Angela Campbell’s Family Law Class September 2013
Family Law Reading Group Summary
Prepared by a small group of 3L’s/4L’s that includes past class presidents, nurses,
mediators, mooters, club directors, and all around awesome students!
MISSING - Oct 22, 2013
Shauna Van Praagh, “Religion, Custody and a Child’s Identities” (excerpts)
Van de Perre c. Edwards, [2001] 2 R.C.S. 1014 (excerpts)
Table of Contents
Stasis and Dynamism in Family Law .................................................................................. 3
Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 ............... 3
Robert Leckey, “Families in the Eyes of the Law: Contemporary Challenges and the
Grip of the Past.”.................................................................................................................................. 4
Presumptions and Fictions – Locating Paternity: Social and Biological
Fatherhood.................................................................................................................................. 8
Massie c Carriere (QCSC 1972) ...................................................................................................... 8
Droit de la famille – 11394, 2011 QCCA 319 ............................................................................. 9
Droit de la famille, 09358, 2009 QCCA 332 ............................................................................ 10
L. (T.D.) c. L. (L.R.) (1994), 114 D.L.R. (4th) 709 (Ont. Gen Div) ....................................... 11
Tenby v. Hawke, 1999-05-11, N.W.T.S.C. ................................................................................. 11
Tracing Filiation in Assisted Procreation Contexts; Challenging the Binary of
Parenthood .............................................................................................................................. 12
Robert Leckey, "Where the Parents are of the Same Sex: Quebec's Reforms to
Filiation" ............................................................................................................................................. 12
Droit de la famille - 11729, 2011 QCCA 1180 (Leave to appeal denied)...................... 14
L.C. v S.G. (2004) J.Q. no 7060 (QL) (C.A.) ................................................................................ 15
A.A. v B.B. 2007 ONCA 2 (CANLII) ............................................................................................... 16
Locating Maternity and the Legal Status of Surrogacy Agreements .................... 17
Droit de la Famille - 072895, 2007 QCCA 1640 .................................................................... 17
Adoption ‹ 091, 2009 QCCQ 628 ................................................................................................. 19
Adoption ‹ 09184, 2009 QCCQ 9058.......................................................................................... 20
Filiation by Adoption – Key Principles, presumptions, and regulatory
frameworks ............................................................................................................................. 21
In re Robert Paul, 481 N.Y. 2d 652 (CA 1984) ....................................................................... 21
Droit de la famille 1914, [1996] RJQ 219 (CA) ...................................................................... 22
Consent and Open Adoption .............................................................................................. 23
Re B.C. Birth Registration No. 030279 (1990), 24 R.F.L. (3d) 437 (B.C.S.C.)............... 23
Droit de la famille 1704, 1992 CanLII 3206 (QC C.A.) .......................................................... 24
JJ c SV [2002] RDF 167 (CS) .......................................................................................................... 24
JG (Dans la situation de), [2005] JQ no 17572 (CQ)............................................................. 25
Robert Leckey, « Adoptive parents aren’t second best » ................................................... 26
Aboriginal Adoption and Aboriginal Legal Traditions ............................................. 26
Racine v Woods SCC 1983 (De facto Adoption; bonding over race), MAN (cmnL) 26
Directeur de la protection de la jeunesse c. J.K., 2004 CanLII 60131 (QC C.A.) ......... 29
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Re Adoption of Katie (1961), 32 D.L.R. (2d) 686 ................................................................... 30
Locating Parenthood Functionality/Potentialities for multi-parenthood family
configurations? In Loco Parentis...................................................................................... 31
Chartier c Chartier [1999] 1 RCS 242 ....................................................................................... 31
Carol Rogerson “The Child Support Obligation of Step-Parents” (2001) 18 Can J Fam
L 9 (excerpt) ...................................................................................................................................... 33
A.(V.) c. F.(S.), 2000 CanLII 11374 (QC C.A.) ........................................................................... 33
Cornelio v Cornelio, 2008 CanLII 68884 (ON S.C.) ............................................................... 34
Doe v. Alberta, (2007) ABCA 50 .................................................................................................. 35
Droit de La Famille 2492 [1996] RDF 662 (CS) ..................................................................... 35
C.R. v. B.L.B. [2005] A.J. No. 726 (ABQB) .................................................................................. 35
Parental Authority and Custody ....................................................................................... 36
Young v. Young, [1993] 4 S.C.R. 3 (excerpt) ............................................................................ 36
W.(D.) c. G.(A.), 2003 IIJCan 47442 (QC C.A.) .......................................................................... 36
Gordon v. Goertz, [1996] 2 S.C.R. 27 ............................................................................................ 37
Challenges to the Best Interest Principle: Domestic Violence and Obstructions
to Access. ................................................................................................................................... 39
Pollastro v. Pollastro (Ont. C.A., 1999), p. 367 ...................................................................... 39
Nicholas Bala, Spousal Violence in Custody and Access Disputes: Recommendations
for Reform, p. 371 ............................................................................................................................ 41
Harrison v. Harrison (Man. Q.B., 1987), p. 379 ..................................................................... 43
Rogerson v. Tessaro (Ont. C.A., 2006), p. 38........................................................................... 44
LEG v AG 2002 BCSC 1455 ............................................................................................................. 44
Obligations of Support ......................................................................................................... 46
Droit de la Famille 138 (184) QCCA .......................................................................................... 46
Skrzypacz c Skrzypacz (1996), 22 RFL (4th) 450 (Ont Prov Div) .................................... 47
Droit de la Famille – 2626 [1997] RJQ 1117 QS .................................................................... 47
Willick v Willick, [1994] 3 SCR 670 ........................................................................................... 48
Francis v Baker, [1999] 3 SCR 250............................................................................................. 50
Contino v Leonelli-Contino, 2005 SCC 63 ................................................................................ 51
Conjugal Life/ Vie Commune ............................................................................................. 53
R v Tolhurst, 1937 CarswellOnt 35 (Ont Sup ct)................................................................... 54
Quebec (Attorney General) v A, 2013 SCC 5 (excerpts) ..................................................... 54
Halpern V Canada (AG) [2003] OJ No 2268 (QL) .................................................................. 58
Robert Leckey, “A Decade of Same-Sex Marriage in Ontario” Ottawa Citizen (9 June
2013) .................................................................................................................................................... 64
Dissolution of Spousal Unions ........................................................................................... 64
Divorce: Evolutions of Law ........................................................................................................... 64
Droit de la Famille – 841, [1990] RJQ 1571 (CS)................................................................... 66
Morrison v Morrison, [1972] PEIJ No 48................................................................................... 67
SEP v DDP, [2005] BCJ No 1971 ................................................................................................... 67
Religion, Culture, Divorce ............................................................................................................. 68
Re Morris and Morris (1973), 42 DLR (3d) 550 (Man CA) ................................................. 68
Bruker v Marcovitz, 2007 SCC 54 ............................................................................................... 69
Pascale Fournier, “The Erasure of Islamic Difference in Canadian and American
Family Law Adjudication” ............................................................................................................. 69
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Effects of Dissolution: Support Obligations Between Spouses ........................................ 70
Morge v Morge [1992] 3 SCR 813 (headnote) ....................................................................... 70
Bracklow v Bracklow [1999] 1 SCR 420 .................................................................................. 71
Miglin v. Miglin [2003] 1 SCR 303 .............................................................................................. 73
Kerr v Baranow 2011 SCC 10 (Along with Vanasse Appeal) ............................................ 75
Stasis and Dynamism in Family Law
Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588
- s. 293 CCC prohibits polygamy – is this prohibition offensive to Charter?
- Historically, some aboriginal societies had polygamy, gvmnt knew about this but
did nothing
- Utah Mormons fleeing anti-polygamy laws came to Canada, attracted ire of
Canadian public/media (Mormonism perceived as encouraging treason in valuing
Church over state). In 1890 polygamy made an offence
- Handful of Muslim polygamists living in Canada
- Dr. Zheng Wu says that while marriage remains core social institution
establishing and structuring Canadian families, it is weakening
o Dramatic increase in number of common law households, decrease in
marriages. This is indicative of increased diversification of conjugal life =
later marriages, high level of marital instability (divorce), lots of nonmarried cohabitation
o Purpose of marriage redefined in light of rise of women in workforce,
reduction of state/institutional control in people’s lives
o People more concerned about individual rights/preferences, egalitarianism,
tolerance, rejection of institutional control of private relationships
- Amicus: polygamy is form of non-marital status, should be analogous grounds for
s. 15. Marital status already recognized by SCC as analogous ground (arguments
were based on denial of benefits to common law partners). 3 reasons marital
status is analogous ground: (1) touches upon essential dignity/worth of individual
(2) persons in unmarried relationships constitute historically disadvantaged group
(3) marital status often lays beyond individual’s effective control
o Amicus claims polygamists meet all 3 requirements
- Attorney General: claims that analogous ground needs to be based on immutable
characteristic, and marital status is mutable. Additionally, claim that s. 293
distinguishes between those who cause harmful behaviour and don’t and is
intended to prevent harm. Also, polygamists today not historically disadvantaged,
but rather tend to be powerful males.
- Polygamists have historical disadvantage, s. 293 stereotypes and assumes all
polygamous relationships are harmful, criminalization of polygamy inconsistent
with Canada’s treatment of other intimate conjugal relationships
o Since 1960s, Canadian society has increasingly viewed sex as private
matter – ie. no punishment for adultery, for swinging, etc
- However, a “reasonable person fully apprised of the confirmed harms that have
been empirically, internationally and historically associated with polygamy would
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not see s. 293 as based upon stereotypes, prejudice or otherwise demeaning to the
dignity of polygamists. To the contrary, that reasonable person would be forced to
recognize that the prohibition appropriately corresponds to the serious harms that
are associated with polygamy in a manner that promotes the very interests that
underpin s. 15.”
Robert Leckey, “Families in the Eyes of the Law: Contemporary Challenges and the
Grip of the Past.”
- no official definition of the word ”family” – one definition: rltnshps, rights, and
obs connecting individuals otherwise seen as forming a family.
o Same words in family law can mean different things, ie. spouse is attached
with different obs in different contexts
o Difficulties in definitions stem from policy debates on how gvmnt should
treat families, what programming should be provided, state resources, etc
- 4 oppositions in family law
a) concerning the parties to whom the laws are addressed, private vs public:
Private law regulates rltnshp between persons and prop and between rltnshps
within the family (ie. parents and children, adult intimate partners). Public law
concerns rltnshp between individuals and state (ie. what type of family
relationships receive what distribution of state resources, welfare rules,
Charter rights claims, etc)
b) concerning different reasons for identifying family relationships,
instrumental vs non-instrumental/symbolic: instrumental refers to types of
family relationships required to attain certain legal rights (ie. marriage
imposes obs of mutual support cuz state assumes marriage is rltnshp of
interdependence). Non-instrumental/symbolic refers to intrinsic value of
certain family bonds outside of legal value (ie. same-sex marriage focused on
symbolism of marriage, though marriage would have conferred no more rights
than civil unions)
c) concerning different bases for recognizing family relationships, formal vs
functional: formal refers to traditional bases upon which to recognize family
rltnshps (ie. marriage, filliage, parentage). Functional refers to the recognition
of family in rltnshps where individuals have functioned similarly to people in
formal rltnshps and their conduct thereby places them in a position analogous
to formal rltnshp role (ie. recognition of unmarried cohabitation, sustained
conduct as parent, etc)
d) concerning political conceptions of equality, formal v substantive: formal
equality refers to identical treatment of people who are similarly situated.
Substantive equality refers to securing equal respect for different individuals
in way that takes their differences into account (ie. affirmative action).
- 2 main arguments:
1) While varying rules and approaches to family law appear chaotic, the variety
of approaches point to fact that coherent family policy must address explicitly
and simultaneously all of the aforementioned tensions and acknowledge them
(they cannot be reconciled or overcome in a plural society)
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2) Formal equality does not necessarily bring about substantive equality. Doesn’t
mean we should outright reject formal equality, but recognize its limits, ie.
women formally equal yet still screwed by society.
Marriage is paradigmatic case for formal ordering of rltnshps. Formal equality
granted to women in marriage (they’re no longer property of husband, hurray!)
still hasn’t been borne out in practice nor in term of substantive economic equality
(ie. economic roles of spouses, division of estate upon divorce, etc). Decline of
marriage recently as other forms of intimacy/rltnshp on the rise and increasingly
recognized (ie. cmnL spouses might have same obs of support as married couple).
Marriage has impacts on other social obs, ie. taxation, immigration/sponsorship,
etc. Interaction of religious rules with marriage creates tension along 4
aforementioned oppositions.
o Legislation casts spousal duties in gender-neutral terms, yet women in
marriages (especially with kids) far more likely to drop out of workforce
and take on domestic role while man plays traditional breadwinner
o Introduction of divorce act made it possible to divorce if relationship
broke down, resulted in skyrocketing rates of divorce and division of
family prop/patrimony. Division of prop and support presumed to be
equal, can be affirmed by private arrangements., religion, and both fed’l
and prov’l legislation. Divorce also allows claims for reasonable levels of
support (subject to spouses demonstrating entitlement to support and
judicial interpretation of various legislated indicia). Women still end up
with the short end of the stick in these arrangements.
o Lots of room in prov’l/fed’l legislation for private orderings to govern
marriage (though not kids, where state sets standards). In some provinces
(ie. ON), legislation bars religious agreements from governing marriages
and their dissolution. Also, polygamy banned by criminal law despite it
being a religious precept to some.
While marriage still most common form of family structure, landscape of adult
rltnshps is becoming increasingly pluralistic (ie. co-habitation, same-sex, etc). 4
Legal models for regulating adult rltnshps: marriage, private law, ascription,
registration
o Private law arrangements are typically Kual, will of individuals prime, not
bound by public laws (more or less…) However, leaves room for power
imbalances in rltnshp to tilt the resultant K in favour of one party over the
other, also might miss some aspects of rltnshp that aren’t articulable at he
time of drafting
o Ascription: various indicia of rltnshp bearing functional resemblance to
marriage result in state imposing obs on parties that it assumes should
exist in all relationship having certain characteristics. NB: Quebec has no
cmnL status, therefore no obs imposed following lengthy cohabitation, etc,
though similar issues exist wrt to cohabitation obs in other provinces
o Registration: similar to private law (parties’ will dictates rights/obs)
except makes relationship known to public
o Same-sex couples: lots of s. 15 litigation led to recognition, usually based
on gvmnt benefits not accruing because marriage status unavailable to
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same-sex couples (which infringed s. 15) = both symbolic and functional
arguments raised
o Category of adult rltnshp impacts children in rltnshp – more likely to have
equitable parenting capabilities from divorcees than ex-co-habitants.
o Limits to marriage model: too focused on sexual intimacy (ie. cohabiting
siblings wouldn’t be recognized as family unit); emphasis on cohabitation
excludes committed couples who may not live under the same roof; all-ornothing character of marriage (no incremental stages conferring ltd
rights/obs)
Claims for changes in family law need to be analyzed to see whether the change
sought is instrumental or symbolic and whether the proposed basis for recognition
is formal or functional, cuz these axes will have repercussions wrt socio-economic
groups and different rltnshp statuses. Two examples based on functional (not
symbolic) needs but respecting choice not to get married without impacting cohabiting 20-something year olds/70 something year olds
o Ie. unmarried couples with kids requires that parent w custody of kids
should be able to secure temporary possession of premises used as family
home should rltnshp break down (usually only available for married folk)
o Ie. QC should provide ob of support for de facto spouses who have child
together
Parentage/filiation engages private v public (ie. taxation, welfare), instrumental v
symbolic (ie. distributive purposes vs intrinsic value of parentage), formal v
functional (ie. registration of birth, acting like a parent confers rights/obs).
Ultimately, just as marriage is reference point for adult rltnshps, parentage and
filiation are the paradigms of family rltnshps
o Kids used to be legitimate or illegitimate based on parent’s marriage,
adopted kids were unequal in law to their siblings born to the adoptive
parents, etc – legislature changed all this BS, also gave adopted kids rights
to get to know their birth parents
o Focus changed from parental rights to best interests of the kid – very
vague standard filled in by judicial interpretations
o Filiation usually determined b reference to 3 factors: genetic connection,
intention to parent, preservation of family stability
o Rise of reproductive techs confuse this landscape, can result in multiple
parties claiming parent rights to a single kid. Also, same-sex parenting
raises issues of adoption, assisted procreation (ie. lesbian couple gets
artificial insemination which means 3 people may be on declaration of
birth, in turn resulting in problems should the sperm donor claim
parentage rights as the papa, though some jurisdictions have
acknowledged potential for a 3rd parent). Intentional single-parenting also
problematic cuz law presumes family is 2 parents and state wants someone
to have to pay support (will often follow genetics).
o Custody – either parents come to agreement on splitting custody or J
imposes one based on best interests of child (gender neutral). Court has
developed guidelines for assessing how to divide custody in the absence of
legislation providing any guidance. Child support – parents must support
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kids in manner commensurate with income irrespective of marital status
potential all the way through post-secondary studies (intended to reduce
reliance of people on state for funding, turn to parents). Enforcement
regimes in place in various provinces to ensure payment of child support
(public enforcing private affairs). Shared custody preferred, raises
complications, ie. who gets to claim tax credits/benefits for the kid. Issue:
kids living with parents til way older now, not reflected in how child
support obs imposed (ie. obs expire after post-secondary).
o Parental figures without status, ie. someone who isn’t technically parent
may get custody of kid, which shows instrumental willingness to separate
custody of kid by reference to their best interest in spite of symbolic
importance of traditional forms of filiation – recognizes functional bonds
of family where parental status not formalized. Most regimes obligate
person who acted like a parent to support the kid via models of ascription
(ie. Divorce Act s. 15.1(1) and s. 2(2)). Limits to filiation between kid and
de facto parent exist, ie. intestate de facto parent’s estate does not vest in
de facto kid, ie. de facto parent cannot claim support from kid later in life.
De facto parentage becoming problematic, where people have multiple
partners and suddenly a kid can have layers upon layers of de facto parents
and support obs. Might be helpful to have degrees of parentage as opposed
to simple on/off ascription of parentage replicating assumptions of
traditional marriage and parentage (ie providing mixed access/custody
rights, or secondary duty of support enforceable only in
absence/incapacity of parents, etc)
Given that paradigm in family law is still the basic binary of marriage (despite
increase in cohabitation, same-sex, alternative relationships, etc), Leckey lays out
a series of recommendations:
o Need to make more room for private orderings of family not based on
discriminating against certain religions, lifestyles, etc while ensuring these
orderings don’t perpetuate discrimination/isolation/inadequate access to
resources.
o Rethink criminalization of polygamy – inconsistent with Canadian
morality. The harms under polygamy (sexual exploitation, underage sex,
etc) already criminalized.
o Provinces should provide for right of temporary occupancy of family
residence for former unmarried partner who has custody of kids
(breakdown of relationship affects married and unmarried couples equally,
no reason married couples should have extra benefits in this regard)
o QC should enact legislation to force de facto parents to pay child support.
o Legislatures should create registration options for family relationships
other than conjugal couples, make room for other types of interdependent
relationships. Would allow more non-conjugal forms of family and reduce
reliance on marriage as paradigm.
o Legislatures should amend law of parentage to accord with assisted
conception practices, ie. re: sperm donors who don’t intend to acquire
parental status (genetic connection shouldn’t entail parentage).
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o Legislature should consider intermediate status between parent and legal
stranger
All of the above recommendations are limited to private law, need reformation of
public law to deal with other problems arising in family law, ie. gap in formal
equality between spouses in law and financial position of single female parents
relative to male counterparts shows that child support needs to be enforced more
stringently (though there are limits to what this can accomplish). Also need to
consider that dividing one household post-divorce will not likely produce two
households capable of support/healthy environment. Therefore, need robust social
programs to assist divorce, ie. see QC’s daycares and parental benefits, which go
a long way in reducing women’s disadvantage. Some policy suggestions for
public law:
o Where public programs based on relationships recognized by private
family law, should not reduce entitlements on assumption that support
duties paid.
o Policy-makers need to be alert to potential inequity/vulnerabilities where
relationships are treated as family only in some jurisdictions (ie. QC de
facto relationships and lack of child support)
o Coordinate definitions of family relationship applicable to public
programs in manner that corresponds to private law definitions (again, QC
de facto may be spouses under federal law but not have duty of support
under CCQ)
o Policy-makers should identify relationships relevant to family policy
proactively rather than wait for charter challenges to keep on coming up
(ie. same sex)
o Design of public programs should not be based on provincial definitions
of family law, or else certain federal programs will gloss over certain
types of adult relationships (ie. tax legislation’s emphasis on conjugal
relationships in conferring benefits, etc)
o Recognition of new family relationships should have coherent policy
response, ie. if policy objective is to grant symbolic recognition to
category of relationships, should not carry out distributions irrelevant to
that objective.
Presumptions and Fictions – Locating Paternity: Social and Biological Fatherhood
Massie c Carriere (QCSC 1972)
Facts
 Mother (Carriere) and her husband (X) separated, but remained legally
married
 Mother proceeded to have a child with Massie, and both their names
appear on the act of birth
 Massie, the biological father, now seeks custody of the child
 Mother says that her separated husband X is the legal father, not Massie,
since she was married at the time of birth
Issues
Does Massie (biological father) have a right to custody of the child by virtue
of his biological link to it?
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Held
Reasons
No
 Act of birth does not prove paternity or the status of the marriage – only
proves identity of child and mother
 Law recognizes not the biological realities but instead stigmatizes
situations where child born out of wedlock. Therefore, cannot accept
evidence presented by father.
 Looking at interests of the child (not wanting him to be stigmatized…)
 Instead, based on CCBC 218 – child born in marriage is child of mother
and husband.
 “Le bon ordre et le respect des intérêts supérieurs des enfants en leur
imposant dans les cas possibles, une filiation légitime que seul le mari
trompé, dans des cas bien précis et à des conditions bien déterminées
pourra contester”
Comments  It would be different today as the act of birth is stronger than the
paternity of presumption (although it wasn’t back then)
 Court proposes that “one day, when the stigma attached to illegitimate
children has finally disappeared, the law may attach to “biological” truth
rather than “juridical truth”
 Today, Massie would be declared the father
 Unless Carriere took a blood test and got declared a father (but this
wouldn’t be possible if Massie ALSO had UPS)
Droit de la famille – 11394, 2011 QCCA 319
Facts
 Mr. ML, the biological father refused to have name inscribed on act of
birth to avoid financial responsibility. Only the mother’s name was on it
(Mrs. C)
 By agreement, the mother allowed ML access to visit.
 The mother starts to live with Mr. LE. With the consent of the mother,
LE files for a declaration of filiation (ccq 130). The declaration was
published.
 ML claims to be the father and asks that the civil register is corrected and
the act of birth so his name is included. They refuse, so ML went to
Superior Court and declared that he was the actual father.
 Mrs. C files a petition and the decision was reversed.
Issues
 Is “psychological parentage”, based on creating a relationship of care
with a child, a way to establish paternity? (No: the act of birth is most
critical in this sense, so LE did not get filiation. The court says that
while LE provided love and generosity, this was not legally enough
to establish filiation.)
 How long is "uninterrupted possession of status"? Is it just from the start
of birth, or must it continue? (Priority is given to birth father)
Holding
 Court emphasizes that rules were created to protect children, and
these must be respected, even if “better” parental figure appears to
come along after. The rules relating to filiation were developed to
protect the interests of children. The rules cannot however be bypassed
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Ratio
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simply to replace a “bad parent" with a “good parent”.
ML is considered the biological father, but since his name is not on the
act of birth, the biological link is not enough to establish paternity.
ML is considered to have uninterrupted possession of status (ccq 524).
The elements include: nomen tractatus fama: the child bears the name of
his supposed parents, he was treated by them as a child and it has always
been regarded in society and in the family as "coming" from them. ML
was found to treat the child mostly like his son.
Doctrine states generally that original possession is enough to establish
filiation, although it might not always be in the best interest of the child.
(this is not found in this case)
In this case, those around the child see ML as the father, even though LE
assumed this role in his own mind. His paternity was falsely recognized
because ML had at the time, possession of status based on ccq 523
(uninterrupted possession of status) and ccq 524 (combination of facts to
indicate filiation).
Even though respondents were in good faith to add the name of LE to the
act of birth, they also bypassed provisions on adoption (this wouldn’t
have worked anyway, given that he would have needed to live with the
mother for at least 3 years).
Comments 
Droit de la famille, 09358, 2009 QCCA 332
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 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.
 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
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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.
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Comments 
L. (T.D.) c. L. (L.R.) (1994), 114 D.L.R. (4th) 709 (Ont. Gen Div)
Facts
 Mr. Low and Mrs. low were married and decided to go through artificial
insemination because husband had a low sperm count
 Conception occurred with the help of an anonymous donor, but four
months into pregnancy, the couple’s relationship started to deteriorate.
 The father’s name was on the Certificate of Birth.
 Right after the birth, she asked him to leave, changed her mind, but he
didn’t come back.
 He wanted to be involved in the child’s life, and actively tried (to play a
role in “best interest”)
Issues
 Is Mr. Low the father, even though the child was conceived with the
sperm of an anonymous donor? (Yes: Mr. Low is considered the natural
father of the child.)
 Should he have access? (Yes: it’s in the best interest of the child.)
Holding
 The public good is of primary importance in determining filiation.
Ratio
Artificial Insemination:
 Based on the Children’s Law Reform Act 1990 (CLRA), the child must
be of their "natural parents", but term natural was unclear.
 s.4 CLRA must make declaration of paternity once presumption applies
UNLESS presumption is rebutted.
 s.5 CLRA allows declaration of paternity to be made where, on balance
of probabilities, it can be shown that a relationship of father and child has
been established
 The court interpreted “natural” to mean more than biological. The court
also used the guidance of The Interpretation Act to ensure that the
legislation was for the public good. The court also looked to
jurisprudence from the United States, where a father was given custody
based on the best interests of the child, the mother, the family unit and
society. And that artificial insemination helps create the family unit and
the parent-child relationship
Comments 
Tenby v. Hawke, 1999-05-11, N.W.T.S.C.
Facts
 Tenby is the biological father, living in Vancouver. The mother
(living in NWT) and Tenby had sexual relations when the mother
and common law husband (Mr. Hawke) were separated. Mother
didn’t know who was father, but informed Tenby at birth (when
wanting medical information).
 DNA testing proved Tenby was biological father.
12

