisions
o Lesbian parents: what happens if birth mother dies and her partner has no legal
claim to the child? Who gets to make the critical decisions about health care,
education?
Jurisdiction granted by CLRA (none)
 CLRA, s. 4: unambiguously only contemplates a single father and mother (duplicated
throughout the legislative scheme)
 Process of statutory interpretation set out by SCC: court should consider the grammatical and
ordinary meaning of the provisions in question, the legislative history and intention of the
legislature, the scheme of the Act, the legislative context
 CLRA was meant to create equality of status amongst all children by abolishing the legal
effects of illegitimacy  it was a product of its time: same-sex unions were not on the radar,
nor did the medical capabilities for reproductive technology exist
 Applicants suggest that the Charter (s. 15) should be used as an interpretive aid for the
CLRA  only possible when the legislation is ambiguous (it isn’t ambiguous here)
Parens Patriae Jurisdiction (declaration possible under this jurisdiction)
 This jurisdiction may be applied to rescue a child in danger or to bridge a legislative gap
 Jurisdiction is of a very broad nature; no exhaustive list exists of its categories of application
 Was the CLRA intended to be a complete code – i.e. did it intend to confine declarations of
parentage to biological/genetic relationships?
 No. Presumptions of paternity, adoption  non-biological parentage recognized by CLRA
 Purpose of the legislation was to declare that all children should have equal status
 Changes in social conditions and attitudes have created gaps in CLRA’s scheme  in
light of present valuation of all families, it does not offer equality of status to all children, as it
once purported to do  no evidence that the gap is deliberate (if it were, parens patriae
jurisdiction could not be invoked)
 It is contrary to the child’s best interests that one of his mothers not be legally
recognized  declaration is therefore granted
Ratio: The court’s parens patriae jurisdiction can be used to fill legislative gaps created in CML
family law by the change in social attitudes and conditions.
56

3. AA v BB : the same statute a decade later
- Couldn’t use adoption bc would terminate the bond between the father and all the
implications – didn’t want that!
o Leckey; ask your self how significant is it that if it did not work out, that the father
would have consented to adoption. Was the concern that otherwise “the child
would have lost a father.”
o Is there a concern that a lesbian couple should have a father? What if there was
a third woman?
- [1] already v different from the other case
- The Ct concludes that there was a gap: no one was thinking about the scenario
o McMurtry was AG during the law reform – credibility to his statement
- Precedential value: Case hasn’t been applied again
o Judges see this situation as stable and working well in practice (might not work
so well if it was a baby)
o Vs BC: no judge required, here a judge needs to be convinced
o VS BC: no requirement ppl are getting along
- For some reason, parentage is seen as v different than obl of support, right of
access, custody
- AA and BB feels more like adoption – judge decides to make a decision that it doesn’t
have to make
Case-specific remedy: applies only to the parties in the case at bar  does not have an
effect on the legislation in question
Class questions
- 1. Assume that Quebec courts enjoyed parents patriae jurisdiction, a matter of some
dispute. What would be the arguments, based on [34] and [35], that might be used to
justify the recognition of a third parent in Quebec? What would be the counterarguments?
o childrens equality – 533
o in QC, can’t say that in 2002, it was beyond the legislature’s imagination to have
three parents i
o 523 : you can argue it implies one mother and one father, but the heading is
“proof of filiation” – the proof is the info that’s important in that section. Another
reading of the code is that there are just 2 lines of filiation.
- 532(2): stronger indication of there being no more than 2 filiations
- Leckey: but it’s not inevitable. you could argue that it was drafted in a situation where it
was the intention that a father being deprived of status would be adversarial. You can
argue that it wasn’t meant to be applied where all three agree.
- 559: whether judge can declare a child eligible for adoption.
B. Reread [31]-[35]: Is AA best read as more about same sex parenting or as about three
parents, indifferently as to sex?
[31]The determination of whether a legislative gap exists in this case requires a consideration of whether
the CLRA was intended to be a complete code and, in particular, whether it was intended to confine
declarations of parentage to biological or genetic relationships. If the CLRA was intended to be confined to
declarations of parentage based on biology or genetics, it would be difficult to find that there is a legislative
gap, at least as concerns persons with no genetic or biological link to the child.
[32]As discussed above, the application judge was of the view that the jurisdiction to make parentage
declarations is not confined to biological or genetic relationships. The Alliance for Marriage and Family
challenges that proposition. The Alliance points out that s. 1(1) of the CLRA refers to a person being the
child of his or her "natural parents". I agree that the Act favours biological parents. For example, s. 10 gives
a court power to order blood tests or DNA tests where it is called upon to determine a child's parentage.
57
However, the Act does not define parentage solely on the basis of biology. For example, s. 1(2) treats
adopting parents as natural parents. Often one or both of the adopting parents will not be the biological
parents of the child. Similarly, s. 8 enacts presumptions of paternity that do not all turn upon biology; the
obvious example is the presumption of paternity flowing simply [page573] from the fact that the father was
married to the child's mother at the time of birth. Further, as Ferrier J. pointed out in L. (T.D.) v. L.
(L.R.), 1994 CanLII 7577 (ON SC), [1994] O.J. No. 896, 114 D.L.R. (4th) 709 (Gen. Div.), at para. 18, the
declaration made under s. 4(1) is not that the applicant is a child's natural parent, but that he or she is
recognized in law to be the father or mother of the child.
[33]Further, even if the CLRA was intended to limit declarations of paternity and maternity to biological
parents, that would not answer the question of whether there is a gap. Advances in reproductive technology
require re-examination of the most basic questions of who is a biological mother. For example, consider the
facts of M.D.R. v. Ontario (Deputy Registrar General). M.D.R. involved a case where one lesbian partner
was the gestational or birth mother and the other partner was the biological mother, having been the donor
of the egg.
[34]I return to the earlier discussion of the intention of the CLRA. The legislation was not about the status of
natural parents but the status of children. The purpose of the legislation was to declare that all children
should have equal status. At the time, equality of status meant recognizing the equality of children born
inside and outside of marriage. The legislature had in mind traditional unions between one mother and one
father. It did not legislate in relation to other types of relationships because those relationships and the
advent of reproductive technology were beyond the vision of the Law Reform Commission and the
legislature of the day. As MacKinnon A.C.J.O. said in Bagaric and Juric et al. (Re) 1984 CanLII 2133 (ON
CA), (1984), 44 O.R. (2d) 638, [1984] O.J. No. 3069 (C.A.), at p. 648 O.R.: "The Legislature recognized by
this legislation present social conditions and attitudes as well as recognizing that such declarations have
significance beyond material ones."
[35]Present social conditions and attitudes have changed. Advances in our appreciation of the value of other
types of relationships and in the science of reproductive technology have created gaps in the CLRA's
legislative scheme. Because of these changes the parents of a child can be two women or two men. They
are as much the child's parents as adopting parents or "natural" parents. The CLRA, however, does not
recognize these forms of parenting and thus the children of these relationships are deprived of the equality
of status that declarations of parentage provide.
2. Effects
Parental status has a number of entailments. We shall examine the obligation of support and the
rights and responsibilities of parental authority, including custody. Our study will not, however,
exhaust the effects of formal parent-child relationships; for example, courses on successions or
on the law of persons will present further these effects.
Effects of formal parent–child relationships - Support
1. Comparison with general private law and overview
The paradigmatic basis for civil obligation under the law of K is: will
…for law of tort: fault
…obligation of support: family connection
- s 31 of the Family Law Act ; art 585 CCQ
Measure of damages in contract … expectation
….in tort: restitutio ad integrum
… a function of the debtor’s means and creditors needs. Scope of the obligation
shrinks/grows with means and needs
Damages in K are ordinarily payable …as a lump sum
…. In tort – as a lump sum
At least under the CCQ, the obligation of support is ordinarily payable as … a pension – art 581
Civil law characterizes contractual damages as… patrimonial
58
Civil law generally characterized damages arising from art 1459 as : patrimonial, acknowledging
some marginal cases around damages for personal injury
The civil law characterizes the right to support as: extra patrimonial
The time needed by the contractor to become autonomous is relevant to calculating Kual
damages – False
The time needed…independent of any conduct by the debtor, is relevant calculating damages of
tort liability flowing from 1457 – False
When a judge fixes Kual damages, they are … final!
…for negligence … final ordinarily unless the plf’s physical injuries worsen
When support is fixed by judgment or by agreement, it is : subject to revision as circumstances
change!

2. A support obligation between parents and children
a. Cf. private-law sources (fiduciary, reliance, consent, compensation)
Obligation that is attached to children is not rooted in the same justifications as other
concepts

b. Design choices: who, what, how long, what form, revision, scope of private
ordering
Who? 535 in CCQ “people in the first line” – refers to filiation , while CML has a more liberal
view of who owes support

c. Conceptual structure: needs and means; Aliments ne s’arréragent pas
d. Does the law recognize or create the parental duty?
SCC has said that the duty is free-standing, but has this been interpreted in the law. Note that
it grows when your income increases
3. Three regimes concretizing support
a. Unified versus separate rules
b. Tracing the applicable legislation in time (timelines: married/unmarried; Qc/Ont)
1. 15.1 Divorce Act
- not a reciprocal obligation: only about parents - children
- more restrained writing bc of the more narrow jurisdiction
o When the DA steps, has a broader defn of parent : may enforce obligations that
never existed before : ie a spouse living with the child may owe nothing until the
DA steps in
Divorce Act, s. 15.1
Child Support Orders
15.1 (1) A court of competent jurisdiction may, on application by either or both
spouses, make an order requiring a spouse to pay for the support of any or all
children of the marriage.
(2) Where an application is made under subsection (1), the court may, on
application by either or both spouses, make an interim order requiring a
spouse to pay for the support of any or all children of the marriage, pending
the determination of the application under subsection (1).
(3) A court making an order under subsection (1) or an interim order under
subsection (2) shall do so in accordance with the applicable guidelines.
(4) The court may make an order under subsection (1) or an interim order
Child support
order
Interim order
Guidelines
apply
Terms and
59
under subsection (2) for a definite or indefinite period or until a specified event
occurs, and may impose terms, conditions or restrictions in connection with the
order or interim order as it thinks fit and just.
(5) Notwithstanding subsection (3), a court may award an amount that is
different from the amount that would be determined in accordance with the
applicable guidelines if the court is satisfied
 (a) that special provisions in an order, a judgment or a written
agreement respecting the financial obligations of the spouses, or the
division or transfer of their property, directly or indirectly benefit a child,
or that special provisions have otherwise been made for the benefit of
a child; and
 (b) that the application of the applicable guidelines would result in an
amount of child support that is inequitable given those special
provisions.
(6) Where the court awards, pursuant to subsection (5), an amount that is
different from the amount that would be determined in accordance with the
applicable guidelines, the court shall record its reasons for having done so.
(7) Notwithstanding subsection (3), a court may award an amount that is
different from the amount that would be determined in accordance with the
applicable guidelines on the consent of both spouses if it is satisfied that
reasonable arrangements have been made for the support of the child to
whom the order relates.
(8) For the purposes of subsection (7), in determining whether reasonable
arrangements have been made for the support of a child, the court shall have
regard to the applicable guidelines. However, the court shall not consider the
arrangements to be unreasonable solely because the amount of support
agreed to is not the same as the amount that would otherwise have been
determined in accordance with the applicable guidelines.
conditions
Court may
take
agreement,
etc., into
account
Reasons
Consent
orders
Reasonable
arrangements
2. 585ff : most unified regime
 conceptually it is a single obligation
 592: debtor can offer to take the creditor into the home – obviously only applies to
child/parent relationship
 593 : multiple debtors
 585 : will apply to child of unmarried parents
 if there is a divorce proceedings instituted, for married, 585 stops
applying at that time, and DA applies
CCQ, arts 585-596
TITLE THREE – OBLIGATION OF SUPPORT
585. Married or civil union spouses, and relatives in the direct line in the first
degree, owe each other support.
586. Proceedings for the support of a minor child may be instituted by the holder of
parental authority, his tutor, or any person who has custody of him, according to the
circumstances.
A parent providing in part for the needs of a child of full age unable to support
himself may institute support proceedings on the child's behalf, unless the child
objects.
The court may order the support payable to the person who has custody of the child
or to the parent of the child of full age who instituted the proceedings on the child's
behalf.
587. In awarding support, account is taken of the needs and means of the parties,
their circumstances and, as the case may be, the time needed by the creditor of
support to acquire sufficient autonomy.
587.1. As regards the support owed to a child by his parents, the basic parental
60
contribution, as determined pursuant to the rules for the determination of child
support payments adopted under the Code of Civil Procedure (chapter C-25), is
presumed to meet the needs of the child and to be in proportion to the means of the
parents.
The basic parental contribution may be increased having regard to certain
expenses relating to the child which are specified in the rules, to the extent that
such expenses are reasonable considering the needs and means of the parents
and child.
587.2. The support to be provided by a parent for his child is equal to that parent's
share of the basic parental contribution, increased, where applicable, having regard
to specified expenses relating to the child.
The court may, however, increase or reduce the level of support where warranted
by the value of either parent's assets or the extent of the resources available to the
child, or to take account of either parent's obligation to provide support to children
not named in the application, if the court considers the obligation entails hardship
for that parent.
The court may also increase or reduce the level of support if it is of the opinion that,
in the special circumstances of the case, not doing so would entail undue hardship
for either parent. Such hardship may be due, among other reasons, to the costs
involved in exercising visiting rights in respect of the child, an obligation to provide
support to persons other than children or reasonable debts incurred to meet family
needs.
587.3. Parents may make a private agreement stipulating a level of child support
that departs from the level which would be required to be provided under the rules
for the determination of child support payments, subject to the court being satisfied
that the needs of the child are adequately provided for.
588. The court may award provisional support to the creditor of support for the
duration of the proceedings.
It may also award a provisional sum to the creditor of support to cover the costs of
the proceedings.
589. Support is payable as a pension; the court may, by way of exception, replace
or complete the alimentary pension by a lump sum payable in cash or by
instalments.
590. If support is payable as a pension, it is indexed by operation of law on 1
January each year, in accordance with the annual Pension Index established
pursuant to section 119 of the Act respecting the Québec Pension Plan (chapter R9), in order to maintain the real monetary value of the claim resulting from the
judgment awarding support.
However, where the application of the index brings about a serious imbalance
between the needs of the creditor and the means of the debtor, the court may, in
exercising its jurisdiction, either fix another basis of indexation or order that the
claim not be indexed.
591. The court, if it considers it necessary, may order the debtor to furnish sufficient
security beyond the legal hypothec for payment of support, or order the constitution
of a trust to secure such payment.
592. If the debtor offers to take the creditor of support into his home, he may, if
circumstances permit, be dispensed from paying all or part of the support.
593. The creditor may pursue a remedy against one of the debtors of support or
against several of them simultaneously.
The court fixes the amount of support that each of the debtors sued or impleaded
shall pay.
594. The judgment awarding support, whether it is indexed or not, may be reviewed
by the court whenever warranted by circumstances.
However, a judgment awarding payment of a lump sum may be reviewed only if it
has not been executed.
61
595. Child support may be claimed for needs that existed before the application;
however, child support cannot be claimed for needs that existed more than three
years before the application, unless the debtor parent behaved in a reprehensible
manner toward the other parent or the child.
If the support is not claimed for a child, it may nevertheless be claimed for needs
that existed before the application, but not for needs that existed more than one
year before the application; the creditor must prove that it was in fact impossible to
act sooner, unless a formal demand was made to the debtor within one year before
the application, in which case support is awarded from the date of the demand.
596. A debtor from whom arrears are claimed may plead a change, after judgment,
in his condition or in that of his creditor and be released from payment of the whole
or a part of them.
However, in no case where the arrears claimed have been due for over six months
may the debtor be released from payment of them unless he shows that it was
impossible for him to exercise his right to obtain a review of the judgment fixing the
alimentary pension.
Jean Carbonnier, La famille, l’enfant, le couple
3. 31, 32 FLA
 parents, defined functionally
 DA might kick in at one point
Think about …
c. Unified versus separate rules
d. Tracing the applicable legislation in time (timelines: married/unmarried; Qc/Ont)
Family Law Act, s. 31, 32, 33
31. (1) Every parent has an obligation to provide support for his or her
unmarried child who is a minor or is enrolled in a full time program of
education, to the extent that the parent is capable of doing so.
(2) The obligation under subsection (1) does not extend to a child who is
sixteen years of age or older and has withdrawn from parental control.
32. Every child who is not a minor has an obligation to provide support, in
accordance with need, for his or her parent who has cared for or provided
support for the child, to the extent that the child is capable of doing so.
33. (1) A court may, on application, order a person to provide support for
his or her dependants and determine the amount of support.
(2) An application for an order for the support of a dependant may be
made by the dependant or the dependant’s parent
(7) An order for the support of a child should,
(a) recognize that each parent has an obligation to provide support for the
child;
(b) apportion the obligation according to the child support guidelines.
(11) A court making an order for the support of a child shall do so in
accordance with the child support guidelines.
(12) Despite subsection (11), a court may award an amount that is
different from the amount that would be determined in accordance with
the child support guidelines if the court is satisfied,
(a) that special provisions in an order or a written agreement respecting
the financial obligations of the parents, or the division or transfer of their
Obligation of parent
to support child
Obligation of child to
support parent
Order for support
Applicants
Purposes of order
for support of child
Application of child
support guidelines
Exception: special
provisions
62
property, directly or indirectly benefit a child, or that special provisions
have otherwise been made for the benefit of a child; and
(b) that the application of the child support guidelines would result in an
amount of child support that is inequitable given those special provisions.
(14) Despite subsection (11), a court may award an amount that is
different from the amount that would be determined in accordance with
the child support guidelines on the consent of both parents if the court is
satisfied that,
(a) reasonable arrangements have been made for the support of the child
to whom the order relates; and
(b) where support for the child is payable out of public money, the
arrangements do not provide for an amount less than the amount that
would be determined in accordance with the child support guidelines.
Powers of court
34. (1) In an application under section 33, the court may make an interim
or final order,
(a) requiring that an amount be paid periodically, whether annually or
otherwise and whether for an indefinite or limited period, or until the
happening of a specified event;
(b) requiring that a lump sum be paid or held in trust;
(c) requiring that property be transferred to or in trust for or vested in the
dependant, whether absolutely, for life or for a term of years;
(d) respecting any matter authorized to be ordered under clause 24 (1)
(a), (b), (c), (d) or (e) (matrimonial home);
(e) requiring that some or all of the money payable under the order be
paid into court or to another appropriate person or agency for the
dependant’s benefit;
(f) requiring that support be paid in respect of any period before the date
of the order;
(g) requiring payment to an agency referred to in subsection 33 (3) of an
amount in reimbursement for a benefit or assistance referred to in that
subsection, including a benefit or assistance provided before the date of
the order;
(h) requiring payment of expenses in respect of a child’s prenatal care
and birth;
(i) requiring that a spouse who has a policy of life insurance as defined
under the Insurance Act designate the other spouse or a child as the
beneficiary irrevocably;
(j) requiring that a spouse who has an interest in a pension plan or other
benefit plan designate the other spouse or a child as beneficiary under
the plan and not change that designation; and
(k) requiring the securing of payment under the order, by a charge on
property or otherwise.
Exception: consent
orders
Powers of court
Willick v. Willick
4. Why we read Willick:
a. Still the leading case under s 17(4) of the Divorce Act (headnote p. 167),
indicating the threshold needed
 “There must be a material change in circumstances, that is, a change that, if known at the
time, would likely have resulted in different terms.”


b. Historical interest: discretionary decisions regarding child support pre-Guidelines
each province has guidelines – not as discretionary as before
S. 15 : a competent court can order support – and now 15.1 refers to child support guidelines
and 15.2 keeps the general child support guidelines
63