Issues


Holding

Ratio






Comments
Tenby wants to have access, which mother is against. Also, Hawke
wants to adopt boy, given that he’s acted as the father since birth.
When should the court not declare that the biological father is the
father? (N/A: not answered here).
Is it in the best interests of the child to allow access to biological
father if he was uninvolved since start? (No, not for now, at least:
depends on the circumstances, if it’s in the best interest of the child).
Access can be denied to the biological father if not in the best
interest of the child, given the specific circumstances.
Court not to decide whether the biological father is the actual father
at this hearing (it’s only interim). This should be addressed at trial.
Court assumes he is father to answer this question temporarily.
Court only to determine access for Tenby, based on best interest of
child (s. 17 of Children’s Law Act, SNWT).
Although no fault of Tenby (Mrs. Hawke denied access), he played
no role in child’s life (child is under 2 years old).
Best interest is key in determining access – court must avoid
disruption and confusion (the kid is apprehensive with strangers,
almost fearful).
Johnson-Steeves v Lee cited: hard to imagine denying access to
biological father who could provide financial and emotional support,
and harder to deny child benefits of that relationship.
However, for now, Tenby should not be brought into the child’s life,
until it can be determined at trial.

Tracing Filiation in Assisted Procreation Contexts; Challenging the Binary of
Parenthood
Robert Leckey, "Where the Parents are of the Same Sex: Quebec's Reforms to
Filiation"
 This article introduces reforms enacted in Quebec in 2002, allowing for two
persons of the same sex to register as a child’s parents from birth, not just by
adoption
 Same sex couples may register a child from birth if they have conceived the child
as part of a ‘parental project’; a sole person may also have a child via a parental
project
 Conservative scholars have resisted the new regime, deeming it as inappropriate
departure from filiation’s biological vocation
 Leckey’s study reveals how jurists are selective at remembering the past, by
choosing to characterize other parental innovations, such as the abolition of
illegitimacy, as natural
 His study demonstrates how the blending of bio fact and fiction in the new regime
underscores similar blending in more traditional forms of filiation
Disputing Filiation’s Vocation
13

Legal scholars have objected that the 2002 amendments, which allow two samesex parents to be declared on the birth certificate, perturbed filiation’s biological
and genealogical vocations, basing their arguments on psychoanalytic theory and
the symbolic nature of filiation
 Filiation is seen as genealogically important for situating a child in a lineage, and
legal scholars have argued that the new filiation offers children emptiness and
uncertainty regarding their attachment to the human species
 Filiation was formerly based on the biological fact of a sexual relation between a
man and a woman; the new filiation is said to introduce sexual otherness, and is
now seen as “desexualized” or “unisexed” – he believes that this is an area that
would be better addressed by anthropologists or psychologists
Biology and the Heritage of Legitimate Filiation
 Critics have objected to the amendments’ move away from biology –
“naturalness” is linked to the notion of filiation by blood, which has consistently
resembled genetic reality
 Even medically assisted procreation prior to the reforms was thought to have
preserve biology as the norm
 Critics believe that filiation no longer reflects procreative reality, as a result of the
reforms
 Some scholars think that it would have been better for legislature to amend the
exercise of parental authority to partially recognize a same-sex parent figure as a
child’s parent without giving two same sex persons parental status, given the
perceived symbolic importance of filiation
 Some distinguish the kinship bonds of filiation (‘les rapports de parenté’) from the
more functional concept of an adult acting as a parent (‘rapport de parentalité),
and they believe that the legislature could have recognized social parenting
(parentalité) without necessarily inscribing that recognition in a child’s filiation
 The reforms of 1980 shifted the focus of filiation from marriage to blood (in order
to achieve equality for all children), and since then Quebec filiation law was seen
to favour the search for the biological truth of a child’s conception
 The notion of legitimacy was derived from the importance of marriage as a social
institution (based on religion)  legitimate filiation was not ‘a definition of a
child’s biological parents’ but ‘essentially a legal construct’  thus, acts of birth
reflected less of a scientific concern with biological truth and more of a interest in
who brought a child to baptism
 Leckey argues that the argument that legal parentage should almost always reflect
genetic parentage fails to account for the positive law in force in Quebec at any
moment
 Although marriage and filiation were uncoupled in 1980, links between the two
concepts persist  i.e. presumption of paternity (POP)
 Nevertheless, the rules of filiation preserve enough space for establishing a
filiation on a basis other than genetic connection – the methods of proving
filiation, especially possession of status (POS), demonstrate that notion of filiation
also encompasses ‘grandir, vivre, vieillir ensemble’
 POP (justified by the duty of fidelity in conjugal relationships) attests to the
fact that the vocation of filiation by blood is both biological and social
14

Though the duty of fidelity has no effect on the likelihood of a genetic tie between
the same sex partner of a lesbian woman who gave birth and the child, allowing a
presumption of parenthood (based on marriage, not blood) would reflect the
values of equality found in the Charter and the QC Charter
 Assisted reproduction’s placement in the Code reflects its characterization by the
legislature in relation to filation by blood and adoption
 There are two competing views re: assisted reproduction’s place in the structure
of filiation: 1) There are just 2 modes of filiation: blood (which includes assisted
procreation) and adoption; 2) There are 3 modes of filiation: blood, assisted
procreation, and adoption  but placing assisted procreation in its own distinct
chapter seems to point to three modes
 Assisted procreation’s modes of proof – act of birth and POS – make it more
like filiation by blood rather than adoption
 Critics are uneasy with the new chapter on assisted procreation because it creates
an original filiation that is patently fictitious  viewed as incoherent
 Leckey argues that although the coherence of the Code is important, its
competing principles typically allow for it to evolve with changing social
circumstances
 He believes that the dichotomoy of true and original filiations vs. fictitious and
substitutive filiations ignores the many cases where volition generates original
filiations dosed with fiction
Conclusion
 Some criticisms of the 2002 amendments erroneously reframe the history of
legitimate filiation as having always been a pursuit of biological reality
 Scientific and social changes have created situations where the ‘biological
components’, if not genetic composition, allow more than one woman to claim to
be mother of the same child
 Anthropologist who study kinship have challenged the opposition between
biology/fiction, nature/culture
 The disputes raised by the amendments call for wider reflection on the
ambiguities of filiation and the tendency to erect unreliable demarcations between
certainty and uncertainty
 Throughout history, literature has shown us the centrality of quests for identity –
we all want to know who we are and our location in time; however, there may be
something fundamentally unknowable and mysterious about the origins of each of
us  does the quest matter more than the juridical conclusion?
The debates provoked by the amendments provide an example of the difficulties of
remodeling the institution of filiation and finding space in the Code for new modalities of
reproduction.
Droit de la famille - 11729, 2011 QCCA 1180 (Leave to appeal denied)
Facts:
N wants to have baby. She goes to sperm clinic (this illustrates her desire to
have a parental project), but then decides to ask her friend G to have sex
with her so she can get preggers. G agrees. He insists that he be on the
birth certificate, but also insists that he doesn't have the money to support
the child. N says no problemo to both; she is more interested in her child
15
having a loving father than in having financial support. But then, N gets
pregnant, and lies to G that she put his name on the birth certificate. At
another point, she gives him $1,400 as an apparent "thank you" for his help
for her to get pregnant. Unfortunately, N dies of cancer and only then does
G finds out that his name isn't on the certificate. G fights with N's
grandparents for custody.
Issue:
Is G considered a sperm donor (ie not a party to the parental project) or the
father?
Holding:
The real father
Reasoning: The Court of Appeal upholds the trial level's decision. Grandparents try to
say that CCQ 530 applies. CCQ 530 says you can't contradict what's
written on the birth certificate. But judge points out that you can't
contradict an established filiation on the birth certificate; but, in this case,
no father is named and G wants to be named, so he isn't contradicting what's
written.
- The majority of the reasoning centers around CCQ 538. It identifies 3
criteria of a parental project. The problematic criteria is that the genetic
material must come from a party who is not a party to the parental project.
Because N is dead, judge only has G's testimony to go on to determine the
nature of his involvement in the parental project. Ultimately, because G
insisted on being on the birth certificate, went with N to some of her
appointments, saw her in the hospital two days after the baby's birth, and
told his family about the birth, his INTENTION is clearly to have been the
father of the baby, despite his lack of financial involvement. G understood
himself to be the father.
Ratio: The intention of the father to be the father is crucial in assisted
procreation.
Comments
L.C. v S.G. (2004) J.Q. no 7060 (QL) (C.A.)
Facts:
L gives birth after getting married. Birth through sperm donation by S.
Act of birth – L and partner are legal parents. S wants to be added to act of
birth, not just fathering child, saying that there was agreement to have
active part in project. Long relationship (knew each other) with L and had
some contact with baby and so had some part of his extended family. S
wants to amend act of birth to be put his name onto it. Interim order
requested to have access to baby before trial happens. Access granted 1
hour/week for three weeks then 2 hours, three times per week. L brings
application for leave to appeal to QCA .
Issue:
Should L’s partner be able to appeal decision that gave S interim access?
Held:
No. No leave to appeal – interim order stays in tact.
Ratio:
L and partner don’t counter connection. They rely on 538.2 CCQ: third
party to our parental project. Out of the parenting scope.
- Problem: if all father has to do is show that he was part of the decision to
get access, then may effect outcome at trial as psychological connection
will be beefed up during access thus establishing strong relationship
16
- On other hand, if we look at this on agreement, K’ual basis, and find that
was meant to be a third party, even if have longevity through access, then
will cut him out. May be detrimental to kid.
Comments:
A.A. v B.B. 2007 ONCA 2 (CANLII)
FACTS:
A.A. and C.C. are a lesbian couple who had a child with the assistance of
their friend B.B. They decided it would be in child’s best interests if B.B.
remained involved in his life. C.C and B.B. are on the act of birth; A.A.
filed for a declaration of parenthood (so that she too would be recognized
as ‘mother’ of child)
Judicial History: Trial judge denies the declaration of parenthood on the
grounds that he did not have the jurisdiction to do so; the terms of the s. 4
CLRA states that a female person can apply to court to be legally
recognized as “the mother of a child”— contemplates there being only one
mother. On appeal, C.C. brings in constitutional arguments (that rights to
equality (s.15) and to fundamental justice (s.7) breached)
The applicant argued she was in a special situation because they are a
same-sex couple. She contended that if the law does not make room for
three legal parents, it is a violation of the Charter of Rights and Freedoms
guarantee of equality.
Issues:
i) Can the appellant raise constitutional arguments for the first time on
appeal?
ii) Does the judge have jurisdiction to name the biological mom’s partner
(A.A.) as ‘mother’ of child as well (essentially the child’s 3rd parent)?
Held:
i) NO;
ii) YES (although CLRA doesn’t conceive of this, Court can use its
parens patriae jurisdiction to make the order)
Analysis:
i) Re: Raising a constitutional issue for first time on appeal
In R v. Brown, L’Heureux-Dube laid down 3 prerequisites for when a court
will permit a party to raise Charer issue for 1st time on appeal (see para 9).
None are met in this case. This isn't why the case is relevant.
ii) Recognizing A.A. as 3rd parent
Jurisdiction under CLRA
- Importance of declaration of parentage recognition on act of birth
has symbolic significance; sends a positive message to social institutions to
respect the families their children live in
- legislation doesn’t contemplate the recognition of more than 1 mother
because CLRA came into effect at a time when possibility of 2 moms was
not on the radar of legislatures; Therefore trial judge does not have
jurisdiction under the CLRA to make an order in favour of A.A.
- Legislative intent behind CLRA : that children treated the same
regardless of birth; demonstrates an oversight in the legislation
- Re: use of charter as interpretive aid A.A. argued that CLRA should be
interpreted in a manner consistent with the charter; however charter may
be used as an interpretive guide only in circumstances of genuine
17
ambiguity and there is no ambiguity in this legislation, so not open to court
to use Charter values to interpret the provision [para 25-26]
Can the Court find jurisdiction under parens patriae to authorize second
mom's name on declaration of birth?
- Parens patriae jurisdiction may be applied to rescue a child in
danger or to bridge a legislative gap
- Broader discretion granted to judges to use parens patriae in the
context of changing social conditions (La forest in Eve) –which is the
case here: “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”
- Disagrees with trial judge that this legislative gap was deliberate, but
argues that the legislature simply did not foresee declarations of parentage
of 2 women.
- Contrary to child’s best interests that he is deprived of the legal
recognition of the parentage of one of his mothers
RATIO:
- Although legisliation (CLRA) does not allow for recognition of more
than one mother, Court can fill that gap/oversight in CLRA using the
parens patriae jurisdiction in order to recognize A.A. as 3rd parent (2nd
mom)
- Denial of legal recognition of the parentage of one of the mothers of a
child is contrary to a child’s best interests
Comments
Locating Maternity and the Legal Status of Surrogacy Agreements
Droit de la Famille - 072895, 2007 QCCA 1640
FACTS :
 F & G (female partners) were living together for 14 years, during which
time they adopted 2 kids (F had come to Canada by marrying G’s
brother)
 at that time adoption by same sex couples was not allowed in QC; so it
was decided that G (who had Canadian citizenship while F didn’t, and
because F was not yet divorced to G’s brother) would adopt the children
 both parties took care of the kids and were called mom by each; de facto
split custody
 they separate in 2002 and agree that they will share ‘la garde’ of the
children equally (so each were getting equal time with children);
however G took decisions on her own regarding holidays and didn’t
permit F access to the kids’ medical records
 F wants shared legal custody of the children so that she can have legal
right to take part in decisions involving kids
 F argues it is in children’s best interests for her to also be granted legal
18
custody. The children (represented by un procureur) argue that hey have
2 mothers, want to spend equal time with both, and don’t see why one
mother should have more legal rights. G argues that there is no legal
basis for recognizing a 3rd party’ as custodial parent.
 At trial, crt grants F generous access rights but not custody—leaving G
as the sole one with parental authority over the kids. Appeals not her
parentage but asks for joint custody; wants to be more than access parent
(same time w/ kids but call it joint custody, not access)
Issue:
Can F (technically a 3rd party’, the former partner of the children’s
adoptive mother) be granted shared custody of the children?
Held:
YES (each granted one week alternating periods)
ANALYSIS: [Duval Hesler J.]
 the adoption was clearly a parental project between the parties
(were together for 14 years and both had agreed to raise the kids). It was
only due to the laws of the time (ie: non-existence of 538.1 CCQ/ ban on
same-sex adoptions) that only G’s relationship to the children was
legally recognize
 the fundamental principle that applies when it comes to custody of
children is the best interests of the child
 Canadian jurisprudence has accepted that custody of a child can be
granted to a 3rd party if it is in the best interests of the child. (C.G. c.
V.F.(T)) Best interests of child doesn’t cancel out parental authority but
it circumscribes the parameters of its exercise. (Beetz J. in C.G. c.
V.F.(T))
 rejects trial judges argument that shared custody cannot be granted when
communications between the parties “sont difficiles” (ie: are not
regular/amicable) :
 in order to grant joint custody, it is not essential for the parents to
get along well (other interests, such as preventing one parent from
alienating the other could, could override this concern)
[Dalphond J. – Concurring]
 the kids have been living with F for half the time and with G for the
other have; so what appellant is seeking is not more time with kids, but
for legal recognition as one of guardians of kids (based not on blood or
adoption, but on intimate relationship she has built with kids)
 parental authority is generally granted to ppl recognized as legal parents
of the child (598 CCQ). “La garde, la surveillance et l’education” are
the attributes of parental authority (599 CCQ)
 Standard applicant must meet is high third party appellant must
demonstrate (de facon preponderante) that the development or
blossoming of the children risks being comprised if they remain
under the sole legal custody of the defendant (PARA 79)
 disagrees with trial judge that difference bw ‘custody’ and ‘access’ are
merely matter of semantics; they each bring important legal
consequences
RATIO:
19
 custody of a child can be granted to a 3rd party (someone with no
biological or adoptive link) if it is in the best interests of the child;
the exercise of parental authority is circumscribed by ‘best
interests’ of child (C.G. c. V.F.(T))
 in order to grant joint custody, it is not essential for the parties to
get along well
 Broad reading of art.10 & 39 of QC Charter (rights of child)
Comments
Adoption ‹ 091, 2009 QCCQ 628
Facts
In this case, in a common parental project, a married couple entered into a
verbal contract to pay a woman $20,000 to act as surrogate mother
(impregnated via artificial insemination). The father’s wife would like to
adopt the Child, who is less than a year old. The father is declared on the
Acte de Naissance but no mother is declared. The surrogate signed a
special consent form, indicating that she is the mother and is giving up
the child for adoption specifically to the father’s wife. The child has been
living with the married couple since birth without interruption. The wife
has taken maternity leave
Issue
Should the right of a child to have filiation supercede the law’s refusal to
recognize surrogacy contracts as per A. 541 CCQ?1
Held
No. The Adoption request is refused.
Reasons
The Court indirectly compares the attempt to adopt to money laundering.
The Court does not allow the argument that recognition is in “best
interests of the child” to be a catch-all to legalise illegal actions. CAQ
had previously determined that children do not have the right to filiation
at all costs.
1. The Court refuses to separate the question of the formal validity of
consent required for adoption under A.568 CCQ from the question of
surrogacy. Specifically, they insist on reading Articles regarding adoption
(A. 453+ CCQ) in light of the articles regarding filiation (A. 538+ CCQ),
public order dispositions, and the Federal Law on Assisted Human
Reproduction.
2. The Court states that even if they consider only the rules of adoption,
under A.543, the adoption rules still do not allow this kind of action:
543. No adoption may take place except in the interest of the child and on
the conditions prescribed by law…
The Court interprets the expression “conditions prescribed by law” to
mean that more than the formal procedure of consent was required, but
also that substantive law was followed…the Court finds it impossible to
dissociate the father’s consent from the events leading up to it, and finds
consent vitiated because it was part of an illegal process which was
contrary to public order. The Court refuses to allow an indirect way to
achieve a result which could not be achieved directly because it is
prohibited by law.
1
541. Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null
20
Comments
Adoption ‹ 09184, 2009 QCCQ 9058
Facts
Issue
Held
Reasons
Comments
The Complainant A and mis-en-cause B are a de facto couple with a
common parental project. Complainant A is clinically incapable of
having children after two near-fatal attempts. Mise-en-cause C is A’s aunt