c. Robust statutory interpretation
H-B: judges are systematically the full economic impact on women
More single fathers now, but single mothers are still the dominant group (?)
5. A little data: who has care of children and who collects child support?
New information on custody arrangements
The distribution in Figure 4.1 provides a general picture of the custody and visiting arrangements
in place by 1998-99 for children whose parents had separated in the two previous years. Most
parents had maintained close ties with their children within the relatively short period of time since
the separation:
 The parents of 13% of the children were living together again by 1998-99.
 Almost two-thirds (42%+14%+7%) were living with their mother; of these, two-thirds saw
their father on a regular weekly or two-weekly basis.
 Only one child in fourteen (7%) was living with their father full-time; of these, just under
half saw their mother on a regular weekly or two-weekly basis.
 One child in eight (12%) was living in shared custody, alternating between their mother's
and father's home.
 A minority of children (5%) fell outside the standard categories for a variety of reasons
(e.g. in the care of someone other than a biological parent; a parent had died; a different
form of contact).
6. A general question: meeting needs versus other distributive aims
- who gets to benefit from the surplus (in dad’s salary)? HD says that kids’ lifestyle should be
rising with parents
Willick v Willick 1994 SCC
Facts: Divorcing mother and father came to an agreement as to the amount of child support
father would have to pay for their 2 kids. Father’s income increased by $100,000, and custodial
mother applying for variation in the amount of child support under s. 17 of the Divorce Act.
Issue: Can the court vary a child support order on the basis of an increase in one of the former
spouses’ income?
Holding: Yes.
Reasoning:
Majority (La Forest, Sopinka, Cory, Iacobucci JJ.):
 Court is not bound by the terms of a separation agreement; operates as strong evidence as
to amounts needed for maintenance of children
 In order to vary a support order under s. 17(4) of the Divorce Act, there needs to be a
material change in circumstances such that, if known at the time, it would have resulted in
different terms in the agreement
o If the matter which was relied on as constituting the basis for change was known at
the time of the creation of the agreement, it cannot be relied on
 “Material change” can be either a change in the needs of children or the means of
parents
 Increase in standard of living of one parent should be passed on, to a certain extent, to the
children
Concurrence (L’Heureux-Dubé J. writing, Gonthier, McLachlin JJ. agreeing):
Principles of Statutory Interpretation
 Task of statutory interpretation requires the courts to discover the intention of Parliament 
must assume that Parliament was aware of the socio-historical context in which it legislates
 Family law statutes must not be interpreted in a vacuum  must consider language of the Act
and reality in which the Act operates
Principles of Judicial Notice
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Court can take notice of social science research in order to more fully analyze the law
Social facts which are relevant to the creation of a rule of law constitute part of the authority
upon which that rule is founded (v. interesting)
 Judiciary has a long-recognized function as a policy finder  must sometimes therefore
consider social authority not presented as evidence by parties
 Court must take a contextual rather than abstract approach to legislation and statutory
interpretation  practical not theoretical
 LHD notices 2 things: 1. Significant levels of poverty amongst children in (female-headed)
single-parent families and 2. Failure of courts to contemplate hidden costs in their
calculation of child support quanta (ex. unpaid child care, time spent with child, opportunity
cost, etc)
The Charter as Interpretative Tool
 Statutory interpretations consistent with Charter values are preferred to those inconsistent 
in this case, consistent with the s. 15 substantive equality guarantee
 Prefers to not use “ordinary” rules of statutory construction where those would lead her to an
interpretation inconsistent with the Charter
 Does not mean to say that family law should be used to rectify the systemic inequalities that
create differential difficulty between spouses upon divorce  but interpretations of family law
should not contribute to that inequality
General Principles Applicable to Child Support
 Parents have a joint financial obligation to support their children, proportioned according to
their means
 Children’s needs take priority over those of parents when determining support
 Spouse’s obligation to new family cannot sever obligation to first family
 Needs of children should reflect standard of living enjoyed during the marriage
How to Calculate Child Support
 Total cost of caring for children = Direct costs + Hidden costs
 This total cost is apportioned among parents according to their means, having regard
for the costs already assumed by each parent, each parent’s subsistence needs,
income tax implications of the order
Variation of Separation Agreements – s. 17(4) of the Divorce Act
 Courts are not bound by the separation agreements of the parties  child support is
right of child, and child is not party to these agreements
o Parties can rarely accurately foresee/estimate the costs of raising children
 To vary a support order, legislation requires that “there has been a change in the condition,
means, needs or other circumstances of either former spouse or of any child of the marriage”
 Threshold for a variation of the order: must be a change in any one of the circumstances
mentioned in the provision (not more than one)
 Sufficiency of the change: the change must be enough to justify ordering more or less
support, LHD basically says  granting of discretion
o Changes contemplated at the time of the creation of the separation agreement are a
narrow exception to s. 17(4)
 Extent of the variation should be determined according to an assessment of the context as a
whole, not merely the change which brought about the request for variation
Ratio: LHD supports a very contextually-based approach to the variation of child support orders;
contextual within the family as well as society at large.
7. The judgment
a. A failed majority judgment
- it feels like when they left, HD was meant to write the majority judgment but they disagreed with
the majority judgment. That’s why HD talks about a lot of the lower court stuff
- its controvercial bc she lost their support. L: its prob the talk about the social context, the critique
that women are being systematically given less,
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- Sopinka says: 17.4 can be interpreted to case law and the DA’s evidence without looking at
extraneous documents
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b. Deference to the initial judge vs. to the revision judge: how reliable are ex ante
decisions about the costs of child rearing?
Sopinka: if child support irder was made before, it was done fairly, although it can be varied
less
HD’s view that costs are underestimated – questions the fairness of the original judgment
c. Judicial notice and social context when interpreting general language [55]
shows she a different approach to statutory interpretation than her colleagues: “The capacity
of "ordinary" rules of statutory construction to bring us to the same conclusion, as did my
colleague in this particular case, is more fortuitous than probative of their actual worth, and
certainly less reliable. Simply put, the "ordinary" rules of statutory interpretation favoured by
my colleague do not give adequate consideration to the degree to which a particular
interpretation is consistent with Charter values. Although the "ordinary" rules of statutory
interpretation are time-tested and certainly worthy of respect, we cannot allow them to lead
us, unquestioning, down a garden path which risks sidestepping or undermining the Charter.”
[55]
addresses majority’s critique: “by this, I do not mean to imply that family law support
provisions should be interpreted so as to right singlehandedly the systemic and structural
inequalities that contribute to spouses' economic difficulties following marital breakup. I do
stress, however, that it is important that statutory provisions be interpreted in such a way as
not to contribute to that inequality in a way that is contrary to the values of substantive
equality embodied in our Charter.” [52]
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d. Charter values and private law vis-à-vis the broader social context clickers
alertness to Charter vales would mean that judges double check their prejudices in light
to systemic discrimination
Ferguson: against this – private law should not be remedying systemic and societal
inequalities
10. Obligation of Support Cont’d
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instrument choice in governance: recourse to guidelines
the persistence of discretion
unintended consequences of the Guidelines: fraud, underemployment
federal and provincial guidelines
federalism and the Charter
1. Review: child support; Willick
 the quantum of the obligation is a function of the creditors needs and the debtors’ means.
 Willick: former regime was discretionary. The custodial parent would have to submit a
budget that was scrutinized by the Court.
 The guidelines attempt to reduce the invasiveness and litigiousness (need to justify every
dollar in the budget).
 Willick: now remains good law for the interpretation of the statutory basis for modifying
an existing order for support or custody. Stands for the requirement of the variation
threshold
 S. 17(4, 4.1): this is in the Divorce Act as an ancillary issue to
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2. Classifying child support: formal/informal; voluntary/involuntary;
instrumental/symbolic
Basis for child support is both formal and informal
informal: some ppl owe child support based on a factual parenthood (de facto parenthood)
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symbolic: when the judges enforce support (judge sees it as symbolic of love). Or stepfather
who repudiates the relationship, the Ct speaks about continuance of the relationship (support
as quantification of love).
3. Federal Child Support Guidelines
Provincial guidelines are fully binding
a. Statutory authorization
i. s 26.1 Divorce Act
 Enabling provision. a lot of issues contemplated there. Contemplation that federal
parliament will create guidelines.
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ii. s 15.1(3) Divorce Act
(1) more general, what applied to Willick
(3) – guidelines - wasn’t in Willick
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
iii. ss 2(5), 2(1) “applicable guidelines”
says that federal guidelines vary from province to province
2(5): the legislation allows the Federal Cabinet to incorporate by reference provincially
created guidelines into the federal regime
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b. Why guidelines? Instrument choice: discretionary standards vs. rules
Pro: clear rules should create certainty, reduce litigation, less disadvantage for spouse
unable to hire lawyer/or good lawyer (women statistically less able to pay for long
litigation), Willick discretion wasn’t working well
con: reduce capacity for individual evaluation of what’s fair in that situation
Guidelines not meant not to reflect current amounts, but to increase amount given to
custodial parents
Parliament hasn’t adopted binding spousal guidelines, suggesting the needs of children
are more easily able to be standardized.
Note: when parents still together, they decide how much to spend on their children, once
there’s a divorce - External normative assumptions begin to apply to you!
 Note: guidelines are discretionary over 150K. Different theory behind it – politically
unpalatable to say how much other ppl make, regional income differences. But this is
the people that are more likely to afford expensive litigation
c. Objectives of the Federal Guidelines – consistent with a private-law
obligation?
The Federal model is based on there being a custodial parent and an access parent,
custodial parent’s income not being taken into account.
Idea that the custodial parent is discharging his/her obligation by housing the children
HB’s discussion in Willick, we should think about child support in the larger systemic
context, Charter values VS seeing this as a purely private obligation between parties
(often in CCQ)
1(b): aim to reduce conflict and tension, idea of improving relational scenario
1(c) if it was purely the child’s right to support, then is the efficiency of the process
relevant?
 Different views of reducing litigation vs. allowing litigation to respond to
changes
 HB in Willick – more open to change , Sopinka: more reticent to
change original orders. See court’s view of opening up custody issues
wrt to move of custodial parent
1 (d), but this could be argued that it is similar to “like cases alike”
d. Discretion in the rules
- point to areas that remain litigious, are not wholly standardized.
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Undue hardship (reasonably incurred debts, expenses incurred due to access)
See below (highlights)
Judges can impute income at some point (if revenue is “low”(hidden income) but there’s
lots of assets)
9(c): taking us back to the discretionary approach if more than 40% custody. Significant
that the debtor can reduce obligations by having the children with him without the
custody parents’ needs going down a lot (ie the mom is still going to have to maintain
a bigger house)
Divorce Act, ss. 2(5), 26, 26.1
“applicable guidelines” means
(a) where both spouses or former spouses are ordinarily resident in the
same province at the time an application for a child support order or a
variation order in respect of a child support order is made, or the amount
of a child support order is to be recalculated pursuant to section 25.1, and
that province has been designated by an order made under subsection
(5), the laws of the province specified in the order, and
(b) in any other case, the Federal Child Support Guidelines;
2 (5) The Governor in Council may, by order, designate a province for the
purposes of the definition “applicable guidelines” in subsection (1) if the
laws of the province establish comprehensive guidelines for the
determination of child support that deal with the matters referred to
in section 26.1. The order shall specify the laws of the province that
constitute the guidelines of the province.
15.1 (1) A court of competent jurisdiction may, on application by either or
both spouses, make an order requiring a spouse to pay for the support of
any or all children of the marriage.
(2) Where an application is made under subsection (1), the court may, on
application by either or both spouses, make an interim order requiring a
spouse to pay for the support of any or all children of the marriage,
pending the determination of the application under subsection (1).
(3) A court making an order under subsection (1) or an interim order
under subsection (2) shall do so in accordance with the applicable
guidelines.
26. (1) The Governor in Council may make regulations for carrying the
purposes and provisions of this Act into effect and, without limiting the
generality of the foregoing, may make regulations
(a) respecting the establishment and operation of a central registry of
divorce proceedings in Canada; and
(b) providing for uniformity in the rules made pursuant to section 25
(2) Any regulations made pursuant to subsection (1) to provide for
uniformity in the rules prevail over those rules.
26.1 (1) The Governor in Council may establish guidelines respecting the
making of orders for child support, including, but without limiting the
generality of the foregoing, guidelines
(a) respecting the way in which the amount of an order for child support is
to be determined;
(b) respecting the circumstances in which discretion may be exercised in
the making of an order for child support;
(c) authorizing a court to require that the amount payable under an order
for child support be paid in periodic payments, in a lump sum or in a lump
sum and periodic payments;
Provincial child
support guidelines
Child support
order
Interim order
Regulations
Regulations
prevail
Guidelines
68
(d) authorizing a court to require that the amount payable under an order
for child support be paid or secured, or paid and secured, in the manner
specified in the order;
(e) respecting the circumstances that give rise to the making of a variation
order in respect of a child support order;
(f) respecting the determination of income for the purposes of the
application of the guidelines;
(g) authorizing a court to impute income for the purposes of the
application of the guidelines; and
(h) respecting the production of income information and providing for
sanctions when that information is not provided.
Federal Child Support Guidelines - ss 1, 3, 4, 5, 8, 9, 10
1. The objectives of these Guidelines are
(a) to establish a fair standard of support for children that ensures that
they continue to benefit from the financial means of both spouses after
separation;
(b) to reduce conflict and tension between spouses by making the
calculation of child support orders more objective;
(c) to improve the efficiency of the legal process by giving courts and
spouses guidance in setting the levels of child support orders and
encouraging settlement; and
(d) to ensure consistent treatment of spouses and children who are in
similar circumstances.
3. (1) Unless otherwise provided under these Guidelines, the amount of a
child support order for children under the age of majority is
(a) the amount set out in the applicable table, according to the number of
children under the age of majority to whom the order relates and the
income of the spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
Objectives
AMOUNT OF
CHILD SUPPORT
Presumptive rule
(2) Unless otherwise provided under these Guidelines, where a child to
whom a child support order relates is the age of majority or over, the
amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child
were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount
that it considers appropriate, having regard to the condition, means,
needs and other circumstances of the child and the financial ability of
each spouse to contribute to the support of the child.
Child the age of
majority or over
(3) The applicable table is
(a) if the spouse against whom an order is sought resides in Canada,
(i) the table for the province in which that spouse ordinarily resides at the
time the application for the child support order, or for a variation order in
respect of a child support order, is made or the amount is to be
recalculated under section 25.1 of the Act,
(ii) where the court is satisfied that the province in which that spouse
ordinarily resides has changed since the time described in subparagraph
(i), the table for the province in which the spouse ordinarily resides at the
time of determining the amount of support, or
(iii) where the court is satisfied that, in the near future after determination
of the amount of support, that spouse will ordinarily reside in a given
province other than the province in which the spouse ordinarily resides at
the time of that determination, the table for the given province; and
Applicable table
69
(b) if the spouse against whom an order is sought resides outside of
Canada, or if the residence of that spouse is unknown, the table for the
province where the other spouse ordinarily resides at the time the
application for the child support order or for a variation order in respect of
a child support order is made or the amount is to be recalculated under
section 25.1 of the Act.
4. Where the income of the spouse against whom a child support order is
sought is over $150,000, the amount of a child support order is
(a) the amount determined under section 3; or
(b) if the court considers that amount to be inappropriate,
(i) in respect of the first $150,000 of the spouse’s income, the amount set
out in the applicable table for the number of children under the age of
majority to whom the order relates;
(ii) in respect of the balance of the spouse’s income, the amount that the
court considers appropriate, having regard to the condition, means, needs
and other circumstances of the children who are entitled to support and
the financial ability of each spouse to contribute to the support of the
children; and
(iii) the amount, if any, determined under section 7.
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 parent’s
legal duty to support the child.
6. In making a child support order, where medical or dental insurance
coverage for the child is available to either spouse through his or her
employer or otherwise at a reasonable rate, the court may order that
coverage be acquired or continued.
7. (1) In a child support order the court may, on either spouse’s request,
provide for an amount to cover all or any portion of the following
expenses, which expenses may be estimated, taking into account the
necessity of the expense in relation to the child’s best interests and the
reasonableness of the expense in relation to the means of the spouses
and those of the child and to the family’s spending pattern prior to the
separation:
(a) child care expenses incurred as a result of the custodial parent’s
employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable
to the child;
(c) health-related expenses that exceed insurance reimbursement by at
least $100 annually, including orthodontic treatment, professional
counselling provided by a psychologist, social worker, psychiatrist or any
other person, physiotherapy, occupational therapy, speech therapy and
prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or
for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
Incomes over
150K
Spouse in place
of a parent
Medical and
dental insurance
Special or
extraordinary
expenses
(1.1) For the purposes of paragraphs (1)(d) and (f), the
term “extraordinary expenses” means
(a) expenses that exceed those that the spouse requesting an amount for
70
the extraordinary expenses can reasonably cover, taking into account that
spouse’s income and the amount that the spouse would receive under the
applicable table or, where the court has determined that the table amount
is inappropriate, the amount that the court has otherwise determined is
appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court
considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse
requesting the amount, including the amount that the spouse would
receive under the applicable table or, where the court has determined that
the table amount is inappropriate, the amount that the court has otherwise
determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular
activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
Definition of
“extraordinary
expenses”
(2) The guiding principle in determining the amount of an expense
referred to in subsection (1) is that the expense is shared by the spouses
in proportion to their respective incomes after deducting from the
expense, the contribution, if any, from the child.
(3) Subject to subsection (4), in determining the amount of an expense
referred to in subsection (1), the court must take into account any
subsidies, benefits or income tax deductions or credits relating to the
expense, and any eligibility to claim a subsidy, benefit or income tax
deduction or credit relating to the expense.
(4) In determining the amount of an expense referred to in subsection (1),
the court shall not take into account any universal child care benefit or
any eligibility to claim that benefit.
8. Where each spouse has custody of one or more children, the amount
of a child support order is the difference between the amount that each
spouse would otherwise pay if a child support order were sought against
each of the spouses.
9. Where a spouse exercises a right of access to, or has physical custody
of, a child for not less than 40 per cent of the time over the course of a
year, the amount of the child support order must be determined by taking
into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse
and of any child for whom support is sought.
Sharing of
expense
Subsidies, tax
deductions, etc.
Universal child
care benefit
Split custody
Shared custody
10. (1) On either spouse’s application, a court may award an amount of
child support that is different from the amount determined under any of
sections 3 to 5, 8 or 9 if the court finds that the spouse making the
request, or a child in respect of whom the request is made, would
otherwise suffer undue hardship.
(2) Circumstances that may cause a spouse or child to suffer undue
hardship include the following:
Undue hardship
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(a) the spouse has responsibility for an unusually high level of debts
reasonably incurred to support the spouses and their children prior to the
separation or to earn a living;
(b) the spouse has unusually high expenses in relation to exercising
access to a child;
(c) the spouse has a legal duty under a judgment, order or written
separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the
marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability
or other cause, to obtain the necessaries of life; and
(e) the spouse has a legal duty to support any person who is unable to
obtain the necessaries of life due to an illness or disability.
Circumstances
that may cause
undue hardship
(3) Despite a determination of undue hardship under subsection (1), an
application under that subsection must be denied by the court if it is of the
opinion that the household of the spouse who claims undue hardship
would, after determining the amount of child support under any of
sections 3 to 5, 8 or 9, have a higher standard of living than the
household of the other spouse.
(4) In comparing standards of living for the purpose of subsection (3), the
court may use the comparison of household standards of living test set
out in Schedule II.
(5) Where the court awards a different amount of child support under
subsection (1), it may specify, in the child support order, a reasonable
time for the satisfaction of any obligation arising from circumstances that
cause undue hardship and the amount payable at the end of that time.
Standards of
living must be
considered
Standards of
living test
(6) Where the court makes a child support order in a different amount
under this section, it must record its reasons for doing so.
Reasonable time
Reasons
Quebec regime
 much more complicated: takes into account the income of the custodial parent
Jurisdictional clarification: prov vs fed; unmarried vs married parents
 Provincial guidelines: apply to kids born in Qc to unmarried parents. General
jurisdiction on prop and civil rights 92(13)– provinces have the right to deal with custody.
 Provincial rules deal with obligations wrt to unmarried couples. Provincial rules deal with
support UNTIL Divorce enters the picture.
 Divorce Act: applies to people enacting divorce proceedings under s. 91(26)
o Provincial Guidelines designated as applicable in Quebec divorce cases.
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To get benefit of federally enacted rules, one of the parents would have to leave the
province
Remember this: when we talk about de facto marriage in Qc, you have the choice to
marry and have that regime apply to you. This is what the Ct seems to be saying
Bc of this cooperation, the chief difference between children isn’t if their parents are
married/unmarried, but whether they live in Qc or not. (or one parent lives outside of Qc)
Droit de la famille—139, 2013 QCCA 15, [2013] RJQ 9
Facts: Married to spouses with substantial incomes. After the divorce, they saw that if the
Federal Child Support Guidelines applied to their cases, they would receive more generous child
support payments than under Regulation respecting the determination of child support payments
(Quebec). If one of the parties lived outside Qc, Federal guidelines would apply.
Trial judge: Found that there was a violation of s. 15 through the fact the women were subjected
to the Quebec rules by means of the Divorce Act and the Order in Council, but that it was justified
under s. 1.
Issue: The federal choice to adopt Quebec’s guidelines, under 2(5), is being challenged. Not
challenging (technically) the fact that Quebec’s guidelines are less.
Ratio: Prejudice caused to the appellants by the Qc guidelines is not tantamount to
discrimination because the guidelines do not contribute to the perpetuation of prejudice or
stereotyping.
Reasoning:
 History of scheme: 1991 Fed/Prov Committee on Family Law was set up to study issue
of child support, highlight underestimation of costs, lack of uniformity,
unpredictability of orders of the system. Qc expressed concern about an across-the
board guidelines,
 Allowing provincial guidelines “This approach favoured the uniformity of support
payments for all children of parents living in a given province, regardless of their
matrimonial status” [11]
Differences with Fed:
 “The Quebec guidelines take into account the income of both parents, while the federal
guidelines consider only the income of the debtor parent, except when it comes to special
expenses (subsection 7(2)). As a consequence of this difference, "the income of the
receiving parent will have an impact, sometimes considerable, on the amount of the
support under the Quebec regulations, whereas, under the federal guidelines, this
income has no impact on the basic amount provided for in the tables"[26]
 “Under the Quebec guidelines, the time the child spends with the custodial parent also
has an impact on support payments. In the case of joint custody, the impact is even more
significant.” [27]
Discrimination
 SCC has refused to recognize place of residence as an analogous ground – bc it is not a
personal characteristic that is only changeable at an unacceptable cost
o L: Judgment is a pretty clear application of Kapp, Qc children and wives aren’t
prejudiced or stereotyped.
 QC cannot be faulted for not adhering to Federal guidelines, bc the objective of equal
treatment is obtained in both guidelines
 Movement: “Admittedly, the freedom of divorced or divorcing single mothers to choose
their place of residence as they wish is limited by the need to ensure that the children
remain near their father. Such circumstances, however, have nothing to do with the
immutable situation of off-reserve Aboriginal persons who "can change their status to onreserve band members only at great cost, if at all". [58]
Note: Anne France Goldwater thinks the problem is women in Qc, don’t know how much they’re
missing out on!
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but in Lola, Abella suggests that stereotype isn’t always required, if you show
disadvantage.
L: is there a lot of room to disadvantage people, as long as they are not a pre-existing
group that has been discriminated against
L: hard to argue when there is a complicated scheme, vs a blanket exclusion.
Difference with Federal - different design models (non-custodial parent’s income
vs. proportionate basis by both) [26] [27]
d. The trial judgment: co-operative federalism (!)
- finds discrimination, but saved under s. 1
- striking, bc no evidence introduced re: evidence of cooperative federalism!
Droit de la famille — 111526, 2011 QCCS 2662
[273]
In my opinion, there is a rational connection between the objective of putting an end to
the uncertainty surrounding child support awards and the flexibility of the federal government, in
the name of cooperative federalism, when some provinces wanted to have their own guidelines.
The federal government sought agreement and displayed openness, thereby making it possible
for all provinces to have their own guidelines. In Quebec, the guidelines apply to all children
and their mothers, whether or not the latter are married. The Quebec guidelines make no
distinction in this respect.
[274]
Given the watertight compartments of the distribution of powers between Parliament and
the provincial legislatures, the governments have adopted methods to collaborate in certain
areas, including that concerning children, which allows for the recognition of the distinct values
and sensibilities of the provinces. The different application of federal laws from one region to
another is sanctioned by the Supreme Court. [...]
[276]
We have seen that the Quebec guidelines are discriminatory against divorced or
divorcing single mothers when compared with women in similar situations in the rest of Canada.
[...]
[280]
This does not change the fact that the undersigned believes that, in a free and
democratic society, cooperative federalism must have effect. Supreme Court case law has
on more than one occasion allowed disparities to exist between provinces.
e. Province of residence as an immutable ground [58] – a nod to relocation
cases
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f. Reticence to apply the Charter in the Quebec context?
Goldwater said judges were afraid to apply the Charter to the Quebec context.
Goldwater said Qc legislators felt that the norms were too high for federal (ppl who were
married), which would create inequality for the children from unmarried couples. The way
to deal with this was to reduce the federal guidelines.
One of the difficulties – is the argument that any disadvantageous difference is a
problem.
Order Designating the Province of Quebec for the Purposes of the Definition
“applicable guidelines” in subs 2(1) of the Divorce Act
Whereas the Province of Quebec, pursuant to subsection 2(5) of the Divorce
Act has established comprehensive guidelines for the determination of child
support that deal with the matters referred to in section 26.1Footnotec of
the Divorce Act;
Therefore, His Excellency the Governor General in Council, on the
recommendation of the Minister of Justice, pursuant to subsection 2(5) of
the Divorce Act hereby makes the annexed Order Designating the Province
74
of Quebec for the Purposes of the Definition “applicable guidelines” in
Subsection 2(1) of the Divorce Act.
DESIGNATION
1. The Province of Quebec is hereby designated for the purposes of the
definition “applicable guidelines” in subsection 2(1) of the Divorce Act.
GUIDELINES
2. For the purposes of subsection 2(5) of the Divorce Act, the following
legislative texts are the laws that constitute the comprehensive guidelines for
the Province of Quebec:
 (a) An Act to amend the Civil Code of Québec and the Code of Civil
Procedure as regards the determination of child support payments,
 (b) the Regulation respecting the determination of child support
payments, made by Order 484-97 of April 9, 1997;
 (c) Title Three of Book Two of the Civil Code of Quebec, S.Q. 1991,
c. 64; and
 (d) Chapter VI.1 of Title IV of Book V of the Code of Civil Procedure,
R.S.Q., c. C-25.
COMING INTO FORCE
3. This Order comes into force on May 1, 1997.
11. Welfare principle/Best interests of the child
Objectives
 historical evolution
 from paternal rights to children’s rights
 adjudication using a broad discretionary principle
 the constitutional status of best interests
 religion
Review guidelines, DF - 139: SCC challenge regarding Quebec’s guidelines for child support as
applicable to divorce cases in Quebec.
 Court of Appeal rejected the Charter challenge bc people disadvantaged by the guidelines
weren’t disadvantaged on an already disadvantaged s. 15 ground. It did not intensify other
disadvantages
 Difference with spousal support: children aren’t party to the agreement following divorce.
Authority of parents over the life of the child – Goubau
 From puissance parentale through to parental authority over the rights of the child
o Now an increased focus on children’s rights
o Although they need someone to bring claims, enforce their rights
o Will come up : Respect for children’s rights arts 32-34 ; s. 39 Qc Charter
 The consensual exercise of parental authority vs judicial orders
o If there were no dispute bween the parents, there would be no space for a third party
decision-maker the judge
 Note: you should acknowledge that different contexts are involved wrt to BI in different
contexts (custody vs adoption). You can say that the discussion of BI is relevant, but
acknowledge the different contexts.
 [637],: law doesn’t fully define BI, non exhaustive list of indicators, insistence that one
factor cant be seen as more important the other: factors weighed based on the
factual circumstances of the child, the specific needs of the child is determined in
concreto, although there is a body of law to be applied
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Changes over time of application – ex: “tender age doctrine”: children of a certain age
are better off with their mother
Note: Divorce Act sections on s. 17(5) “Custody orders”: later in the course. Only
what is in the “BI” of the child is considered. Arguments need to be framed in this
way. Criticsms of artificiality
Past conduct of the parent (adultery) isn’t relevant unless it is (violence)
“friendly parent rule”: Principle that you will encourage ex-spouse’s contact with the
child
Tetrault quote: “Lorsqu’on dit que l’interet de l’enfant est une question subjective,
plusieurs confondent leur proper conception de cet intérêt, alors qu’il doit être évalué
de façon subjective en function de l’enfant et non de ce que les procureurs, tout
comme le judge, peuvent penser personnellement. À ce propos, le critère de l’intérêt
de l’enfant ne doit pas faire en sorte qu’il devinne l’otage de la rhétorique des droits
parentaux ou encore la victime des prejudges culturels et de l’abus du pouvoir
discrétionnaire des juges. L’article 33 CCQ n’offre pas autant de discretion que
certains peuvent le croire. Au nom de la discretion judiciaire, on peut dénaturer la
notion subjective de l’intérêt de l’enfant lorsqu’on l’évalue à partir de diverses
considerations detachees du vécu de l’enfant. Le tribunal ne doit pas confondre les
désirs des époux avec l’intérêt de l’enfant qui doit l’emporter.”
Ie: its not as subj as exagreerated. Perspectives can be narrowed.
Other view: mothers who want to relocate are seen as putting their interests over the
child vs establishing autonomy
Edith Deleury & Dominique Goubau, Le droit des personnes physiques
The child, subject of rights like adults
 art. 33 CcQ, under the title of personality rights, enunciates the affirmation that the child’s
rights must be respected  this isn’t a necessary provision (all rights are meant to be
respected), but exists because of the historical context from which child’s rights arise
o Children were thought to be weak and in need of protection, but were not accorded
rights (were the object, not subject of rights)
o The discourse centred on paternal power rather than children’s rights
 Paternal power evolved into parental authority, which is a set of responsibilities as well as
rights (those responsibilities are owed to the child, in whom they take the form of rights)
 Child not only has the rights explicitly accorded to them by law, but also the fundamental
human rights and freedoms granted to all people by law (Charters, CcQ)
o Especially the right to equality (freedom from discrimination on the basis of age)
 Child also has legislation specifically targeted to minors – for their own protection
o Federal criminal acts for youth/adolescents
o Quebec’s law for protection of youth (to protect those whose security/ development is
compromised)  mainly emphasizes child’s right to participate in the process of their
placement, etc
The best interests of the child – art. 33 CcQ
 Applies in innumerable situations, often family law
 Means all judicial/administrative (public decisions) need to be taken with respect to the best
interests of the child; but also all private decisions by parents, teachers
 Primacy of the consideration of the best interests of the child – trumps all other
considerations
 Law does not define this notion – but gives direction  see art. 33 para. 2 (moral, physical,
emotional, intellectual needs of child should be considered); the entire context of the child
must be considered as a whole, however, and no particular element is determinative
o Evaluation of the best interests of the child must be made in concreto
 The purpose of this provision is to remain flexible in light of social changes or variety of
individual circumstances – should not seek to define it too narrowly
Must go beyond legal principles to decide what is in best interests of a child – must look to social
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sciences, and experts (social workers, psychologists, etc)
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N.B. art. 32: the right fluctuates in proportion to the capacity of the parents
o Also note that it applies to any person “acting in the stead” of parents: could be child
protection workers, but could also be de facto parents
o This would be the only place in the CCQ that recognizes that de facto parents have
obligations to a child
art. 33 BIC is still a very open-ended concept. It’s difficult for appellate courts to review its
application
o What is in BIC often calls for expert testimony
CCQ, arts 32-34
Chapter II – Respect of Children’s Rights
32. Every child has a right to the protection, security and attention that his parents
or the persons acting in their stead are able to give to him.
33. Every decision concerning a child shall be taken in light of the child's interests
and the respect of his rights.
Consideration is given, in addition to the moral, intellectual, emotional and
physical needs of the child, to the child's age, health, personality and family
environment, and to the other aspects of his situation.
34. The court shall, in every application brought before it affecting the interest of a
child, give the child an opportunity to be heard if his age and power of
discernment permit it.
Quebec Charter, s. 39
CHAPTER IV
ECONOMIC AND SOCIAL RIGHTS
Protection.
39. Every child has a right to the protection, security and attention that his parents or the persons
acting in their stead are capable of providing.
Ont CLRA, s. 24(2)
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child
with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s
care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who
is a party to the application.
Young v Young 1993 SCC – BIC
Facts: Parents of 3 daughters getting a divorce; mother got custody, father got right of access.
This right of access was restricted by an appeal to best interests of the children, however; father
could not discuss his Jehovah’s Witness religion with the children, take them to services, etc
(made them uncomfortable). Father challenging this order. Mom isn’t very religious, but wants
children to belong to the United Church.
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History: Lower Court had imposed limitations on religious discussion and attendance. CA
disagreed, stating that in BIC to know parents fully, including religious beliefs, unless there was
harm or potential.
Issue: Whether s. 16(8) and s. 17(5) require decisions in BIC violate freedom of religion,
expression, ass’n? justified under the Charter? Equality? Justified under Charter?
Holding: Restrictions on access should be removed (HD, Laforest, G dissenting)
Ratio: Majority: The test for access is BIC (HD dissent in result), McLach suggests harm is an
important element in determining BIC, Sopinka would recognize a threshold element of harm. The
sections aren’t unconstitutional, HD et al said it was inapplicable.
L’Heureux-Dubé J. (dissenting in the result, agreed with in evaluation of access according to BIC
and Charter issue by La Forest, Gonthier, Iacobucci, Cory JJ.):
 Power of the custodial parent is not a “right” granted to parent for their own benefit; is a
duty to protect the best interests of their child in overseeing their daily life as well as making
big decisions with respect to education, religion, health
o Child placement decisions should safeguard the child’s need for continuity - has the
autonomy to raise the child as s/he sees fit without interference by non-custodial
parent or state  once court has awarded custody, must presume custodial parent
will act in BIC
o The non-custodial parent retains certain residual rights over the child –
o “The role of the access parent is that of a very interested observer, giving love
and support to the child in the background. He or she has the right to know but
not the right to be consulted.” (229)
o if the relationship with the non-custodial parent conflicts with BIC, BIC overrides
 Right to access is conditioned by BIC; maximum contact with both parents is presumed to
be in child’s best interests, but will not always be the case  where more access by noncustodial parent is not in BIC, such access will be restricted
o Even if the questionable behaviour by access parent is of a religious nature, it will
bow before BIC
 “The best interests of the child cannot be equated with the mere absence of harm: it
encompasses a myriad of considerations” o Cts will look at considerations such as age, physical and emo constitution and
psychologyof child and parents, milieu in which will live
o “Since custody and access decisions are pre-eminently exercises in discretion, the
wide latitude under the best interests test permits courts to respond to the
spectrum of factors which can both positively and negatively affect a child.”
o “There is no rationale for defining the best interests of the child with the absence of
harm.” The harm test would require the Cts to ignore factors set out in Act.
o Harm test would not meet the Divorce’s act objective – minimizing adverse effects on
children
o “The welfare of children is put at considerable risk if the prospect of harm becomes
the sole prerequisite for restrictions on access. The best interests of the child is not
simply the right to be free of demonstrable harm; it is the positive right to the best
possible arrangements in the circumstances of the parties.”
 Primary caregiver presumption: “It explicitly restores the values of commitment and
demonstrated ability to nurture the child and recognizes the obligations and supports the
authority of the parent engaged in day to day tasks of childrearing.”
 Order of trial judge not subject to Charter. Even if it were, BIC would not violate any
Charter right. Broad discretion is necessary to achieve the objective of securing the BIC
o Standard for finding a provision unconstitutional for vagueness is high: the BIC test
is not so uncertain as to be incapable of guiding a consideration of factors
 Expert evidence is not always necessary to establish BIC; custodial parent is best placed to
assess the needs/interests of the child, expert testimony “is often inconclusive and
contradictory”
 The principles enunciated in Dolphin Delivery apply as custody and access matters are
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essentially private in nature and there exists no state action to be impugned
Deicisons regarding custody and access must not be made based on the parents’ faith
o Religion is a circumstance to be assessed in BIC
o Ct should not engage in a “war of religion”, Ct must look at the way it is practiced,
impact and effect on children – BIC prevail!
o “Ordinarily, the exposure of a child to different religions or bliefs may be of value to
the child.” – where religion was the cause of the marriage breakdown, Cts must
secure the longstanding authority of the custodial parent to make decisions
over religious activities , so child not stressed
 Application: His religion not threated, restrictions aimed at reducing conflict due to his
actions’ effects on children’s BIC. Restrictions would further BIC and their ultimate purpose
was to preserve relationship with children
Iacobucci and Cory JJ
 Expert evidence not necessary to establish BIC – can be determined from parties testimony
 the order restricting his religion was not a proper application of BIC
McLachlin J.:
 It is relevant to consider, when discussing quality of access (how the parents acts when with
the children), whether the conduct in question poses a risk of harm to the child which
outweighs the benefit of a free/open relationship with the access parent (i.e. BIC is a
balancing act)
 BIC does not violate Charter
Sopinka J.:
 Risk of substantial harm must be shown if religious expression is to be restricted in applying
the BIC test (bc BIC must be reconciled with the Charter)
 Access parent should not have a phony lifestyle
 Need to encourage a meaningful post-divorce relationship with both parents. “The traditional
notion of guardianship giving the custodial parent the absolute right to exercise full control
over the child, even when the toher parent is exercising his or her right, is at odds with this
context”
 “Harm”, in this context, means a (semi-)permanent adverse effect on the child’s upbringing
 Impugned activity by access parent must be shown to create a substantial risk that the child’s
physical, psychological, or moral well-being will be adversely affected
Close reading exercise
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i.
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Custody and access: the custodial parent’s decision making and a limited role for
access parent (LHD p 229)
HB position that custodial parent has a huge decision making scope: close to JR powers,
gives them discretion
ii.
Access parent vis-à-vis the custodial parent (Sopinka p 234)
Seems to indicate equality
iii.
Best interests and religion LHD pp (231-2)
 fact that children are bothered wouldn’t be an issue if the family was still intact
 Berger at Osgoode: criticizes the Court’s view of religion, influenced by liberal protestant
view, where it’s good to be exposed to
 How genuine is the suggestion that BI requires that the Court not engage in a war of
religions. Not comfortable acknowledging they’re adjudicating a religious matter, but
aren’t they?
iv.
The question of expert evidence (LHD p 231; Iac & Cory p 232)
 Racine v Woods : Wilson talked about expert who said culture becomes less interesting
over time
 Both reject reliance on experts, but differently
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Iac and Cory: normally determined by the parties (both views) , don’t prefer one parent
over the other
HD: custodial parent, realistically saying “mother knows best” , reject need and expense
for experts (pro woman approach)
v.
-
BI and the question of harm (LHD p 231; McLachlin p 233; Sopinka p. 234)
HB: BI is not just absence of harm. She would have upheld the restrictions on religion.
Majority didn’t uphold it bc weren’t convinced it was harming the child. McLac and
Sopinka – shouldn’t limit unless there’s harm
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A. Custody decisions: BIC is a neutral test that doesn’t infringe freedom of
religion/expression when applied properly
o Individual custody decisions NOT subject to the Charter
B. Utterly unstructured, fact-specific discretion versus presmptions: the primary
caregiver (LHD): Boyd
o HD is saying that judges have been shown to presume custody in favour of the
historic primary caregiver, she suggests she approves of this
o Boyd quote: ideology of equality and equal parenting potential, primary caregiver
presumption is focused on the past. Boyd is skeptical about judges trying to
promote equality in the future vs recognizing what happened in the past. Refers
to empirical data about women being the primary caregiver (not essentialized)
o is this naturalizing women’s roles as primary care givers? Does equalization
erase women’s unique roles? [ look at Two Mothers by Leckey]
o Arguments about women doing most of the caregiving miss reasons why this
was a rational decision: more likely to earn less, will start off with mat leave
anyways; should we use decisions made as a unit, apply to when not a unit
anymore = controvercial!
C. challenges to legislation, Slaight, Dolphin
quote : HB is saying that once the BIC generally test is found to be constitutional, then
individual application to private parties is NOT subj to the Charter
“It follows that, once the best interests test itself has been found to accord
with Charter values, the trial judge's order itself is not subject to further
constitutional review, as the necessary state infringement of religious rights
required to sustain a challenge based on the Charter is no longer present.
As s. 32 dictates, the Charter applies to governments and legislatures. Its purpose is to
provide a measure of protection from the coercive power of the state and a mechanism of
review to persons who find themselves unjustly burdened or affected by the actions of
government. It is not meant to provide a means to regulate the affairs of private
citizens. Thus, the sine qua non to any application of the Charter is the presence of state
action, whether by legislation or other means.
In RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, this Court
first considered the meaning of "government action", and articulated the principle which
established the threshold for judicial review under the Charter: the Charter applies to the
legislative, executive and administrative branches of government but does not apply to
judicial orders made in the resolution of private disputes […]
Exceptions to this rule have been recognized in certain specific circumstances. […]
In Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R.
1038, the Court found the order of an adjudicator pursuant to theCanada Labour
Code properly subject to Charter review. The Court distinguished the exercise of the
arbitrator's powers in that case from judicial decision-making on the basis that the
adjudicator was appointed pursuant to a legislative provision and derived all his powers
from the statute.
The present case clearly falls to be decided under the principles enunciated in Dolphin
Delivery as custody and access matters are essentially private in nature and there exists
no state action to be impugned. In contradistinction to the situation in Slaight
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Communications, the powers of a judge making an order under the Act cannot be
equated with those of an adjudicator who derives his authority from a legislative
enactment. The judiciary is a separate branch of the government, and possesses the
inherent jurisdiction under its parens patriae power to rule in the interests of the
child. This power is both distinct from and long predates the statutory entrenchment of
the best interests test. In the result, the Charter will not apply to the order.
o Slaight: adjudicators powers were derived from the legislation, whereas judges
have inherent powers
Leckey: weird bc in Willick, focus on the court’s jurisdiction wrt to the statute, does not
underline the understanding that judiciary has inherent powers
Sidenote: What Dolphin tells us that s. 32 in the following situations:
Parties
Gov’t
Private
CML rules
YES
No
Statute
YES
Yes
<<Challenged rules
12.Authority of parent over the life of the child
Review: Young v Young: judges have a different idea of how far they should go when religion
bothers a child. HB: sees judge’s role as stronger, not just about harm, HB: has a stronger
understanding of her role, more aspirational.
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Connections to other regimes: marriage (art 394); filiation; arts. 601 (1460); 606 and 610
(559); 609 (585)
Relationship with the preceding titles in the book on the family and third parties – C (G) v V-F
(T), [1987] 2 SCR 244
N. Kasirer, Note: Parental Authority
 The concept of parental authority is central to the civilian understanding of family law
 Complex concept:
o Child, regardless of age, owes respect to mother/father (597)
o A child regimes subj to authority of father/mother(598)
 Although it seems very hierarchical, other articles make it clear the concept (nowadays)
partakes more of parental duty than parental rights (cf. Deleury & Goubau)
o Provision on parental authority must be read with art. 33 CcQ (BIC)
o In many ways, the concept of parental duty has been overtaken by concept of
BIC
 Parental authority includes custody, supervision and education (599), can be delegated
 It is possible for parental authority to be removed, either in whole or in part (606), only for
“grave reason and in the interests of the child“
 More focus on the best interests of the child in the context of parental authority
o Now possible to lose custody in the absence of “grave reason”
o A parent may retain parental authority but lose custody
 Exercise of parental authority is typically shared between the two parents
o Previously, the will of the father would be paramount in cases of disagreement
o Nowadays, in cases of dispute matter must be referred to third-party settlement (can
be formal court)
 Most complex decisions relating to parental authority occur when courts have to make
decisions re custody of the children (usually in divorce/legal separation)
o Courts will refer to arts.493 ff – separation or Divorce Act
o But remember that within the structure of the Code, decisions relating to custody
are elements of the exercise of parental authority
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o Courts have to refer to concept of BIC
Issue: how much weight should be given to parents vs official organs (courts). Can a parent
make a decision in the BIC that doesn’t reflect what is in the BIC according to dominant
society
Kirouac & Rhoades: reminds us that there is no stated presumption as to who gets custody of the
child – in both ccq and divorce act
 A lot of judges start w idea that the starting point is shared custody
 Kirouack – traces shifts in judicial reasoning even tho there has been
no legislative changes
Rhoades –shows that a legislated presumption of shared time- can produce neg outcomes for
children when its not working for the child
Marie-Christine Kirouac, “La jurisprudence relative à la garde: ou sommes nous rendus”
In T.L. c L.A.P., Dalphond JA states that s 16(10) of the Divorce Act does not show a favourable
presumption towards any form of custody, including shared custody
 Court must find the arrangement that meets the child’s interests
This is the same thing in the CCQ
 However, “Nous constatons un glissement du principe initial vers une cristallisation de
la garde partagée comme solution universelle en l’absence de motifs sérieux de
reproche à l’un des parents.”
 more and more judges are writing with the assumption that shared custody is the “modèle de
garde bénéficiant d’une présomption factuelle qui, si elle n’est pas législative, n’en est pas
moins devenue jurisprudentielle »
 by doing so, judges are eclipsing the BIC criteria, that should be used to make decisions in
the interests of the child
***Significant shift in how judges make decisions, even when legislation hasn’t changed
Birnbaum, “Children’s Experiences with Family Justice Professionals in Ontario and
Ohio” (2011)
 Prevailing view re: children and custody agreements: because of their vulnerabilities, children
should be ‘protected’ from being involved in decision-making about post-separation parenting
plans
 Related assumption: parents understand their children  hence, parents represent their
views
 But studies show that children’s resilience increases If they are treated as competent actors
who can share experiences and perceptions
 Children want to participate in process, but not have to make decisions
o Children too often feel not properly heard
o Authors argue they have a right to be heard – bc decisions have long and short
term social and psychological effects
o NOT in BIC to treat them as passive
Objective of research: how do children feel about their involvement with different professionals
in the family justice system? What can be learned? Look at kids who were interviewed by a
judge, represented by a lawyer, assessed by a mental health prof who made a report for
the Court ,
Results of research: Children unanimously stated that it was important for them to be heard
 Even when judge did not decide what they wanted, all stated it was important for jude to
heawr from them
 Children want to be asked whether they will participate in decision-making, and many
want to be heard and listened to and be part of the decision-making that affects their lives
 all children should be heard to affirm that their views and feelings are important
and valued whether by parents, or other actors
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many children (including those that had an interview with a mental health professional or
a lawyer) wanted to speak to the judge, because they wanted to speak to the final
decision-maker
Although authors agree that kids should be shielded from parent’s conflict, but when
parents are in conflict, it is likely children are already caught up in the conflict
o No support for idea kids talking to judges is traumatic
Allowing children to express their views in a safe, neutral, non-judgmental way to a
family justice professional, and even a judge, can go a long way in assisting
children’s positive post-separation adjustment. – children’s shouldn’t be pressured to
participate, but should be given an opportunity
Kirouac & Rhoades: reminds us that there is no stated presumption as to who gets custody of the
child – in both ccq and divorce act
 A lot of judges start w idea that the starting point is shared custody
 Kirouack – traces shifts in judicial reasoning even tho there has been
no legislative changes
Rhoades –shows that a legislated presumption of shared time- can produce neg outcomes for
children when its not working for the child
Helen Rhoades, “The Dangers of Shared Care Legislation: Why Australia Needs (Yet More)
Family Law Reform” (2008)
Shared Parental Responsibility Act in 2006 – came into operation in July 2006
 aim was to increase rate of shared parenting of children, following relationship
breakdown
AUS’s Family Law Act now contains a presumption of ‘equal shared parental responsibility’ 
presumption doesn’t apply where parent has engaged in family violence or child abuse, and can
be rebutted by evidence showing that colalb parenting wouldn’t be in child’s best interests
 change resulted means that BIC is no longer paramount
 BIC remains the “paramount consideration”, BIC has become aligned with collaborative
parenting
Empirical Evidence: rise in (harmful) shared care arrangements
 research by Jennifer McIntosh shows that for a significant proportion of children, shared
care was a source of psychological strain (high emotional stress) – usually because of
ongoing conflict between parents
 studies show dangers for children of a shared parenting regime when the child’s
parents are not able to cooperate with or support one another and there is a
considerable level of conflict
Conclusion
 after the research findings re: higher levels of distress in children who are in shared
custodial arrangements, researchers called on lawyers and judges to incorporate an
understanding of research literature into their advice
o implicit in this call is idea that law itself and policy messages that accompany
family law reforms play a minor role in shaping practices
 however, empirical studies have also shown that there is a strong correlation btw the law
and the advice practices of lawyers
o hence, further law reform is needed
 paradox 1: despite the increasing policy recognition of the diversity of family
relationships, our current legislative framework only envisages the children of divorced
parents living across two homes in all but exceptional cases
 paradox 2: reform is not always progress, earlier family laws gave greater discretion to
BIC
 paradox 3: Auz gov’t had evidence wrt to children’s exposure to parental conflict and
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harm to children
Better option – remove emphasis on time from legislation altogether in favour of a
framework that more accurately reflects an understanding of child development
research (ie look at other factors not just time)
we need to acknowledge that the inherently binary nature of law inevitably limits its
ability to capture the complexity and nuance of social science research
o children’s needs are “ultimately unknowable by law”
o assuming in advance what is best for children is disrespectful of children’s
citizenship and the complex “real lives” of family members
Notes: most advocates for shared custody were men’s rights groups – politics are fraught at
times (feminists critical)
remember custody agreement is about concessions – these rules shift starting position for
negotiations (everyone concedes claim in exchange for something else)


legislation speaks primarily to judges
Relevant period of s. 16: on and after the divorce of a child’s parents, but effects reaches
beyond divorce (reference to spouses and former spouses – but requires formal launch
of divorce proceedings)
Divorce Act, s. 16
Custody Orders
16. (1) A court of competent jurisdiction may, on application by either or both
spouses or by any other person, make an order respecting the custody of or the
access to, or the custody of and access to, any or all children of the marriage.
Interim order for custody
Order for
custody
(2) Where an application is made under subsection (1), the court may, on
application by either or both spouses or by any other person, make an interim
order respecting the custody of or the access to, or the custody of and access to,
any or all children of the marriage pending determination of the application under
subsection (1).
Interim order
for custody
(3) A person, other than a spouse, may not make an application under subsection
(1) or (2) without leave of the court.
Application
by other
person
(4) The court may make an order under this section granting custody of, or access
to, any or all children of the marriage to any one or more persons.
Joint
custody or
access
Access
(5) Unless the court orders otherwise, a spouse who is granted access to a child
of the marriage has the right to make inquiries, and to be given information, as to
the health, education and welfare of the child.
(6) The court may make an order under this section for a definite or indefinite
period or until the happening of a specified event and may impose such other
terms, conditions or restrictions in connection therewith as it thinks fit and just.
Order respecting change of residence
Terms and
conditions
(7) Without limiting the generality of subsection (6), the court may include in an
order under this section a term requiring any person who has custody of a child of
the marriage and who intends to change the place of residence of that child to
notify, at least thirty days before the change or within such other period before the
change as the court may specify, any person who is granted access to that child
Order
respecting
change of
residence
84
of the change, the time at which the change will be made and the new place of
residence of the child.
(8) In making an order under this section, the court shall take into consideration
only the best interests of the child of the marriage as determined by reference to
the condition, means, needs and other circumstances of the child.
Factors
(9) In making an order under this section, the court shall not take into
consideration the past conduct of any person unless the conduct is relevant to
the ability of that person to act as a parent of a child.
Past conduct
(10) In making an order under this section, the court shall give effect to the
principle that a child of the marriage should have as much contact with each
spouse as is consistent with the best interests of the child and, for that purpose,
shall take into consideration the willingness of the person for whom custody
is sought to facilitate such contact.
Maximum
contact


Note that the CCQ speaks primarily to parents (“the minor may” vs “the court”)
Differing conceptions of the role of drafters of CML statutes and CCQ?
 CCQ – they see the ccq as a constitution, aspirational. Describe things in the best
circumstances
 Divorce Act clearly doesn’t have that as its mission
 the relevant period of arts 599 ff: throughout a child’s minority
 art 597’s relevant period is a person’s lifetime
o 598 : everything else follows that temporal limit
o 597 specifically says “regardless of age”
 the parental equality in art 600 replaces primary exercise of authority by the father
 previously father had parental authority (when provisions talk about equality you can
surmise that there was inequality before)
 the ccq’s parental authority is better viewed as: civil law prop: if you give stuff away u still
have a box, because of the residual notion
 606: can be deprived of an attribute of parental authority, but continue to have the rest
 although with adoption, you lose parental authority (without your cosent)
 HB in Young v Young, access parents’ rights resembles a bundle of sticks (you still
have right to be informed of some issues)
 A parent may delegate the right and duty of supervising his or her child – 601
 Fact of est filiation bond – vests them parental authority in 599.
 599. Custody here is smaller than what HB meant. Bc she said custody was decision
making
 art 605 is consistent with LHD’s discussion of the division of powers between custodial and
access (parents contribute even though they don’t have custody)
 art 599 para 2 (maintain) does not wholly duplicates 585 (relatives in direct line=owe support)
bc Maintenance: larger, broader, applies only during minority and 585 is actually reciprocal
 A parent may 1) delegate the right and duty of supervising child; but not duty to
maintain child
 The best way to support ur answer in the last question is by ref to art 599, 601 a
contrario CCQ
 ie, exclusion of maintenance from 601 should tell us that its not delegatable
 **keep in mind a contrario reading when dealing w the code
 Remember: judicial interpretation – if the ccq mentions one thing, its not meant to
overlap with another
85
Question: Investing a parent’s partner with parental authority regarding the child is
functionally equivalent to est a bond of filiation.
 Wouldn’t apply to succession (your partners parents don’t become the childs
grandparents) ; citizenship etc
 In the futre – droit de famille – 3444 (2000) CA says you cant est parental authority, cant
vest someone with parental authority without
 Also lapses on child’s majority - no life long bond
 Connections to other regimes: marriage (art 394); filiation; arts. 601 (1460); 606, ……
 Title on parental authority – refers to thid parties
 Betz in the case concluded custody should go to the third party in the best interests – went w
aunt and uncle despite the fact that the father had parnetla authority, father wasn’t deprived of
parental authority (if the aunt died it would revert back)
CCQ, s. 597-612
TITLE 4 – Parental Authority
597. Every child, regardless of age, owes respect to his father and mother.
598. A child remains subject to the authority of his father and mother until his
majority or emancipation.
599. The father and mother have the rights and duties of custody,
supervision and education of their children.
They shall maintain their children.
600. The father and mother exercise parental authority together.
If either parent dies, is deprived of parental authority or is unable to express his
or her will, parental authority is exercised by the other parent.
601. The person having parental authority may delegate the custody,
supervision or education of the child.
602. No unemancipated minor may leave his domicile without the consent of
the person having parental authority.
603. Where the father or the mother performs alone any act of authority
concerning their child, he or she is, with regard to third persons in good faith,
presumed to be acting with the consent of the other parent.
604. In the case of difficulties relating to the exercise of parental authority,
the person having parental authority may refer the matter to the court, which
will decide in the interest of the child after fostering the conciliation of the
parties.
605. Whether custody is entrusted to one of the parents or to a third person, and
whatever the reasons may be, the father and mother retain the right to supervise
the maintenance and education of the children, and are bound to contribute
thereto in proportion to their means.
606. The court may, for a grave reason and in the interest of the child, on the
application of any interested person, declare the father, the mother or
either of them, or a third person on whom parental authority may have been
conferred, to be deprived of such authority.
Where such a measure is not required by the situation but action is
Respect yo’
parents
Lifetime
(specified)
Child = subj to
parental
authority
Sets out
temporal
Parents’
duties
Apply to
minors
Filiation by
blood = 599
Both rents
have authority
Rents can
delegate
Minors can’t
leave domicile
Presumed 1
parent = 2
parents
Go to Ct if
issues wrt to
parental
authority
Even if
custody to
smone else,
parents need
to contribute
Ct can deprive
sm1 of
parental
authority
- also attribute
86
nevertheless necessary, the court may declare, instead, the withdrawal of an
attribute of parental authority or of the exercise of such authority. The
court may also directly examine an application for withdrawal.
607. The court may, in declaring deprivation or withdrawal of an attribute of
parental authority or of the exercise of such authority, designate the person
who is to exercise parental authority or an attribute thereof; it may also,
where applicable, obtain the advice of the tutorship council before designating
the person or, if required in the interest of the child, appointing a tutor.
608. Deprivation extends to all minor children born at the time of the
judgment, unless the court decides otherwise.
609. Deprivation entails the exemption of the child from the obligation to
provide support, unless the court decides otherwise. However, where
circumstances warrant it, the exemption may be lifted after the child reaches full
age.
610. A father or mother who has been deprived of parental authority or from
whom an attribute of parental authority has been withdrawn may have the
withdrawn authority restored, provided he or she alleges new
circumstances, subject to the provisions governing adoption.
611. In no case may the father or mother, without a grave reason, interfere
with personal relations between the child and his grandparents.
Failing agreement between the parties, the terms and conditions of these
relations are decided by the court.
612. Decisions concerning the children may be reviewed at any time by the
court, if warranted by circumstances.
of parental
authority
Ct may obtain
advice of
tutorship
council
1 judgment =
for all kids
Deprivation =
child not oblg
to provide
support
If new cirs can
apply for
authority, see
adoption rules
Grandparents
have rights!
Decisions are
reviewable
Children’s Law Reform Act
Custody & Access
20. (1) Except as otherwise provided in this Part, the father and the mother of
a child are equally entitled to custody of the child.
(2) A person entitled to custody of a child has the rights and responsibilities of
a parent in respect of the person of the child and must exercise those rights
and responsibilities in the best interests of the child.
(3) Where more than one person is entitled to custody of a child, any one of
them may exercise the rights and accept the responsibilities of a parent on
behalf of them in respect of the child.
Father and
mother entitled
to custody
Rights and
responsibilities
Authority to
act
(4) Where the parents of a child live separate and apart and the child lives
with one of them with the consent, implied consent or acquiescence of the
other of them, the right of the other to exercise the entitlement of custody and
the incidents of custody, but not the entitlement to access, is suspended until
a separation agreement or order otherwise provides.
Where parents
separate
(5) The entitlement to access to a child includes the right to visit with and be
visited by the child and the same right as a parent to make inquiries and to be
given information as to the health, education and welfare of the child.
(6) The entitlement to custody of or access to a child terminates on the
marriage of the child.
Access
(7) Any entitlement to custody or access or incidents of custody under this
section is subject to alteration by an order of the court or by separation
agreement.
Entitlement
subject to
agreement or
order
21. (1) A parent of a child or any other person may apply to a court for an
Application for
Marriage of
child
87
order respecting custody of or access to the child or determining any aspect of
the incidents of custody of the child.
custody or
access
28. (1) The court to which an application is made under section 21,
Powers of
court
(a) by order may grant the custody of or access to the child to one or more
persons;
(b) by order may determine any aspect of the incidents of the right to custody
or access; and
(c) may make such additional order as the court considers necessary and
proper in the circumstances, including an order,
(i) limiting the duration, frequency, manner or location of contact or
communication between any of the parties, or between a party and the child,
(ii) prohibiting a party or other person from engaging in specified conduct in
the presence of the child or at any time when the person is responsible for the
care of the child,
(iii) prohibiting a party from changing the child’s residence, school or day care
facility without the consent of another party or an order of the court,
(iv) prohibiting a party from removing the child from Ontario without the
consent of another party or an order of the court,
(v) requiring the delivery, to the court or to a person or body specified by the
court, of the child’s passport, the child’s health card within the meaning of the
Health Insurance Act or any other document relating to the child that the court
may specify,
(vi) requiring a party to give information or to consent to the release of
information respecting the health, education and welfare of the child to another
party or other person specified by the court, or
(vii) requiring a party to facilitate communication by the child with another party
or other person specified by the court in a manner that is appropriate for the
child.
13. Authority of parents over the life of the child: the darker side
1. Review from last day: despite legislation saying that determination of custody is based on
BI, trend at judicial and social level towards more shared parenting
 Law reform without legislative change: Reminder that family law can be reformed
through way people act within the legislative framework without requiring legislative
change
 Connection with child support: not paid if both parents share time with child.Hence,
distributive effects.

Today – the dark side: Parental authority: violence, impact for custodial parent over other
parent having access
2. Gordon v. Goertz: s. 17(5) and the relocating parent
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Remains the leading case on relocation of custodial parent
a. Distinguishing custodial and access parents
The award of custody to one parent obligates: the custodial parent primarily (housing,
caring, makes primary decisions for the child, resp for child)
Disparity in obligations for custody vs access parent - The grant of access to one
parent obligates the custodial parent
o Custodial parent: obligation to make child available
o Access parent does not have resp to show up (no sanctioning if rights aren’t
exercised)
Diff between CML and CVL:
o CML: custody brings a fuller package of decision making
o CVL: custody: more narrow, physical sense. Both parents have parental
authority, obligation to supervise, education of the child
Duty of respect to parents (art 597)
b. Differing approaches
i. George 2012: discretion panning out differently by jurisdiction
Reminder that BI is interpreted based on legal community’s understanding of what’s
important
Rob George, Ideas and Debates in Family Law (2012)
 Practitioners from UK and NZ given cast studies and asked to identify which factors are most
important
 Both places use the welfare principle, although case law in countries is diff
 Ex: fact pattern about mom wanting to relocate to USA
 English: Tom’s WF required relocation: focus on importance of mom’s well being, stability
of her new relationship, Tom’s overall WF, and thought contact with father could be
preserved through arrangements
 NZ: Tom’s WF was not to allow relocation: question motives for move, don’t see rejecting
move as haing neg consequences for the family, mom’s ambivalent attitude to contact was
seen as a crucial factor against relocation
 Bc decisions about child’s WF require looking at the future, similar to “crystal ball gaxing”
 But is this a reason to reject the WF principle as the basis for decision making
concerning children?
ii. Facts and result in Gordon
Gordon v Goertz 1996 SCC
Gordon v. Goertz (1996) – CML (SCC from SCA)
Facts: Divorce; custody awarded to mother with liberal access to father. Mother wants to move to
Australia (better job) – father applying for a variation in the custody order under s. 17 of the
Divorce Act (wants custody or the Ct to not allow mom to move to Auz).
Lower Court: She can move to Auz, father must go to Aus to access child.
Issues: 1. What are the principles guiding the variation of custody orders under s. 17? 2. Should
the custody order be changed here?
Holding: 2. The custody order to the mother is upheld, but the father’s access is to be
exercisable in Canada (i.e. he doesn’t have to go to Australia to see the kid).
Ratio: Once a material change has been shown to have occurred under s. 17 of the Divorce Act,
each party must re-advocate for a custody arrangement that is in the best interests of the child.
Reasoning:
Majority (McLachlin J.):
 The parent applying for a change in the custody/access order under s. 17(1)(b) DA must
meet a threshold requirement: they must demonstrate a MATERIAL CHANGE in the
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

circumstances affecting the child. To find a material change, a judge must be satisfied
that:
o (1) A change in condition, means, needs, circumstances of the child has occurred or
parents’ ability to meet needs of the child (s. 17(5))
o (2) Materially affecting child
o (3) Could not be foreseen at the time of the original custody order
o not a way to appeal order, judge must assume correctness of initial order and
consider only changes since order originally issued
If the threshold is met, the judge must embark on a fresh inquiry into the best interests
of the child, having regard to all the relevant circumstances, both old and new
o 17(5) states judge must consider BIC “by reference” to the material change in
circumstances, but he inquiry cannot be confined to the change alone
o inquiry is based on findings of fact of initial judge; evidence of new circs
o There is no presumption in favour of the custodial parent (although their views are
entitled to great respect)
Once applicant to change order has discharged the burden of showing a material change in
circumstances, both parents bear the evidentiary burden of demonstrating where the best
interests of the child lie
In assessing BIC, court must consider: (a) existing custody/access arrangements and
relationship bween child and custodial parent, (b) existing arrangmenet and relationship
between child and acess parent; (c) desirability of maximum contact with both parents, (d)
views of child (e) custodial parent’s reason for moving, only where relevant to parent’s ability
to meet child’s needs; (f) disruption to child in change of custody (g) disruption to child
consequent of removal from school/fam/community
Maximum contact (s. 16(10) & 17(9): is mandatory, not absolute, only if consistent w BIC
Parental conduct : not part of analysis unless relates to parent’s ability to meet child’s needs
(16(9))
Must weigh important of remaining in custody of parent accustomed to VS continuance of cull
contact w access parent, extended fam, community
Ultimate question: what is in the BIC in all circumstances, old and new?
Application to the facts: Judge should have done a new BIC analysis. Judge correct in
giving Mom custody, but no evidentiary support to restricting access to Aus.
Concurrence (L’Heureux-Dubé J.):
 The notion of custody under the DA encompasses the right to choose the child’s residence
o Custodial parent can change the place of residence of the child – subject to access
parent’s right to apply for a variation of the custody order under s. 17(5)
 Procedure for assessing an application under s. 17 to vary a custody order:
o Material change
o Consideration of whether the material change demonstrated requires a reassessment
of the whole situation or only the impact of the change only requiring an assessment
of the impact of change on custody
 Change has to be big to trigger a full reassessment of the situation: the
change are of such nature/magnitude as to make the original order
irrelevant or no longer appropriate
 To assess merits of a variation application wrt to change in residence of custodial parent:
1. Decision must be made in BIC, assessed from a child-centered perspective; the only
consideration. Promoting max contact is an important consideration, if consistent with BIC
2. It must be assumed that an existing custody order or agreement reflects the BIC and that
custodial parent has the appropriate decision-making authority, unless there are explicit
restrictions in custody order
 Attributing custody = presumption that parent is most able to ensure BIC
 Bc day-to-day decisions are left to that parent – no reason to NOT defer to their decision
making
90
3. In determining BIC under s. 17(5), Cts should generally NOT proceed to a de novo
appraisal – bc s. 17(5) says “the court shall take into consideration only the best interests of the
child as determined by reference to that change.”
 Working shows that where there is a change, impact of relocation on existing custody must
be looked at, but existing custody order must be assumed to be in BIC
 The BIC are rightly presumed to lie with the custodial aprent
4. Non-custodial parent has onus of showing that change in residence is detrimental to the BIC
so that custody should be varied or where no evidence that BIC can be accommodated, child
should remain in jurisdiction
 Variation won’t be justified UNLESS non-custodail parent shows relocation will prejudice
BIC , and that non-cus parent’s relationship is of such importance to the BIC that prohibiting
move will not cause detriment to child equal to greater than a variation of custody
 If there’s an agreement, onus on custodial parent to show move is not to undermine custodial
parent’s rights
Leaving BIC under s. 17(5) to discretionary realm of questions of fact, where each factor is
equally considered, and where no party has a specified burden of proof, must be rejected bc it
fosters uncertainty in the application of the law and encourages litigation and ongoing
parental conflict which clearly are not in the BICren.
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Application to the facts: move to another country here was unforeseen = material change
Original custody, less than 2 yrs old, was still higly relevant
Evidence supported that BIC = upholding mom’s custody, proper to rely heavily on divorce
judge’s determination
Access can be done in Cnd too
Case exemplifies tension in family law between clear rules and individual assessment
o Ex: child support (guidelines) In the case challenging child support tables in Qc, the
Ct said that the mothers could move if they wanted better child support, but we see
here that this isn’t an easy thing to do
Case criticized for not being sensitive to the situation of custodial mother.
McLachlin: embarkation on a fresh BIC assessment, once the threshold of change passed
 Brand new BI of the Child approach once threshold for variation of order has been met.
Custodial parent must convince court it’s in the BI to stay with her. No presumption in favour
of the already custodial parent
o Greater burden on the custodial when moving - increases chances that parent won’t
be able to relocate with child.
L’Heureux-Dubé: point of departure is that the custodial parent can relocate the child!
 emphasis on the grant of access in the original order (shld be starting point), with the most
minimal change necessary
 the access parent’s higher burden of proof – suggests presumption in favour of the custodial
parent being able to move
 custody already including the right to fix the child’s residence
 LHD puts more emphasis on the interests of the custodial parent (which she identifies with
the interests of the child)
 Cf. with the Bourque piece

In Willick, LHD called for later judges to grant little deference to earlier judges’ allocation of
resources for child support.In Gordon, she called for later judges to weigh heavily the initial
judge’s allocation of custody.
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o
o
c.
No basis to suggest trial judges are making initial inappropriate custody decisions
(LHD said in Willick that evidence indicated trial judges were making inappropriate
support decisions)
Principled distinction based child’s bond with parent over time: in custody, time
would have allowed the child to bond with the custody parent. Stability for the child:
less willing to change this vs changing support
 Time connection: in adoption, time spent with adoptive parents influences
whether child will be returned.
McLachlin quotations – attitudes to litigation and the centrality of the child
 from McLachlin J. for the majority in Gordon:
“The wording of the Divorce Act belies the need to defer to the custodial parent; rather, the Act
has expressly stipulated that the judge hearing the application should be concerned only with the
best interests of the child. The rights and interests of the parents, except as they impact on the
best interests of the child, are irrelevant. Material change established, the question is not
whether the rights of custodial parents can be restricted; the only question is the best interests
of the child. Nor does the great burden borne by custodial parents justify a presumption in their
favour. Custodial responsibilities curb the personal freedom of parents in many ways. The Act is
clear. Once a material change is established, the judge must review the matter anew to
determine the best interests of the child. “
o Boyd would say this is an example of how the needs of mothers aren’t taken into
account
 The argument that a presumption would render the law more predictable in a way which
would do justice in the majority of cases and reduce conflict damaging to the child between
the former spouses also founders on the rock of the Divorce Act. The Act contemplates
individual justice. The judge is obliged to consider the best interests of the particular child in
the particular circumstances of the case. Had Parliament wished to impose general rules at
the expense of individual justice, it could have done so. It did not. The manner in which
Parliament has chosen to resolve situations which may not be in the child's best interests
should not be lightly abjured. Even if it could be shown that a presumption in favour of the
custodial parent would reduce litigation that would not imply a reduction in conflict. The
short-term pain of litigation may be preferable to the long-term pain of unresolved conflict.
Foreclosing an avenue of legal redress exacts a price; it may, in extreme cases, even impel
desperate parents to desperate measures in contravention of the law. A presumption would
do little to reduce the underlying conflict endemic in custody disputes.
o Idea that Parliament could have imposed general rules but didn’t. Leckey: but Cts
often fill in gaps left open by Parliament
o More litigation = less conflict?
o Counter argument: Litigation is a heavier burden on women (earn less)
o This approach disadvantages custodial parent (usu mother)
 Access parent doesn’t need permission to move
o End of paragraph suggests kidnapping
Violence and the Divorce Act
 Divorce Act s. 16 also relevant. S. 16: BI, Past conduct only relevant if it is relates to parent’s
parenting ability,
o S. 16(10) willingness of custodial parent to facilitate access - suggests involvement
of both parents is important.
 Relevance of father’s domestic violence toward mother to impact custody order for children.
Judges tend to separate violence to mom vs. children, but vey discretionary (no guidance in
the act)
 16(10): “friendly parent” rule: custody parent’s willingness to facilitate conduct will be taken
into consideration.
 If the Ct does not believe the mother’s story about abuse to you/child, looks like you’re angry
and not encouraging of access.
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Rachel Birnbaum & Stephanie Chipeur,
o Suggest that judges use supervised access when they don’t want to go so far as
finding that the parent might actually be a risk to the child
o Judges are becoming increasingly reluctant to excluding a parent from a child’s life