by marriage, who, out of altruism, offers her surrogacy (her husband, A’s
uncle, is aware). A’s eggs and B’s sperm are fertilized in vitro and the
embryos are inserted into C’s uterus. C has twins. In declaration of birth,
C is listed as the “biological mother.” There is only room for one more
parent on the form so they listed B, the father. A is seeking an Order of
Placement to begin the adoption process, to displace C’s maternal
filiation.
Can the wife whose eggs are used displace C’s maternal filiation even
though the request was the result of a surrogacy contract?
Yes, as it is in the best interests of the child and all the requirements of
adoption are met.
1. There is no doubt as to the consent of both the “Mother (C)” and
Father with respect to adoption. Court acknowledges that A.541 CCQ
(nullifying the contract of surrogacy) applies in this case, and that the
verbal agreement is nullified. However they find this irrelevant. (Note
that this is in stark contrast to the previous case). Instead, they focus on
this idea:
“Il faut décider du statut d'un enfant qui existe et qui a droit au respect
intégral du ses droits, notamment ceux prévus aux articles 32,33 et 34
[13] du Code civil du Québec.”
In the Ministerial debates surrounding A.541, the Minister concluded that
a child who was the product of fertilized egg gestated by a different
woman (ie. in vitro fertilization) could benefit from the rules of special
consent for adoption if the “gestator” was a family member who was not
a parent (“en ligne collateral”).
2. The Court consistently notes the parties’ good faith attempts to give the
children maternal affiliation consistent with the uninterrupted possession
of status (“UPS”), believing that recognition of maternal filiation would
be “in the best interests of the child.” They note indicators of UPS such as
the fact that the child is the product of the Complainant’s eggs, she chose
the child’s name, she breast-fed the child, the child has lived with them
since birth etc. The Complainant could have gone another route, because
actual possession is not in conformity with name on the acte de
naissance---and she would have likely won on the basis of uninterrupted
possession of status.
3. The Court acknowledges different outcome in the previous case, but
finds that all the criteria for adoption are met and that to act otherwise
would be contrary to public order and the child’s best interests.
21
Filiation by Adoption – Key Principles, presumptions, and regulatory frameworks
In re Robert Paul, 481 N.Y. 2d 652 (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 :
- 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.
- Even if adults can adopt another adult, 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.
Dissent:
- 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.
22
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.
Droit de la famille 1914, [1996] RJQ 219 (CA)
Facts: Miss M.H. has many behavioral problems, bringing her to various health institute .
She is declared incapable of assuming the guard of her children, which are placed for a
total of 5.5 years. During this time, M.H. situation worsens as she starts prostitution,
drugs, goes to prison. She has very little contact with the kids for 4 years. The DPJ places
a request for eligibility to adoption, which seems to bring M.H. to change and start
treatments.
Previous court : Art 559 CCQ is clearly satisfied as it has been way more than 6 months
that M.H. has ceased to give any care to her children. Under art 561 CCQ, 2 psycholgists
and 1 psychiatrist affirm that there is no way she will ever be able to assume the care of
her children. She says it herself that she couldn’t, but would give them to her sister. So
561 is clear. However, the kids still have ties with their biological mom and care for her,
wanna see her and know how she’s doing. So on the basis that it wouldn’t be in their best
interest, the children are declared non-eligible to adoption and will be given back to M.H.
Issues : Can eligibility for adoption (not adoption itself) be refused on the grounds of the
kid’s interest even if 559 and 561 CCQ are satisfied? YES
Analysis : Chamberland
- Courts must take into consideration the child’s interest at every stage of adoption
process.
- Since the child’s interest is mentionned clearly in art 33 and 543 CCQ, it
permeates every other article.
- Notice that art 559 uses the word “can”, not “must”, which allows for child’s
interest to come in.
Fish:
- The interest of the child must be considered at every step of the process. It is an
entire exercise having a single purpose: to determine judicially whether the
substitution of an adoptive filial bond for the failed biological one favors the
interest of the child.
- Since the eligibility stage is the only one where the biological parents can explain
themselve, the child’s interest is of even greater importance at that stage.
Beauregard – Dissent:
- Art 559 par 2 should apply only when the parents’ absence of care amounts to an
abandon or disinterest.
- Once art 559 par 2 is satisfied, the judge cannot refuse eligibility to adoption on
the grounds of the kid’s best interest.
- Even if the kid’s best interest should underly every decision, this interest’s
protection doesn’t come only from judges: the legislator first and foremost wanted
to give the children a family where they will receive proper care. If the children’s
situation fulfills all the legislator’s criteria, then the kid’s best interest is to be
adopted. It usually isn’t in anyone’s interest to be deprived of a right they are
entitled to.
- Children’s best interest only comes at the adoption stage.
Ratio : The child’s best interest comes into play at any stage of the process and trumps
23
the decision based on the code’s criteria.
Comments : Chamberland uses a typical civilian approach : choice of words and
hierarchy of articles.
Jurisprudence seemed to go both ways.
Consent and Open Adoption
Re B.C. Birth Registration No. 030279 (1990), 24 R.F.L. (3d) 437 (B.C.S.C.)
- The natural became pregnant, but her relationship with the biological
Facts
father soon deteriorated and he left. For cultural/family reasons, the
natural mother found the prospect of raising the child alone unacceptable.
She thus commenced proceedings to put the child up for adoption.
- After giving birth, a bond formed and the natural mother decided she
wanted to keep the child. She could not care for her as she was very busy
helping her brother with a new grocery store business. The child was
placed in a foster home.
- The natural mother had another change of heart: feeling she was not
prepared to be a mother, she put the child up for adoption. The child was
adopted, and had lived with the adoptive family for several months at the
time of the trial.
- The natural mother realized that she had succumbed to self-doubt and
made a mistake: she applied to revoke her consent to adoption, pursuant to
s. 8(7) of the Adoption Act.
- The judge did not hold the natural mother’s many changes of heart
against her: she was at all times in a very difficult situation, and seemed to
have only the best interests of the child in mind.
Adoption Act (at the time), s. 8(7):
Stat
Provisions No person who has given his consent to adoption, other than the child to be
@ the time adopted, may revoke his consent unless it is shown to the court’s
satisfaction that the revocation is in the best interests of the child
Would accepting the natural mother’s consent to adoption, and returning
Issue
the child to her, be in the child’s best interests? What weight should be
given to biological ties in interpreting s. 8(7).
Holding
Reasons
Child remains in custody of adoptive parents
After reviewing the case-la, the judge found that in disputes between
natural and adoptive parents, there is no reason per se to prefer natural
parents. These disputes must be resolved with sole regards to the best
interests of the child. Biological links, however, will often be relevant to
determining the best interests of the child.
In this case, both the natural and adoptive parents proved that they would
be competent and loving parents. The trial judge found biological links
were important, but trumped by these considerations: 1) the natural mother
had a job that would force her to travel regularly 2) the child had no
relationship with the natural mother 3) any displacement runs a risk of
destabilizing a child, and the child in this case had bonded with the
24
adoptive parents
* The judge also made a perplexing (and probably culturally insensitive
comment) about the problem of placing a child in a family of a different
cultural/”ethnic” background (apparently this can de destabilizing for a
child): He did not think this issue arose here, despite the fact that the
natural mother is of Korean descent, the adoptive mother of Chinese
descent, and the adoptive father of Filipino-Chinese descent.
Comments
Droit de la famille 1704, 1992 CanLII 3206 (QC C.A.)
The appellant’s biological parents separated shortly after her birth. The
Facts
biological mother applied to adopt the appellant, to become her sole legal
parent. The biological father consented to this. The appellant now seeks to
establish a filiation with her biological father.
Statutory CcQ:
Provisions 589 : L'enfant dont la filiation n'est pas établie par un titre et une possession
d'état conforme peut réclamer sa filiation en justice.
Art. 627. L'adoption confère à l'adopté une filiation qui se substitue à sa
filiation d'origine.
L'adopté cesse d'appartenir à sa famille d'origine, sous réserve des
empêchements de mariage.
Art. 628. L'adoption fait naître les mêmes droits et obligations que la
filiation par le sang.
Art. 629. Lorsque l'adoption est accordée, les effets de la filiation
précédente prennent fin; le tuteur, s'il en est, perd ses droits et est libéré
de ses devoirs à l'endroit de l'adopté, sauf l'obligation de rendre
compte.
Holding
The adoption has annulled all filiation with the biological father.
Reasoning The appellant argued that arts 627 and following were not meant to cover
her exceptional circumstances: they are meant to prevent contestation of
filiation by biological parents; this is not at issue here, since the biological
mother is also the adoptive mother, and there is no adoptive father. She
argued that art 589 allowed her to claim filiation.
The majority held that the Code excluded the possibility of establishing a
biological parent’s filiation after adoption: after adoption, filiation by blood
disappears, and is replaced by a new filiations. With regards to appellant’s
specific circumstances, the majority commented that the Code allows for
adoption by single parents, and does not preclude adoption by biological
parents.
Dissent: The dissenting judge held that art. 627 did not apply; in his view
no new filiation was created since the biological mother and the adoptive
mother are the same person, and the appellant “did not cease to belong to
her original family.” The judge agreed with the circumstances foreseen by
art. 627 as were stated by the appellant.
JJ c SV [2002] RDF 167 (CS)
Facts: JJ kills his wife M and goes to prison. His kid A is given to DJ and RR, JJ’s sister
25
and brother in law. JJ and DJ have joint legal custody with access rights to SV, SV(2),
RV and AP who are relatives of deceased M. J consented to DJ and RR’s adoption of A,
which they are granted. M’s family requests access rights now that adoption is granted,
but DJ and RR plead that the Superior Court has not jurisdiction (requete en
irrecevabilite).
Issues : Is the SC the proper tribunal? YES
After an adoption judgement, is it possible to give a third party, the child’s
biological relatives, access rights?
Analysis :
- The SC has jurisdiction to hear cases of custody and acces rights even if another
court has pronounced the adoption.
- DJ and RR argue that art 577-579 CCQ mean that any link stemming from the
previous filial relation is ended after the adoption confirms the new filial relation:
if that was the case, no third party could ask for access rights to the kid which is
not what the court have decided.
- SCC jurisprudence on art 33 CCQ recognizes the possibility of granting custody
based on the child’s best interest. “L’interet de l’enfant est devenue en droit civil
quebecois la pierre angulaire des decisions prises a son endroit” SCC G.C c T.VF. [1987] 2 RCS 244
- Third party can obtain custody of a minor, so it should mean that third party can
obtain access rights.
- No need of misconduct on parent’s part.
Ratio : Requete en irrecevabilite rejected as the adoption process is over. SC has
competence over access rights by third parties. It is possible for a third party to have the
custody of a child without compromising the parents’ legal authority if it is in the child’s
best interest.
Comments :
JG (Dans la situation de), [2005] JQ no 17572 (CQ)
Facts : DPJ asked for JG to be declared eligible for adoption since mom isn’t caring for
more than 6 months. JG is 35 months at time of hearing. Mom refuses because she
doesn’t want to lose any contact and wants to have custody again eventually. Mom is
teenager with drug problems who simply refused to take care of the baby.
Issues : Is baby eligible for adoption? Can mom get acces rights?
Analysis :
- When a kid has to be given to people outside of his family, the only possible form
of adoption is “adoption pleniere ou fermee” which cuts all ties with original
filiation. The previous parents loose all rights. See art 578-579 CCQ
- Open adoption isn’t a possibility: it has been discussed for decades, it is possible
in some provinces and other countries, it is the most important questioning about
adoption since this institution exists. It is up to the legislator to decide.
- Jurisprudence is clear though: adoption rules are subject to public order and
cannot be changed by private arrangements. Consent to adoption subject to
conditions isn’t possible.
- 3 steps process to decide of eligibility of the kid
Step 1: Art 559 par 2 CCQ
26
Facts clearly indicate mom’s absence for more than 6 months
The court has given her 2 chances to change, but she failed. At the kid’s age, we
cannot wait longer before placing the child indefinitely. Especially since the kid
has shown a good integration in his new family and shows stress when his mom is
there. Acces rights are denied to ensure the kid’s evolution in a stable, healthy
environment.
Step 2: Art 561 CCQ
- Mom recognizes she can’t change in time for the a change of family to be done
without consequences to the kid, considering his age.
Step 3: Discretion based on child’s interest
- This is where access rights could be granted, but it is clearly not in kid’s best
interest.
- This shouldn’t be seen as a punishment for the mom’s conduct, but really from
the child’s perpective.
Ratio : No open adoption in QC, 3 steps process to declare eligibility
Comments :
-
Robert Leckey, « Adoptive parents aren’t second best »
QC Ministry of Justice proposed to amend adoption CCQ article to introduce « open »
and « simple » adoption.
Open adoption: adoption still cuts ties with birth parents, but an agreement allowing for
continued contact is possible.
Pros:
- This rejects the traditional model of secrecy originating from the stigma around
adopted children when born outside marriage.
- Today with more DPJ, homosexual, international adoption, it’s easy to know
when a kid as been adopted, and the kids’ themselves know it.
Cons:
- Can potentially undermine the adoptive’s parent relationship with their child.
Simple adoption: give a child a new adoptive parent(s), responsible for caring for the
child, while preserving the legal bond with the birth family.
Cons
- It goes against the primary purpose of adoption which is to give a new identity to
a child.
- It preserves the notion that filiation and family are primarily matters of blood, that
genetics are superior.
- Goes against the principle that all children whose parentage is established are
equal.
- With the increasing international and homosexual adoption, it might hint that
those parents aren’t good enough.
Conservative backlash coming as inspiration from France. Why now?
Aboriginal Adoption and Aboriginal Legal Traditions
Racine v Woods SCC 1983
(De facto Adoption; bonding over race), MAN (cmnL)
27
Facts:
Appellants: Sandra and Allan Racine; Respondents: Linda Wood
 Leticia is an Indian child born to an Indian mother – Woods. W has
been absent from the child’s life due to serious alcohol abuse.
Issue
Holding
Reasons