 Supervised access and shared custody (Birnbaum & Chipeur 2010; Côté & Dupuis 2011)
Birnbaum & Chipeur “Supervised Visitation in Custody and Access Disputes: Finding
Legal Solutions for Complex Family Problems” 2010
 DOJ report, For the Sake of Children, did not offer reasons for using supervised access
 Young v Young: created presumption in favour of access, but that it could be denied if not
in BIC
 The BIC as alegal def’n has little equivalency in social sciences
 In CLRA, the BIC is the sole criterion for defining custody
Body of article: ex where it was used
 Risk of harm: history of violence does not indicate risk of violence to child,
o Also if the parent isn’t able to meet the needs of the child
 Re-introduction/ problems in parent-child relationship: decisions are not based on
empirical evidence that reintroducing the parent to the child is in the BIC
 Mental Health Concerns: cases show prioritization by courts of maximum contact principle
even where non-custodial parent’s mental condition poses a serious risk to the child
Summary and Conclusion: where do we go from here?
 Judges continue to order supervised access bween children and non-custodial parents
despite concerns of risk of harm, relationship between a child and parent, mental
health probls or domestic violence
 Little monitoring after to see how visits impact the children – courts do not address the
issue of whether supervised access is beneficial to the child
 Their study of cases where supervised access was ordered, courts viewed supervised
access as:
o 1) protection for the childen from risk of harm
o 2) a mechanism to promote the parent/child relationship
o 3) a means to direct the access parent to engage in a program of counseling to deal
with issues affecting parenting
o 4) the creation of a bridge for a relationship between the parent and child
o 5) a means to avoid/reduce conflict between the parents
o Sadly, there is little empirical research evidence on which to base these
conclusions
 There’s no psycho evalu of the parent-child relationship, assessment, treatment for parent,
counseling, mediator or punishment  It is not a substitute for difficult decisions that
sometimes need to be made by the Court. Some judges use supervised access as a
“compromise” when access should be terminated until the parent gets treatment or help
 “It would seem that the maximum contact principle ahs been equated with the best
interests of the child.”
 Use of Supervised Access should be balanced with needs of child! Not parents/lawyers/court
 “If children’s needs are to have real meaning in these family disputes then, at
minimum, evidence-based research must accompany these services.”
 Recommendations to ensure supervised access is used as a solution to children’s needs
o 1) training and knowledge of mental health resources and what they can and cannot
provide should be part of legal/mental/judicial training
o 2) when ordered, there should be a time limit for review and specific conditions
outlined in order for non-custodial parent to meet prior to exercising unsupervised
access
o 3) the parent who has supervised access must demonstrate to the court that he or
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she has obtained the necess parenting skilsl and understanding to have
unsupervised access
o 4) court must be prepared to monitor and follow up after unsupervised access has
been ordered to ensure that children’s interests are being addressed
o 5) court must provide with qualified mental health assessments to address the issue
of access and what form it should tak e
o 6) there must be sufficient fudning for ongoing research and evaluation into
supervised access and other resources
legal decisions ignore needs of children by emphasizing max contact between child and
non-custodial parent
Cote & Dupuis “Garde partagée et violence conjugale: un bon marriage?” (2011)
 condensation of different research wrt to split custody with a violent ex
 requires commitment from both parties, not recommended when there’s domestic violence
 Definition: presence of child in two domiciles, 50% of the time, 40-60 also counts.
Optimal conditions
 The domiciles are pretty close, parents agree to stabilize their residence
 Respect custody agreement: can negotiate and resect it; neither parent is physically or
psychologically violent, harasses the child wrt ot other parent, is not a threat to child or other
parent
 Both parents are available and able to ensure the care and education, custody of the child
 The child does not have conditions making this impossible
 Communication: parents are confident in the others parenting, accept to keep sustained
contact with other parent while respecting their private life, consent to communicate with
other parent, can deal with their conflicts
Negative effects of split custody when there’s domestic violence
 85% of domestic violence victims are women, 40% of this is from ex-partners
 increase in criminal harassement claims of ex-partners
 split custody = heightened risk of domestic violence. Happens despite having an
agreement
 Manifestation in split custody: children exposed to violence (parent will degrade other
parent, use kids to pass messages to ex, will harass parent when exchanging child, multiply
legal claims, threaten to ask for full custody, threat to neglect kids, not give child support on a
usual basis
Impact on women: women often pressured to have split custody (they don’t often suggest it),
pressure from ex professionals (social workers, legal).
 Decisions about custody often made when mothers are exhausted, can give impression they
don’t know what they want
 moms/victims of DV: fear that parent doesn’t adequately care for child, that they will be
violent to child, fear kidnapping
 refusing split custody is a long process, moms have to show their refusal is well founded to
ct and profs, violence felt is often banalized
Should be discouraged when DV: mom will be in contact with abuser, children exposed to
abuse
If it was consented to or ordered: need a detailed agreement to protect the victim
What is in the a agreement ratified by the Court: it needs to delineate the contact with
aggressive parent – limit contact; avoid direct negotiation by indicating parameters that are not
changeable – the place and time of exchange without contact (after school), contact in front of
witness, a way to exchange info that doesn’t involve physical cotact
Joint parental authority: CCQ says parental authority is shared
 parental authority involves: custody, supervision, support obligation and education (ability for
parents to decide how child will be educated,w hcih child will go to, monitor development,
approve medical treatment)
 generally, both have right to know how child is progressing
 Physical custody or legal shared custody: physical custody always exercised as part of
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shared parental authroiry. In CML and US this means legal shared custody
Custody and the courts: usually happen without judgment - hard to know numbers
 Measures imposed by Court after separation will have an influence on how things
progress
 Usually will opt for continuation
 597-612: deal with custody, if divorce – Divorce Act
 to determine the BIC the Court will look at : the behavior and abilities of parents;
response of parents to chidl’s needs; real availability of each parent; willingness to
facilitate contact; open conflict between parents; age, needs, desire of child; stability and
continuity of family relationships; non-separation of siblings; emotional relationships
between parents and other fam members
Who decides to establish shared custody?
 1. Parties consent 2. Mediation 3. Negotiation by lawyers 4. By Court judgment
 no legal directive in Qc to impose this, but it is a trend that believes it’s ideal – prejudice
in favour of this
 prejudice in favour: often seen as a perfect model, seen as involving BIC and parents
 others think it’s neg for child’s development bc has to live in boxes, feel conflict of loyalty
 no research shows the superiority of this arrangement
Custody/Access/Gender Fact Pattern
1. James Farmer and Andrea MacIntosh divorced in February 2012, after a premarital
cohabitation of some eighteen months and a marriage of nearly four years. They have two boys,
aged five and four years.
2. Mr. Farmer and Ms MacIntosh are both factory shift workers in a small town. During their
marriage, they arranged their work schedules so as to maximize the amount of time that each
spent with the children. In practice, however, the children were often cared for by Mr. Farmer’s
retired mother, who lives on the same street. The children spent as much as 40 per cent of their
time in the care of their paternal grandmother.
3. By agreement, Mr. Farmer and Ms MacIntosh both have joint custody of the children. In the
year immediately after Mr. Farmer and Ms MacIntosh’s separation in January 2011, the children
continued to follow much the same routine as during their parents’ cohabitation. Their primary
residence was with Ms MacIntosh in the matrimonial home. They continued, however, to be cared
for regularly by their paternal grandmother.
4. At the time of the separation, Mr. Farmer, still desirous of reconciliation with Ms MacIntosh,
moved down the street from the matrimonial home and began living with his mother. This move
facilitated the ongoing shared parenting by Mr. Farmer and Ms MacIntosh. It also facilitated the
ongoing caring by the paternal grandmother.
5. This arrangement continued until March 2013. At that time, Ms MacIntosh married Mr. SmithFitzpatrick, an old high school sweetheart from her hometown in a far part of the province, some
600 km away. She left her factory job and relocated to live with him. In April 2013, they purchased
a house large enough to accommodate both Ms MacIntosh’s children and Mr. Smith-Fitzpatrick’s
two older children from a previous cohabitation relationship, a boy, twelve, and a girl, ten.
6. Ms MacIntosh presently has no employment. Mr. Smith-Fitzpatrick has a substantial income
and is eager to support Ms MacIntosh and her children. Ms MacIntosh intends, with the
agreement and support of Mr. Smith-Fitzpatrick, to care full-time for all four children of this new
blended family. She says that full-time parenting and homemaking would have been her
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preference earlier, but that it was economically unfeasible both during the marriage to Mr. Farmer
and from 2011 to 2013 when she was a single mother.
7. Ms MacIntosh alleges that since the divorce, Mr. Farmer has been verbally abusive towards
her when transferring the children to or from her home. On one occasion in November 2012, Ms
MacIntosh called police to remove Mr. Farmer, though no charges were made against him.
Although her account is somewhat inconsistent, Ms MacIntosh further alleges that Mr. Farmer
has harassed her with too-frequent phone calls, ostensibly regarding the children but in fact
threatening her against pursuing remarriage with Mr. Smith-Fitzpatrick. For these additional
reasons, Ms MacIntosh believes that the move to a distant part of the province is in her own and
the children’s best interests.
8. Resources do not permit the undertaking of a psychological or other expert assessment.
Claims to decide:
Mr. Farmer claims sole custody of the children or, alternatively, an order directing that the
children’s primary residence remain within a 100 km distance of the former matrimonial
home. He argues, among other things, that the high level of caring performed by his mother
during and after the marriage shows that Ms MacIntosh was not committed to being a proper
mother. Alternatively, he argues that, irrespective of Ms MacIntosh’s maternal intentions, the
children have bonded much more to him and to their paternal grandmother than to their mother.
Ms MacIntosh claims sole custody of the children, including the ability to relocate as she
wishes. She also seeks an order denying unsupervised access by the father to the children.
Discussion
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paragraph 7: as a judge, you would need to acknowledge inconsistencies (can be
explained as reaction of victim), and that there’s no evidence.
Relationship with grandmother: Comes into play wrt to continuity for children and
assessment of support networks. BUT we are focusing on just the parents’ parenting
abilities
 Case involving mixed race children. Father was trying to rely on the
fact that his new wife was a stay at home wife – but coudlnt’ be directly
relied upon as a ground for custody to the father.
The fact mom will be a homemaker: class assumptions (big house, stay at home)
 How we felt about mom asserting she would be more motherly
traditionally in the future (often father that does this)
Potential difficulties in integrating with step children (older)
New relationship = instability?
Full economic dependence on him?
Divorce Act, s. 17
Variation, Rescission or Suspension of Orders
17. (1) A court of competent jurisdiction may make an order varying,
rescinding or suspending, prospectively or retroactively,
 (a) a support order or any provision thereof on application by either
or both former spouses; or
 (b) a custody order or any provision thereof on application by either
or both former spouses or by any other person.
(2) A person, other than a former spouse, may not make an application under
paragraph (1)(b) without leave of the court.
(3) The court may include in a variation order any provision that under this
Order for
variation,
rescission or
suspension
Application by
other person
Terms and
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Act could have been included in the order in respect of which the variation
order is sought.
(4) Before the court makes a variation order in respect of a child support
order, the court shall satisfy itself that a change of circumstances as provided
for in the applicable guidelines has occurred since the making of the child
support order or the last variation order made in respect of that order.
(4.1) Before the court makes a variation order in respect of a spousal support
order, the court shall satisfy itself that a change in the condition, means,
needs or other circumstances of either former spouse has occurred since the
making of the spousal support order or the last variation order made in
respect of that order, and, in making the variation order, the court shall take
that change into consideration.
(5) Before the court makes a variation order in respect of a custody order, the
court shall satisfy itself that there has been a change in the condition,
means, needs or other circumstances of the child of the marriage
occurring since the making of the custody order or the last variation order
made in respect of that order, as the case may be, and, in making the
variation order, the court shall take into consideration only the best interests
of the child as determined by reference to that change.
(5.1) For the purposes of subsection (5), a former spouse’s terminal illness or
critical condition shall be considered a change of circumstances of the child
of the marriage, and the court shall make a variation order in respect of
access that is in the best interests of the child.
(6) In making a variation order, the court shall not take into consideration any
conduct that under this Act could not have been considered in making the
order in respect of which the variation order is sought.
(6.1) A court making a variation order in respect of a child support order shall
do so in accordance with the applicable guidelines.
(6.2) Notwithstanding subsection (6.1), in making a variation order in respect
of a child support order, a court may award an amount that is different from
the amount that would be determined in accordance with the applicable
guidelines if the court is satisfied
 (a) that special provisions in an order, a judgment or a written
agreement respecting the financial obligations of the spouses, or the
division or transfer of their property, directly or indirectly benefit a
child, or that special provisions have otherwise been made for the
benefit of a child; and
 (b) that the application of the applicable guidelines would result in an
amount of child support that is inequitable given those special
provisions.
(6.3) Where the court awards, pursuant to subsection (6.2), an amount that is
different from the amount that would be determined in accordance with the
applicable guidelines, the court shall record its reasons for having done so.
(6.4) Notwithstanding subsection (6.1), a court may award an amount that is
different from the amount that would be determined in accordance with the
applicable guidelines on the consent of both spouses if it is satisfied that
reasonable arrangements have been made for the support of the child to
whom the order relates.
(6.5) For the purposes of subsection (6.4), in determining whether
reasonable arrangements have been made for the support of a child, the
court shall have regard to the applicable guidelines. However, the court shall
not consider the arrangements to be unreasonable solely because the
amount of support agreed to is not the same as the amount that would
otherwise have been determined in accordance with the applicable
guidelines.
conditions
Factors for child
support order
Factors for
spousal support
order
Factors for
custody order
Variation order
Conduct
Guidelines apply
Court may take
agreement, etc.,
into account
Reasons
Consent orders
Reasonable
arrangements
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(7) A variation order varying a spousal support order should
 (a) recognize any economic advantages or disadvantages to the
former spouses arising from the marriage or its breakdown;
 (b) apportion between the former 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;
 (c) relieve any economic hardship of the former spouses arising from
the breakdown of the marriage; and
 (d) in so far as practicable, promote the economic self-sufficiency of
each former spouse within a reasonable period of time.
(9) In making a variation order varying a custody order, the court shall give
effect to the principle that a child of the marriage should have as much
contact with each former spouse as is consistent with the best interests of
the child and, for that purpose, where the variation order would grant custody
of the child to a person who does not currently have custody, the court shall
take into consideration the willingness of that person to facilitate such
contact.
(10) Notwithstanding subsection (1), where a spousal support order provides
for support for a definite period or until a specified event occurs, a court may
not, on an application instituted after the expiration of that period or the
occurrence of the event, make a variation order for the purpose of resuming
that support unless the court is satisfied that
 (a) a variation order is necessary to relieve economic hardship
arising from a change described in subsection (4.1) that is related to
the marriage; and
 (b) the changed circumstances, had they existed at the time of the
making of the spousal support order or the last variation order made
in respect of that order, as the case may be, would likely have
resulted in a different order.
(11) Where a court makes a variation order in respect of a support order or a
custody order made by another court, it shall send a copy of the variation
order, certified by a judge or officer of the court, to that other court.
BC Family Law Act, s. 38
38 For the purposes of section 37 (2) (g) and (h) [best interests of child], a
court must consider all of the following:
(a) the nature and seriousness of the family violence;
(b) how recently the family violence occurred;
(c) the frequency of the family violence;
(d) whether any psychological or emotional abuse constitutes, or is evidence
of, a pattern of coercive and controlling behaviour directed at a family
member;
(e) whether the family violence was directed toward the child;
(f) whether the child was exposed to family violence that was not directed
toward the child;
(g) the harm to the child's physical, psychological and emotional safety,
security and well-being as a result of the family violence;
(h) any steps the person responsible for the family violence has taken to
prevent further family violence from occurring;
(i) any other relevant matter.
Objectives of
variation order
varying spousal
support order
Maximum contact
Limitation
Copy of order
Assessing
family violence
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B. De facto relationships: establishment and effects mingled
While formal parental status remains conceptually and legally central, many children
have adults in their lives who perform functions of parenting in a way that feels inconsistent with
their status as legal stranger. There are ways by which laws can assign some of the rights and
duties associated with parents to figures absent formal parental status. Unlike formal parentage
or filiation, a de facto filial relationship is not recognized in a forward–looking way for its own
intrinsic worth; by contrast, it is typically recognized or established for legal purposes in the
process of recognizing some effects. We shall see recognition of some of the effects of
parenthood on the part of non–parents in relation to the duty of support and the right of custody.
14. De facto parenthood
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troubling the parent–stranger dichotomy
notion of in loco parentis: is past contact with children a foundation for a duty of support?
contextual appreciation of parental relationships
interaction of federal and provincial law
Today
 We are still talking about relationships between parents and children, but now we move
to informal established parent-child parentage
o VS formally established relationships: filiation, parentage, adoption
 Difference: need to recognize parent’s status does not come about until need to enforce
consequences of that status
Review/background
1. Formally established parentage or filiation and its entailments (CLRA, FLA, CCQ, DA)
 Establishment - ON: Vital Statistics Act or CLRA if there is a judicial decision ; QC:
CCQ
 Consequences- support (FLA/ DA, CCQ)
2. Establishment of formal parentage: a mixture of formal/informal, voluntary/involuntary –
but arrive at same status
 Formal: birth registration document
 Informal: UPS (QC), person living with mom (ON)
3. De facto relationships
a. Calendar
b. Basis for ascribing (some) parental rights or duties: formal/informal;
voluntary/involuntary; instrumental/symbolic
 Symbolic: think back to the Ives piece
o Ives said you cant obligate someone to love a child.
o BUT Chartier – when Bastarache talks about continuity, suggests that you can
order father to love child
o Is “affective stuff” used to justify enforcement of these rules
4. ‘Child’: foundational concept or contingent legislative construct?
a. CCQ, arts 522 (equality of kids), 585 (obl of support to relatives/spouses), 599
(parents’ rights and duties)
b. FLA ss 1(1) ‘child’, 31 (obligation of support provision)
 “parent” and “child” category expanded, look at intention they have manifested
c. DA ss 2(2) (de facto parenthood), 15.1 (child support provision)
 Expanded definition
Class questions
 In Quebec, while together in a de facto union, the parents of a minor child owe him
support: Both art 585 & 599.
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In Quebec, the parents of a minor child during their marriage owe him support: under
585 and 599.
o Once filiation is established, there is no difference between children of married
vs. unmarried couples (522- equality)
In Qc, following their de facto union, the parents of a minor child owe him support: under
585 and 599.
In Ontario, during their cohabitation, the unmarried parents of a minor child owe him
support: under s. 31 of the FLA
In Ontario during their marriage, the parents of a minor child owe him support: under s.
31 of the FLA
In Ontario, after their cohabitation, the unmarried parents of a minor child may owe the
child support: under s. 31 of the FLA
In Qc, someone in a de facto union with the mother of a child may owe the child support
– not at all! Note - UPS: is under filiation. Once status is established, they aren’t a
“someone”
In Ont, someone living unmarried with the mother of a child may owe the child support
under s. 31 of the FLA (Bc of the expanded definition of child and parent!)
In Quebec, someone having formerly been in a de facto union with the mother of a child
may owe the child support- not at all
In Ont, someone having lived unmarried with the mother of a child may owe the child
support under s. 31 of the FLA
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In Qc, someone married to the mother of a child may owe the child support – not at all!
In Ontario, someone married to the mother of a child may owe the child support – under
s. 31 of the FLA.
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In Ontario, someone divorced from the mother of a child may owe the child support –
under s. 31 of the FLA and s. 15.1 of the DA.
In Qc, someone divorced from the mother of a child may owe the child support – under s.
15.1 of the Divorce Act
DA can create a support obligation when there was none during the marriage!
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Important difference: UPS – need to be acting as if you’re the father of the chld since birth! NOT
de facto parenthood, it is legal parenthood established in a different way.
Chartier v Chartier, 1999, SCC from MCA
Facts: 2 parties – married with 1 biological child and wife’s child from previous marriage
(Jessica). Jessica’s stepfather played an active role in her life. Splitting up – stepfather wishes to
sever his relationship with Jessica so he doesn’t have to pay child support. They were going to go
through adoption, but did not proceed. Indicated on birth certificate falsely he was the dad and
changed her last name. The father was granted access to both girls under Family Maintenance
Act. Application that he owes maintenance for her too. Report indicated husband’s desire to sever
his relationship with the child.
Trial judge: husband had repudiated relationship with the child and wasn’t obligated to pay
support, under Carignan v Carignan, which said that “at the material time” refers to age of the
child.
Issue: Is it possible for the de facto parent to put an end to the relationship? Holding: No.
Ratio: The de facto parent cannot unilaterally repudiate parental status. The Court will
analyze the nature of relationship to see if the person stood in place of parent, using a purposive
and contextual approach, and determined at the time family functioned as a unit. Must look at all
relevant factors (including intention), viewed objectively. Focus on the representations of stepparent, not just child’s views. Policies and values of DA should relate to contemporary society.
Reasoning (Bastarache J.):
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See ss. 2(1) and 2(2) of the DA  define “child of the marriage” as any child for whom a nonbiological parent (and spouse) stands in place of a parent
“in the place of the parent” should be interpreted with policies and values of the Divorce Act in
mind; principles of statutory interpretation support modern understanding of phrase
o in loco parentis – seen as creature of patriarchy (reprehensible for a man to take
another man’s child as his own)
Two bodies of case law offer 2 possible avenues to the Court:
o 1. Carignan v Carignan: a person standing in place of parent, since they assumed
the role voluntarily, can make a unilateral withdrawal from the parent-child
relationship
 Supported by the fact that it displays a certain reasonableness: modern
institution of marriage is much more temporary  how many obligations
should people be forced to carry from relationship to relationship?
 Also supported by the fact that it establishes an easy test for whether
obligations exist or not
 Criticism: nullifies s. 2 DA
o 2. Theriault v Theriault: a person cannot unilaterally withdraw from such a
relationship and ct must look at nature of relationship to see if they stand in
place
Court adopts approach #2, stated that provisions interpreted by looking at what is in the BIC
of marriage, not biological parenthood or legal status of children. based on the best
interests of the child.
o In T, Kerans JA said that once someone has made “at least a permanent or
indefinite unconditional commitment to stand in the place of a parent”, DA’s
jurisdiction to award support is triggered, jurisdiction not lost by disavowal. Said
that with bio parenthood, bio contribution = imposition of duty; with step-parent, it’s
voluntary assumption of role = imposition of duty
o They should not be divorced along with their parent
Do not agree with C. “the words ‘in the place of a parent’ must be given a meaning that is
independent of the common law concept and reflective of the purposive and contextual
approach to statutory interpretation advocated by this Court”
o Interpretation of “children of marriage” should be given “such fair, large and liberal
construction and interpretation as best ensures the attainment of its object" (s. 12
Interpretation Act)
o Reasoning in Carignan ignored one of the fundamental objectives of the DA –that
divorce will affect children as little as possible, “the interpretation that will best
serve children is one that recognizes that when people act as parents toward
them, the children can count on that relationship continuing and that these
persons will continue to act as parents toward them.”
What is the proper time period for determining whether a person stands in the place of
a parent? As of the time the family functioned as a unit (NOT when proceedings started –
would be inconsistent with obj of Act).
o in this case, he acted as father. To allow him to withdraw from relationship so long as
before petition of divorce – is unacceptable.
Factors to be considered, objectively, to see if a person stands in place of a parent to a
child:
o Opinion of child (not paramount)
o Representations of step-parent and child’s response
o Intention – as expressed in words and actions
 Not just intention formally expressed, but also inferred from actions, idea that
even expressed intentions change
o Whether child participates in extended family as biological child would,
whether person provides financially for child, disciplines child, represents to
the child/world that he/she is responsible for child as parent (explicitly or
implicitly), nature/existence of child’s relationship with their (absent) biological
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parent
 The manifestation of intention cannot be qualified as to duration or be
otherwise made confidential/qualified even if intention is manifested
expressly
Once a child is shown to be a “child of the marriage”, obligations of the step-parent
towards him/her are the same as those to a child born of the marriage under the DA
o Step-parent does not only incur obligations  also acquires certain rights,
such as the right to apply for access/custody
Parnetla relationships are complex and include more than financial support: ppl don’t enter
them with the view that they will be terminated
o Concerns that people won’t be generous if generosity creates obligations should be
dismissed
o Superficial generosity, to get parent’s attention, should be discouraged bc the
rejection experienced by the child when financial/emo support is abandoned is not
beneficial to child/society
Concern that child will collect from biological parent and step-parent is not valid
o Contribution of bio parent should be assessed independently from step-parent
o Issue of contribution is one between all parents who have obligation toward child,
whether they are biological parents or step parents, obligations of parents for a child
are all joint and several
Application to facts: stood in place of parent, only father she has known, considered adopting
her, changed birth registration, made her name correspond to his
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“hot” case bc deals with formal/informal distinction, voluntary/involuntary legal obligations,
interaction of fed and provincial law, cvl and cml distinctions very important in this case
A variety of factors, viewed objectively [39]:
Whether a person stands in the place of a parent must take into account all factors relevant to
that determination, viewed objectively. What must be determined is the nature of the
relationship. The Divorce Act makes no mention of formal expressions of intent. The focus on
voluntariness and intention in Carignan was dependent on the common law approach discussed
earlier. It was wrong. The court must determine the nature of the relationship by looking at a
number of factors, among which is intention. Intention will not only be expressed formally. The
court must also infer intention from actions, and take into consideration that even expressed
intentions may sometimes change. The actual fact of forming a new family is a key factor in
drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a
child of the marriage. The relevant factors in defining the parental relationship include, but are
not limited to, whether the child participates in the extended family in the same way as would a
biological child; whether the person provides financially for the child (depending on ability to
pay); whether the person disciplines the child as a parent; whether the person represents to
the child, the family, the world, either explicitly or implicitly, that he or she is responsible as
a parent to the child; the nature or existence of the child’s relationship with the absent biological
parent. The manifestation of the intention of the step-parent cannot be qualified as to duration, or
be otherwise made conditional or qualified, even if this intention is manifested expressly. Once it
is shown that the child is to be considered, in fact, a “child of the marriage”, the obligations of the
step-parent towards him or her are the same as those relative to a child born of the marriage
with regard to the application of the Divorce Act. The step-parent, at this point, does not only
incur obligations. He or she also acquires certain rights, such as the right to apply eventually for
custody or access under s. 16(1) of the Divorce Act.
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“Objectively” : not interested in what the parent and child thought
Underline that the focus on voluntariness is wrong, intention is one factor among others
Allows possibility for changing in intentions along time
S. 5 of the Federal Support Guidelines: discretion re support obligation owed (1997),
Charter is in 1999: tension between Ct saying it’s the same as a legal parent
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 Last sentences: if he owes child support, he can have access/custody!
N.B. that Chartier is interpreting the Divorce Act – but provinces use Chartier to interpret their
provincial family legislation on what it means to be a de facto parent (i.e. to interpret what a
“settled intention” is under FLA)
After Chartier, once a person is established as a de facto parent, they stand on equal
footing with a legal parent for support purposes
o They are liable for the full amount of child support that a legal parent would be
In Chartier, the father figure did not express an intention either way (to be Jessica’s dad or
not); but the court infers his position from his actions
o It’s possible that the actions the court uses to determine that stepdad stood in the
place of parent to Jessica could have been understood the other way
 They see the falsification of the birth certificate and the abortive adoption
proceedings as expressions of intent by the stepdad to become Jessica’s
father
 But don’t they also show, by the fact that they didn’t go through with it, his
intention not to be Jessica’s father?
How important is the other parent’s absence from the life of the child? Does an intention to
parent mean an intention to act in a parent-like way, or an intention to replace a missing
parent?
o Cook v. Cook: should read “standing in the place of a parent” and Chartier as
putting emphasis on the replacement of a missing parent. Should be careful
about using Chartier to bring in a third parent with support duties and rights to
the child.
The fact that the stepdad gets an obligation to support the child also means that he gets
rights (of custody, access)  how problematic is this for the woman? She has no say in who
gets access to her child.
V.A. c. S.F.
 Qc application of Chartier
 Should “standing in the place of a parent” in DA
 Brossard: Chartier and DA should be applied narrowly because the idea of a defacto
parent is a derogation from the civil law.
VA c SF 2001 QCCA
Facts: Divorce proceeding – they cohabitated for 3 yrs; woman has child from previous marriageidentity of that child’s father was not disclosed. She is claiming interim child support from his exstepdad.
Issue: Does the ex-stepfather owe his ex-wife’s son child support? Holding: No, with dissent.
Trial judge’s interpretation of evidence was too liberal – does not establish the husband intended
to act as parent.
Ratio: In Quebec, Chartier and s. 2(2) of the Divorce Act are applied more restrictively than in
common-law Canada. S. 2(2) is exceptional
Reasoning:
Majority: Brossard J.A. (Rousseau-Houle J.A. concurring in result):
 Even though the suit is for interim child support, the judgement that someone stands in
the place of a parent to a child is permanent
 Federalism stuff: support obligations are within provincial legislative competence –
divorce is within federal  has spousal/child support in the context of divorce as
accessory areas of legislative ability
o CCQ only provides for support between spouses, and natural children/parents (art.
585), never for “in loco parentis”
o Divorce Act provides for one-way support between a spouse and their spouse’s child
(to whom they are not blood related)
o As an exception from the common law of Quebec, it (and Chartier) must
103
interpreted very restrictively (Brossard thinks trial J. interpreted it liberally).
This will not contradict Bastarache in Chartier, since that came from CML prov
 Proof of standing in place of a parent must be clear, unambiguous, unequivocal, since
the article derogates from Qc cml  not the case here
 Stepdad performed all sorts of fatherly functions (taking kid to school, soccer, teaching him
table manners, attending his parent-teacher conferences, signing his school slips, kid called
him dad, enforced bedtime, buys presents, takes decision re: operation, helps pay for school
fees, parents intended to build family together etc)  Brossard finds none of these conclusive
(the father qualified these actions), and all could be related to the stepdad’s aim of pleasing
his wife
o Does not agree with Bastarache that such generosity shld be discouraged
o So has no obligation of support
Dissent: Fish J.A. (Rousseau-Houle concurring in the interpretation of Chartier):
 Chartier decision should not be applied so as to punish step-parents who treat their stepchildren with affection and kindness  should be applied so as to mitigate the effects of
divorce on children
 To determine whether someone is a spouse under s. 2(2)b of the Divorce Act, need to
consider whether during the marriage, they have assumed the obligations and exercised
the authority, under provincial law, of a parent.
 Defining characteristic of parent-child relationship is “significant involvement in the care,
maintenance and education of the child.” [50]
 Judge did not commit an error in applying Chartier
 Fish thinks Chartier should not be applied restrictively, but as it was intended to be
applied
o Must consider whether the spouse assumed the obligations and exercised the
authority, under provincial law, of a parent – so interpret the definition of “parent” by
reference to civil law
o Were they significantly involved in the care, maintenance, and education of child?



Brossard sees a whole bunch of factors which indicate the man stands in the place of the
parent, but does see any one which is alone sufficient
o This is not what Chartier says – says that the mess of factors IS sufficient
o Sees application of the Divorce Act as a derogation from the province’s plenary
power to legislate wrt to familial support obligations
o So if the court must apply the DA, will restrict its interpretation to accord with
the general private law in QC. DA is a derogation from the ius commune
The other two judges do not agree that Chartier should be interpreted so restrictively
o Parliament has power over divorce  regardless of how much their approach differs,
their precedents apply to interpret the content of their legislation
 Need to understand federal policy choice. Not as a derogation, but the DA is
autonomous, attempts to mitigate the consequence of a marriage break down on children
Lingering questions after Chartier
a. Volition or imposed duty: what scope is there for explicit intention not to stand
in the place of a parent? Chartier: intention is a factor.
 What if there was repeated, explicit intention? Jane Doe: even express
intention not enough
b. What other interpretations might the abortive adoption attract?
 Chartier: they tried to go through adoption. Bastarache thinks that indicates intention for
adoption, but it can also indicate not wanting it in the end.
c. What about s. 5 of the Federal Child Support Guidelines, relative to the 2d half of
[39]?
i. S. 5 says that where the spouse is standing in the place of the
parent, the amount of child support depends on what the Ct
thinks is appropriate, having regard to another parent’s legal duty
to support the child
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ii. Para 39 talks about the factors and then says that “once it is
shown that the child is to be considered, in fact, a “child of
the marriage” the obligations of the step-parent towards him
or her are the same as those relative to a child born of the
marriage with regard to the application of the Divorce Act.”

a.
d. How important is the other legal parent’s presence or absence?
Subsequent jurisprudence says that Charter will be hard to apply if there’s a second parent.
Interpretation suggests that Chartier only applies if the step-father has replaced the second
parent
Divorce Act, ss. 2(1) “child of marriage”, 2(2)
“child of the marriage” means a child of two spouses or former spouses who, at
the material time,
 (a) is under the age of majority and who has not withdrawn from their
charge, or
 (b) is the age of majority or over and under their charge but unable, by
reason of illness, disability or other cause, to withdraw from their charge
or to obtain the necessaries of life;
Child of the marriage
(2) For the purposes of the definition “child of the marriage” in subsection (1), a
child of two spouses or former spouses includes
 (a) any child for whom they both stand in the place of parents; and
 (b) any child of whom one is the parent and for whom the other stands
in the place of a parent.
Family Law Act, s. 1 “child”
“child” includes a person whom a parent has demonstrated a settled intention
to treat as a child of his or her family, except under an arrangement where the
child is placed for valuable consideration in a foster home by a person having
lawful custody; (“enfant”)
Child = of
both
spouses
Parent if =
both stood in
place of
parents; if
one spouse
stood in
place
Parent=
Settled
intention
“parent” includes a person who has demonstrated a settled intention to treat a child as a child of
his or her family, except under an arrangement where the child is placed for valuable
consideration in a foster home by a person having lawful custody; (“père ou mère”)
- this can mean Federal statues will apply uniformally across the country (bc expressly decided or
if not necc to refer to provinces rules)
- in cases where it is necc, federal rules might apply differently based on the province?
 Ie, custody in DA should be defined based on ccq or cml
 Issue in VA
Interpretation Act, s. 8.1
RULES OF CONSTRUCTION
Property and Civil Rights
Duality of legal traditions and application of provincial law
8.1 Both the common law and the civil law are equally authoritative and
recognized sources of the law of property and civil rights in Canada and, unless
otherwise provided by law, if in interpreting an enactment it is necessary to refer
to a province’s rules, principles or concepts forming part of the law of property and
civil rights, reference must be made to the rules, principles and concepts in force
in the province at the time the enactment is being applied.
Equality of
cml and cvl
law 
- refer to
prov rules if
necessary
105
15. De facto parenthood and alternative family forms




Chartier in action: radical rewriting of parenthood or patriarchy reinforced?
the question of intention and consent
grant of custody to someone other than the holder of parental authority
best interests of the child and the question of its reach
Jane Doe v Alberta, 2007 ABCA (leave to SCC refused)
Facts: Jane Doe is in an unmarried relationship with John Doe; she wanted a child, he did/does
not. She independently (with his knowledge) got artificially inseminated with the sperm of an
anonymous donor in order to have a kid. They are continuing their relationship; they want to
make a contract stating that John is not the father of the child and will not have any parental
rights or obligations to the child. Before executing the agreement, they sought a declaration from
the court that it would be binding on all third parties, including the government.
Issue: Can the natural mother of a child and her co-habiting partner enter into an express written
agreement stipulating that the partner has no parental rights/obligations to the child which will be
effective in law? Holding: No.
Ratio: Not even a K stipulating that a partner isn’t a parent can stop the court from finding that
they stood in place of a parent to the child, thereby incurring support obligations (and rights).
Reasoning (Berger J.A.):
 2 ways for John to become the father in this case:
o 1. Parental project: either his sperm is used or he consents to the parental project 
neither is the case here (s. 13 Alberta FLA)
o 2. Standing in place of parent: if a partner is a) in a relationship of interdependence of
some permanence with mother of the child and b) has demonstrated settled intention
to treat the child as his own child  will lead to incurring support obligations to kid (s.
48 Alberta FLA)
 Is the question here – can John make sure he isn’t judged to stand in
place of a parent to the kid ahead of time?
 His subjective intent would have ultimately yielded to the needs of the child in same
household
 No agreement between the parties can oust the jurisdiction of the court to pronounce upon
parental rights and obligations
 The legislative does not deprive him of the ability to order his rights towards Jane Doe’s child
as he saw fit. He chose freely to enter intoa relationship of interdependence of some
permanence with the mother of a newborn child” --- support obligations flow from this choice
Note: Chartier (case applying the Divorce Act, different legislation than in case at bar) said
intention was only one of many factors to consider  court had to determine the “nature
of the relationship” between the partner and child
o So while a person’s actual intention is relevant, it’s not determinative



De facto parenthood is the problem: can you ever be clear enough that you don’t want to be a
de facto parent? In short, no.
Does this infringe on liberty interest of John? He will be declared a parent against his will,
according to him:
o Court says that if John is later declared a de facto parent down the road, he will have
chosen the path that took him there
Is this a heterosexist model of a family in that the court cannot imagine any other way
to conceptualize a relationship between 2 adults and a child?
o Critiques: limits on women’s ability to shape family autonomously
106




deeply heteronormative (a man living in the house is seen as a father; what if
it was another woman?)
diff from Chartier: left unclear intention in circs when they have formalized intention. But now,
in Jane Doe, shows that even explicit recognition does not supercede a BI assessment
Children are 3rd parties to any agreements binding their parents – if an agreement binding the
child’s parents disadvantages the child, it should not be binding on them too
In Quebec, Jane Doe wouldn’t need to go to all this trouble:
o She would be creating a solo parental project under art. 538 CCQ
o And de facto parents don’t owe their de facto partner’s children any support
obligations (art. 585)
CCQ, arts. 32-34
Chapter II – Respect of Children’s Rights
32. Every child has a right to the protection, security and attention that his parents or
the persons acting in their stead are able to give to him.
33. Every decision concerning a child shall be taken in light of the child's interests
and the respect of his rights.
Consideration is given, in addition to the moral, intellectual, emotional and physical
needs of the child, to the child's age, health, personality and family environment, and
to the other aspects of his situation.
34. The court shall, in every application brought before it affecting the interest of a
child, give the child an opportunity to be heard if his age and power of discernment
permit it.
Droit de la famille – 3444, 2000, CA
Facts: NP and MG have been a homosexual couple since 1989. MG was artificially inseminated,
they indicated on the birth certificate that the father was unknown. They both take care of the
child. They want NP to be recognized as a “parent psychologique” of the child and MG wants to
delegate parental authority to NP.
Issue: Can NP be recognized as a parent and she delegate parental authority to NP? NO
Ratio: Filiation can only be established by blood, or through a presumption, or substituted
through adoption. Legislator did not extend concept of filiation to other type of relationships.
Cannot delegate parental authority because this would be going around public order rules
related to adoption and tutorship.
Reasoning
Parent psychologique
 Ask for NP to have same obligations to child as biological parent – child would have right to
support (585 and ff) and right to sucessions (653-55)
 Giving NP parental status based on relationship that isn’t by blood or adoption!
o Filiation is established by blood or a presumption
o Substitution of filiation allowed for adoption
o Goal of rules est “d’assurer pour l’enfant une sécurité et une stabilité de son
lien de filiation puisqu’à l’aide de presumption sa filation ne pourrait plus être
remise en cause à l’expiration de certains délais” (22)
o Legislator did not extend filiation to other relationships beween two people
 The appellants use of CML in loco paretis : it’s in the absence of filiation that the courts used
these notions
 No doubt they have a significant relationship, but it does not establish filiation
Delegation of parental authority
 Parental authority belongs to mother and father (600), attributes like custody, surveillance,
education can be delegated on a temporary basis
 The permanent and irrevocable delegation of parental authority Is not possible – this is
107



impossible – bc allows parents to get around provisions wrt tot tutorship and
adoptions, which are of public order, established to protevt the child
Suggests they go through adoption regime
Parental authority is an institution of public order. You cannot delegate in a permanent, global
fashion to someone
When you delegate parental authority to baby sitter or school, they are not vested with
parental authority
Robert Leckey, “Two Mothers in Law and Fact” (2013), 1,4-8, 11-16
II. Adult Conjugality
The course’s second part addresses conjugal relations between adults. This label, which enfolds
married and unmarried couples on equal terms, reflects a break with the traditional organization
of family law (cf. Title I, Marriage, of the C.C.Q.’s Book on the Family). As in the case with
parent–child relationships, we distinguish status–conferring, de jure relationships that are
recognized on formal bases from de facto relationships, in which recognition on informal or
functional bases is typically bound up with the effects.
A. De jure relationships
The paradigmatic formal adult conjugal relationship is marriage. It has been joined in recent years
by the civil union in Quebec and registered partnerships in a few other provinces.
1. Establishment
De jure relationships are formalized by an informed exchange of consent. In recent years, it has
become possible for same–sex couples to obtain a formal state recognition of their relationships,
a development not without controversy.
17.Marriage


 why have state marriage?
marriage and the division of powers
 validity and nullity of marriages
Paradigmatic formal relationship
Marriage = choice (as Qc thinks)?

Do people have a firm grip on the legal regime of marriage? Ties in with Qc argument that
people chose not to get married
o sociological literature that ppl don’t get married for legal reasons
108
Divorce rates right now are stable : 41% of couples wed in 2008 will be divorced by their 30th
anniversary
o Rates have stabilized after initial spike after it first became allowed
o Are only ppl in stable relationships getting married now?
o Before: Parl didn’t exercise exclusive jurisdiction until 1968. Before varied prov by
prov
1. Comparison with adult-child relationships activity
 Review: Mechanisms to recognize formal family relationships, and there are
consequences. Formally and informal recognition
o Voluntary and involuntary (imposing obligations)
o Parent- child relationships: formal and informal means of establishing
relationships. Attached to it – obligation of support, parental authority
 Differences between marriage and child-adult:
o equality of the parties. Although there can be reciprocity between parents and
children wrt to obligation of support, parental authority is uneven
 Equality of parties? Adults seen as less dependent but this will be
challenged
o Consent (except in adoption, opinion of child over 14 is sought)
o No informal means to marriage
 UPS wrt to child relationships
o Implications for property
o Possibility of termination of relationship (more easy than child-adult)
 Status can be terminated, although obs may persist. The same type of
termination not possible for children
o Time: obligation of support for children lapses at 18 ; vs. spouse relationship
(can be longer than child’s state of dependence)
o Possibility for private ordering in adult context (assuming their equality)
 Cannot be shielded from judicial scrutiny. They are provisional. Parental
agreements can be overridden in BI.
 Similarities: obligation of support wrt to both
 Look at Leckey’s assigned reading for first days. P. 12
o 4 ways to recognize adult relationships
 1. Marriage: social significance, legal effects, “full” family status recognized in other jurisdictions.
 2. Registration: formal and consentual mechanism, ppl opt-in to a legal
mechanism. Sometimes close to marriage, sometimes much less.
 3. Private law: using instrument of property, co-ownership, Ks, power of
attorney, wills and estates – can produce sm effects as marriage. Robert
Paul: Ct told the couple they should go through K and wills.
 Leckey: but hard to produce sm effects as marriage wrt to third
parties. Ex: shielding matrimonial home from seizure
 4. Ascription: obligations ascribed to ppl on the basis that they live
together.
 Not voluntary!
 ex: Chartier child support obligation is ascribed to the parent
2. Marriage and the Constitution Act, 1867
 Fed: exclusive power re marriage and divorce (s. 91(26)
 Prov: exclusive power re solemnization of marriage and divorce (92(12); property and
civil rights in the province (92(13))
 Result: Federal has jurisdiction over the capacity to marry (substantive qualities of ppl
able to marry one another) & Provs have power over formal marriage procedures
3. Characterizing marriage
109

Status, contract and institution
o Institutions: model that pre-exists, that people adhere to. A construct with set of
rules, smtimes of public order. Limited scope of alteration. Ex: filiation, parental
authority
o Contract: parties are able to change terms substantially
o Status: cannot be changed/altered, status is of public order. Ex: inst of filiation
leads to status of parent/child. Inst of marriage leads to status of wife/husband
o Marriage a hybrid between a status and an institution. Also a K with some
ability for private ordering.
4. Religious officiants – delegation
 Marriages can be solemnized in a civil fashion and by religious officers
 Who is a religious body? Requires confession (366 CCQ) and continuity (On)
 Legally binding marriage can be produced by a minister of a formally recognized
church
 Delegation or attribution of legal effects by the state to smth that’s already going
on!
o not delegation bc church can have own rules (only marry hetero), but it would
discrim if the state followed those rules.
o state engages hand in hand with organizations that could not be set up as a
state organization
o vs. France: separation of church and state. Church marriages not
recognized.
Solemnization rules – Qc. What do they tell us about the conception of marriage?
 Gendered clothing rules
 State interest in the solemnity
 Clear division between civil marriage and religious ones
 Dates (s. 6): details (flag)
 S. 8 requires reading schedule 3 (idea ppl are supposed to know content of the law!). So
you cant know you didn’t know. This isn’t the case in the CML.
 All these rules remind us that there is a public stake, that there is state regulation
Rules respecting the solemnization of civil marriages and civil unions
See course pack!
CCQ, 365–379 – SKIM
CHAPTER I
MARRIAGE AND SOLEMNIZATION OF MARRIAGE
365. Marriage shall be contracted openly, in the presence of two witnesses, before a
competent officiant.
1991, c. 64, a. 365; 2002, c. 6, s. 22.
366. Every clerk or deputy clerk of the Superior Court designated by the Minister of
Justice, every notary authorized by law to execute notarized acts and, within the
territory defined in the instrument of designation, any other person designated by the
Minister of Justice, including mayors, members of municipal or borough councils and
municipal officers, is competent to solemnize marriage.
In addition, every minister of religion authorized to solemnize marriage by the religious
society to which he belongs is competent to do so, provided that he is resident in
Québec, that he carries on the whole or part of his ministry in Québec, that the
existence, rites and ceremonies of his confession are of a permanent nature, that he
110
solemnizes marriages in places which conform to those rites or to the rules prescribed
by the Minister of Justice and that he is authorized by the latter.
Any minister of religion not resident but living temporarily in Québec may also be
authorized to solemnize marriage in Québec for such time as the Minister of Justice
determines.
In the territory defined in an agreement concluded between the Government and a
Mohawk community, the persons designated by the Minister of Justice and the
community are also competent to solemnize marriages.
367. No minister of religion may be compelled to solemnize a marriage to which there
is any impediment according to his religion and to the discipline of the religious society
to which he belongs.
1991, c. 64, a. 367.
368. Before the solemnization of a marriage, publication shall be effected by means of
a notice posted up, for 20 days before the date fixed for the marriage, at the place
where the marriage is to be solemnized. No publication is required if the intended
spouses are already in a civil union.
At the time of the publication or of the application for a dispensation, the spouses shall
be informed of the advisability of a premarital medical examination.
369. The publication sets forth the name and domicile of each of the intended
spouses, and the date and place of birth of each. The correctness of these particulars
is confirmed by a witness of full age.
370. The officiant may, for a serious reason, grant a dispensation from publication.
371. If a marriage is not solemnized within three months from the twentieth day after
publication, the publication shall be renewed.
372. Any interested person may oppose the solemnization of a marriage between
persons incapable of contracting it.
A minor may oppose a marriage alone. He may also act alone as defendant.
373. Before solemnizing a marriage, the officiant ascertains the identity of the intended
spouses, compliance with the conditions for the formation of the marriage and
observance of the formalities prescribed by law. More particularly, the officiant
ascertains that the intended spouses are free from any previous bond of marriage or
civil union, except in the case of a civil union between the same spouses, and, in the
case of minors, that the person having parental authority or, if applicable, the tutor has
consented to the marriage.
374. In the presence of the witnesses, the officiant reads articles 392 to 396 to the
intended spouses.
He requests and receives, from each of the intended spouses personally, a declaration
of their wish to take each other as husband and wife. He then declares them united in
marriage.
375. The officiant draws up the declaration of marriage and sends it without delay to
the registrar of civil status.
111
1991, c. 64, a. 375; 1999, c. 47, s. 15.
376. Clerks and deputy clerks, notaries and persons designated by the Minister of
Justice solemnize marriages according to the rules prescribed by the Minister of
Justice.
Clerks and deputy clerks collect the duties fixed by regulation of the Government from
the intended spouses, on behalf of the Minister of Finance.
Notaries and designated persons collect the agreed fees from the intended spouses.
However, mayors, other members of municipal or borough councils and municipal
officers collect the duties fixed by municipal by-law from the intended spouses, on
behalf of the municipality; such duties must be in keeping with the minimum and
maximum amounts fixed by regulation of the Government.
377. Unless the Minister of Justice has already delegated to the registrar of civil status
the power to grant the authorizations and make the designations provided for in article
366, the Minister of Justice keeps the registrar informed of the authorizations,
designations and revocations the Minister of Justice gives, makes or takes part in with
respect to officiants competent to solemnize marriages, so that appropriate entries and
corrections may be made in a register.
For the same purposes, the secretary of the Ordre des notaires du Québec maintains,
and communicates to the registrar of civil status, an updated list of the notaries who
are competent to solemnize marriages, specifying the date on which each notary
became so competent and, if known, the date on which the notary will cease to be so
competent.
If an officiant is unable to act or dies, the religious society, the clerk of the Superior
Court or the secretary of the Ordre des notaires du Québec, as the case may be, is
responsible for informing the registrar of civil status so that the appropriate corrections
may be made in the register.
CHAPTER II
PROOF OF MARRIAGE
378. Marriage is proved by an act of marriage, except in cases where the law
authorizes another mode of proof.
379. Possession of the status of spouses compensates for a defect of form in the act
of marriage.
5. Inferring what marriage is based on …
a. Nullity
 As if marriage never came into effect, diff from Divorce
 What does art 380, para 2, tell us about the legislature’s view of marriage?
o Cannot apply for nullity after 3 yrs: concern for certainty, L “legislature would
rather ppl be married than not” : sense ppl shdn’t get out of marriage too easily
o Idea that ordinary K rules shouldn’t apply
 Are arts. 381 and 382 redundant in the light of art. 1422? What do they show us about
marriage?
112
o
o
View that marriage is not JUST a bilateral relationship, recognition that children’s
interests are involved
382: produces effects for spouses in GF (ex obligation of support) – recognizes
vulnerabilities through marriage.
 very different from 1422 – not as easy to annul a marriage as K
CCQ, 380-382
CHAPTER III
NULLITY OF MARRIAGE
380. A marriage which is not solemnized according to the prescriptions of this Title and
the necessary conditions for its formation may be declared null upon the application of
any interested person, although the court may decide according to the
circumstances.
No action lies after the lapse of three years from the solemnization, except where
public order is concerned.
381. The nullity of a marriage, for whatever reason, does not deprive the children of
the advantages secured to them by law or by the marriage contract.
The rights and duties of fathers and mothers towards their children are unaffected by
the nullity of their marriage.
382. A marriage, although declared null, produces its effects with regard to the
spouses if they were in good faith.
In particular, the liquidation of the patrimonial rights that are then presumed to have
existed is proceeded with, unless the spouses each agree on taking back their
property.
N. Kasirer “Note: Marriage” 1997
 Marriage is centerpiece of family law – Title 1 in the Book one Family Law
 Social welfare regimes – rely on presence of a stable conjugal relationship
 Marriage plays a secondary role in the establishment of filiation (art 522 – no distinction
between legitimate/illegitimate children)
 BUT marriage still produces many effects in law and in prv law such as successions
 Old debate: is marriage a contract or an institution of public order?
o Rules for solemnization of marriage (365-377) are framed as a meeting of the
minds (see art 365)
o But spouses have little leeway to arrange freely their affairs
 Cosentual nature emphasized in nullity of marriage
o Arts 380-390
 Discovering what marriage means by looking at what is missing when the arriage no longer
works
o Ex: grounds for sepearation from bed and board and divorce – will see what
constitutes marriage a contrario
o Is the fact that divorce is granted for adultery meant as a sanction for the
nonperformance of fidelity??
 “The Civil Code is uncharacteristically bold in its effort to consecrate, in legal language, that
which binds people together in marriage.”
o Marriage = relationship of formal and substantive equality between men and women
(392, 47 Qc Charter: married spouses have the sm rights/obs/resp)
o 392: imposes ob of respect fidelity, succor, assistance
o para 3: “obligation de vie commune”: seems to go beyond obligation to live in same
palce (as Eng suggests), “comminty of life” idea!
 Note difference between “marriage as a K” (what we’re talking about here) and “marriage
113
contract” (contrat de marriage) = a notarial act which furture spouses use to chose their
matrimonial regime)
H.R. Hahlo, “Legal Requirements for a Valid Marriage” in Nullity of Marriage in Canada,
1979, 1 (excerpts)
 Nullity is not the same thing as divorce; divorce presupposes a valid marriage that has to be
ended (for some reason that has arisen after marriage, potentially a serious matrimonial
offence)  nullity means there never was a marriage (for some reason that existed at the
time of the ceremony)
Difference between void and voidable marriages
 Some marriages are absolutely void: those suffering from dirimentary impediments to
marriage  prior existing marriage, incest, lack of consent, impotence (!)
o These do not need to be declared null to be so – can be treated by parties as
non-existant even though not formally annulled by a court of law
 Some marriages may be voided (relatively null; voidable); those suffering from prohibitive
impediments  defect of consent (civil law)
o The marriage stands until it is declared null
 Nullity “threives” when divorce is hard to obtain
More grounds of nullity: identity of sex, failure to comply with prescribed formalities, insanity at
time of marriage, lack of consent, etc.
Constitutional aspects
 nullity is within federal jurisdiction, although legislature has the power to legislate wrt to
solemnization - can legislate re: validity of the K, so they can legislate nullity in this respect
 provinces cannot abolish cml ground for nullity – importence
 prov can legislate re: preliminary formalities, licenses, permits, authority of marriage officers,
form of wedding ceremony, registration of marriage
 capacity to marry ffalls within federal jurisdiction (but parental consent is within provincial
power bc related to solemnization
Ground of nullity
 at CML, these are 1. Identify of sex; 2. A prior existing marriage; 3. Relationship within the
prohibited degrees; 4. Failure to comply with the prescribed formalities; 5. Non-age; 6.
Insanity at the time of the marriage; 7. Lack of consent; 8. importence
 1,2,6,7= based on Western tradition that marriage is voluntary bween man and woman
to the exclusion of others
 3,4,5,8= imposed by positive law
- Cnd courts recluctant to void a marriage esp if it has the effect of bastardizing the fact
- A marriage is presumed valid: if they have cohabited and in circumstances as to having
acquired the reputation of being man and wife
- Onus of attacking validity of the marriage – on the contesting parties
- The doing of smth prohibited by statute does not render a marriage
void unless the statute provides so
1. Identity of sex
 Bc def’in of marriage is between a man and woman
 Issue – sex changes but this hasn’t gone before Cnd courts yet
 English case Corbett v Corbett : expert said sex is fixed at birth, therefore the person was
still a male – marriage void. Intercourse by cavity construed through surgery did not
amount to consummation
 New Jersey: MT v JT: marriage between a man and a post-operative man was held to be
a lawful marriage and alimony was awarded. Said altho biologically male, was
psychologically female and since she functioned in sexual intercourse as a woman = she
was a woman for the purpose of marriage
D. effects of nullity
 Distinction between void and voidable
 Third category: “non marriage of civil law” : fall s short of a valid marriage that cant even
114


be classed as void (ex. Marriage solemnized by someone who doesn’t even pretend to
be a marriage officer
If non-marriage, would have different effects that void marriage (would not get alimony).
Ex: cnd court would not award alimony when annulling a marriage between two
homosexuals
When insanity, essential mistake, non age: it might be void but is also capable of
ratification.
o Bc they fall in the inbetween categories of void v voidable
“Une Québécoise réussit à faire annuler son mariage avec un Cubain,” La Presse
18. Formal Unions For Same Sex Couples


formal recognition of same–sex unions: from unthinkable couplings to married spouse
inclusion/exclusion, validation/shame: the queer critique of gay marriage
-
Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46
Civil Marriage Act, S.C. 2005, c. 33
-
The CCLC was passed by the Parl of the United Province of Cnd, a unitary colonial
legislature.
The CCLC contained provisions dealing w the substantive conditions relation to marriage
and to formal conditions relating to marriage
Post – 1867, which body has power to alter the CCLC’s pre-confederal rules on the
formal conditions for solemnizing marriage: the legislature of Qc, under 92(12)
Post-1867, which body has power to alter the CCLC’s pre-confederal rules on
substantive conditions for marriage: The Parl of Cnd
-
Clicker questions
 A QC civil union is open to: same sex and diff sex couples
 Minimum age for contracting a civil union: 18
 A civil union, like a marriage, is a means of emancipating a minor and ending the parent’s
parental authority : False. Bc you’re already 18 and parental authority has already lapsed.
 The legislature conceived the civil union as a sexual relationship. YES
o Ban on civil union with family members (521.1); obligation of fidelity and to live
w ppl
o Although no provision for nullity if impotent
 The civil union may be publicized in advance and solemnized publicly, like a marriage.
o Solemnization, notice feels a lot like a marriage!
 The effects of civil union incorporate by reference the effects of marriage. YES
o 521.6
o equality as sameness critiques
 Like a contract under the general private law, a bond of civil union basically affects only
the 2 parties to it. FALSE.
o Same effect on presumption of paternity
 Like marriage, a civil union may be dissolved by the death of a spouse. TRUE
 Like marriage, a civil union may be dissolved by a court judgment. TRUE
 Bond which can be dissolved by notarized joint declaration by both spouses- only Civil
Union!
115
o
o
o
o



-
NOT marriage! Extrajudicial dissolution!
Much more private
Why is it different? If smth required, would it look too much like marriage?
What message is sent that ciivl union couple without children can just walk
away?
Civil-union spouses’ subsequent marriage to one another dissolves their civil unionTRUE
Married spouses’ subsequent civil union with one another dissolves their marriage.
FALSE
o Reason for marriage being recognized – portability of civil union is unknown
Qc civil union is ultra vires the legislature as an attempt to legislate in relation to
marriage
o incorporation of the effects of marriage in 521.6
o in Reference, SCC declined to define parameters of “marriage” under s. 91(26)
Substantive def’n: arts. 365ff.; s. 91(26))
Age: cf 373 in fine
CCQ, 521.1 - .19
TITLE I.1 - CIVIL UNION
521.1. A civil union is a commitment by two persons 18 years of age or over
who express their free and enlightened consent to live together and to
uphold the rights and obligations that derive from that status.
A civil union may only be contracted between persons who are free from any
previous bond of marriage or civil union and who in relation to each other
are neither an ascendant or a descendant, nor a brother or a sister.
CHAPTER I
FORMATION
OF CIVIL
UNION
- 18
-either sex
- live together
-free consent
- not
related/free
from marriage
521.2. A civil union must be contracted openly before an officiant competent to
solemnize marriages and in the presence of two witnesses.
No minister of religion may be compelled to solemnize a civil union to which
there is an impediment according to the minister's religion and the discipline of
the religious society to which he or she belongs.
521.3. Before proceeding with a civil union, the officiant ascertains the identity
of the intended spouses as well as compliance with the conditions for the
formation of a civil union and observance of the formalities prescribed by law.
The solemnization of a civil union is subject to the same rules, with the
necessary modifications, as are applicable to the solemnization of a marriage,
including the rules relating to prior publication.
521.4. Any interested person may oppose a civil union between persons
incapable of contracting a civil union.
A minor may act alone to oppose a civil union.
521.5. A civil union is proved by an act of civil union, except where another
mode of proof is authorized by law.
Possession of the status of civil union spouses compensates for a defect of
form in the act of civil union.
CHAPTER II
CIVIL
EFFECTS OF
CIVIL UNION
521.6. The spouses in a civil union have the same rights and obligations.
They owe each other respect, fidelity, succour and assistance.
LIVE
TOGETHER
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They are bound to live together.
The effects of the civil union as regards the direction of the family, the exercise
of parental authority, contribution towards expenses, the family residence, the
family patrimony and the compensatory allowance are the same as the
effects of marriage, with the necessary modifications.
Whatever their civil union regime, the spouses may not derogate from the
provisions of this article.
521.7. A civil union creates a family connection between each spouse and the
relatives of his or her spouse.
521.8. A civil union regime may be created by and any kind of stipulation may
be made in a civil union contract, subject to the imperative provisions of law
and public order.
Spouses who, before the solemnization of their civil union, have not so fixed
their civil union regime are subject to the regime of partnership of acquests.
Civil union regimes, whether legal or conventional, and civil union contracts
are subject to the same rules as are applicable to matrimonial regimes and
marriage contracts, with the necessary modifications.
521.9. If spouses cannot agree as to the exercise of their rights and the
performance of their duties, they or either of them may apply to the court,
which will decide in the best interests of the family after fostering conciliation of
the parties.
FIDELITY,
SUCCOR
SAME AS
MARRIAGE!
Family
blending!
CHAPTER III
NULLITY OF
CIVIL UNION
521.10. A civil union which is not contracted in accordance with the
prescriptions of this Title may be declared null upon the application of any
interested person, although the court may decide according to the
circumstances.
No action lies after the lapse of three years from the solemnization, except
where public order is concerned.
521.11. The nullity of a civil union entails the same effects as the nullity of a
marriage.
521.12. A civil union is dissolved by the death of either spouse. It is also
dissolved by a court judgment or by a notarized joint declaration where the
spouses' will to live together is irretrievably undermined.
A civil union is also dissolved by the marriage of the spouses to one another.
The sole consequence of the dissolution is the severing of the bond of civil
union. The effects of the civil union are maintained and are considered to be
effects of the marriage from the date of the civil union, and the civil union
regime of the spouses becomes the marriage regime, unless they have made
changes to it by marriage contract.
CHAPTER IV
DISSOLUTION
OF CIVIL
UNION
Death/court
judgment= like
marriage
OR joint
declaration =
unlike marriage!
521.13. The spouses may consent, by way of a joint declaration, to the
dissolution of the civil union provided they settle all the consequences of the
dissolution in an agreement.
The declaration and the agreement must be executed before a notary and
recorded in notarial acts en minute.
The notary may not execute the declaration before the agreement is recorded
in a notarized transaction contract. The notary must inform the spouses
beforehand of the consequences of the dissolution and make sure that they
truly consent to the dissolution and that the agreement is not contrary to
imperative provisions of law or public order. If appropriate, the notary may
provide information to the spouses on any available conciliation services.
521.14. The transaction contract specifies the date on which the net value of
the family patrimony is established. The date may not be earlier than the date
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of the joint procedure for the dissolution of the civil union or the date on which
the spouses ceased living together, or later than the date of the execution of
the contract before a notary.
521.15. The joint declaration dissolving a civil union states the names and
domicile of the spouses, their places and dates of birth and the place and date
of solemnization of the union; it also indicates the places and dates of
execution of the transaction contract and of the declaration as well as the
minute number given to each of those acts.
521.16. From the date of their execution before a notary and without further
formality, the joint declaration dissolving the civil union and the transaction
contract have the effects of a judgment dissolving a civil union.
In addition to being notified to the registrar of civil status, the notarized
declaration must be sent to the depositary of the original civil union contract
and to the depositary of any contract modifying the civil union regime
established by the original contract. The depositary is bound to make a
reference to the joint declaration of dissolution on the original of the contract
and on any copy issued, specifying the date of the declaration, the minute
number and the name and address of the notary who executed the
declaration. The notarized declaration and transaction must also be sent to the
Régie des rentes du Québec.
A notice of the notarized declaration must be entered in the register of
personal and movable real rights on the application of the executing notary.
521.17. In the absence of a joint declaration dissolving the civil union executed
before a notary or where the interests of the common children of the spouses
are at stake, the dissolution of the union must be pronounced by the
court.
NO JOINT
DECLARATION
IF CHILDREN!
The court must ascertain that the spouses' will to live together is irretrievably
undermined, foster conciliation and see to the interests of the children and the
protection of their rights. During the proceeding, the court may determine
provisional measures, as in the case of separation from bed and board.
Upon or after pronouncing the dissolution, the court may order one of the
spouses to pay support to the other, decide as to the custody, maintenance
and education of the children, in their best interests and with due regard for
their rights, and in keeping with any agreements made between the spouses.
521.18. The dissolution of a civil union does not deprive the children of the
advantages secured to them by law or by the civil union contract.
The rights and obligations of parents towards their children are unaffected by
the dissolution of the union.
521.19. The dissolution of a civil union entails the dissolution of the civil union
regime. Between the spouses, the effects of the dissolution of the regime are
retroactive to the day of the death, the day of execution of the joint declaration
of dissolution before a notary or, if the spouses so stipulated in the notarized
transaction, the day on which the net value of the family patrimony is
established. If the dissolution is pronounced by the court, its effects are
retroactive to the day of the application to the court, unless the court makes
them retroactive to the day on which the spouses ceased living together.
Dissolution, otherwise than by death, entails the lapse of gifts mortis
causa made by one spouse to the other in consideration of the civil union. It
does not entail the lapse of other gifts mortis causa or of gifts inter
vivos between the spouses in consideration of the union, except that the court
may, upon pronouncing the dissolution, declare such gifts lapsed or reduce
them, or order the payment of gifts inter vivos deferred for such time as it may
fix.
118
Equality—but a missed opportunity for richer relationship diversity?
Civil union in Quebec
 Legislative history
o Remember: Qc recognizes family relationships formally. Therefore, had to create
new category or expand other one
o Also added changes to filiation (528 and ff)
o Very few people get it, now that marriage is available
Marriage
 The story before and after Halpern: an immediate s. 52 remedy; the feds’ reference to the
SCC; the Civil Marriage Act
o ONCA: did not suspend the declaration! Sm ppl critical of ths immediate s. 52
remedy
 Federalism
o Is Quebec’s civil union ultra vires?
o Is ‘marriage’ anything the Parliament of Canada defines it to be? (Halpern [41][44] [46]) – note about the Reference re Same-Sex Marriage
 What is marriage intrinsically? The common sense of marriage as culturally situated
 Idea that same sex couple is comparable to diff sex couple. This is
cultural
o Equality claims presuppose a basic fundamental comparability of the classes in
issue
o Rejection of ‘marriage just is’ as circular reasoning: Halpern [71]
 Why are they calling this circular? If they had said marriage is about
consent, wouldn’t have been thought to be circular
 Saying its circular already admits you’re willing to examine that
reasoning!
Halpern v Canada (AG) 2003 ONCA
Facts: Seven gay/lesbian couples applied for civil marriage licences in Toronto – they were
denied. Church also published banns of marriage. The common law definition of marriage is from
the 1866 English case Hyde v. Hyde: “the voluntary union for life of one man and one woman to
the exclusion of all others.” The def’n of marriage is only found at cml.
Issue: Does the exclusion of same-sex couples from the common law definition of marriage
breach s. 15(1) of the Charter? Holding: Yes. The common law definition of marriage is now “the
voluntary union for life of two persons to the exclusion of all others” instead of “one man and one
woman.” The new definition does not interfere with the religious institution of marriage, so no
infringement of freedom of religion.
Ratio: CML definition of marriage creates a formal distinction between opposite sex couples and
same sex couples (historically disadvantaged, analogous ground), This distinction does not
accord with needs/capacities of same-sex couples, purpose and effect of the law should be
viewed from the perspective of the claimant. Same-sex couples are excluded from a fundamental
societal institution, which perpetuates the view that same-sex relationships are less worthy of
recognition than opposite-sex ones and offends dignity of persons in same sex rlationsip
Reasoning (the Court):
 Same sex couples denied ability to participate in fundamental societal institution on basis
of sex orientation, an analogous ground under s. 15 (Egan)
 The parties’ reasons for wanting to marry is the same as hetero couples
 CML is subj to charter where gov’t action/inaction is based on CML. Qc and and BC have
already said ban on same sex marriage was uncosntitutional
 Marriage is one of the most significant forms of personal relationships – basic element
of social organization. Has the effect of granting two people legitimacy as a couple
119

One intervenor takes the position that the word marriage in s. 91(26) of CA1867 is a
constitutionally entrenched term that refers to the legal definition of marriage that existed at
Confederation – can be changed only by constitutional amendment procedure
o Not the case: to freeze the definition of marriage is contrary to this country’s
jurisprudence of progressive constitutional interpretation (“living tree”)
 Constitution must be capable of growth and development over time to meet
new social, political, historical realities unimagined by framers
o Also, whether same-sex couples can marry is a matter of capacity, and this falls
squarely within Parliament’s jurisdiction
 Another party (a progressive church performing same-sex marriages that are then not
recognized as valid) submits that the CML definition of marriage is violating their freedom of
religion (s. 2(a) of Charter)  court rejects this. Case only has to do with legal institution of
marriage, not religious institution of marriage.
Test for s. 15
1) Differential treatment: comparator group is opposite-sex couples
o AGC submits that marriage does not distinguish between same-sex and opposite-sex
couples because marriage is a descriptor unique to opposite-sex bonds that is
common across time, cultures, religions  court rejects this. Circular reasoning; Parl
chose to attach rights and obs around this institution; that def’n includes a distinction
does not change the fact that a distinction exists
2) Enumerated ground: sexual orientation = analogous ground (Egan)
3) Existence of discrimination:
a) pre-existing disadvantage, sterotyping or vulnerability: historical disadvantage
b) correspondence between grounds and claimant’s needs, capacities and cirumstances
o Submitted that the function of marriage is to encourage procreation  samesex couples are raising children. Plus, no one can really argue that the only
function of marriage is to encourage procreation  is also for intimacy,
companionship, societal recognition, economic benefits
o Purpose of the law needs to be viewed from perspective of the claimant, not hetero
couples; does not accord with needs/capacities of same-sex couples bc they can still
have kids
o Denying them the right to marry perpetuates the view that they are not capable
of forming loving and lasting relationships, and that those relationships are not
worthy of respect and recognition
C) amerliorative purpose: said the ameliorative purpose was for opposite-sex couples to reduce
economic costs of child bearing. But same sex couples also raise children
d) nature of the interest: AGC tried to argue that bc of the Modernization of Benefits and
Obligation Act: ensures equal treatment. 1) not equal bc cohabitating spouses need to live
together for a period of time. 2) Ontario Fam Law excludes cohabitating couples from equalization
of net family property. But equality is about more than just access to economic benefits
o Same-sex couples are excluded from a fundamental societal institution, which
perpetuates the view that same-sex relationships are less worthy of recognition
than opposite-sex ones and offends dignity of persons in same sex rlationsip
s. 1 analysis
 No pressing and substantial objective for excluding same sex couples from marriage. T
o The AG had said the objective was 1. Uniting opposite sex; 2. Encouraging birth and
raising children; 3. Companionship
o 1. Would demean the dignity of same sex couples= not pressing and substantial
o 2. Not pressing and substantial objective to limit it to oppsite sex. There is no
evidence that same-sex couples are not equally capable
o 3. Encouraging companionship cannot be considered a pressing and substantial
objective
 if they wee pressing and sub, they weren’t rationally connected; did not minimally impaor their
rights.
 The remedy: immediately effective reformulation of the common law definition as “the
120
voluntary union for life of two persons to the exclusion of all others”
o Should not just declare it invalid – would not achieve the goals of s. 15(1) of the
Charter. It would result in the absence of a legal definition of marriage, thus depriving
everyone of the benefits conferred thereby. Would not want same sex couples to be
blamed.
o No reason to suspend the declaration of invalidity – there is no evidence that a
declaration of invalidity without a suspension would pose any harm to the public,
threaten the rule of lw, or deny anyone the legal recognition of their marriage

o
Our French friends: Cornu [53]; Malaurie & Fulchiron; marriage as institutional
and objective vs. ‘le simple cadre juridique de relations de couple’ and ‘un nœud
de droits subjectifs’
 Different understanding of marriage’s function, idea that marriage is
institutional and objective. French idea that marriage is open to anyone
bc anyone can access it on the same terms (Cornu, Malaurie)
 The French experience around marriage in 2013
Gerard Cornu, La Famille, “Critique de la loi”
 Marriage is one of the most powerful symbols of our society – has an institutional monopoly
o Civil marriage is a common denominator in society: all citizens can apply regardless
of origin/ethnic/religion
o Its monopoly should be protected
 Threatened by homosexual marriage through civil unions, which creates a parallel
institution of marriage
 Homosexuals enjoy the same civil rights as everyone else as a matter of equality – equality
has nothing to do with marriage, argues author
o Marriage is not a bunch of subjective rights; it is founded on three pillars of
monogamy, exogamy, and opposite sexes
o Cannot undo one pillar without threatening to undo others – for example, won’t
incestuous marriages become a matter for equality claims?
Philippe Malaurie & Fulchiron, “La famille”
Qu’est-ce qui fait famille?
 in contemporary societies, the child = the family
 so that the couple is not the foundation of marriage, but the existence of the child
Le marriage et famille
 marriage as foundation of famil: bc of presumption of paternity
Unity
 4 pillers which form this unity
 1. Marriage is the union of a man and a woman – has been that way since the time of Adam
and Eve; it is the natural state of affairs (say authors)
 2. The basis of marriage is procreation
o Marriage is the foundational act of a family
o It is not so with a same-sex marriage – their families, argue the authors, are
“fictitious” – need a third party for medically assisted procreation or adoption
 Marriage should not be decoupled from procreation – it should not be allowed to become a
symbol for a communal life between two people
 This would be a subjective, individualist definition of marriage, with nothing to do with the
traditional institutional definition
o Would weaken the institution of family , would make it similar to the status of
concubines
121

o Marriage would be diluted as “conjugality”
Arguments against same sex marriage deal with values, while reasoning in terms of
individual rights seems simpler and seen as socially correct
Resisting same-sex marriage clickers
1. How applicable is Warner’s argument to the Canadian context?
 It endorses idea that we should provide entitlements based on
marriage (health care, citizenship status)
 Idea that marriage is taken up by middle class, white
 Tax policy focus on married couple with children
 Is it just legitimzatizing “traditional” sexual relationship
 At this time, Little Sisters Book Emporium (weak remedy given by SCC)
2. What arguments might a gay-rights lobby group in 2000 have viewed as
militating against litigating for same-sex marriage?
3. What impact would you think that having same-sex couples marry might have on
different-sex couples? On practices amongst gay men and lesbians?
 A lot of ppl in the lgbt community like this formal equality
 “less queer” than queer theorist
M Warner, The Trouble with Normal: Sex, Politics, and the Ethics of Queer Life, 1999
Beyond Gay Marriage
 Marriage sanctifies some relationships at the expense of others – it is selective legitimacy
 In short, marriage discriminates, a necessary implication of the institution
o M has collar effect of making other relationships less worthy – it discriminates
o Ppl opposed to gay marriage want to deny it bc want to protect superiority
 Much of gay politics has been reduced to the same-sex marriage question; but it is less
urgent than HIV, repeal of sodomy laws, antigay violence, job discrimination, etc
o Gay marriage is surprising for gay activists
 Campaign for gay marriage is a project of litigation – and the drive for same-sex marriage is
actually making the state make explicit what was merely tacit before  thus making new
obstacles to future marriage reform
 Gay movement for decades refused to pursue the same-sex marriage path – saw a
need to resist state regulation of (alternative) sexuality
o Supported by organizations representing gay and lesbians not non-normative sexual
cultures
 Ask: where does the politics of gay marriage lead? What kind of marriage are we talking
about, how might its place in the larger context of state regulations about sexuality be
changed?
Marriage – why not?
 It wasn’t until 1990’s that it became a major issue
 Issues in queer thought related to marriage
o Called attention to mythology by which marriage is idealized
o Call attention to diversity of sexual and intimate relations
o Resisted attempt to make norms of straight culture into norms for queer life
o Resist notion that state accords legitimacy to some consensual sex not others
o Insisted that morality/traditions = way of regulating sexual pleasures
o Self-esteem must include esteem for one’s sexual relations and pleasures
o That marriage rewards those in it/disciplines those outside – prostitutes, adulterers,
divorcees, promiscuous, single ppl, unwed parents, below age of consent
o That social justice requires recognizing dignity of these social outcasts
o Alert to hierarchies replicating in gay mov’t
 Campaign for marriage requires a massive repudiation of the gay movement’s best insights
122
on intimate relations, sex, politics of stigma
Marriage without Cost
 Argument by major gay associations: marriage should be a choice open to gay people – are
seeking as many options as possible
 It is not possible to be a proponent of the right to marry without also agreeing to let the state
regulate sexuality of both married and unmarried people
 “In the modern era, marriage has become the central legitimating insituttion by which
the state regulates and permeates people’s most intimate lives; it is a zone of privacy
outside which sex is unprotected”
 Marriage is the only form of intimacy/sexuality that has the power of the state backing it
 Marriage cannot be a free choice if it is also the gatekeeper for social legitimacy and
government benefits, obligations
 Individuals who marry cannot keep the act private – it is by definition a public act with
public consequences
 Argues that talking about love is an “increasingly powerful way of distracting citizens
from the real, conflicted, and unequal conditions governing their lives, and that it
serves to reinforce the privilege of those who already find it easiest to imagine their
lives as private”
 “The state can piggyback on sentimentality in this way, making itself the silent partner and
constitutive witness to what people imagine as their most private and authentic emotion”
 “the state merely certifies a love that is beyond the law; but by doing so, it justifies its
existence as keeper of the law”
 don’t blame people who chose institution (or say they have false consciousness) – the
problem is supporting marriage’s legal force and cultural normativity of the institution
 lawyers need to chose: should we try to extend benefits and recognition beyond
conventional marriage, uncoupling them from marital status
Stigma as social policy
 marriage as not a status but a norm of monogamy
-
Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4
o Statute altered pre-confederal rules related to marriage rules under the CCLC.
The Fed changed the federal rules regarding the CCLC.
o Marriage litigation in Qc was about getting this legislation, VS in Ontario it was
about the cml rule of marriage.
o Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4
FEDERAL LAW AND CIVIL LAW OF THE PROVINCE OF QUEBEC
2. This Part may be cited as the Federal Law and Civil Law of the Province of Quebec Act.
Civil Code of Lower Canada
Provisions repealed
3. (1) The provisions of the Civil Code of Lower Canada, adopted by chapter 41 of the Acts of
1865 of the legislature of the Province of Canada, entitled An Act respecting the Civil Code of
Lower Canada, are repealed in so far as they relate to subjects that fall within the legislative
competence of Parliament and have not been expressly repealed. […]
Marriage
Substitution
4. Sections 5 to 7, which apply solely in the Province of Quebec, are to be interpreted as though
they formed part of the Civil Code of Québec.
Consent required
5. Marriage requires the free and enlightened consent of a man and a woman to be the spouse of
the other.
Minimum age
6. No person who is under the age of sixteen years may contract marriage.
Monogamy
123
7. No person may contract a new marriage until every previous marriage has been dissolved by
death or by divorce or declared null.
2. Effects
Formal conjugal relationships produce a new civil status for the partners. In the cases of marriage
and civil union, they create new bonds of kinship. They entail rights and duties immediately.
Admittedly, many of these rights are exercised and duties carried out unself–consciously during a
relationship’s happier days; they become more visible when the relationship founders.
20. Rights and Duties of Spouses
Objectives: the effects of marriage
« Le mariage, parce qu’il est bonheur au départ, n’a pas besoin de beaucoup de droit, tandis que le
droit pullule sur le divorce. Et ce qui est fusion ne requiert qu’un instant, tandis que ce qui est
déchirure n’en finit pas de se déchirer, le conflit conjugal attisant le débat juridique. Si des
réformateurs du divorce s’avisent de déposer sur le forum un panier aux idées, ils le retrouvent
bientôt qui déborde. Sociologues, psychologues, comparatistes, historiens, faits-diversiers et même
juristes inventifs, il n’en est guère qui n’aperçoivent quelque chose à changer dans une institution qui
a le changement pour génie. »
- Jean Charbonnier
1. Different legislative approaches
a. Family Law Act, ss. 29, 30 (no Happy Marriages Act)
Family Law Act, ss. 29, 30
29. In this Part,
“dependant” means a person to whom another has an obligation to provide support
under this Part; (“personne à charge”)
“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.
Obligation of spouses for support
30. Every spouse has an obligation to provide support for himself or herself and for
the other spouse, in accordance with need, to the extent that he or she is capable
of doing so.
b. Arts 39 1 ff CCQ: 391, 393, 394, 396
- note French translation “faire vie commune”: different translation
CCQ, arts. 391-396
Chapter IV - Effects of Marriage
391. In no case may spouses derogate from the provisions of this chapter,
whatever their matrimonial regime.
392. The spouses have the same rights and obligations in marriage.
They owe each other respect, fidelity, succour and assistance.
They are bound to live together.
DIVISION I
RIGHTS AND
DUTIES OF
SPOUSES
124
Respect,
FIDERLITY,
SUCCOR
393. In marriage, both spouses retain their respective names, and exercise their
respective civil rights under those names.
394. The spouses together take in hand the moral and material direction of the
family, exercise parental authority and assume the tasks resulting therefrom.
395. The spouses choose the family residence together.
In the absence of an express choice, the family residence is presumed to be the
residence where the members of the family live while carrying on their principal
activities.
396. The spouses contribute towards the expenses of the marriage in
proportion to their respective means.
The spouses may make their respective contributions by their activities within
the home.
BOUND TO
LIVE
TOGETHER
Names can’t
change!!
Equal
authority
Equal
authority of
home
makers!
2. Non-sexual bases for breakdown
- different from nullity
-s. 8(2)(b) : fault
- (3)(a): intention (clear subjective dimension): only requires one parties’ intention. Intention does
not terminate the marriage, it is a basis for the judge to terminate the marriage.
- 3(b)(i) : physical and mental incapacity ; (ii): if you intent reconciliation but it fails, it won’t count
- idea that you don’t walk away easily from marriage
Divorce Act, s. 8
DIVORCE
Divorce
8. (1) A court of competent jurisdiction may, on application by either or both
spouses, grant a divorce to the spouse or spouses on the ground that there has
been a breakdown of their marriage.
(2) Breakdown of a marriage is established only if
 (a) the spouses have lived separate and apart for at least one year
immediately preceding the determination of the divorce proceeding and
were living separate and apart at the commencement of the proceeding;
or
 (b) the spouse against whom the divorce proceeding is brought has,
since celebration of the marriage,
o (i) committed adultery, or
o (ii) treated the other spouse with physical or mental cruelty
of such a kind as to render intolerable the continued
cohabitation of the spouses.
(3) For the purposes of paragraph (2)(a),
 (a) spouses shall be deemed to have lived separate and apart for any
period during which they lived apart and either of them had the intention
to live separate and apart from the other; and
 (b) a period during which spouses have lived separate and apart shall
not be considered to have been interrupted or terminated
Breakdown
of marriage
Calculation
of period of
separation
125
o
(i) by reason only that either spouse has become incapable of
forming or having an intention to continue to live separate and
apart or of continuing to live separate and apart of the spouse’s
own volition, if it appears to the court that the separation would
probably have continued if the spouse had not become so
incapable, or
(ii) by reason only that the spouses have resumed cohabitation during a period
of, or periods totalling, not more than ninety days with reconciliation as its
primary purpose.
Cruelty
- Horvath, Baron
- Moral element to it: a shaming
- Baron - Cruelty: she wants children, not satisfied financially
- Horvath: shows that adultery committed even after the spouses have separated, it
counts. During separation, the duty of fidelity still applies
Barron v Bull (1987) Alta
Facts: Mr. B is trying to divorce his wife on the grounds of cruelty: she badgered him to have kids
in order to fix their marriage, threatened to leave him with all their debts, talked about their marital
problems to everyone (suggesting to others that he was seeing someone else because they
never had sex), seemed to be obsessed with status, also seemed to be a pathological liar and a
spendaholic, etc.
Issue: Is the divorce available on the grounds of cruelty? Holding: Shockingly, no.
Ratio: Cruelty as a ground for divorce must make cohabitation intolerable; is a subjective test,
but by reference to community standards. Seems to suggest wife should delight/be indifferent to
his suffering; and that she should be cruel, merciless or hard hearted
Reasoning (Bracco J.):
 s. 8 DA cruelty is a ground for divorce if it renders intolerable the continued cohabitation of
the spouses
 Courts have refrained from strictly defining cruelty – but signifies a wilful and
unnecessary infliction of suffering on others (physically or emotionally)
o Is not really the creation of irritation or displeasure in another
o The standard of tolerable behaviour should reflect community standards
o But the test for cruelty should also be somewhat subjective
 In this case, judge can’t see that the husband has “suffered” (judge is therefore crazy)
 Petitioner has not shown his wife delighted or was indifferent to his suffering
 Respondent has not be shown to be “cruel, merciless or hard hearted toward her
husband”…desire for child is normal
Ratio: Cruelty as a ground for divorce must make cohabitation intolerable; is a subjective test,
but by reference to community standards. Seems to suggest wife should delight/be indifferent to
his suffering; and that she should be cruel, merciless or hard hearted
Adultery
- s. 11(1)(a): no collusion (when divorce was just fault based, people used to collude to try
to show one fo them was cheating etc)
- clear reminder that divorce is not a private matter
- (3) condonation: suggests that you have to bring up the marital fault of your spouse
fairly quickly
 idea that staying prevents you from using this later. But it’s problematic
for situations of domestic abuse – people don’t leave on time.
- P v P: legal obligation of fidelity
o law has a positive view
o allegations from the wife of homosexual activities.
126
Says we need to expand adultery requirments (not just vaginal penetration) –
says the requirement should be sanctioning a violation of intimacy
Morrison: Leckey: regulation of sexual lives of people.
Since divorce can only be granted if the wife has committed a homesexual act, then the
Courts have to deal with this.
o
-
-
Davis – critiques adultery as a hetero normative thing. what used to qualify as adultery
form men was different women
The case where artificial insemination was considered adultery
S. 3 of Cnd’s first divorrce Act
o List in paragraph (b): look at what is in this list!
o Since adultery in (a), it means that’s what’s in (b) has been guilty – ie, criminal
conviction and “engaged in – doesn’t require the same level of proof as criminal”
o Inference of the 86 act: a, d are gone (that’s the inference).
Food for thought
- is emphasis on sex inconsistent with what we were discussing before?
- Traditional def’n of adulterty : focused on women’s womb
o Traditional focus on women not adultering husbands blood lines
- L: to say that intimacy is the issue (as the judge does in P v P) – is that going too far?
What about golfing too much?
o Ex. What about 20 yrs of love letters?
- Think about : how much social regulation do we expect for marriage?
o Where do you draw line between judge and the community regulating?
Divorce Act, SC 1967-68
GROUNDS FOR DIVORCE
3. Subject to section 5, a petition for divorce may
be presented to a court by a husband or wife, on the ground
that the respondent, since the celebration of the marriage,
(a) has committed adultery;
(b) has been guilty of sodomy, bestiality or rape,
or has engaged in a homosexual act;
(c) has gone through a form of marriage with
another person; or
(d) has treated the petitioner with physical or
mental cruelty of such a kind as to render
intolerable the continued cohabitation of the
spouses.
Horvath v Fraess 1997 Sask J
Facts: H and F seeking divorce; she is alleging cruelty as the ground, he is alleging adultery (s.
8 DA). They had a stormy marriage and periods where they did not live together caused by fights
in which she says he got violent; during last separation period, she had sex with another man.
Issue: On what grounds is divorce available? Holding: Adultery.
Ratio: the fact that the parties are already living apart does not mean that adultery is not a ground
for divorce.
Reasoning (Smith J.):
 The parties have not yet lived separate and apart for 1 year – that ground is not available for
divorce under s. 8(2)(a). Divorce will not be granted unless one or both of the “fault” grounds
alleged is proved
127