When Leticia was 6 weeks old, she was taken by Children’s Aid
Society, and put in a foster home with the Racines – first as ward of
state for one year, then with mother’s consent for another six months.
Racines are white/Metis. Race is at issue.

Leticia goes back to biological mum after wardship expires. Racine’s
visited twice, and on second visit, Wood gave them back the child in
May 1978. There is consent for Racines to have child,
misunderstanding in time length. Racine’s think its forever
(adoption), and mother sees it was “just for a while.”

Racines heard nothing from mum for 6 mths; they try to adopt the child,
but mother says no – she wants her sister to care for the child (ps:
sister not keen). Racine’s refuse. Mother doesn’t respond to their
refusal until Jan 1982 (four years). Mother filed application for
habeus corpus.

Racines filed for de facto adoption in Feb 1982. Adoption order
granted by TC. CoA overturned adoption order, made child a ward of
the state, but gave Racine’s custody but gave Wood opportunity to
apply for access/custody. Racines appealed CoA decision, Woods
cross-appealed.

De Facto Adoption – particular to Manitoba. Allows foster family to
adopt child permanently after three consecutive years or more
without consent of birth parents.
Should the de facto adoption be held? Alternatively, just custody to
Racine’s? (essentially to grant adoption, whether or not child’s best
interests lay with her white/metis psychological parents or with her natural
Indian mother)
Yes, de facto adoption granted. Trial Court’s decision upheld.
 “The law no longer treats children as the property of those who gave
them birth but focuses on what is in their best interest.”

“A child is not a chattel in which its parents have a proprietary interest;
it is a human being to whom they owe serious obligations.”

“In determining the best interests of the child, the significance of
cultural background abates over time: the closer the bond that
develops with the prospective adoptive parents the less important
28
the racial element becomes.”

“Leticia is apparently a well-adjusted child of average intelligence,
attractive and healthy, does well in school, attends Sunday School and
was baptized in the church the Racine family attends.”

Child knows that Racine’s are not her natural parents, and that Wood is
her mother. Child knows she is Indian. The Racines have encouraged
her to be proud of her Indian culture and heritage.

Child is now seven years old, and experts agree that Racines are
her “psychological parents.”

TJ was correct in noting race of child, and her potentially facing
identity crisis when she is older. But Racine’s are capable of dealing
with this if it arises.

While COA argues that Racines can’t rely on abandonment when they
had no legal right to keep the child, the SCC sees the 4 years from
1978-82 as important indicator of abandonment

Though a finding of abandonment is not a prerequisite for an adoption
order under s 103. S 103 (2) dispenses with parental consent in the
case of a de fact adoption. Obviously a child’s ties to her natural
parents will be relevant in determining best interest. But we look at
the life of child not the parent in determining whether parental tie
is a positive force.

The Racines were being responsible parents in refusing the child to
Wood’s sister. They have also cared for her since infancy.
 “Mrs Wood had a responsibility when her rights were challenged to
pursue them in the court … and not wait until her child was bonded to the
Racines.”
Ratio
“when the test to be met is the best interest of the child, the significance
of cultural background and heritage as opposed to bonding abates over
time.” “The closer the bond with the prospective adoptive parents, the
less important the racial element.”
Comments  At common law, the court can issue an adoption order without the
parents’ consent if the child has been “abandoned” (sort of like CCQ
art. 559, but threshold in Quebec is shorter – require showing of 6
months (559) where child was cared for by someone else, or birth
parents did not take up the care and maintenance of the child.
 Can we really say this current adoption model is serving the best
interests of the child? Maybe access would be in her best interests, even
with an adoption order
29
Directeur de la protection de la jeunesse c. J.K., 2004 CanLII 60131 (QC C.A.)
Facts
Issue
Holding
Reasons
J is 15 yrs old, and gives birth to M. Both kids live with the foster mum,
Madame M.

Little baby was placed in “famille d’accueil” for 30 months since young
mother not stable – runs away, drugs and alcohol abuse.

About two years later, Director applies to the court to find child eligible
for adoption.
 JH: The court said no to this adoption because prospective adoptive
family is not aboriginal. So Madame M is appealing saying too much
weight put on aboriginal status.
whether the kid should be declared eligible for adoption?
yes (regardless of fact that they couldn’t find aboriginal family)
The foster mum would meet the best interest of the child. The Director of
Youth Protection had tried to find an Aboriginal family – but no
success.

Art. 559-561 CCQ: declaration of eligibility for adoption is used by
the court. This is because the child’s parents/mum hadn’t and couldn’t
care for child. It is improbable that they will take this responsibility
(Art 561).

The person who took care of the child had spent a great amount of time
with child, cared for, maintained, and educated the child (Art 559).

“Aboriginal identity is undeniable”. It is recognized in art 37.5 of
Loi sur la protection de la jeunesse.

However, the cultural aspects diminishes overtime the more the link
with the future adoptive parents develops (Racine).