Adultery; she argues that the adultery in question was not the cause of the marital breakdown
since it occurred after parties had ceased to cohabit and all efforts at reconciliation had failed
o It is still grounds for divorce, says judge – the fact that the parties were
already living separate and apart doesn’t preclude adultery from being a
ground of divorce
o Says no evidence of collusion here
Cruelty allegation – doesn’t need to be decided. Furthermore, there is an issue of her having
condoned the physical/verbal violence that she alleges, because they continued living
together for 2 years after it (the physical violence at least) stopped (there is also conflicting
evidence on this allegation).
Morrison v Morrison 1972 PEIJ
Facts: Mr. M is seeking a divorce from his wife, who had a bunch of sex with another woman
while married to him. Under s. 3 1968 Divorce Act, a homosexual act by one of the spouses
constituted grounds for divorce.
Issue: What constitutes a homosexual act that is grounds for divorce? Holding: Judge pretty
much can’t bring himself to say.
Reasoning (Nicholson J.):
 “Homosexual act” is obviously different from bestiality/sodomy, because are also mentioned
in s. 3 DA
 Testimony that Mrs. M and Mrs. G were in love with one another (and also implicit that the
husbands knew about it and didn’t really mind all that much – seems to be that everyone else
on PEI minded)
o The two were found naked together 7 or 8 times
 The reticence of the judge is a reflection of the “reticence” of Parliament – refusal to define
what constitutes a homosexual act in the statute (judge is annoyed by this)
o Apologizes for having to get into so “sordid” a topic
 Quotes at great length from a book in order to avoid having to discuss the facts themselves –
seems to find it important, however, that the women orgasmed from their sexual activity with
one another
 Interestingly, the act that the judge can’t bring himself to talk about (cunnilingus) is discussed
quite openly in the book he quotes from, and shown to be pretty common practice – although
the judge can’t quite seem to believe it
Ratio: Awkwardness of the court in having to define what constitutes a homosexual act creating
grounds for divorce.
P (SE) v P (DD) 2005 BCSC
Facts: Wife’s petition for divorce on the ground of adultery – her husband admits that he had
sexual relations with another man. 19 yr marriage
Issue: Does the common law definition of adultery extend to same-sex sexual acts? Holding:
Yes.
Ratio: Ct adopts new CML definition of adultery - to any intimate sexual relationship outside
marriage, regardless of the sexes of the people involved. This was based on changing social
views.
Reasoning (Garson J.):
 Act does not define adultery, it has been defined in a case-by-case basis.
 A “homosexual act” was removed as an express separate ground for divorce in the 1985 DA
o Does the reference to adultery therefore cover it?
 At CML, adultery traditionally meant sexual intercourse between a man and a woman (actual
penetration)
o The rationale was originally reproductive (and oppressive to women) – function of
marriage was procreative, and did not want to risk a man acting as the father of
another man’s child
128
Social developments:
 “It is clear, based on legislative and common law development legalizing same-sex marriage,
that there has been an evolution of societal values such that the societal interest in
marriage is focussed largely on the forming of realtionships characterized by
emotional and economic interdependence”
o Law Commission of Canada: marriage – institution that provides an frameowkr for
people to express commitment to each other; receive public recognition and
support; and voluntarily assume a range of legal rights and obligations
 Legislature enacting Civil Marriage Act = statement of current values of our society
 Must update the common law incrementally to reflect changing social/moral/economic fabric
of our society and to be consistent with Charter values
 Furthermore, same-sex marriage is now legal – same-sex spouses can also commit
adultery
 The wrong for which a petitioner for divorce seeks redress (on the ground of adultery)
is violation of the marital bond – “intimate sexual activity outside marriage” will suffice
to violate that bond
 In this case, there is evidence of husband’s intimate sexual relationship outside of marriage:
divorce granted
Christine Davies, Power on Divorce and Other Matrimonial Causes 1976
 not defined in divorce act, 1968
 no doube that in divorce, it means voluntary sexual intercourse between a married
person and a person of the opposite sex, other than his or her spouse”
 ie: not adultery if rape, mentally or phsycially weak, drugs or liquor, insanity
 burden of proof of adultery is unclear : in Cnd, generally, one petitioner proves there was
intercourse, then the burden shifts to show not voluntary
 bestiality NOT adultery, nor homosexual act (needs to be w person of opposite sex)
 does not need to be “a complete act of intercourse as is required to consummate marriage”
 not clear if artificial insemination = adultery
o Cnd case: adultery = extra-marital surrender of reproductive faculties, not moral
definition
 Scottish case of Maclennan v Maclennan: 1. Two parties present and engaging in sex act at
same time; 2. Must involve some degree of penetration of female organ by male organ 3. Not
necc that male seed should be deposited 4. Placing of male seed need not necc result from
sex act
 adultery prior to marriage = not ground for divorce

acts committed after bringing of action of dirvoce won’t be taken into consideration
 adulterors would be made co-defednants
3. Dissolution
The statuses of marriage and civil union persist even if the relationship is breaking down and
even, say, if the partners have physically separated. Marriage is dissolved by the death of one
spouse or by a judgment of divorce, a process in which the state is profoundly implicated. As we
shall see, a spouse may owe the other spouse a duty of support after dissolution. A key issue is
the extent to which spouses may modify by agreement the rights and duties otherwise attached to
them by law.
March 21. Family Breakdown


historical overview
dissolution of marriage
129
 relationship between civil and religious divorce
alternative dispute resolution and religious practices
Historical overview of divorce (pre – 1968)
- ppl disagree as to historical reason for federal jurisdiction. Idea that marriage needs to be
consistent across the country, idea that Qc was thought to be unlikely to pass divorce law
bc of catholicims
- but 101 yrs pass before Parl uses its power, churches were on the side of the gov’t –
thought it was appropriate that it was appropriate to have a separate civil regime.
Openness to idea that ppl shouldn’t be stuck in a dead end marriage
Separation from bed and board / separation du corps
1. Souses become separated from bed and board extra-judicially – False!
2. Functional equivalents to separation from bed and board – B and C: Dissolution of marriage
AND nullity of marriage where the spouses were in good faith
- a marriage that is null for good faith (382): same effects as 508 (same effects on property –
matrimonial property is separated)
3. Spouses may terminate separation from bed and board extra-judicially – True.
 Just simply resume living together – once they begin living together, then they will need a
judgment to get separation from bed and board again! although their property is still
separated. Still married – oblgiations apply.
4. Who gets the benefit of privacy en route to separation from bed and board? Spouses who
settle issues between them!
- don’t have to tell judges why they are separating
- older people with no need to remarry, it’s better for them to do this vs divorce (pension
implications)
1. Art 515, para 1, is one more example of how much spouses want spouses to stay
together
- True
2. After 300 days, separation fro bed and board rebuts the presumption of the busband’s
paternity. YES
- 525
- tension with obligation of fidelity
3. The presumption remains rebutted even if the spouses voluntarily resume living together
– False
- under 525
4. May an adulterous spouse seek separation from bed and board on basis of own adultyer
– NO
Does the obligation of fidelity survive the granting the separateion from bed and board
- 507, a contrario (by assuming that nothing else is changed)
- YES
5.
-
The regime of separation from bed and board rests on justifications that are more:
social or policy based
legal (division of powers, worry about s. 91(26)):
but we kept separation from bed and board in 1990 and 1980 (after divorce laws. So it’s
not just about the fact that there was no federal laws)
130
6. The regime of separation from bed and board rests on justifications that are:
- secular / vs religious?
7. escape routes from a purposrted or valid civil union :
- civil union copies almost entire regime of marriage BUT NOT separation from bed and
board
- suggests that legislative drafters didn’t think that ppl who got a civil union obligation
would not want to terminate the vow. Suggess vow of civil unionless strong than marriage
still
CCQ, arts 493-515
Separation from Bed and Board
DIVISION I – GROUNDS FOR SEAPRATION FROM BED AND BOARD
493. Separation from bed and board is granted when the will to live together is
gravely undermined.
494. The will to live together is gravely undermined particularly
(1) where proof of an accumulation of facts that make further living together
hardly tolerable is adduced by the spouses or either of them;
(2) where, at the time of the application, the spouses are living apart;
(3) where either spouse has seriously failed to perform an obligation resulting
from the marriage; however, the spouse may not invoke his or her own failure.
495. If the spouses submit to the approval of the court a draft agreement
settling the consequences of their separation from bed and board, they may
apply for separation without disclosing the ground.
The court then grants the separation if it is satisfied that the spouses truly
consent and that the agreement sufficiently preserves the interests of each of
them and of the children.
DIVISION II PROCEEDINS FOR SEPARATION FROM BED AND BOARD
496. It comes within the role of the court to counsel and to foster the conciliation
of the spouses, and to see to the interests of the children and the respect of
their rights, at all stages of the proceedings for separation from bed and board.
497. An application for separation from bed and board may be presented by
both spouses or either of them.
498. Proof that further living together is hardly tolerable for the spouses may
result from the admission of one party but the court may require additional
evidence.
499. An application for separation from bed and board releases the spouses
from the obligation to live together.
500. The court may order either spouse to leave the family residence during the
proceedings.
It may also authorize either spouse to retain temporarily certain movable
property which until that time had served for common use.
501. The court may decide as to the custody and education of the children.
It fixes the contribution payable by each spouse to the maintenance of the
children during the proceedings.
502. The court may order either spouse to pay support to the other, and a
provisional sum to cover the costs of the proceedings.
503. Provisional measures may be reviewed whenever warranted by any new
fact.
504. The court may adjourn the hearing of the application for separation from
§ 1. —
General
provision
§ 2. —
Application
and proof
§ 3. —
Provisional
measures
§ 4. —
131
bed and board if it considers that adjournment can foster the reconciliation of
the spouses or avoid serious prejudice to either spouse or to any of their
children.
The court may also adjourn the hearing if it considers that the spouses are able
to settle the consequences of their separation from bed and board and to make
agreements in that respect which the court will be able to take into account.
505. Reconciliation between the spouses occurring after the application is
presented terminates the proceedings.
Either spouse may nevertheless present a new application on any ground
arising after the reconciliation and, in that case, may invoke the previous
grounds in support of the application.
506. Resumption of cohabitation for less than 90 days does not by itself create
a presumption of reconciliation.
DIVISION III – EFFECTS BWEEN SPOUSES AND SEP FROM B & Board
507. Separation from bed and board releases the spouses from the obligation
to live together; it does not break the bond of marriage.
508. Separation from bed and board carries with it separation as to property,
where applicable.
Between spouses, the effects of separation as to property are produced from
the day of the application for separation from bed and board, unless the court
makes them retroactive to the date on which the spouses ceased to live
together.
509. Separation from bed and board does not immediately give rise to rights of
survivorship, unless otherwise stipulated in the marriage contract.
510. Separation from bed and board does not entail the lapse of gifts made to
the spouses in consideration of marriage.
However, the court, when granting a separation, may declare the gifts lapsed or
reduce them, or order the payment of gifts inter vivosdeferred for such time as it
may fix, taking the circumstances of the parties into account.
511. The court, when granting a separation from bed and board or
subsequently, may order either spouse to pay support to the other.
512. In any decision relating to the effects of separation from bed and board in
respect of the spouses, the court takes their circumstances into account; it
considers, among other things, their needs and means, the agreements made
between them, their age and state of health, their family obligations, their
chances of finding employment, their existing and foreseeable patrimonial
situation, evaluating both their capital and their income, and, as the case may
be, the time needed by the creditor of support to acquire sufficient autonomy.
DIVISION IV – EFFECTS OF SEPARATION FROM BED & BOARD ON
CHILDREN
513. Separation from bed and board does not deprive the children of the
advantages secured to them by law or by the marriage contract.
The rights and duties of fathers and mothers towards their children are
unaffected by separation from bed and board.
514. The court, in granting separation from bed and board or subsequently,
decides as to the custody, maintenance and education of the children, in their
interest and in the respect of their rights, taking into account the agreements
made between the spouses, where such is the case.
DIVISION V – END OF SEPARATION FROM BED AND BOARD
515. Separation from bed and board is terminated upon the spouses' voluntarily
resuming living together.
Separation as to property remains unless the spouses elect another
matrimonial regime by marriage contract.
Adjournments
and
reconciliation
132
Rachel Birnbaum, Nicholas Bala & Lorne Bertrand, “The Rise of Self-Representation in Canada’s
Family Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants”
(2013)
Results of surveys of 4 diff groups about self-representation
 Over ½ of family litigation has at least one party not represented
 Reasons: can’t afford, ineligible for LA (over ½ bc of first two reasons), but many could also
afford one but decide not to use one. Many men believe will have better outcome without
one, or want to engage directly with former partner
 Expanding social services to deal with this: court staff, 10 page instructions, range of “free”
services
 Reforms – guidelines – have also made it easier for parties
 Might not be a problem if their finances are relatively simple
 But self-represented litigants may be imposing other costs on the system
 Self-represented ppl will get worse outcomes and less protection, services can’t replace
detailed advice, analysis and advocacy by a lawyer who is trained and knowledgeable in
family law, esp when domestic violence
 Those who choose to represent themselves and impose costs on other party (bc of errors,
delays) – should have to pay costs of the other party and shld be warned
 2-tier justice system??? Wealthy can use lawyers to settle, those without lawyers use
increasingly stressed family justice system
 Need more research

Issue raised by Lucinda Ferguson: “savy” ppl not using the process – don’t make
jurisprudence.
Wanda Wiegers & Michaela Keet, “Collaborative Family Law and Gender Inequalities: Balancing
Risks and Opportunities” (2008)
CL increasingly used by family lawyers. It has the potential to alleviate impact of gender
differences in bargaining power (more than litigation or family mediation), but impact depends
on lawyers’ sensitivity to gender imbalances.
 Most family law disputes in Cnd are settled – stakes are high – difficult to overturn!
 CL = distinguishing feature is role that lawuers play in settlement, act as both facilitators and
advocates.
 CL: lawyers draft rules of engagement that structure the collaborative law approach,
generally require full disclosure of all material info and demand lawyers cease
representing clients if a settlement is not generated
 Women’s lower bargaining power: disproportionate resp for childcare, lower earning potential,
less earning power, gender socialization – see themselves as not having the status to assert
their needs  may prefer compromise
 Yes, there are limits to CL being able to address gender inequalities: bc rooted in social
structures
o Critics worry that private dispute resolution that process “both obscure
inequitable outcomes and legitimize them as a product of voluntary consent.”
 Litigation: also reinforces social inequalities – constrained in ability to address poverty,
depends on parties’ resources
 More involvement of lawyers = will be able to deal effectively with vulnerable clients
than current forms of either litigation or family mediation
 Lawyers need to demonstrate high level of sensitivity to imbalances, use screening
devices, utilize effective screening strategies, provide timely and specific legal advice
and work at achieveing deeper and more effective client-lawyer communication

Is there a diff between divorcing secular spouses where the woman gets the bad deal – is
that different from a woman getting a bad deal under religious law

133
Sherene H. Razack, “The ‘Sharia Law Debate’ in Ontario: The Modernity/Premodernity Distinction
in Legal Efforts
Background: Ontario “Arbitration Act” would allow ppl to hire 3rd parites to privately adjudicate
conflicts in family law. Protests from feminists – altho the Boyd Report (commissioned by
gov’t)found no compelling reason to deny faith based arbitration. Debate between 2004-05 intended to reverse all faith based arbitration.
 But in face of the vociferous opposition, introduced legislation eliminating all faith-based
arbitration
Dialogue reinforces the modernity/premodernity dischotomy, where the normative figure =
Liberal autonomous individual of modernity vs the “Other” as restricted
- The secular/modern vs premodern/religious dichotomy – lines drawn on basis of
colour
- requires a normative citizen who is unconnected to the community - figure which is only
defined in relation to the racial Others.
- “productive power of the idea of the imperriled Muslim woman and the dangerous Muslim
man”
- Feminism “annexed to the project of empire”: state justifies action through human rights
and gender equality. Human rights discourses are “productive discourses” they install
free subjects who can save those suffering from human rights abuses/rescue from
culture
- Helps the state mark Muslims as suspect bodies and limit their citizenship rights
 Is the Muslim woman best protected by the state? It is true that Muslim women could have
been persuaded to participate in faith-based arbitration against their will
o Arb. Act contained no safeguards v. the family/communities of Muslim women
o But no one seriously advocated the idea that some could be incorporated
o Feminist rejection of faith-based arbitration left no room for women seeking to live a
faith-based life
A woman can in theory turn to the common law for protection (rejection of community is entailed
by this act, though)  but it is still staffed by racist/patriarchal judges


What are people upset about here? Is it that adjudication will take place in a non-state forum?
Or that adjudication will take place according to non-state norms (i.e. religious norms)?
o Tons of non-state norms can be adjudicated by the courts when they are brought in
by contract
o Religious norms are singled out for exclusion
Not all ADR is discouraged in the familial sphere, however. Only that with religious affiliation
Divorce Act, ss. 8, 11
DIVORCE
8. (1) A court of competent jurisdiction may, on application by either or both
spouses, grant a divorce to the spouse or spouses on the ground that there has
been a breakdown of their marriage.
(2) Breakdown of a marriage is established only if
 (a) the spouses have lived separate and apart for at least one year
immediately preceding the determination of the divorce proceeding and
were living separate and apart at the commencement of the proceeding;
or
 (b) the spouse against whom the divorce proceeding is brought has, since
celebration of the marriage,
o (i) committed adultery, or
o (ii) treated the other spouse with physical or mental cruelty of
such a kind as to render intolerable the continued cohabitation of
the spouses.
(3) For the purposes of paragraph (2)(a),
Divorce Act
Breakdown
of marriage
Calculation
134

(a) spouses shall be deemed to have lived separate and apart for any
period during which they lived apart and either of them had the intention
to live separate and apart from the other; and
 (b) a period during which spouses have lived separate and apart shall not
be considered to have been interrupted or terminated
o (i) by reason only that either spouse has become incapable of
forming or having an intention to continue to live separate and
apart or of continuing to live separate and apart of the spouse’s
own volition, if it appears to the court that the separation would
probably have continued if the spouse had not become so
incapable, or
o (ii) by reason only that the spouses have resumed cohabitation
during a period of, or periods totalling, not more than ninety days
with reconciliation as its primary purpose.
DUTY OF LEGAL ADVISER
9. (1) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes
to act on behalf of a spouse in a divorce proceeding
 (a) to draw to the attention of the spouse the provisions of this Act that
have as their object the reconciliation of spouses, and
 (b) to discuss with the spouse the possibility of the reconciliation of the
spouses and to inform the spouse of the marriage counselling or
guidance facilities known to him or her that might be able to assist the
spouses to achieve a reconciliation,
unless the circumstances of the case are of such a nature that it would clearly not
be appropriate to do so.
(2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to
act on behalf of a spouse in a divorce proceeding to discuss with the spouse the
advisability of negotiating the matters that may be the subject of a support order
or a custody order and to inform the spouse of the mediation facilities known to
him or her that might be able to assist the spouses in negotiating those matters.
(3) Every document presented to a court by a barrister, solicitor, lawyer or
advocate that formally commences a divorce proceeding shall contain a
statement by him or her certifying that he or she has complied with this section.
Ontario Arbitration Act, ss 1 “family arbitration” 2.1, 2.2
“family arbitration” means an arbitration that,
(a) deals with matters that could be dealt with in a marriage contract, separation
agreement, cohabitation agreement or paternity agreement under Part IV of
the Family Law Act, and
(b) is conducted exclusively in accordance with the law of Ontario or of another
Canadian jurisdiction; (“arbitrage familial”)
2.1 (1) Family arbitrations, family arbitration agreements and family arbitration
awards are governed by this Act and by the Family Law Act. 2006, c. 1, s. 1 (2).
Conflict
(2) In the event of conflict between this Act and the Family Law Act, the Family
Law Act prevails. 2006, c. 1, s. 1 (2).
2.2 (1) When a decision about a matter described in clause (a) of the definition
of “family arbitration” in section 1 is made by a third person in a process that is not
conducted exclusively in accordance with the law of Ontario or of another
Canadian jurisdiction,
(a) the process is not a family arbitration; and
(b) the decision is not a family arbitration award and has no legal effect. 2006,
c. 1, s. 1 (2).
Advice
of period of
separation
Certification
Family
arbitrations,
agreements
and awards
Other thirdparty
decisionmaking
processes
in family
matters
135
(2) Nothing in this section restricts a person’s right to obtain advice from another
person. 2006, c. 1, s. 1 (2).
CCQ arts 2639, para 1
2639. Disputes over the status and capacity of persons, family matters or other
matters of public order may not be submitted to arbitration.
Idea ppl need to know about mediatin, but not forced
CCP, art 814/3-814/14
814.3. Except applications under article 814.9, no application that involves the interests of the
parties and the interests of their children may be heard by the court if there is a dispute between
the parties regarding child custody, support due to a party or to the children, the family patrimony
or other patrimonial rights arising from the marriage or civil union, unless the parties have
attended an information session on the mediation process and a copy of the mediator's report or,
if applicable, a certificate of participation has been filed.
814.4. The information session on the mediation process may be held in the sole presence of
both parties and a mediator.
A group information session may also be held. In such a case, the session is held in the presence
of at least three persons registered with the Family Mediation Service and of two mediators, one
of whom must be from the legal profession and the other, from another profession.
814.5. The parties select jointly the type of information session they wish to attend. In case of
disagreement as to the type of information session or, where applicable, as to the choice of a
mediator, the parties must, together or separately, attend a group session.
814.6. The information session bears on the nature and objectives of the mediation, the
mediation process and the roles to be played by the parties and the mediator.
At the conclusion of the information session, the mediator informs the parties of their right to enter
into mediation or not, and of their right to enter into mediation with that mediator or with another
mediator of their choice. If the parties fail to agree to enter into mediation or express their wish to
enter into mediation with another mediator, the mediator files his report with the Family Mediation
Service and sends a copy to the parties.
In the case of a group session, the mediators inform the parties of their right to enter into
mediation or not and of their right to enter into mediation with the mediator of their choice. At the
end of the session, the Service gives a certificate of participation to each of the parties present.
814.7. The mediation sessions take place in the presence of both parties and of a mediator or, if
the parties agree, two mediators; other persons may be present at the mediation sessions,
provided the parties agree, the mediator considers the presence of those persons necessary and
they are neither experts nor advisers.
The parties may, on their own initiative or at the suggestion of the mediator, suspend any session
to seek advice from counsel or from any other person, according to the type of advice sought.
814.8. Either party may, at any time during mediation, terminate it without having to give reasons.
The mediator must terminate mediation if he considers that to pursue it would be ill-advised.
In such cases, the mediator files his report with the Family Mediation Service and sends a copy to
the parties.
136
814.9. The court may, on a motion, make, subject to the conditions it determines, any appropriate
order to safeguard the rights of the parties or children during the period of mediation or during any
other period it considers appropriate.
814.10. A party that has a valid reason not to attend the information session on the mediation
process may state that fact to the mediator of his choice; the reason may relate, in particular, to
the inequality of the power relationship, to the disability or the physical or psychological condition
of the party or to the great distance between the party's residence and that of the other party.
In such a case, the mediator draws up a report containing an express statement of the party
concerned that the party cannot attend the information session for a valid reason, which need not
be disclosed; the mediator then files his report with the Family Mediation Service and sends a
copy to the party having made the statement and, if the application has been filed at the office of
the court, to the other party.
814.11. Where a copy of a report drawn up by a mediator in the circumstances referred to
in article 814.10 has been filed, the court may proceed without the parties having attended an
information session.
814.12. A party who does not attend the information session on the mediation process may,
unless he files a copy of a report containing a statement that he cannot do so, be condemned to
all the costs relating to the application.
814.13. The mediator's report or the certificate of participation in a group information session
remains valid, regardless of the circumstances in which it is drawn up, until the judgment on the
principal application becomes res judicata; the report also remains valid in respect of any
application for review of the judgment.
814.14. The Family Mediation Service pays the mediator's fees, up to the prescribed number of
sessions, provided the fees are in keeping with the tariff established under article 827.3;
otherwise, the mediator's fees are borne and paid in full by the parties.
26. Obligation of spousal Support






support obligations post–divorce vs. obligation to support during marriage
consensual alteration of statutory rights and obligations
various factors in entitlement and quantum
the economic harms of marriage
compensation for the past versus meeting present need
different models of marriage
Family Property rules – quick overview _ NOT ON EXAM
- Even when Fed divorce act is applied, judges turn to provincial rules on property. Divorce
act does not speak about property issue. Support though- there’s a prov and fed rules
- Property Rules protecting family home (right to occupy, constraints on spouse being able
to sell the home, rules presume equal division of the increase in gains thorugh the
marriage – look at what each spouse has at the end, and subtract what they had at the
beginnig)
o Exceptions: gifts, inheritance – they get to keep this
o basic principle across provinces: spouses share increase of assets during
their time together
137
o
o
o
difference between Qc and rest of the provinces: these are presumptively
applicable in CML, but the spouses can derogate by marriage K (although
mechanisms for judicial review etc)
in Qc: core pieces of matrimonial regime that apply as public order. Scope
for K is limited to what’s outside of the family patrimony
not on exam!
The source of support obligation for married spouses in Qc: 585, NOT Divorce act s. 15.2,
- 392 as well
- the divorce act doesn’t apply until point of divorce
The source of support obligation for married spouses in Qc separated as to bed and board – 585
The source of support obligation for married spouses is FLA, s. 30
Divorced parent may be ordered to support their children in virtue of the Divorce Act s. 15.1 OR
art 585 ccq, s. 31 FLA (if there was conflict – paramountcy applies)
Source of potential support obligation for divorced, former spouses in Qc: Divorce Act s. 12.1
(NOT art 585)
Source of potential support obligation for divorced, former spouses in ON: Divorse act s. 15.1
(NOT FLA)
Why isn’t provincial law a source of support for divorced spouses- They’re no longer
spouses (NOT the doctrine of paramountcy)
Divorce Act – Every time you see “spouse” in s. 15-16 , it also means former spouse
* very important!
Intuition question
Wife’s who withdraw for homemaking and childcare have probably
 individually made a lifestyle choice
 sometimes it is argued that the wife chose to stay home, I didn’t
pressure her to
 jointly decided with the parters in the family’s interest
 economic decisions for staying home for the child
 responded rationally to systemic pressures, including women’s lower earning power
On marriage break down,
1. Parties should be individually responsible for the economic result of their choices during the
marriage;
2. Law should require parties to share their union’s economic gains and losses
 Leckey: what happens when the person makes an economically irrational choice to
It is right that, after a long, “trad” mrraige, the husband may owe the wife support for many yrs,
even for life
 Leckey we imagine a 60 yr old, having trouble launching into job market.
 Even for a 40 yr old with a long time at home – but even tho hypothetically might be able to
find a job, hard to find a job on the job market
The burden of supporting a former spouse who had failed to achieve self-suff is best viewed as –
the state’s? the other spouse’s?; shared?
 Pellech: if spousal support is waived, Wilson J said that a needy former spouse will be
cared for the state!
138

Attitudes have shifted, Bracklow, McLachlin says that the needy spouse’s resp is with the
former spouse first
The undertaking of marriage may rightly lead to a lengthy support entitlement for an ill former
spouse whose illness has no connection to marriage
 Bracklow suggests yes
 Bracklow: it is a serious undertaking, even for events that arrive by chance, not by
choice.
Spousal support on marriage breakdown
4. Understanding and justifying support
a) bases for private law duties
- fault, consent, restitution
b) Backround: from fault to no-fault
- we saw divorce was initially focused on fault (one spouse had breached support obligations) .
Suport was clearly connected to fault initialy (if woman cheated on husband)
 Now support is irrelevant of fault – now fault not a justification for support obligation
c) Support during marriage
- What justifies art 585 and FLA s. 30 : they consented to it, policy dimension, qui pro quo (bc
they have benefits in other laws for being married - taxes), idea of reciprocity when it is in tact
5. Close reading of s. 15.2 support after marriage
a) broadly worded legislation, no articulated theory or justification
 Reasonable”
 A discretionary regime – different from legally enforced guidelines
 15.2(1) is seen by some as a disguised way to redistribute property
 (5): repudiates idea that adultery wasn’t relevant
o in child support, misconduct may effect whether someone has custody
 (4) Factors:
o A) Reliance: in Ks, the longer that smth is going on, the longer give and take has
been going on,
o Maybe the longer the marriage is going on, qualitiatively different – sacrifices made
for the marriage may be intensifying
o Cohabitated - could include cohabitation prior to marriage!
o Suggests a different type of concern than c) – issue there is consent in explicit legal
way
o B) Restitution,
o C) consent or will of the parties
o But this isn’t necessary binding! Tells us tho that Ks in this area aren’t void for public
order
o It’s a much bigger list thatn what we see in CCQ art 585
(6) Objectives of the order
 (a) similar to partnership K
 “arising from marriage”” = opportunity costs in the marriage, ….that is different from
“breakdown” of the marriage (having to move)
 difference with (c): difference between “disadvantage” vs “hardship” . Disadvatnage
indicates relative. Hardhsip prob harder to prove if you’re at a higher income bracket
 “recognize”: symbolic, compensate for smth even tho spouse doesn’t need it