The psychological stability of the child has been established. Child was
with them from age 12 days to 5 years old. No contest from birth
mother as well.
 “Malgré l'importance qui doit être accordée aux liens culturels et à
l'appartenance identitaire à sa communauté, il est en l'espèce une réalité
psychologique subjective qui ne peut être occultée. Une enfant de 5 ans qui
ne connaît pas d'autre famille que celle chez qui elle réside depuis l'âge de
12 jours, ne peut tout simplement pas être retournée, sans ménagement,
dans son milieu d'origine: la famille qui l'a accueillie s'est substituée, par
le passage du temps et les ordonnances judiciaires, à son milieu d'origine.”
30
Ratio
In adoption, the importance of aboriginal identity diminishes significantly
the stronger the bond between child and adoptive parents.
Comments
Re Adoption of Katie (1961), 32 D.L.R. (2d) 686
Inuit couple (Noah and wife) adopt a child using only Inuit traditions,
Facts
instead of the recognized Child Welfare Ordinance.
Issue
Holding
Reason
 The Ordinance process has impractical formalities: to adopt, the couple
must be married and have marriage certificate, they must notify
superintendent a month ahead of the application, etc. This superintendent
lived in Ottawa, they had to mail this application – and these people had
language and literacy issues. So they didn’t do it.
Are the Inuit’s customary adoption traditions recognized in law (even
though not in line with formalities)?
Yes, the child is adopted. The adoption laws of the territories/Inuit custom
are recognized in law.
 ““These applications to the Court are made because the white man says
there should be an adoption order, and because it is well to have
something of Court record establishing the adoption and proving it for
purposes of Family Allowances, School Registration, Succession, and
to avoid dispute or question. The Superintendent resides in Ottawa,
beyond the jurisdiction of the Court, and would not be certifying from
personal knowledge. He will require an army of welfare workers in the
field to acquire the necessary information. The provision is inconsistent
with, and an infringement of the duties and powers of the Court, and
could be used to prevent or delay the adoption.”
 S. 103 of Child Welfare Ordinance: “Every adoption heretofore made
according to the laws of the Territories, and every adoption made
according to the laws of: (a) any province of Canada; (b); (d) any other
country or part thereof approved by order of the Commissioner has for
all purposes in the Territories the same effect as an adoption made in
accordance with this Part.”

The Canadian Bill of Rights prevents Inuit rights, freedoms, laws, and
customs being abrogated. So going against this would be ineffective.

The requirements are impractical – not only for the above reasons i.e.
how far superintendent lives, and fact that Inuit sometimes can’t read
or write and mail service is bad, but also because they have different
customs, i.e. no last name.

“Section 97 of the Child Welfare Ordinance reads:
97(1) Unless the adoption order provides that the adopted child
retain his surname, the adopted child shall assume the surname
31
of the adopting parent.
(2) In making an adoption order, the judge may, in his
discretion, change the christian [sic] or given name or names as
the adopting parent desires, and thereafter the adopted child is
entitled to and is to be known by the name or names so given.
Ratio
This section does not recognize that ordinarily Inuit do not have a
surname. There are only given names and these usually have a particular
and personal significance. The child retains his name on adoption, as a
woman retains her name on marriage.”
Adoptions made in accordance to the laws of the Territories have for all
purposes the same effect as adoptions made under the Child Welfare
Ordinances.
Comment
Locating Parenthood Functionality/Potentialities for multi-parenthood family
configurations? In Loco Parentis
Chartier c Chartier [1999] 1 RCS 242
Parties began a common law relationship in November 1989 and married
Facts
on June 1, 1991. They had a child during in 1990. The parties separated in
May 1992, later reconciled for a month or two, then permanently separated
in September 1992.
o Jessica is the child of the wife from a previous relationship. While the
parties lived together the husband played an active role in caring for
both children and was a father-figure for Jessica. The parties had
discussed the husband’s adoption of Jessica. The parties had amended
Jessica’s birth registration to indicate, falsely, that the husband was
Jessica’s natural father and change her name to his. In 1994, in a
consent judgment, the husband acknowledged both daughters as
children of the marriage and was granted access to them. The
agreement was silent as to paying support to Jessica or the wife.
o In 1995 the wife initiates divorce proceedings, and includes in her
claim a request that the husband stand in the place of a parent for
Jessica. The husband responds with a stated desire to sever his
relationship with Jessica.
Divorce Act: (2)(a) For the purposes of this 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 the other stands in the place of
the parent.
Can a person who stands in the place of a parent to a child within the
Issue
meaning of the Divorce Act unilaterally give up that status and escape the
obligation to provide support for that child after the breakdown of the
marriage?
32
Holding
Reasons
Comments
No
o Bastarache J. The court distinguishes the traditional common law
definition of loco parentis and the definition of “in the place of a
parent” as it is used in the Divorce Act. The provisions of the Divorce
Act dealing with children focus on what is in the best interests of the
children of the marriage, not on biological parenthood or legal status of
children.
o Intent is not determinative. The court rejects a line of cases that had
used the common law meaning of loco parentis to find that the
intention of step-parents is paramount in determining their rights and
obligations with respect to children of the marriage.
o Best interest of the child and the meaning of “in the place of a
parent”: “The provisions of the Divorce Act that deal with children
aim to ensure that a divorce will affect the children as little as possible.
Spouses are entitled to divorce each other, but not the children who
were part of the marriage.” Also do not want parents treating one child
of the marriage differently from another child of the marriage.
o Test for standing in the place of a parent. The court must determine
the nature of the relationship by looking at a number of actors, only one
of which is intention. Intention can be formally expressed or informed.
Actual fact of forming a new family is a key indicator of intent.
Relevant factors include: whether the child participates in the extended
family in the same was as would a biological child; whether person
provides financially for the child (depending on ability to pay); whether
the person disciplines the child as a parent; whether 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.
o Opinion of the child is important but is only one of many factors. Must
also consider representations of the step-parent, independently from
those of the child.
o Concern step-parents will stop being generous to avoid obligations.
People do not enter into relationships expecting them to be terminated.
“This type of generosity which leaves children feeling rejected and
shattered once a relationship between the adults sours is not beneficial
to society in general and the children, in particular.” We should
encourage generosity that includes commitment.
Facts in this case. Represented to world and Jessica that he had assumed
parental responsibility. Mr. Chartier is the only father Jessica had ever
known, especially since the Chartiers led her to believe he was her
biological father (changing last name and amending birth registration).
After separation, he continued to visit Jessica.
Material time. The Court has jurisdiction to make an order of maintenance
in favour of a child in loco parentis but only if the child is under the age of
16 “at the material time,” which is the time the family functioned as a unit.
33
Carol Rogerson “The Child Support Obligation of Step-Parents” (2001) 18 Can J
Fam L 9 (excerpt)
Argument. Canada imposes extensive obligations on step-parents. “Our current approach
… has been adopted in the absence of a clear articulation of the basis on which such
support obligations are being imposed and without reference to the social science
literature on the nature and functioning of step-families.” Without understanding stepparents, and imposing support obligations on them, we should understand what those
relationships look like. Concern that we are privatizing support obligations to save public
funds.
“In the modernist zeal to adopt a functionalist approach to defining family relationships
and to ensure the economic well-being of children, we may lose sight of the need to
justify the imposition of support obligations and may be led to engage in very crude and
simplistic functional analyses that fail to take into account the complexity and diversity
of modern family structures.”
Social science research and step-families. Main message: complexity and diversity of
relationships. Relationships build over time. Stress of building relationships between
step-parents and children may be one of the factors contributing to the higher risk of
breakdown of second marriages. These relationships may not survive the second divorce.
Step-parents, in particular step-fathers, are often more detached than biological parents
and may be more like a trusted adult friend.
Policy question. What form of step-parent child support obligations are appropriate in a
social context where serial relationships are common, and constitute an important source
of economic security for children following the breakdown of their parents’ relationship,
and yet where remarriages can be more unstable and of short duration than first
marriages, and where in many cases there may be no on-going relationship between stepparents and step-children after separation?
The challenge with functional criteria. Modern family law takes a highly functional
approach and is also highly child-centered. A person who functions like a parent by
providing material, emotional and social supports for children should be treated like a
parent. The challenge is articulating functional criteria in the context of highly complex
and diverse relationships.
What factors would dispute a finding of in loco parentis and what does this reveal
about the principles motivating the law?: poor relationship between the step-parent
and the child prior to separation; the age of the child (older children are less likely to
bond with the step-parent); an involved biological parent; the gender of the step-parent
(step-mothers are less likely to provide financial support during the marriage and
biological mothers are more likely to maintain their relationships with their children.
A.(V.) c. F.(S.), 2000 CanLII 11374 (QC C.A.)
Parties had lived together for a few months before getting married in1997.
Facts
The wife had a child, 6, from a previous relationship the father of whom is
unknown. Divorce proceedings start in 1999. Wife requests support for
herself and for her child.
Should the step-parent be considered in loco parentis? Secondary: Does the
Issue
presence of in loco parentis in the Divorce Act allow the federal
government to invade provincial jurisdiction over support?
No. The second issue isn’t directly decided on, but it is clear the court is
Holding
34
Reasons
jealous of its jurisdiction over support in Quebec.
o Juge Brossard. Federalism. “L’oblgiation alimentaire” is a matter of
civil law. The civil law does not have a doctrine of in loco parentis.
While in loco parentis may be imported into Quebec via the Divorce
Act, in so doing it is adding to the civil law and should therefore be
interpreted restrictively.
o Evidentiary issues in demonstrating in loco parentis. There are real
evidentiary challenges in determining whether a step-parent stood in the
place of a parent. The judge at first instance ignored the explanations
and statements of the step-parent. The trial judge used many of the
indicators suggested by Bastarache J. in Chartier to find in loco
parentis but Brossard J. says this case is different because, among other
things, in Chartier they had talked about adoption and had amended the
act of birth of the child. Brossard, rightly or wrongly, focuses on intent.
o Intent. Focuses on intent and insists that the step-parent must have
demonstrated a clear, unequivocal and unambiguous intent to act in loco
parentis. Brossard finds that an act of generosity is not the same as an
intention to become a parent.
o Juge Fish. The Divorce Act seeks to palliate the economic effects of
divorce on children. The trial judge concluded there was a parent-child
relationship based on the evidence and should be given deference for
this evidentiary finding.
Juge Rousseau-Houle. Support falls under provincial jurisdiction. Analysis
focuses on the intent of the step-parent. Concludes that the step-parent only
wanted to be a friend, not a parent.
Comments
Cornelio v Cornelio, 2008 CanLII 68884 (ON S.C.)
Mr. Cornelio discovered that he is not the biological parent of two 16-yearFacts
old twins. Cornelio argues that while he had always treated the twins as his
own children this intent was formed on the basis of incorrect information
Did Mr. Cornelio stand in the place of a parent to the twins? Can Mr.
Issues
Cornelio’s support obligations be terminated? Can Mr. Cornelio be
compensated for past support payments?
Yes and therefore no to the last two issues.
Holding
o A proper analysis will consider the objective relationship between the
Reasons
person and the child, will consider the intent of the parent, and will
adopt a “best interests of the child” approach to the issue of child
support.
o Intent. It is incorrect to focus solely on the intent of the adult who
purportedly stood in the place of a parent. Per Chartier, should focus on
the nature of the relationship. In this case, there is a strongly formed
parent-child relationship.
Best interests of the child. Reads Bastarache J. in Chartier as saying that
the analysis should be centered on the needs of the child as of the date of
the hearing. Would be unfair to the children to allow the father to
35
unilaterally withdraw from the relationship. The right to child support is a
right to the child.
Comments
Doe v. Alberta, (2007) ABCA 50
Unmarried couple. Jane Doe wants to have a child but John Doe does not
Facts
want to. Jane Doe conceived via artificial insemination and she and John
stayed together. The parties want to execute an agreement that will
stipulate that John Doe is not the father of the child and has neither
parental rights nor any obligation of support towards Jane Doe’s Child.
Will this agreement affect whether John Doe will stand in the place of a
Issues
parent to Jane Doe’s child? If such an agreement is not allowed, does it
violate s. 7 of the Charter?
No to both.
Holding
o Standing in the place of a parent. Per Chartier, intent is only one
Reasons
factor in determining the nature of the relationship. The Court finds
that a relationship of interdependence between Jane and John Doe will
lead John to develop a relationship of interdependence with the child,
despite his stated intention not to. The court insists that he will not be
able to ignore the child when it needs to be fed or changed and that the
child will begin to perceive him as a parent.
o Best interest of the child. The court reads a lot of its own expectations
of how someone in John’s place should treat a child into its findings.
The court is concerned that emotional damage would be inflicted on
the child if John did not become interdependent with it. The court holds
that courts have been unwilling to interfere with the rights of children
to support.
S. 7. John chose freely to engage into a relationship of interdependence
with Jane and her child, which means that he was able to order his rights
and obligations toward the child as he saw fit.
Comments
Droit de La Famille 2492 [1996] RDF 662 (CS)
Grandfather wants access to grandchildren but his children are denying
Facts
him access.
What are the grandfathers rights under article 611 CCQ?
Issues
Article 611 CCQ must be interpreted in accordance with article 33 CCQ.
Holding
The grandfather must show how it would be in the children’s best interest
Reasons
morally, intellectually and emotionally to have relations with him. The
Court was not satisfied that the grandfather’s intentions were altruistic –
his arguments focused mainly on his own rights.
Comments
C.R. v. B.L.B. [2005] A.J. No. 726 (ABQB)
Application by a paternal grandmother for access to her grandchild. Her
Facts
son consented for the child to be adopted by another man.
Does the grandmother have a right to access?
Issue
36
Holding
Reasons
No
o Grandparents are not on equal footing with natural parents. When the
father gave up his right to the child and consented to the adoption he
lost his access rights. Those who claimed through him also lost their
rights.
The court contends that this decision is in the best interests of the child, it
seems largely because of the changed family structure.
Comments
Parental Authority and Custody
Young v. Young, [1993] 4 S.C.R. 3 (excerpt)
Facts
Issue
Holding
- The excerpt is from L’Heureux-Dubé J’s reasons. She addresses the
Reasons
question as to whether granting of sole custody under the Divorce Act
means granting sole decision-making authority over the child to the
custodial parent.
- L-D concludes that under the Divorce Act, sole custody equals sole
decision-making authority over the child. The non-custodial parent retains
a right to be informed about decisions concerning the child.
- Relying on art. 16 of the Divorce Act, L-D that sole custody must be
defined with sole regards to the best interests of the child. The traditional
position in the CML has been that sole custody = sole authority. In her
view, this rule is in line with best interest of the child. “A secure and
constant source” of authority is crucial in the well-being of a child.
Allowing for authority to be shared in cases of sole custody creates the risk
that the child will caught in conflicts between parents about his upbringing
- L-D relies on evidence showing that despite evolution of gender roles,
women are still overwhelmingly responsible for child care, and almost
always objects of sole custody orders. These women are already often
marginalized (economically, socially) due to their responsibility as single
parents. Refusing to grant them sole authority would be an added burden.
* This decision applies only in common law provinces, see W.(D.) c.
G.(A.) below.
Comments Divorce Act (at the time)
16.(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.
(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.
W.(D.) c. G.(A.), 2003 IIJCan 47442 (QC C.A.)
Facts
37
Issue
Holding
Reasons
Comments
- The Court of Appeal addresses the question as to whether, under the Civil
Code, granting of sole custody equates to granting of sole authority.
- Article 605 makes clear that even in cases of conferral of sole custody,
the non-custodial parent retains authority and obligations over the child.
This was specified in the Minister’s comments on the article.
- The authority of the non-custodial parent is over “all decisions other than
“ordinary” ones (“toutes les decisions autres que quotidiennes.”) In cases
of conflict, 604 allows parents to petition a Court.
- The term “custody”, in the Divorce Act but not defined in it, must be
given in Québec the definition of “custody” contained in the Civil code,
and not the Common law definition
CcQ:
604. En cas de difficultés relatives à l'exercice de l'autorité parentale, le
titulaire de l'autorité parentale peut saisir le tribunal qui statuera dans
l'intérêt de l'enfant après avoir favorisé la conciliation des parties.
605. Que la garde de l'enfant ait été confiée à l'un des parents ou à une
tierce personne, quelles qu'en soient les raisons, les père et mère
conservent le droit de surveiller son entretien et son éducation et sont tenus
d'y contribuer à proportion de leurs facultés.
Gordon v. Goertz, [1996] 2 S.C.R. 27
- The mother was granted sole custody over the child, with access rights
Facts
for the father. She decided to move to Australia for her studies. The father
applied for a change in the custody order, or an order restraining her from
taking the child to Australia. The trial and appellate court rejected the
claim, relying on the custody judgement which stated that the mother was
the proper person to have custody of the child.
Issue
Holding
Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ.:
Reasons
- The parent applying for a change in the custody or access order must
meet the threshold requirement of demonstrating a material change in the
circumstances affecting the child. For that threshold to be met, the judge
must be satisfied of (1) a change in the condition, means, needs or
circumstances of
the child or in the ability of the parents to meet the needs of the child, (2)
which materially affects the child, and (3) which was either not foreseen or
could not have been reasonably contemplated by the judge who made the
initial order.
- If the threshold is met, the judge on the application must embark on a
fresh inquiry into the best interests of the child, having regard to all the
relevant circumstances relating to the child's needs and the ability of the
38
respective parents to satisfy them. She must only consider the interests of
the child, not the rights of the parents.
- There is no presumption in favor of continued sole custody. Once
material change is shown, each parent has the same evidentiary burden.
- In this case, the material change was proven, but it was still demonstrated
to be in the best interests of the child to maintain sole custody for the
mother, with access rights in Canada and Australia.
Comments
Per La Forest and L'Heureux-Dubé JJ.:
- The notion of custody under the Divorce Act encompasses the right to
choose the child's place of residence. Absent an agreement or a court order
restricting the incidents of custody, such as the child's place of residence, it
is thus within the custodial parent's powers to decide such a change of
residence, subject to the right of the non-custodial parent to oppose such
choice by seeking a variation of the custody or access terms under s. 17(5)
of the Act. A full reappraisal of custody is only warranted when the
material change in the circumstances affecting the child is so important as
to render the original custody arrangement irrelevant.
- In assessing the merits of a variation application linked to the change of
residence of the child by the custodial parent, the following guidelines
must inform the courts: 1) All decisions as to custody and access must be
made in the best interests of children, assessed from a child-centred
perspective. 2) In the absence of explicit restrictions on the incidents of
custody, such as the child’s place of residence, it must be assumed that an
existing custody order or agreement reflects the best interests of the child
and that the appropriate decision-making authority lies with the custodial
parent. 3) In determining the best interests of the child under s. 17(5),
courts must focus on the impact of the change of residence on the existing
custody order and the appropriate modifications to access as the case may
be, and generally not proceed to a de novo appraisal of all the
circumstances of the child and the parties. 4) The non-custodial parent
bears the onus of showing that the proposed change of
residence will be detrimental to the best interests of the child to the extent
that custody should be varied or, exceptionally, where there is cogent
evidence that the child’s best interests could not in any reasonable way be
otherwise accommodated, that the child should remain in the jurisdiction.
Divorce Act
17. (…)
(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.
39
Challenges to the Best Interest Principle: Domestic Violence and Obstructions to
Access.
Pollastro v. Pollastro (Ont. C.A., 1999), p. 367
(Domestic violence = satisfies harm threshold in s 13 Hague Convention = satisfies
“grave risk” requirement)
Facts
 Mother (Reesa) was victim of domestic violence. So she abducted 6
mth old Tyler and fled from California to Canada where she is from.
 She applies for custody in Canada. John, the father, applies in
California and court finds that indeed it was kidnapping.
 John comes to ON and applies under art. 12 of the Hague Convention
on the Civil Aspects of International Child Abduction for an order
requiring the mother to return the child to California, on the basis that
the child was wrongfully removed.
 Reesa uses art. 13(b) of the Convention, provides an exception to a
child’s required return where there is a “grave risk” of serious harm or
of an intolerable situation to the child.
 Evidence of harm:
o John’s violence toward her and temper outbursts.
o History of drug use - meth
o John’s instability and unreliability: disappearing for days,
failing to pick up his child
o She was ma
o He used degrading language towards her in public and private,
and once disabled her car so she couldn’t go anywhere
o Co-workers said Reesa had bruises on neck and arms
sometimes.
o A doctor who examined them post-escape saw her the bruises
too, and he examined the child and said he was in agitated state.
o Doc also said he observed vast improvements in the child’s
disposition, including no longer being a frightened infant, since
that first appointment.
o John made menacing phone calls to Canada which were
vituperative, irrational, and reflected his violent temper.
 TJ stated that the needs of this particular child are irrelevant. Ignored
the evidence respecting the child, and grants the father’s motion, and
asks mum to return child to California.
TJ said “evidence of harm generally goes to… custody hearing” but not a
Hague Convention application (which is motion at issue). She appeals.
Is abuse of the child’s parent by partner good enough to satisfy s. 13(b)?
Issue
Grave risk of serious harm was present so mom is exempted from having
Holding
to return to California with her son.
Reasons
Abella J
 TJ was wrong to ignore grave risk of harm under this provision. Art
13(b) refers explicitly to the risk of harm or an otherwise intolerable
situation.
40

Ratio
Comments
Mother is the only responsible parent, sending her back to Cali with
accompanying child, would put them in dangerous situation.
 Father has demonstrated uncontrollable temper/hostility.
 Thomson (SCC, 1994) – provides framework for art 13 (b)
o Level of harm required by art. 13(b) must amount to “grave
risk”, “an intolerable situation” – “something greater than
would normally be expected on taking a child away from one
parent and passing him to another.”
o Harm must be a “weighty” risk of “substantial harm.”
o Source of harm is not material – doesn’t matter whether the risk
flows from taking the child away from his current caregiver, or
giving him to another one
o Hague Convention does not put the interests of the particular
child paramount, but rather the interests of children in general
o Thus, this child’s best interests does not factor in in the same
way they would in a custody case
 Abella interprets Thomson to mean that the child’s best interests
doesn’t factor in at s. 12, BUT they can (and must) still factor in at s.
13(b) because you have to assess harm looking at this particular
child/situation.
 Of course, evidence must still be credible and must meet the very high
threshold of “grave risk” set out in Thomson – onus is on party
resisting the child’s return
 In this case:
 Verbally abusive and threatening wife to family and friends
 Violent towards her, causing physical harm. Palpable hostility
towards wife.
 Irrational behaviour, drug use, unreliable in caring for Tyler.
 Returning a child to a violent environment places that child in an
inherently intolerable situation.
 The child is heavily dependent on the mother (the only responsible
parent), his interests are tied to her physical and psychological security.
So court has to protect the mother to protect the child.
 “There is also evidence that returning Tyler … presents a grave risk of
exposure to serious harm to him personally.”
“Since the mother is the only parent who has demonstrated any reliable
capacity for responsible parenting, Tyler’s interests are inextricably tied to
her psychological and physical security. It is therefore relevant in
considering whether the return to California places the child in an
intolerable situation, to take into account the serious possibility of physical
or psychological harm coming to the parent on whom the child is totally
dependent.”
Where there is extreme violence against the other parent, it can establish
that a “grave risk” of serious harm exist to the child. Thus s 13 (b)
exemption is allowed.
 Note that, under the Hague Convention, the “grave risk” has to be big
41
but how do we measure/qualify?
 Normally, a parent’s conduct isn’t considered in custody assessment.
But in Ontario CLRA, s 24 (4) allows court to consider violence or
abuse.
Can/should we say in all cases that spousal violence amounts to harming
children? If so, does it make sense that in every single case the one
sustaining the violence should have custody
Nicholas Bala, Spousal Violence in Custody and Access Disputes: Recommendations
for Reform, p. 371
 Thesis: domestic violence should be a legislated factor in custody/access
hearings.
o There should be a limited role for an abusive partner in a relationship in
terms of custody
 “Until the late 1980s, Canadian judges clearly downplayed the importance of
domestic violence in all legal contexts, including custody and access proceedings.”
 Today, judges are putting significant weight on violence and spousal abuse in childrelated proceedings, i.e. tells us if parent is good role model to child.
 But not all judges: One stupid 1993 court judge said that while husband abused wife,
it was “almost on all occasions provoked by the applicant’s [wife] immature
behaviour.”
 These attitudes demonstrate the need for legislation that deals explicitly with
spousal abuse as a factor in custody case.
o In the US, over 40 states have legislation explicitly recognizing violence as
factor in custody.
o However, in Canada only Newfoundland mentions this.
o In Divorce Act, we actually say in determining best interest, don’t look at
“past conduct” unless relevant to ability of person to act as parent to the child.
 Young v Young: one of Canada’s biggest cases. Emotional abuse in marriage. Expert
concluded: (1) abuser will continue abuse in other relationships without therapy, (2)
children are abused indirectly by witnessing abuse, (3) abused boys become abusers;
abused girls become complaint to abusers.
 Joint custody:
o JC is not appropriate if there has been a history of spousal abuse, or even a
high level of parental conflict or serious power imbalances, even without
abuse
o This should be reflected in legislation
 Mutual spousal abuse:
o Where both parties initiate violence, there is usually a relatively good
prognosis for elimination of violence after separation
 Abusive women:
o Generally women are the victims of physical abuse, but some reported cases
where women are the aggressors because of her “emotional condition” or
because “she may be psychotic”.
o However, even when this is the case, there are often mitigating factors that
allow the women to get custody, i.e. being the primary caregivers.
42