6(a); will operate for even a wealthy spouse
139


(d): promote the economic self-sufficiency of each spouse within a reasonable period of
time
HB in Moge, said that judges were focusing too much on 6(d) and economic selfsufficiently.
Leckey: does Parl imageine that spouses should be keeping the same standard of living after the
marriage?
 One of the cricisms, is that Parl just threw it out there!
 Moge, ct tries to articulate a general theory that holds everything together – equitable
sharing of the cosnequences of the marriage partnership

CCQ, 392, 521.6, 521.17, 585
DIVISION I- RIGHTS AND DUTIES OF SPOUSES
392. The spouses have the same rights and obligations in marriage.
They owe each other respect, fidelity, succour and assistance.
They are bound to live together.
Ch. 11: CIVIL EFFECTS OF CIVIL UNION
521.6. The spouses in a civil union have the same rights and obligations.
They owe each other respect, fidelity, succour and assistance.
They are bound to live together.
The effects of the civil union as regards the direction of the family, the exercise of
parental authority, contribution towards expenses, the family residence, the family
patrimony and the compensatory allowance are the same as the effects of
marriage, with the necessary modifications.
Whatever their civil union regime, the spouses may not derogate from the
provisions of this article.
521.17. In the absence of a joint declaration dissolving the civil union executed
before a notary or where the interests of the common children of the spouses are
at stake, the dissolution of the union must be pronounced by the court.
The court must ascertain that the spouses' will to live together is irretrievably
undermined, foster conciliation and see to the interests of the children and the
protection of their rights. During the proceeding, the court may determine
provisional measures, as in the case of separation from bed and board.
Upon or after pronouncing the dissolution, the court may order one of the spouses
to pay support to the other, decide as to the custody, maintenance and education
of the children, in their best interests and with due regard for their rights, and in
keeping with any agreements made between the spouses.
TITLE 3 OBLIGATION OF SUPPORT
585. Married or civil union spouses, and relatives in the direct line in the first
degree, owe each other support.
Ontario FLA, ss 30, 33(8), (9), (10)
PART III – SUPPORT OBLIGATIONS
30. Every spouse has an obligation to provide support for himself or herself
and for the other spouse, in accordance with need, to the extent that he or she
is capable of doing so.
Obligation of
spouses for
support
33 (8) An order for the support of a spouse should,
(a) recognize the spouse’s contribution to the relationship and the economic
consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
should:
A) contribution
to relationship,
economic
140
(c) make fair provision to assist the spouse to become able to contribute to
his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts
I (Family Property) and II (Matrimonial Home).
(9) In determining the amount and duration, if any, of support for a spouse or
parent in relation to need, the court shall consider all the circumstances of the
parties, including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have
in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to
the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for
his or her own support and the length of time and cost involved to enable
the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for
another person;
(i) the desirability of the dependant or respondent remaining at home to care
for a child;
(j) a contribution by the dependant to the realization of the respondent’s
career potential;
(l) if the dependant is a spouse,
 (i) the length of time the dependant and respondent cohabited,
 (ii) the effect on the spouse’s earning capacity of the responsibilities
assumed during cohabitation,
 (iii) whether the spouse has undertaken the care of a child who is of
the age of eighteen years or over and unable by reason of illness,
disability or other cause to withdraw from the charge of his or her parents,
 (iv) whether the spouse has undertaken to assist in the continuation of
a program of education for a child eighteen years of age or over who is
unable for that reason to withdraw from the charge of his or her parents,
 (v) any housekeeping, child care or other domestic service
performed by the spouse for the family, as if the spouse were devoting the
time spent in performing that service in remunerative employment and
were contributing the earnings to the family’s support,
consequences
b) share child
support
c) selfsufficiency
d) relieve fam
hardship
Determination
of amount for
support of
spouses,
parents
- consider all
circumstances:
-means and
future of both
-capacity to
support
yourself
-capacity to
support
-age,
physical/mental
health
-dependant’s
needs,
standard of
living
time/measures
to enable
sufficiency
-obl to support
someone else
-desireability of
staying at
home
-contribution to
career potential
(10) The obligation to provide support for a spouse exists without regard to
the conduct of either spouse, but the court may in determining the amount of
support have regard to a course of conduct that is so unconscionable as to
constitute an obvious and gross repudiation of the relationship.
- length of
cohabitation
-effect of
earning
potential
-housework
Conduct
-doesn’t matter
unless
unconscionable
Divorce Act, 15.2, 17(1), 17(4), 17(7)
Spousal Support Orders
15.2 (1) A court of competent jurisdiction may, on application by either or
both spouses, make an order requiring a spouse to secure or pay, or to
Spousal
support order
 (vi) the effect on the spouse’s earnings and career development of the
responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public
money.
141
secure and pay, such lump sum or periodic sums, or such lump sum and
periodic sums, as the court thinks reasonable for the support of the other
spouse.
(2) Where an application is made under subsection (1), the court may, on
application by either or both spouses, make an interim order requiring a
spouse to secure or pay, or to secure and pay, such lump sum or periodic
sums, or such lump sum and periodic sums, as the court thinks reasonable for
the support of the other spouse, pending the determination of the application
under subsection (1).
(3) The court may make an order under subsection (1) or an interim order
under subsection (2) for a definite or indefinite period or until a specified event
occurs, and may impose terms, conditions or restrictions in connection with the
order as it thinks fit and just.
(4) In making an order under subsection (1) or an interim order under
subsection (2), the court shall take into consideration the condition, means,
needs and other circumstances of each spouse, including
 (a) the length of time the spouses cohabited;
 (b) the functions performed by each spouse during cohabitation; and
 (c) any order, agreement or arrangement relating to support of either
spouse.
(5) In making an order under subsection (1) or an interim order under
subsection (2), the court shall not take into consideration any misconduct of a
spouse in relation to the marriage.
(6) An order made under subsection (1) or an interim order under subsection
(2) that provides for the support of a spouse should
 (a) recognize any economic advantages or disadvantages to the
spouses arising from the marriage or its breakdown;
 (b) 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;
 (c) relieve any economic hardship of the spouses arising from the
breakdown of the marriage; and
 (d) in so far as practicable, promote the economic self-sufficiency of
each spouse within a reasonable period of time.
Variation, Rescission or Suspension of Orders
17. (1) A court of competent jurisdiction may make an order varying,
rescinding or suspending, prospectively or retroactively,
 (a) a support order or any provision thereof on application by either or
both former spouses; or
 (b) a custody order or any provision thereof on application by either or
both former spouses or by any other person.
(4) Before the court makes a variation order in respect of a child support order,
the court shall satisfy itself that a change of circumstances as provided for in
the applicable guidelines has occurred since the making of the child support
order or the last variation order made in respect of that order.
(7) A variation order varying a spousal support order should
 (a) recognize any economic advantages or disadvantages to the
former spouses arising from the marriage or its breakdown;
 (b) apportion between the former 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;
 (c) relieve any economic hardship of the former spouses arising from
the breakdown of the marriage; and
 (d) in so far as practicable, promote the economic self-sufficiency of
each former spouse within a reasonable period of time.
- sum Ct thinks
is reasonable
-lump/periodic
Interim order
Terms and
conditions
Factors
Spousal
misconduct
Objectives of
spousal support
order
Order for
variation,
rescission or
suspension
Factors for child
support order
Objectives of
variation order
varying spousal
support order
142
Willick v WIllick 1994
Interpretation s. 17(4) : “the approach which a court should take is to determine first, whether
the conditions for variation exist and if they do exist what variation of the existing order ought to
be made in light of the changes in circumstances.”
- material change in circumstances: “a change, such that, if known at the time, would likely
have resulted in different terms. The corollary to this is that if the matter which is relied on
as constituting a change was known at the relevant time it cannot be relied on as a basis
for variation.”
3a. legislation vs judgment; open-textured statutory language, unchanged over tiem
 Pelech, cited in Moge, shows SCC ideas of support has changed.
 It was a case of old Divorce Act. They had an agreement upon divorce. Years after, Ms.
P is unable to support herself
 Majority (Wilson): takes a firm line, upholds such waivers of spousal suppot
 An unconscionable agreement is unfroceable. But if both capable, then the
agreement will be enforced
 Hard line view
 K cannot outst the court’s jurisdiction: even a private agreement, the court can still
look at it
 A lexicon of responsibility and maturity attached to negotiated settlements
 Later interpretation: hard enforcement AND clean break theory of divorce absent Ks
 Note – few SCC family cases
 Pelech seen as the SCC not being keen on spousal support. Hence,
clean break emphasis
Moge

social context: feminization of poverty, Charter values
 this is prior Willick, she cites herself in Willick
 HBD : courts can take judicial notice that women are disadvantaged by
divorce
 McLach : differentiates for HD. Prepared to accept that claimant should establish
causation. She’s not ok with judicial notice of disadvantage, wants evidence wrt to
particular parties
 A single overarching goal: equitable sharing of the consequences of marriage or
breakdown
 Consequences of marriage vs conseq of breakdown (look at
disadvantage BEFORE marriage)
 Parl carries out substantive equality for spouses – assuming they
make equal contributions
 396 (also concern with substatntive equality – assuming that all
contributions are useful )
 Practical difficulties in calculating compensation??
 Disadvantages from marriage breakdown? As opposed to it going on
forever, … finishing education and getting job???
Wht do you measure and how do you do it
Moge v Moge 1992
Facts: Parties got divorced in 1983. Wife has grade-seven education. During marriage, wife took
care of kids, house, and worked part-time cleaning offices. After divorce, continued working but
was eventually laid off. Husband got order terminating support payments in 1989 – trial judge
found that former wife had had time to become financially independent and her husband had
supported her for as long as he could be required to do so.
Issue: Is the wife entitled to ongoing support for an indefinite period of time? Holding: Yes.
143
Ratio: All the factors in s. 17(7) are to be taken into account in determining whether a spousal
support order should be varied, not just self-sufficiency. A spousal support order or variation
should alleviate the losses caused to a spouse by the marriage or its breakdown.
Reasoning:
Majority (L’Heureux-Dubé J. + 4):
 The principles in Pelech are not applicable here; should not be applied to nonconsensual situations (that case engaged deference to freedom of K)
 All four of the objectives outlined in ss. 15.2(6), 17(7) of DA1985 must be taken into
account when spousal support is claimed/asked to be varied
o “means and needs” test is no longer the exclusive criterion for support (15(4))
o Objective of self-sufficiency is only one among the four, and is only a goal “in
so far as is practicable”  it is not given any priority over the others
 Making “self sufficiency” a pre-eminent objective is inconsistent with statutory interpretation
and the social context in which support orders are made
 The Act recognizes the economic advantages/disadvantages flowing from marriage for each
spouse  women have tended to be disadvantaged (this can be judicially noticed); and
Act provides for this in valuing domestic labour
 Ultimate goal = alleviate disadvantaged spouse’s economic losses as completely as
possible
o Spouses are entitled to be compensated for contributions to the marriage and
losses sustained as a consequence of the marriage upon its breakdown
 Important for judges to be aware of the social reality in which support orders are experienced
by the parties
 In the case at bar, wife was disadvantaged by the marriage, and although she has tried, she
has not yet gained self-sufficiency  continued support is required
Concurrence (McLachlin J. + 1):
 The need to consider all four factors in s. 17(7) rules out strict self-sufficiency model
 There is no absolute obligation for a spouse to become self-sufficient within a certain
period of time, after which no obligation on other spouse to support them
o Some economic disadvantages created by the marriage are permanent
 The disadvantages “created” by the marriage should be analyzed according to common
sense, not a strict scientific causation standard
 LHD sees too much emphasis in jurisprudence on only 1 factor to consider in making a
support order  self-sufficiency (s. 15.2(6)(d)). There are other factors to consider.
 LHD ascribes to the compensatory model of spousal support – the woman is owed money for
the disadvantages she incurred during the marriage; so she grants continued support to the
woman 10 years after the marriage ended.
 This swings back the anti-support pendulum from Pelech.


McLachlin focus on consent
End of Para 31: Mclachlin’s use of “equitable”,
 “foist” implies not well care for by the state
 unjust that the former spouse sould not be making claims for the state
 takes it for granted we would agree with her

she assumes something is injust without explaining it!
 Para 48: same thing
 Justice considerations, fairness ?
 Reasoning not quite as tight in
 Para 2,4,7 = facts
 She ws getting too independent, he entered the marriage knowing she
had chronic problems
 He knew about the stuff and didn’t get out! He’s personally responsible
Bracklow remains good law on support
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Bracklow v Bracklow 1999 SCC
Facts: Wife and husband lived together for 4 years and then married. At first, she paid most of
the household expenses because she was earning more and her 2 kids were living with them.
Then the expenses were split more equally. Husband supported her when she was too ill to work.
She became very ill (bipolar, OCD, fibromyalgia) and they divorced
Issue: May a spouse have an obligation to support a former spouse over and above what is
required to compensate them for the loss incurred as a result of the marriage/its breakdown?
Holding: Yes.
Ratio: Spousal support is available even when there is no compensatory or contractual
entitlement to support. Non-compensatory spousal support arises from the marital relationship
itself.
Reasoning (McLachlin J.):
 “what happens when a divorce – through no consequence of sacrifices, but simply
through economic hardship – leaves one former spouse self-sufficient and the other,
perhaps due to the onset of a debilitating illness, incapable of self-support?”
 McLach’s facts: he complained she was “too independent”, split things more equally,
o Signs of illness there from beginning of marriage

Trial J.: Understood Moge to require a tort-based approach to question of support. Support
ordered only where marriage/breakup caused economic disadvantage to one party.
o Did not find that Mrs. B. was disadvantaged by the marriage.

Lower courts assumed that, without a Kual agreement for post-marital assistance, entitlement
for support could only be found using the compensatory principle
 BUT law recognizes 3 conceptual grounds for spousal support: 1) compensatory; 2)
contractual; 3) non-compensatory
 Moge: articulation of entitlement for compensatory spousal support, but also…
o “The same reasons, however, make it clear that compensatory considerations
were not the only basis for support. Judges must exercise their discretion in light
of all the objectives of spousal orders as set out in s. 15.2(6) and after having
considered all the factors set out in s. 15.2(4) of the Divorce Act. By directing that the
judge consider factors like need and ability to pay (as explored below), the new
Divorce Act left in place the possibility of non-compensatory, non-contractual
support.”
Modern Marriage:
 When spouses are married, they owe each other a mutual duty of support (Moge) ; default
presumption of the partnership is mutuality/interdependence
o Spouses may alter expectation through explicit King, or unequivocal structuring of
daily affairs
 Upon divorce, this presumption of mutual support no longer applies; need a basis for support
Two Models of Marriage and (Three) Associated Bases of Post-Marital Obligation
 Model 1 of Marriage: Basic Social Obligation
o Former spouse has primary responsibility to provide for ex-partner, not gov’t 
income-replacement model
o Marriage is a potentially permanent obligation; creates interdependencies that aren’t
easily unravelled
o “Acknowledged theoretical and legal independence of each spouse, but equally
the interdependence of two co-equals” [30]
o Associated policies: recognizes that it may be impossible to disentangle the spouses,
or that self-sufficiency may be impossible for one of them to achieve
o Associated theory of support = non-compensatory spousal support (1st basis of
legal entitlement to support)
o “finally, it places the burden of support for a needy partner who cannot attain
post-marital self-sufficiency on the partners to the relationship, rather than on
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


the state, recognizing the potential injustice of foistering a helpless former
partner onto the public assistance rolls.” [31]x
Model 2 of Marriage: Independence
o Each party to a marriage is an autonomous actor who retains his/her economic
independence throughout marriage
o Associated policies: supports modern value of equality and independence of parties,
encourages self-sufficiency after divorce, recognizes social reality of shorter
marriages and successive relationships, social reality of shorter marriage/successive
relationships
o Associated theory of support = compensatory spousal support (2nd basis for legal
entitlement to support) and clean-break theory: when a former spouse has
compensated any economic costs of the marriage and its breakdown, spouse can
move on with their life,
Both models can be varied by K (contract is the 3rd basis for legal entitlement to support)
Marriages may fit in neither model, or in both. Neither theory alone can achieve a just law of
spousal support. Many marriages are a mix
Application of Moge, other Case Law, and Divorce Act
 To determine a support dispute, need to:
o Consider the objectives in s. 15.2(6) of DA. None is paramount.
o Need to consider factors in s. 15.2(4) DA against this background. Discretionary
analysis on facts.
 Contractual basis of entitlement to support is recognized in 15.2(4)(c) DA (not at issue here)
 Compensatory basis is recognized in s. 15.2(6) DA (not at issue here)
 DA and provincial statutes do not confine the obligation of support to these grounds  need
to consider means, needs, circumstances of the parties
o this invites “an inquiry beyond compensation to the actual situation of the parties at
the time of the application.” – suggests social obligation model
 Non-compensatory basis is recognized in s. 15.2(6) DA (c), (d)  economic hardship can
be the mere fact that a person who formerly enjoyed intra-spousal entitlement now finds
him/herself without it
o Such an interpretation supports the separate inclusion of a) and c)
o d): self-sufficiency can be related to foregoing career opportunities but also
disappearance of the career they used to do! (nothing to do with marriage)
o Note - A) and b) = concerned with compensation
 “Nothing in the Family Relations Act or the Divorce Act suggests that the only
foundations for spousal support are compensatory.”
 In cases where self-sufficiency is impossible, there may be a support obligation
flowing from the marriage relationship itself (when spouses achieve self-sufficiency by
themselves, or with compensatory award, this obligation lies dormant)
o Marriage is a serious undertaking; involves the potential for a lifelong
obligation
Application to the Case
 Wife submits the quantum (both amount and duration of payments) should be based on her
need alone; husband submits it should be based on short length of the marriage
 Neither of them are right – are focusing on only one factor  need to consider all
 Although at the beginning, both seemed independent, become more interdependent after
o He also paid medical bills at the beginning of illness
o It follows that divorce did render the appellant in a state of economic hardship
 Mrs. B. is eligible for support based on length of cohabitation, hardship breakdown of
marriage imposed on her, her need, and Mr. B’s ability to pay (quantum should be decided by
trial judge)
Leckey on Bracklow:
 The woman is disabled, but not by her marriage  so the compensatory principle from Moge
doesn’t apply
146



So the court awards non-compensatory support; support can be owed just because people
took the serious step of getting married, court says.
This is a total turnaround by the court on the role of public institutions to support
vulnerable divorcing parties (cf. Pelech)
o There is more interest in this case in intensifying private support duties
This is a more needs-based approach: does Bracklow open the door to support owed to a
spouse that gets sick after the divorce? Not sure.
23. Obligation of support con’d – private ordering




changing conceptions of the state–family relation
law and economics analysis of family law
a role for contract?
the role of the legal profession
Recap:
 Married spouses and parents and children owe each other support under provincial law
 After parents divorce, they continue to owe a duty of support to their child
 The DA, s. 15.1 provies a mechanism for enforcing the duty to support their children but it
does not create a duty!
As a general proposition, divorce or formerly married spouses owe one another a duty of support.
FALSE
 Bracklow: the first step is that the person asking for support has to establish they are
entitled to support
 You don’t owe each other support from the starting point unlike child support
 Discretionary all the way through
For former spouses, s. 15.2 of the Divorce Act and orders made under it carry out the duty of
spousal support, but they are not its source. FALSE
 Divorced spouses DO NOT owe each other support – if you took out 15.2, there would be
no obligation
Key issues in the case of child support payable by parent – quantum!
Contentious issues regarding spousal support for a former spouse – entitlement as a threshold
matter and then quantum!
How reasonable is to suppose that people will making reasonable arrangements upon
relationship breakdown?
 M was understood as not as quite a hardline as Pelech, but still pretty strong support of
private agreements
 Not enough to say that the spouse is getting less than by a Court
 Dissent: more alert to conditions to bargaining
 Teling judges how heavily to weigh agreement when judge is asked to order
support. Its not about whether its enforceable or not
 Will inform the judge as to what is going on …
Miglin v Miglin 2003
Facts: Married 14 years – 4 kids. Owned a lodge together (family business). Upon divorce, each
party retained counsel and negotiated a separation agreement for 15 months. He got the
business; she got the house (he kept paying the mortgage). He gave her $60,000 in child support
per year, $15,000 in spousal support for her consuling for the business
147
(term limit 5 years, option to renew on consent of both parties). Parties’ relationship deteriorated,
Mrs. applied for spousal support order from court for 1st time when term limit ran out.
Issue: In an originating application for spousal support, what amount of weight should be
accorded to a pre-existing spousal support agreement?
Holding: If the process of negotiation was fair, the terms of the K were fair and in compliance
with the DA at the time of creation, and they continue to be fair at the time of application, great
weight (with dissent).
Ratio: Pelech no longer applies. Support agreements should be given a substantial amount of
weight if they are accurate reflections of the will of the parties and substantially comply with DA.
Reasoning:
Majority (Bastarache, Arbour JJ. + 5):
 Narrow test enunciated in the Pelech trilogy for interfering with a pre-existing agreement is
not appropriate in the current statutory context
o Pelech: adhered to clean-break theory. Established a test under which a court can
override a spousal support agreement: court will only interfere if there has been a
significant change (radical/ unforeseen) in circumstances that is causally connected
to the marriage since the making of the K
o Judicial and societal understandings of spousal support have changed since
Pelech – recognize that different models of support may be appropriate in
different circumstances
o Pelech and trilogy’s focus on self-sufficiency is “too crude” – Moge: compensatory
support; Bracklow: non-compensatory support
 1985 act militates in favour of assessment of all the circumstances, including the
content of the agreement
o the CA was wrong to use material change test from s. 17: “it is not the existence
of change per se that matters but whether, at the time of the application, all the
circumstances render continued reliance on the pre-existing agreement
unacceptable.”
Test for an application for spousal support that is inconsistent with pre-existing
agreement
*Unimpeachably negotiated agreements that represent the intentions and expectations of
the parties and that substantially comply with the objectives of the Divorce Act as a whole
should receive considerable weight.
 This does not mean that agreements that deviate from s. 15.2(6) would be overturned –
this would undermine the policy goal of negotiated settlement; parties autonomy
and freedom
 Can’t render discretion to look at prior agreements under s. 15.2(4)(c) meaningless
 Reasonable effort to meet objectives of s. 15.2(6) would dispose of the issue
“only where that agreement fails to be substantial compliance with the overall objectives
of the Act, including certainty, finality and autonomy”
1. Stage One: at the time of formation of the K
a. Process: conditions of negotiation of K
i. Was the process of negotiation fair? Were there any circumstances of
pressure, oppression, or other vulnerabilities exploited? (lower standard
of unconscionability than in pure K)
ii. There must be evidence that there was an imbalance of power
iii. Vulnerability can be compensated by the presence of counsel
b. Substance: content of K
i. Is the agreement in substantial compliance with DA?
ii. Only a significant departure from the general objectives of the act will
warrant court intervention (so even if content of K isn’t what court would
order, may still be upheld)
iii. Even if it is not totally in compliance with DA, must still be considered
148
when court is making its substitute order (still indicates parties objectives
and understanding of their marriage)
2. Stage Two: at the time of application for the spousal support order
It is only where the current circumstances represent a significant departure from the
range of reasonable outcomes anticipated by the parties, in a manner that puts them at
odds with the objectives of the Act, that the court must be persuaded to give the
agreement little weight.
a. Substance only. Does the agreement still reflect the original intentions of the
parties – has it borne out their expectations?
b. Is it still in substantial compliance with the objectives of the DA?
c. If not, applicant must show that the new circumstances were not reasonably
anticipated by the parties and have led to a situation that cannot be condoned
(no need for change to be radical or causally connected to the marriage). Some
degree of change is foreseeable: health, job market, parental resp, housing
market, assets values
 Application to case at bar: No indication that negotiation was frought with vulnerabilities
- parties had very qualified legal counsel who advised them at every step of the way. No
unfairness in process – agreement reflected their needs and wishes, Agreement was
substantially in compliance with objectives of the Act. Wife’s current circumstances are not
such that court should intervene to override the agreement. Wife’s current position NOT
outside the reasonable range of circumstances that the parties contemplated
 no evidence of marriage’s long term impact on her employability or that at negotiation she
underestimated how long it would take to become self-sufficient
Dissent (LeBel, Deschamps JJ.): More gendered approach.
 1985 Act created fundamentally different statutory environment in 2 key ways:
o 1) 15.2(6) – fours spousal support objectives (self-sufficiency became just one of key
objectives)
o 2) inclusion of separation agreements in s. 15.2(4)
 Trilogy’s requirement of a radical and unforeseen change in circumstances that is causally
connected to the marriage is incompatible with the requirements of s. 15.2(6)
The appropriate test for overruling a spousal support agreement is its objective fairness at the
time of application for the order. Look at the degree in which the agreement realizes the
objectives of s. 15.2(6) in light of all of the parties’ circumstances at the time of the
application will be the determining factor in according it “finality”
 Moge and Bracklow both supported a contextual approach (not focus on autonomy)
 Application: Here, is no longer fair to the wife.
 Deference to separation agreement bc presumed to express parties free will NOT a
desireable policy
o Agreements aim to disentangle complex relationships and dependencies
o Emotionally charged
o Prospective – hard to foresee how economic consequences of marriage and
breakdown
o Lower standard than unconscionability – unconscionability test doesn’t capture
economic disparities, familial roles (gender based) play into the negotiating process
o Women = usually vulnerable party in negotiation
 Standard of objective fairness
o This based on the language of statute
o = court has broad jurisdiction and duty to ensure matrimonial agreements are
consistent with objectives of the law
o court can intervene regardless if unfairness stems from: the intial agreement, failure
to accurately predict eco conequences, consequences of breakdown over time,
change in circumstances
o look at whether agreement has brought about an equitable distribution of the
economic consequences of the marriage and its breakdown
149

For an agreement to merit deference in an application for corollary relief, it must recognize
parties’ lived reality and genuinely attempt to equitably apportion the economic consequ
 Knowing that the agreement is reviewable will lead to equitable distribution
Application: only paying her 15K did not address deficit of her positon with the lodge, 
disproportionately suffered economic disadvantages of the marriage breakdown
 Limited opportunities to develop skills , she has the child care responsibilities- agreement
NOT within reasonable agreement of objectives of s. 15.2(6)
 Altho she had the resp to become self-sufficient, has to be understood she was raising two
yound children
MJ Trebilcock & R Keshvani “The Role of private ordering in family law: a law and
economics perspective” (1991)

Legal ordering has important economic implications for immediate parties and broader
role of the family in modern society
 Article looks at pre-nuptial Ks, separation agreements, commercial surrogacy Ks
 The dilemma of difference is crucial to fashioning a socially acceptable role for private
ordering in family relations
 The dilemma of difference:
o One side: men and women should be treated equally because they are equal,
autonomous moral agents. Perceptions of women as vulnerable (and attendant legal
rules protecting them) are rejected as infantilizing women and justifying overly
patronizing legislation
o Other side: men and women are not situated in same historical/social/biological
context  legal rules that do not take heed of this difference will serve to further
entrench patterns of subjection and undermine equality
 Marriage no longer seen as a life partnership; a union of two equal partners, voluntarily
contributing to a joint economic venture, in which the division of functions (financial provision,
household management, child care) are result of mutual agreement by the parties
o Advent of no-fault divorce reflects this
 Role of Alimony: previously, was a lifelong obligation of the husband to support the wife, as
long as she was not at fault for the divorce.
o She could not bargain away this right to support (matter of public policy  she should
not become a ward of the state).
o Court would therefore not enforce separation agreements (or pre-nups)
 Now, with new perception of marriage as a joint economic venture, goal of support is
promotion of self-sufficiency.
o Right to support established only where needed as a result of the economic
dependency created by marriage (Pelech).
o Court now sees separation agreements as largely binding
o Pre-nups, too, have been given greater force (except for custody arrangements)
 In general, law has evolved in the direction of permitting spouses to settle the consequences
of their marriage breakdown by themselves
Separation Agreements
 Binding, public charge basis for intervention (of husbands) has been rejected
 Pelech: new attitude to purpose of spousal support, against judicial reopening of
agreements. Had to show connection change radical change in circumstances
resulting in economic hardship and marriage
 Issue – when will courts intervene to remedy any alleged inequities?
Advantages
 Ability of the parties to create a deal that best suits their interests/preferences/plans
 Parties likelier to follow an agreement they made than one imposed on them by a third party
(court), where one party feels unduly obligated to the other
 Lower transaction costs than litigation
 Finality – spouses can move on with their lives, maximize their capacities
150
Disadvantages: sources of King failure
 Inadequacy of background entitlements:
o Where what people would get under the law is unclear, they are likelier to litigate
o Also, when there are gaps in what the law will award, people will not get them in
negotiated settlements  e.g. opportunity cost of wife’s time spent on household
production to allow husband to maximize his income (uncertainty in case law about
how much of this will be awarded to woman)
o He gets formal training, on the job experience, industry connections, pension
o She not only forgoes the income from all the years she spent not working, she
forgoes the future earning capacity created by those years
o Will lead to agreement of a sub-optimal spousal support K
 Transactional failures:
o Emotional incapacity to bargain
o Undue weight placed on interests of those not immediately party to K (children)
o Can be remedied by the presence of counsel
 Post-agreement contingencies
o What happens if circumstances change after the agreement has been made and
executed in a way not provided for?
o Is there an obligation of the supporting spouse to ease the decrease in welfare of the
supported spouse (or vice versa)?
Important to have a background set of entitlements upon which private ordering will
operate
B. De facto relationships: establishment and effects mingled
As a consequence of a variety of legislative and judicial developments, unmarried couples have
achieved an uneven recognition by the various Canadian legal regimes of the family. Placement
of de facto relationships in the course after de jure ones helps illuminate the difficulties associated
with assimilating relationships with no formal formation into the regimes attaching to statuses
obtained by informed consent. De facto relationships, chief among them unmarried cohabitation,
are recognized ex post for the purposes of enforcing some obligations. As we shall see,
unmarried cohabitation or de facto union (confusingly referred to in popular discourse as a
“common–law relationship”) distinguishes itself from marriage in that it does not produce a legal
status that survives until dissolution by a court.
If the recognition of marital status as an analogous ground for the purposes of s. 15 of the
Canadian Charter hinted at considerable promise for evening the effects of marriage and
unmarried cohabitation, that promise has borne less fruit than some would have hoped.
Meanwhile, while same–sex unmarried couples were enfolded into the regimes already attaching
to unmarried, opposite–sex couples, questions were raised as to the extent to which such
“recognition” merely advanced a neo–liberal project of privatizing support costs.
24. Pushing the boundaries of recognized conjugality: the Charter litigation for
unmarried couples



adult conjugality introduced
cohabitation and the ordinary private law of general application
cohabitation and choice
As a matter of family policy, unmarried cohabitants should be subject to same rights and duties
as married spouses
 BC’s new Family Law Act includes unmarried cohabitants for support (been that for a
long time), property division . Also manitoba, sask,
 Laws imagine that after two years, people are sharing things together
 Qc: none of the rights and obs attach to de facto spouses
151
 Ontario: support obligation -- no property stuff
Obligations in cvl law: moral, natural, civil
 art 768: declares the nullity of transfers
 gifts to concubines
 541 CCQ: surrogacy agreements are null. Saw that this had wider
meaning
 similarly, this was seen as a ban on cohabitation and cohabitation Ks
De facto spouses:
 parental project: de facto spouses part of parental project (540); adoption of child of one’s
de facto spouse – if together three years(555)
 see the HO – these are the only exs of reference to de facto spouses
 15: de facto spouses – consent to medical care
 1938: rented premises rules for de facto spouses
 de facto spouses can contain occupancy
 1974.1 de facto spouse can get out of lease if violence
 410: custodial parent can stay inhome, in title on marriage, but looks like it benefits the
child. If marriage breaks down, the custodial parent can stay in house for good of the
child
 But the children of unmarried parents won’t have this benefit
 IS 522 true!????
Cohabitation Ks: using the general private law (cf Divorce Act, ss. 15.2; 17)
 now allowed
 is it different from an agreement to pay support under the DA? Miglin: agreement isn’t
controlling for the judge in the divorce act
 agreements under the divorce act can be varied later – s. 17
De facto spouses beyond cohabitation?
 moral obligation: smth you feel, not enforceable
 natural obligation: not on its own enforceable. But if the debtor acknowledges it, it may
become enforeceable. If he discharges it, then can’t get it back later
 natural obligation can be a cause of the K (1411)
Facts: the elderly doctor has been support his frined. Gives instructions to daughter to continue
paying
 Interesting: judge looks at indicators of de facto companions even tho didn’t live
together!!! So often, de facto spouses are seen as needing to live together
 Para 10, 11
 11: acknowledges that code doesn’t reflect married life either
 1818: only what you own now, can be given as a gift. Daughter was using this article
 judge sees the gifts as clearly alimony in character
 the cause of the K: that they were de facto spouses, even tho never lived together
7. Statutory def’n of cohabitating spuses
 proxies for commitment tantamount to marriage OR economic interdependence?
 Or both? ??
 You could say, whether ti’s voluntary or not, people take actions leads
to situations of dependence
 Child = likely to make people disadvantaged
Living Apart together:
 is it appropriate to extend legal definition to them?
152
 Is the shared roof = indicator of vulernability and dependence?
Law commission of Canada:
LAT acknowledges people outside the norm (why do we only recognize couples living outside
of sexual relationship)
 altho LAT are still in a commited together: intense relationship, caregiving relationships,
adult siblings living together,
CCLC, repealed art. 768
768. Gifts inter vivos made in favour of the person with whom the donor has lived in concubinage,
or of the incest or adulterine children of such donor, are limited to maintenance.
The restriction does not apply to gifts made in a contract of marriage entered into between the
concubinairies
Other illegitimate children may receive by gift inter vivos like all other persons.
Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close
Personal Adult Relationships (Minister of Public Works) 2001

Canadian adults form a diversity of close personal relationships: but the law has largely only
recognized those that are conjugal (marriage-like relationships), and ignored those that are
non-conjugal – adult siblings, friends living together, couples and a relative, widowers
blending families, multigenerational households, people with disabilities and their caregivers
o These other relationships may share functional characteristics of emotional
and financial interdependence with conjugal relationships
 Gov’t needs to pursue a more comprehensive and principled approach to the legal
recognition and support of the full range of close personal relationships among adults.
Req’s fundamental rethinking of how the gov’t regulates relationships
 Not enough stats on these type of relationships
Non Conjugal households and relationships
 Adults living alone, lone parent families, adults living together in non-conjugal relationships,
adult children returning home, ppl living with couples, adult siblings living together (biggest
group)
o Economic family: ppl related in sm way living together
Persons with disabilities and their caregivers: relationships of support with paid or non-paid
care givers
 Caregiving takes a toll on caregiver’s economic security and physical/emo/psych health
 Important state obj of recognizing adult support relationships
 Gov’ts have extended rights/obligations to ppl living in non-marital relationships ---but still
focused on conjugal relationship
Fundamental values and principles
 Fundamental principles that government needs to consider when framing policies that
recognize/support personal adult relationships:
o Equality: relational equality (equality between different kinds of relationships) and
equality within relationships (overcome unequal distribution of income, wealth power
in thee family and lack of state support for ppl with disabilities)
 Non-conjugal relationships still not recognized, even tho entail emotional
and financial interdependence
 Need more than just equal treatment of conjugal relationships
o Autonomy: people can freely choose their personal relationships
 Should not create financial pressure to discourage relationships without ref
to their qualitative attributes
 State should be netural to form/status or relationships and not accord
benefits to one over the other
o Personal security: ppl should make healthy choices about entering into relationship
153
o
Privacy: avoid est legal rules requiring intrusive exam, disclosure of personl adult
relationships unless violence/exploitation
o religious freedom: state shouldn’t take side wrt to religious matters, rules regarding
relationships should be based on secular laws
o coherence: law have clear objectives, ie don’t rely on marital status when it does not
have anything to do with achieving objectives
o efficiency: how effective is it to reach benefcicaries, whether can be administered
without undue/loss delays
Reconsidering the relevance of relationships
 In implementing a law that deals with relationships, government needs to ask itself: does
the relationship really matter in light of the objective of the law? Could self-designation of the
requisite relationship work? If relationships matter and self-designation is not feasible – is
there a better way to include the relationships?
 When the state must ascribe laws, it would be preferable to more carefully tailor laws to
take into account functional attributes of particular relationships
 Four legal models can be used to regulate personal relationships:
o 1. Private Law: when governments do not provide a legal framework, people can
express their commitments through K
 Can then sue for breach, unjust enrichment, constructive trust if other
person does not fulfil their obligations
 This mechanism is burdensome; can be costly, and favours the party with
greater resources/bargaining power
o 2. Ascription: government imposes a set of obligations on people in conjugal
relationships that are presumed to correspond to the expectations of the majority of
people involved in such relationships
 Can help to prevent exploitation
 But it’s a blunt policy tool – treats all conjugal relationship alike
 Violates autonomy
 Would be inappropriate for non-conjugal relationships
o 3. Registration: registered partnership could be an alternative way for the state to
recognize and support close personal relationships. When people register, a range of
rights/responsibilities would be open to them
 This kind of scheme merits consideration. Provides a vehicle for
recognizing a broad range of caring/supportive relationships
 Affirms autonomy/choices of Canadians; doesn’t violate privacy (unlike
ascription)
 No reason to impose a residential requirement on registrations
 Could be terminable by unilateral or mutual decision
o 4. Marriage: do we still need it? Could be kept as a symbolic thing with no legal
effects. Unlikely to occur.
Governments have tended to rely too heavily on conjugal relationships in accomplishing
important state objectives. Needs to reform its approach.
F Allard et al, Natural Obligation
 natural obligation considered civil where the debtor acknowledged his obligation and
committed himself to execute it
 performance cannot be forced
 (vs moral obl – not juridical in nature)
LL v EJ [2004] QCS
Facts: Dr. J and Mme. L have been together for 30 years (he’s 80, she’s 70) – they have never
lived together, but she is considered part of the family. He has paid her support payments since
almost the beginning. J gave his daughter power of attorney over his affairs in case of his
incapacity – in the mandate, it stipulated that she give $300/week to L. She has never once made
154
the payment.
Issue: Is this an enforceable obligation? Holding: Yes.
Ratio: If they contract for it, de facto spouses in Quebec can owe each other support (during their
relationship or upon the dissolution of their relationship).
Reasoning (Béliveau J.):
 Judge decides they are de facto spouses even though they never lived together (even some
married couples do not live together, he says)
 The daughter contends that this is a contract for a gift, which is not permitted except in a
marriage K or a will – therefore against public order
 Unmarried couples can subject themselves to the rules on family patrimony
o Can K to institute whatever rules they want, actually; they can subject themselves to
art. 585, if they want – can obligate themselves to support each other upon
dissolution of their relationship. Can’t say it’s against public order.
 Dr. J gave her support for 30 years – implicitly recognized his natural obligation to support
her, if not implicitly consented to a contractual undertaking (civil obligation) to do so
o The fact she thought it was a gift didn’t change anything
o How could it be against public order – the state is winning! in these circumstances
 Even if no common law relationship is found, he had a natural obligation that he performed
for 30 years,
o Some people feel morally endetted to third parties – that’s why they take measre
to ensure they’re cared for (happens often with a caregiver!)
 The cause of the unilateral undertaking was the natural obligation, which can be a cause of
a civil obligation

 Judge establishes that the parties “font la vie commune”, even though they don’t live together
 It would be a stretch even in Ontario to find that two people are de facto spouses when they
don’t live together – we generally think of “conjoints de fait” as cohabitants
 Furthermore, we might think that even married couples have to live together (see art. 391,
392) as a matter of public order
 So the judge unproblematically finding these two people who do not live together to be
“conjoints de fait” is pretty surprising
 But he is very willing to give validity to the relationship
 He finds both an implicit contractual undertaking and a performance-based undertaking to
provide support (all the years paying the support – looks like reliance)
 Interesting, if uncommon judgement
Ont FLA, ss. 29, 30
SUPPORT OBLIGATIONS
29. In this Part,
“dependant” means a person to whom another has an obligation to provide
support under this Part;
“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.
(“conjoint”) http://www.canlii.org/en/on/laws/stat/rso-1990-c-
Definitions
- can owe support
if 3 yrs
f3/latest/rso-1990-c-f3.html
30. Every spouse has an obligation to provide support for himself or herself
and for the other spouse, in accordance with need, to the extent that he or
she is capable of doing so.
Obligation of
spouses for
support
155
BC Family Law Act, s. 3(1)
3 (1) A person is a spouse for the purposes of this Act if the person
(a) is married to another person, or
(b) has lived with another person in a marriage-like relationship, and
(i) has done so for a continuous period of at least 2 years, or
(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a
child with the other person.
Spouses and
relationships
between spouses
“lived in marriage
like relatship” = 2
yrs OR has child
Duncan, “Legal rights for people who ‘Live apart together’? 2012
 10% ppl in Britain, legally and administratively they are single – but have partner living
elsewhere
 should they have same rights and obligations as unmarried cohabitants?
 Most value their commitment, a significant number provide care and support to each
other and even kids
 “opt-in” legal regime could be an appropriate model
 reasons: they want to live together but can’t bec of finance, housing costs, job location
o or wish to but chose not to (have obligations to children or prefer autonomy)

¼ of ppl classified administritavely as single bc don’t live with their partner but are LAT
o majority of LAT see themselves as a couple
 similar to unmarried cohabitants – are in exclusive relationships
 however, LAT less likely to provide physical care
 Functional case for legal recognition: would remove disjuncture between care practices
and legal status (sm married ppl don’t care for each other)
 Most interviews described their relationship as meaningful, committed and characterized
by mutual emotional care
Living apart together: current and possible legal situations
 Ppl think they are in a common law marriage and have rights of marriage – but this isn’t true
in UK!
 Australia Capital Territories Domestic Relationships Act defines “domestic relationship” as: a
personal relationship (other than a legal marriage) between two adults in which one provides
personal or financial commitment and support of a domestic nature for the material
benefit o the other and includes de facto marriage”
 Victoria Relationships Act 2008: allows domestic relationships to be registered (does not
require living together)
Interviewees responses
 1/3 said no : mostly those who preferred to live apart; separateness was important (esp
separateness of finances)
 most said: depends on the cirucmstances – based on characteristics of commitment,
children and length of relationship
 over 1/3: extend legal rights (mostly those who planned to marry or cohabit)
o finance implications (access to property, pension)
Conclusion
- difference from unmarried cohabitants, LAT actually know their legal status
- this review of their diversity, care practices,diversity of their opinions about legal
reform – point to an “opt in” design for legal reform
Leckey, “Strange Bedfellows” UTLJ
 Title refers to 1) literally Eric v Lola – the law sees them as strangers with no fam law rules
applying 2) understanding of Qc family law: as one big bundle of stuff
 husbands cites HD that marriage laws are one big bundle. Once smth applies, everying in
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family law applies
case study: of why you conceive an issue as a bundle
Leckey will present things in a different order than the paper
Core claim: self-interest of the female claimant (based on wealth of partner), led her to say
that it was an all or nothing proposition. She attracted the ct’s attention to what happends in a
winding down of a de facto relationship, as opposed to divorce
 L: it’s a bad idea to rely on privately funded Charter litigation for big social issues
 Jurisprudencial Backdrop: fundamental claim advanced by A, was a claim that it was
discriminatory to have a detailed regime for married spouses, and not unmarried cohabitants
o which were the cases the court was going to recognize as valuable
o 3 big cases about unmarried spouses and s 15 at SCC
o Miron v Trudel 1995: one of them was in a car accident. Requirement that if one of
the spouses were injured, you could be indemnified. These people weren’t married.
The SCC treated marital status as analogous – recognized that ppl might not have
choice to get married. The insurance comp should benefit
o M v H 1997: in Ontario now, spouse = ppl living together for 3 yrs; and birth of child.
Said it was uninclusive bc excluded same sex couples. SCC found discrimination –
right of support should also attach to same-sex couples if it attaches to diff sex ones
o Walsh 2002: diff sex cohabitants, legislature has extended support to unmarried
cohabitants, but not property sharing rules to them. Majority – Bastarachedifferentiated from Miron, said not disc to keep unmarried people out of property
rules. Miron wasn’t about what spouses owed one another, it was about third parties
(insurance company), here it’s about choice between themselves. They haven’t made
a choice to get married, should not enforce the property rules. Gauthier concurred,
but didn’t distinguish Miron, but rather M v H. He said there was a distinction between
support (social obligation for support) and property (Kual). LHD said it’s all the same!
It’s all about preventing unfairness at the end of a relationship – no difference
between third parties vs parties, or prop v support.
o LHD: bundle view – once you give smone smth you have to give them
everything.
o Walsh is the most important case for A v Quebec
 Background in Qc: unmarried couples included in many public laws (tax, WF, injured
workers).
o SC in Qc: based on Walsh, no discrimination. Borader idea of importance of
autonomy. All claims rejected.
o CA: Walsh is about matrimonial property and says exclusion isn’t discriminatory.
Walsh does not apply to support. Obligation of support is different from property –
look at M v H: found that support is fundamental. Said it was discriminatory to
exclude them for 585, not property.
 Used language of Kapp: exclusion of property isn’t prejudice and stereotype,
but it is prejudicial to exclude from support – suggests less worthy of dignity
 Bundle of sticks!
 SCC: three decisions
o 4 judges: no discrimination. AG’s argument that the Qc regime is about autonomy
o Abella: the whole thing is discriminatory and unjustifiable under s. 1.
 Deschamps: joins Abella. But says it’s justifiable under s. 1 …?
o McLachlin: finds de facto exclusion is discriminatory, but justifiable of s. 1. Said
absence of choice is why it’s discriminatory but also it’s saved under s 1 bc need to
respect ppl’s choices. Federalism argument
o 5/9 judges – thought it was ok – no need to change the law!
 bundle view: fam residence, support obligation, fam patrimony (don’t know the other 2)
= all three parties saw it as a bundle
o the idea that there may be relevant distinctions was only shared by 2judges and
intervenors?
Scrutinizing the bundle view



157

pieces of Qc laws: were all conceived at different times, for different reasons. Conceiving it as
a bundle – you have to see it in an abstract way
o Lebel (all about autonomy. But that’s not true for all the parts) VS Abella (opposite
view) (said whole thing is about vulnerability – but not true. Division of prop isn’t
based ont hat)

Bundle view also had an impact on the Charter analysis.
o Support case (M v H) in which discrimination was found; and a property case where
no discrimination (Walsh)
o But bc of the bundle view, sees M v H as a gay case, Walsh as unmarried case
couple. Ie, Walsh – they had a choice! And gay case don’t
o Lebel says in M v H: there was no regime for them. But they could have made a
cohabitation agreement. BUT the choice issue is always brought up with de facto
spouses – could have made cohabitation agreement
 Kapp: told us that s 15 is all about prejudice and stereotype --- --- this also leads us to a
bundle view.
o This view prevents a finding that some exclusions are stereotypical and others are
not. Kapp also pushes us to a certain abstraction. Kapp detracts from looking at the
effects of particular legislation
o L: awkward for CA when they said it was prej to exclude from support but not for
property.
o It makes it harder to see part of a regime as discriminatory and not others. Or that
smtimes some distinctions are discriminatory and others are not
 Ex. Citizenship – in some instances, the distinction makes sense –but others
don’t.
Interconnection between family law and public lw
 AG said that de facto already had benefits under public law. Tried to show not widespread
discrimination, just in family law
 1) Miron: was about public benefits (statutory regimes regulating benefits from third parties to
to the couple. Wrong to require ppl to get married to get legislated benefits
 2) Walsh – prv obs
 both cases – public / private differentiation

is it a benefit to be included under public law in QC???
o Yes, if you’re in the upper income – tax issues
o Ppl who are living together in Qc – you are presumed to be sharing resources.
Assumed de facto is sharing resources toward you. If you’re defacto spouse has
been over paid – then you become resp for the defacto spouses debts
o This is far from beign as beneficial as accident benefit in Miron
 A : said that sociologically, it’s hard to say that de facto spouses are so different when they
are treated the same under public law
o Its inconsistne and incoherent to treat them so differently
o When WF makes presumptions, it’s breaching its legislative “objective” of autonomy
 Partial recognition is worse than no recognition at all!
 Leckey: these kind of arguments would be better at the s.1 stage. But these arguments
don’t discharge burden of showing disc under s. 15
How public-private arguments could have been sharpened
 A wanted to claim the total bundle – including his increase in assets, not just support!
 But discrimination claim regarding support is much stronger than the whole bundle!
 If A could have connected obligation of support and social law
o Miron: the reason the spouses were being indemnified, was bc it was thought that
they were losing support from that spouse. This was acknowledged in Miron. At the
time, unmarried spouses already had obligation of support- so made sense they
would be the same.
o Connection between public and prv.
o In Miron, connection between third party insurance scheme and support obligation
158
Falkiner: 2002, Mike Harris conservative Ontario gov’t. Expanded def’n of spouse to
claw back WF. Assumption anyone they were living was a spouse. CA accepted that
it was discriminatory to have different def’ns of cohabitating spouses. Discriminatory
that WF had a wider def’n than the support obligation
 No one made this argument in Lola. Bc there was no interest in support obligation being
made
Two new arguments sugg by L :
 1) Discriminatory to force ppl to get married to get benefits
o Miron and Falkiner – assymettrical def’ns of spouse where there’s a connection
between private and public law
o Would have rethought the private/public split. All the parties saw it as a private issue
2) Once we finds discrimination under s. 15, it’s not justified to exclude them
 if the obj is to promote autonomy – then this negated by inclusion in WF
 McLach might have been persuaded that exclusion was unjustifiable.
o She was snesntive to federalism. Even deference does not result in leaving the
status quo. “Qc, if you’re serious about this objective and policy of freedom, you need
to stick to it”
 Conclusion: Public vs private law split is rethought, the bundle argument vs sticks is
rethought,
o Focus on support: would have brought us closer to Miron (public)
 L: private litigation process does not provide incentive to argue for broader social
issues.
o Could have highlighted how access of public benefits DURING cohabitation is also
discriminatory, not just on breakdown
o
In another Charter litigation, we see the case as benefiting others. But here, different. Bc person
with money, it doesn’t have broad implications

Leckey: lawyers are used to making differntiations
 Lebel and Abella is like saying all financial intereactions with a corporatin is the same
(salary, dividents, sale of shares)
Formal (idea that once you are recognize smth – you need to recognize it all. In Ontario, after M v
H, widespread legislative changes to recognize cohabitants across,) vs substantive equality (why
are you recognizing it?)
This case established that unmarried same-sex couples owe each other an obligation of support
upon dissolution of the relationship:
M. v. H. (1999) – CML (SCC from OCA)
Facts: M and H lived together in a same-sex relationship for about 10 years. Were economically
interdependent, with M relying on H for some of her economic sufficiency. They broke up, and M
applied for support under s. 29 of the FLA, which says that a man and a woman (imported from
definition of spouse) who have lived together in a conjugal relationship for more than 3 years owe
each other an obligation of support. Denied because her and her partner were not a man and a
woman.
Issue: Does s. 29 FLA violate s. 15 of the Charter? Holding: Yes, with dissent.
Reasoning:
Majority (Majority + 2 concurrences):
Violation of s. 15
 FLA draws a distinction between opposite-sex unmarried couples who have been cohabiting
for 3 years and same-sex couples who have been cohabiting for three years
o Has the effect of withholding a benefit from M  she is denied access to the courtenforced support system
 The legislation fails to take into account her actual needs; promotes the view that same-sex
couples cannot form lasting relationships of (economic) interdependence. Is discriminatory.
159
Justification under s. 1
 Purpose of the FLA (and s. 29) is pressing and substantial  to provide for the equitable
resolution of economic disputes that arise when an intimate relationship between individuals
who have been financially interdependent breaks down.
 Also to make sure people who can and should be supported by exes aren’t foisted on
public purse.
 Excluding same-sex couples from the regime doesn’t help achieve these goals 
actively works against the conservation of public funds
 Argued that the objective of s. 29 is to protect women in heterosexual relationships, because
they tend to become more reliant on the men (because of lesser earning capacity, it is more
efficient for them to perform household work – are also primary caregivers to children)
o See Bastarache CP 572 for explanation of why legislature chose to impose support
obligations on unmarried couples post-dissolution of their relationship (thus
expanding support obligations beyond the realm of consensual undertaking in
marriage)
 To alleviate the subordinate position of women in those relationships and
after their breakdown
o But note that either the man or the woman can claim for support under s. 29
o Also, even though same-sex couples are not subject to the traditional power
imbalance plaguing straight couples, excluding same-sex couples doesn’t help the
legislation help straight women
 Statute excludes individuals who fall squarely within its mandate. No rational connection
whatsoever between exclusion and purpose of the legislation
Dissent (Gonthier J.):
 Primary purpose of s. 29 FLA is to recognize social function of straight couples and their
position as a fundamental unit in society and to address dynamic unique to opposite-sex
couples (stemming from social reality, biological reality)
 Use of gender-neutral language on the face of s. 29 does not imply that its purpose is to
impose support obligations unnecessary in reality
 In Gonthier J.’s opinion, this legislation’s exclusion of same-sex couples corresponds to
their actual needs – there is no historical imbalance between the partners that needs to
be addressed
o Opposite-sex couples: woman is traditionally disadvantaged because she cares for
the children, tends to forgo her lower-paying work to stay at home  tends to
become economically dependent on the man. This dynamic is unique to oppositesex couples.
 Statute actively imposes a burden on some (benefit on recipients) – cannot extend it to those
who do not require its remedial effects
 Mere need in an individual case is not enough to make FLA’s scheme constitutionally
underinclusive
 Same-sex couples can achieve the effect of this legislation through contract
Ratio: Same-sex and opposite-sex unmarried couples who cohabit for more than 3 years owe
each other an obligation of support on dissolution, as mandated by s. 29 FLA.
Leckey on M. v. H.:
 Same-sex marriage was not legal at the time. So this whole challenge takes on more
significance, because the option to marry and thus be included in private-law marriage
regimes (and support obligations upon divorce) isn’t even open to same-sex couples yet.
 It is not framed as a challenge to the opposite-sex nature of marriage; the decision is reached
on the basis of the door opened by the Legislature when they imposed support obligations on
unmarried couples
 It was decided support obligations ought to be imposed on all unmarried couples, not just
some. So the court reads in “two persons” into the definition of spouse in the FLA.
 This Charter remedy doesn’t change the government’s duties or obligations
o It only changes individuals’ obligations to one another
160
o
o
This in fact eases the burden on the public purse
The legislation at issue doesn’t increase choice; increased the burdens imposed on
people by law without choice
Miron v. Trudel (1995) – CML (SCC from OCA)
Facts: M and V, unmarried, live together with their kids and function as a family and economic
unit. M hurt in a car accident. Claimed for accident benefits under V’s insurance policy (regulated
by Insurance Act), which extends benefits to “spouse” of policy holder. Claim denied because M
was not V’s spouse.
Issue: Does the distinction between married and unmarried couples in the Insurance Act violate
s. 15(1) of the Charter? Holding: Yes, with dissent (5-4).
Reasoning:
Majority (McLachlin J. + 3):
 Marital status = analogous ground to those enumerated in s. 15. Discrimination on that
basis touches the essential dignity of people; unmarried couples are historically
disadvantaged; is not always a choice not to get married.
 Distinction constitutes discrimination, which is not justified because the distinction is not
rationally connected to the pressing goals of the legislation, which is to sustain families when
one of their supporting members is hurt
 Marital status is not a reasonably relevant marker of who should receive benefits when a
family member is hurt
 Remedy: read in unmarried couples to definition of “spouse” in IA
Concurrence (L’Heureux-Dubé J.):
 Distinction based on marital status in the legislation perpetuates the view that unmarried
couples are not worthy of equal recognition/value
 Marriage is not a matter of individual choice (is a joint, personal choice)
 Affected interest here is vital: protection of families from consequences of injury to one of
their members
 s. 1  unjustified distinction. CML spouses in Ontario are bound by an obligation of
mutual support (s. 30 FLA). But are excluded from legislation whose basic purpose is
to fulfil that mutual obligation premised on the relationship of interdependency of the
couple. No rational connection between distinction and goal of legislation.
Dissent (Gonthier J. + 3):
 Marital status is not an analogous ground to those listed in s. 15
 Marriage is a basic social institution which the state can legitimately legislate to foster (s.
91(26))
 Is a status that can only be acquired by the expression of the individual’s consent
(expression of personal, free choice)  law attaches certain rights and obligations to
the K created
 When individuals choose not to marry, it would undermine their choice if law ascribed
those rights/ obligations to them anyway
 Unmarried couples are no longer disadvantaged in contemporary society
 Functional value of the legislation is the support of marriage – the distinction made between
married and unmarried couples is not discriminatory, because that is a valid goal to pursue
o Legislature has no obligation to extend all rights of married couples to
unmarried couples
Ratio: Marital status is an analogous ground to those listed in s. 15.
Leckey on Miron:
 Unmarried couples are included in Ontario FLA; but not all regimes in Ontario include
unmarried couples in the term “spouse” when they use it
 If the couple wins, the third party insurance company would be required to support one of
them
 Majority establishes marital status as an analogous ground for s. 15:
161
They say marriage is not always a meaningful choice. But didn’t McLachlin say in
Bracklow that marriage is a meaningful choice?
o Are unmarried couples subject to discrimination in the way other groups in s. 15 are?
Marriage can be chosen.
o If discrimination against unmarried couples wanes, will it be removed as an
analogous ground? It is generally thought that once something is designated as an
analogous ground, it remains one.
Dissent emphasizes the contractual nature of marriage
o Marriage can also be legislated about directly; we would not have an act legislating a
particular race – makes it awkward to have it as a basis for equality claims
How much space is there to recognize people as married for some purposes but not others?
o


This case was seen as the SCC backing away from its establishment of marital status as an
analogous ground – how to reconcile with Miron v. Trudel?
Nova Scotia (A.G.) v. Walsh (2002) – CML (SCC from NSCA)
Facts: B and W cohabited for 10 years. Upon breakup, W applied for spousal support, child
support, and a declaration that the definition of “spouse” in NS’s Matrimonial Property Act was
unconstitutional because it discriminated between married and unmarried cohabiting couples by
providing the former with an equal division of matrimonial property but not the latter (s. 15).
Issue: Does the MPA discriminate against unmarried cohabiting couples on the basis of marital
status by not providing them with an equal division of assets at the end of the relationship?
Holding: No, with dissent.
Reasoning:
Majority (7 judges):
 Yes, the MPA treats married and unmarried couples differently. But not in a discriminatory
fashion.
 When legislation has effect of dramatically altering people’s legal obligations, choice must be
paramount – unmarried couples have chosen not to marry and therefore to avoid the legal
consequences of marriage.
o If the government doesn’t respect that choice, it nullifies the individuals’
freedom to choose alternative family forms
o Assumes a commonality of intention among all unmarried couples which doesn’t exist
 The decision to live together, unlike the decision to marry, is not sufficiently indicative of an
intention to equally share in each other’s assets/liabilities
 The distinction made by the MPA is not discriminatory because it corresponds to the
differences in the relationships – respects the fundamental liberty of each individual
Concurrence (Gonthier J.):
 Kind of still refuses to accept marital status as an analogous ground under s. 15(1) – married
and unmarried couples are not similar enough to compare because the latter haven’t entered
into a K determining their rights/obligations
 Growing recognition of right of unmarried couples to spousal/child support does not extend to
the division of property upon breakdown
o Objective of matrimonial property division is to divide assets according to the
marriage K and the property regime chosen by the parties
o Main objective of support is to meet the needs of spouses/children  is not a
contractual obligation and responds to situations of dependency
Dissent (L’Heureux-Dubé J.):
 MPA’s failure to provide unmarried couples with equal division of property upon relationship
breakdown fails to provide a benefit at a time when it is most needed  does not
correspond to needs of claimant group
 “The MPA has nothing to do with choice or consensus and everything to do with recognizing
the needs of spouses at the end of the relationship. Initial intentions are therefore of little
consequence. People are often unaware of their legal rights and obligations and do not
organize their personal lives in a manner to achieve specific legal consequences.”
o Sounds pretty paternalistic
162
 Cannot be justified by s. 1 (no rational connection)
Ratio: Unmarried cohabiting couples do not benefit from equal division of property upon
relationship breakdown, although they can get support.
Leckey on Walsh:
 People were shocked when the SCC overturned the NSCA’s finding that the MPA violated s.
15 and instead found that the MPA was not discriminatory
o They emphasize marriage as a choice – cf. McLachlin for Miron court (marriage is not
always an available choice, unmarried couples have not necessarily chosen to be
unmarried, etc)
 Perhaps the court has regretted its recognition of marital status as an analogous ground
under s. 15
Class questions : Does the parents’ being unmarried produce legal consequences for a child born
in Canada?
A: It depends: easier for a child to est legal bond with the adult if the parents are married.
In CML provinces, unmarried cohabitating couples are treated like married couples. A: Partly
The CCQ’s book on fam treats unmarried cohabitants like married spouses.
A: NO
Note: CCQ represents a very FORMAL approach to recognizing adult couples.
Cnd law provides for consensual divorce, obtainable on app of one spouse or both. FALSE
- Parl’s concern ppl shouldn’t get out of marriages too easily
Cnd law included “sodomy” and “commission of a homosexual act” as grounds for divorce distinct
from “adultery” until…. A: 1986
26. Rethinking the push for recognition

dilemmas of recognition: the role of the state and unintended consequences
 feminist critique of expanding private support obligations
Nova Scotia : proposing that grandparents have automatic access to their grand children. In
custody, parents are in a privileged position to ask court for access
- Ask yourself when would it apply? Only where custodial parent (HB says we should assume
they know best) is opposed to this.
- Reminder that in family law, you need to think who will have problems – ppl who have
already failed at working things out informally and at being a « normal family »
- We only reach a judge when ppl haven’t been able to work things out well in Court
Movement on the Margins in Quebec - Miron, Walsh, Quebec v A – Policy Directions in Qc
CCQ
- the fact that civil code refers to de facto spouses, but it’s not defined (535 ? 555).
- A break from the CCQ’s systemic approach
- 5 titles : Marriage; civil union (rights and obligation); Filiation; Obligation of support (spouses
and children) --- only referring to the relationships defined above.
- Different : in Ontario, part 3 in the Family Law Act, expands def’n at the support stage.
- VS QC – rights and obligations attached based on already assigned stattus
- Interpretation Act (Quebec) – s. 61.1
o not concerned with length unless there’s a controversy
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o
o
o
« 61.1. The word “spouse” means a married or civil union spouse.
The word “spouse” includes a de facto spouse unless the context indicates
otherwise. Two persons of opposite sex or the same sex who live together and
represent themselves publicly as a couple are de facto spouses regardless,
except where otherwise provided, of how long they have been living together. If,
in the absence of a legal criterion for the recognition of a de facto union, a
controversy arises as to whether persons are living together, that fact is
presumed when they have been cohabiting for at least one year or from the time
they together become the parents of a child.”
o In the title on marriage, when the Qc legislature says “spouse” it marries married
people.
- 538 : reference to spouses (unqualified) – the interpretation act refers to both married, civil
union and de facto spouse
o 538.3 : at this point- it’s narrowed – only married and civil union spouses
o 540 : spouse outside marriage is not presumed a parent!
 It’s unusual that the CCQ draws on the Interpreation Act – usually complete
CCP (old)
 S. 5 « Pre-hearing mediation » s. 814. 3 : shows shift in contemplation of unmarried spouses
 417(new) : partition of property for de facto spouses (under the book on property)
 it can sound conservative to encourage ppl to get married, but at least there’s a clear
process. Unmarried people don’t have that clear process.
 Qc judges when dealing with unjust enrichment will say, it’s wrong to do with the private law
what the Qc legislature has expressly not wanted to do
 Interesting that Qc Procedure is acknowledging de facto studd
o
Acknowledged also in residential leases, consent to care, taxes
o
= their exclusion from the book on the family is untenable
 SCC has said : it’s constitutional to exclude de facto spouses
o
Apri 2013 : committee to look at whether there is a reason to amend
family law in Qc. And if so what changed?
o
Committee : in expanding the recognition of spouses, and reach of
regulatory things, he acknowledges that the current criteria is too restrictive (that no
obl attach outside of marriage), but the criteria they will look is the presence of the
child!
o
Should the distinction be based on this???
o
Evidence that women’s salaries decrease when women start having
children. Economic vulnerability
o
Does it capture enough? Ex : ppl who relocate for their partner’s job, ppl
who are unable to have kids but try – economic consequences and vulneability, illness and
care,
o
Ontario’s definition of spouses section (b)
o
Is it the presence of the child in the house??
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Stéphanie Grammond, “La calculatrice de l’amour,” La Presse, 14 February 2013
o
You could start receiving as much money as 10 000 once you start living
together – can’t opt out of it
o
Questions the AG saying that the QC code respects autonomy
Brenda Cossman, “Family Feuds: Neo–Liberal and Neo–Conservative Visions of the
Reprivatization Project” in Brenda Cossman & Judy Fudge, eds., Privatization, Law and the
Challenge of Feminism (Toronto: University of Toronto Press, 2002) 169 (excerpts)
o
Look at cases where obligations are expanding
o
At times, judges are saying this will clearly reduce the burden on the
state
o
Not just about the state
o
Connects recognition of same sex couples ? (equality/symbolic) with
cases where …
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 Worth a skim – Brooks – vignettes of tax cases whether someone - how the recognition
of informal status works!
o
Lackey – this is is invasive. Brooks: poor ppl are used to this!
 Reece: pushes back against the policy idea that cohabitants are able to plan out
agreements and imagine what will happen when their couple breaks donw
o
Problem with argument – that qc uses as well – married pppl have clear
rights and one couple can still be vulnerable and they can still have disagreements
o
Having an agreement doesn’t solve anything!
 What is marriage – it is a set of default rules !!
Stéphanie Grammond, “La calculatrice de l’amour,” La Presse, 14 February 2013
Brenda Cossman, “Family Feuds: Neo–Liberal and Neo–Conservative Visions of the
Reprivatization Project”, 2002
 Family law has always involved public enforcement of private responsibilities of individual
family members  but in an era of privatization, it has acquired newfound importance
o Family law is being called upon to address the economic needs of women and
children at precisely the moment the welfare state is being dismantled and public
financial assistance is becoming scarce
 Expanding definitions of spouse within social welfare law, increasing spousal/child support
obligations in family law, and an intensification of the enforcement of these private support
obligations are all being used to redirect women’s economic dependency from the public
to the private sphere
o The systemic problems of poverty are correspondingly fading from view (individuals
are pathologized instead; it is not society’s problem, it is a certain person’s problem)
 N.B. Just because the government shifts the responsibility for support of women and children
to private individuals doesn’t mean it’s being fulfilled, and the family is stepping up where the
state used to  many women and children are falling through the cracks
 Government is no longer responsible for helping people – but for helping people help
themselves (like AA!)
 Conservative discourse feeds into this privatization of the economic dependency of women
and children  the discourse of the nuclear family as natural/universal institution, the
automatic and logical location of all caregiving duties
 As does liberal discourse  eases the burden on the public purse
 M v. H: expansion of definition of spouse to impose support obligations on unmarried samesex couples
o The government did not go the “traditional heterosexual, procreative family must be
saved” route to support the legislation (conservatism)
o Rather, they framed their argument in feminist/progressive terms: this legislation is
aimed at women who suffer from gender inequality in their opposite-sex relationships
(liberalism?)
o The court rejected the argument  placed emphasis on the idea that the load on the
public purse would be lightened by imposing duty to support on same-sex couples
(liberalism too?)
See the way discourses can be mobilized either way
Leckey on Cossman:
 The recognition of all these new relationships and alternative types of families by the courts
seems to be inclusive and happy – but it’s not all it’s cracked up to be. These relationships
are already over and these families are already broken when they are being recognized.
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
This discourse of inclusivity of alternative familial forms dovetails nicely with the government’s
desire to have other people take on support duties instead of them
Questions
Are conjugal partners living together without a bond of marriage or civil union subject to the
obligation of fidelity?
 392, 521. 6 ; obligation of fidelity – a contrario.
o
No mention of obligation in code
o
S. 8 Divorce Act: adultery is a ground for a divorce. But you still get
spousal support
o
o
In Qc, there’s no presumption under 525
o
Justification – legal duty of obligation of fidelity based on the actual legal
obligation
 CLRA – s. 8(1)4 - presumption of paternity of someone living with a partner
o
o
Is this the case in Ontario?
 Parental projects in Qc

 Charter issue:
o
M v H: same sex cohabitant case. Discriminatory to exclude them for
obligations - -- suggested their relationships were less stable
o
By the same reasoning, does this assume that unmarried couples are
less committed!
LAST CLASS
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Studying for the exam
o
Think of themes: formal/informal ; voluntary (parentage –
presumption, signing up, by acting so --- can be seen as voluntary vs involuntary
depending on the circumstances) vs involuntary etc
o
o
Big ideas - Connect things across the course
Law reform question: draw on clear elements of the law
March 12th – Exam prep
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acknowledge counter arguments
First para: clear sense of where you’re going. Don’t need to spell out your argumnets in first
para (bc then it gets repetitive in a time sensitive exam). Saying your position and then
saying you will present args for and against is good enough.
Need to show clear understanding of the current state of the law!
 In this example: show understanding of art 530 stage
Write a concluding sentence! Stop what you’re writing and do it!
Make sure you spell out the issues you spot. Say why it’s problematic
Transsystemic: need to position the position relative to other stuff
Think of 530 and 533
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