o I.e. DM v LM – she had outbursts but still got joint custody.
o Also, women who abuse their partners are less likely to abuse their children
than the other way around – thus most judges see it as less decisive in a
custody dispute than husband abuse
Separation-engendered violence
o Where violence is not a constant feature of the relationship, but is rather
confined to a few episodes around the time of separation, there is a better
prognosis for future relations, i.e. Hallett v Hallett (14 yrs no violence, then
separation leads him to assault her. Court said it wasn’t usual characteristic of
marriage).
Access
o Section 16(10) of the Divorce Act (“friendly parent” provision) provides
that a child should have as much contact with each spouse as is consistent
with his best interest, and, for that purpose, will take into consideration
the willingness of the parent seeking custody to facilitate contact with the
other parent
o Sometimes used by abusive spouses to secure access rights, but access can
be restricted or denied if there is a significant risk of harm to the child
o Problem is that it may dissuade victims of abuse from applying to restrict
access for fear of appearing unfriendly
Denial of access
o A number of Canadian decisions have recognized that in situations where
there has been a history of serious spousal abuse or violence, access may not
be in the child’s interests and should not be permitted (though burden is on the
parent seeking to deny access to prove that it may (not would) be harmful
o Some cases have held that the a history of abuse of the custodial parent may
legitimately be an important factor in terminating access, even after the abuse
has ended
o Wishes of the child about access are not determinative, but will be an
important consideration in dealing with access issues, especially those
involving a battering husband
o This factor can apply both ways – to persuade a court to grant as well as to
deny access, depending on the child’s wishes
Supervised access
o May be appropriate if there is a reasonable apprehension of a threat to the
safety of a child during a visit, if the child is afraid of the visit or refusing to
visit, or if there is a reasonable apprehension of abduction by the noncustodial parent
o Sometimes supervisors will keep notes and be able to testify about the quality
of parent-child interaction during a visit
o Supervised access services are very important, but are unfortunately facing
cutbacks and becoming less available
o Supervisor can be a professional, volunteer, relative – not someone who may
be controlled by the abuser
o Judges sometimes use supervised access as a compromise rather than take the
drastic step of reducing all access
43

This is bad – it is expensive, artificial and intrusive – it should be seen
as a temporary measure to help resolve an impasse, during which the
abuser takes steps like counseling that reduce the risk to the child
 The goal is to get to unsupervised access in the future
 Exchange supervision
o May be appropriate I there is a reasonable apprehension of violence or verbal
abuse when parents meet to exchange the child
o Can even happen at the courthouse or police station, but these locations can be
frightening for the child as well as inconvenient
o Less costly and intrusive than access supervision, but should only be
contemplated if there is no significant risk of direct harm to the children by
the abusive spouse
 Mediation
o Has been argued that mediation is never appropriate where there has been a
history of spousal abuse, since the parties don’t have equal bargaining power
o Past misconduct is not considered in mediated agreements, but many
mediators have begun to recognize the importance of issues of spousal abuse
and power imbalance
o Hard to know what to do in mediation of one party alleges abusive behavior
and the other party denies it
o Might be okay if a victim of abuse has recovered her self-confidence and no
longer fears her former partner, but this may be delicate, and mediation is not
a regulated profession
 Interim orders for custody and access
o In cases involving spousal abuse and especially violence, often a need to take
quick action to protect the victim of abuse
Otherwise she might be driven out of the home, potentially allowing the abuser to set up
a de facto continuity argument for maintaining custody
Harrison v. Harrison (Man. Q.B., 1987), p. 379
(Obstructions to Access – enforcement of access order)
Facts
 Husband/wife separated. They reached a divorce settlement that set out
very specific terms of access. Husband says, “mother is being malicious,
and manipulative and not cooperating.”
He wants mother held in contempt of court and a variation in access order.
How is the court to deal with mother interfering with access?
Issue
Holding Mother is vindictive. If she does not comply with access, she forfeits the next
maintenance payment.
Reasons  Court finds that mother’s conduct is vindictive and manipulative.
 The children have refused access at times but it is because of mother’s
influence on them.
 If the mother doesn’t deliver the children to the father and can’t produce a
medical certificate, Mr. Harrison will be forgiven from paying the next
installment
 This is an unusual remedy but is necessary, and the children will suffer no
deprivation if maintenance is not paid by the father
44
Ratio
Note: non-compliance with access order is contempt of court subject to jail,
fines, and other remedies (i.e. change custody, or remedies like in this case).
While it is unusual to tie support payment to access, the mother is so
intransigent that this is the only motivation that will work for her to respect
order
Rogerson v. Tessaro (Ont. C.A., 2006), p. 38
(obstruction to access – drastic measures)
Facts
 Mother’s problematic conduct was contrary to children’s best interest:
- She didn’t tell father about or give him medications that were
prescribed for the children
- She moved to a new town on the eve of the trial (uprooting the
kids from their school and community) and threatened to move
again if the father moved to that town
 Conduct continued despite judgments and court orders stressing the
importance of the relationship between the father and the children
“In contrast, the father bonded closely with the children, took … parenting
courses, established himself as a capable and affectionate parent,
participated fully in children’s schooling…and, appreciated the importance
of facilitating a relationship between the mother and the children.”
Can you remove custody from mother for not letting her kids have a
Issue
relationship with their father for no good reason?
Yep! Since mother is unable to support a relationship between the father
Holding
and children, court will remove custody.
Reasons
 Mother is not capable of supporting a relationship between the children
and the father. This is a drastic remedy, but it is the only one in this case
Court carefully structured the order so children’s transition will be gradual
and cause as little disruption as possible for the children.
While this is a dramatic remedy, it is the remedy expert’s suggest will deal
Ratio
with the mother’s persistent, ingrained, and deep-rooted inability to support
the children’s relationship with their father.
LEG v AG 2002 BCSC 1455
(interview to determine child’s wishes)
Facts
 In this divorce action, mother wanted court to interview child to obtain
their wishes. The father did not.
Mother argues father cannot veto process that is contrary to child’s best
interest. Father argues that interview process is not in the child’s best interest.
Does the court have legal right/jurisdiction to interview a child to obtain the
Issues
child’s wishes without consent from both parents? If yes, under what
circumstances should interview take place?
Holding Yep! The court has jurisdiction to interview children in the absence of consent
of both parents. A judge has discretion to determine case-by-case if interview
should take place. Interview is conducted informally behind closed doors
(chambers).
Reasons Martinson J
45

Ratio
A child’s wishes can be a very significant consideration in a custody
trial.
 Courts’ discretion to interview child, in absence of parent’s consent, is
based on its parens patriae jurisdiction (an inherent power to act in the
best interests of children).
 Court also has statutory duty to act in best interest of the child - s 24
of the Family Relations Act; s 16(8) Divorce Act, Young v Young.
 In doing so, the judge should consider the general purpose of the
interview, its benefits, the necessity to conduct the interview to get that
information.
 While a parent cannot simply veto an interview, a parent’s specific reason
for refusing the interview will be important to determine relevance,
reliability, and necessity.
 Interview is conducted informally outside the courtroom, not given under
oath, and there are no parties present.
 Three purposes of a judge’s interview: obtain child’s wishes, make sure
child has a say in decision affecting their life, it provides judge with
information about the child.
 Benefits: child-centered approach.
 Problems with this process: untrained interviewers, lack of knowledge of
children sometimes to accurately access the real wishes of the child, can
be stressful for child.
- Reliability issues: loss of memory over time, effect of fear or anger
on memory.
- Costly: expensive to retain lawyer for child. Serious govt cutbacks.
 In essence, a hearing will be required in each case to determine whether
an interview should take place, and if it does, the manner it will take
place, etc.
 Three informing factors in analysis: relevance, reliability, and necessity.
 Relevance
- Court should determine what relevant issues for which it needs
child’s wishes. Some relevant issues: where child will go to
school, activities child wants to be in, how special events should
be handled.
 Reliability
- Accuracy of the information is the concern. Court is to look at age,
maturity, intelligence of the child.
- Also look at how “heated” the litigation has been and whether
child has been involved and if one or both parent(s) has influenced
child.
 Necessity
Court examines how necessary an interview is. Consider alternative means to
obtain child’s wishes, i.e. affidavit from child, “in-court” testimony, hearsay
evidence, neutral third party like expert, etc.
Court has discretion to interview child without parental consent based on its
parens patriae jurisdiction, and various statutory duties to act in child’s best
46
interest (s16(8) Divorce Act, s 24 Family Relations Act).
Discretion should include analysis of relevance, reliability, and necessity of
the interview. Case by case analysis in determining if an interview should be
done.
Obligations of Support
Droit de la Famille 138 (184) QCCA
27yr old, who has a kid, requests support from father to go back to university.
Facts
Trial judge ordered father to pay, stating child didn’t have ability to become
financially self-sufficient since he allegedly had a bad education/childhood
because of poor parenting.
Should support to adult child be ordered?
Issues
Holding 27 year old cannot have support. He has no disability, is smart & able, but just
a bit lazy.
- Cannot blame the father for all the failings of the son. Father didn’t do
Reasons
great job as a father: but conduct is not relevant in assessing support;
there is not good faith effort to become independent
- Court must look at numerous factors: he’s 27, in good health,
voluntarily quit school after high school, couldn’t hold a steady job,
had no serious evidence to suggest he’d actually even return to school
(e.g. how can you get into university in QC without a DEC?). Can also
consider conduct of parties towards each other.
o judge does not see good faith on the son’s part
- Inadequate proof of son’s inability to be self-sufficient, didn’t prove
that he pursued all means possible to achieve self-sufficiency, or that
he had a physical or mental incapacity; didn’t demonstrate that he was
not obtaining other means of support
- Son shies away from hard work, no financial burdens despite having a
kid and not taking care of it
Quoting Rodier c. Rodier (1969) « L’obligation des parents de fournir les
aliments à leurs enfants ne doit pas être une prime à la paresse, à
l’insouciance et à la mollesse. »
585. Married or civil union spouses, and relatives in the direct line in the first
Ratio
degree, owe each other support.
Under Article 585 of the C.C.Q. children are not entitled to receive support
from their parents if they are exploiting their parents and are choosing not to
work (and to be lazy) but to instead rely on their parents’ support
« L’obligation alimentaire des parents en ligne direct que consacrent les
articles 633 [585] et s. CCQ n’est que la formulation d’une obligation si
naturelle qu’on s’en acquitte généralement sans besoin de sanction. [...]
Même si cette obligation doit être favorisée dans les cas qui s’y prêtent, elle
ne saurait servir de prétexte à l’exploitatio
47
Skrzypacz c Skrzypacz (1996), 22 RFL (4th) 450 (Ont Prov Div)
Mom sponsored as immigrant by her son. She is claiming support from him.
Facts
Cross-examination of the son by the mom’s lawyer was only as to his means –
nothing about her raising of him (which he claims to not have happened). She
never contradicted his testimony as to the lack of care from her to him.
He alleges that she was never there. Was left with grandmother and mother
was intermittently in and out of life.
Should support be ordered?
Issues
Holding No – mother had not provided support => does not meet the requirement of
s.32 FLA.
Reasons
- The duty of support between parents and children is, in theory,
reciprocal:
o s. 32 FLA: 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.
- Child only has to support the parent who has cared for or
provided for him.
- The mom failed to file any evidence to counter the son’s allegations as
to her lack of care and support in his childhood.
- She therefore failed to meet the criteria for entitlement under s. 32.
- Note that one must also show that kid has means to pay – here this
was not an issue.
Three elements must be established for support order against child for parent.
Ratio
1. There is evidence of the parent’s need
2. There is evidence that the child has the means to pay support
3. There is evidence that the parent cared for or provided support to the
child
Droit de la Famille – 2626 [1997] RJQ 1117 QS
- Adult daughter wins 2.1 million in lottery. Parents are in abject
Facts
poverty.
- They have struggled with depression, they lost their jobs when
company closed. They live on social assistance and can barely make
ends meet.
- They claim support from her under art 585 – the existence of
reciprocal rights
- She argues that sisters should also have to pay (but they are of little
means). She hires Private Investigator to show that sister is making
money by babysitting, etc.
- She also argues she was alienated from her parents (ie. they kicked her
out when she was 14) and was not responsible for their support. In
other words, she claims that they are family in name only.
Should the daughter have to support parents?
Issues
Holding Support ordered for 2 years until wife’s pension comes in.
Reasons Principles to rely on to assess whether support is owed.
48
-
Ratio
At the age of 14, daughter was asked to leave. There was
confrontation and boy troubles. She has been on her own since 14 so
why should she have to pay support?
- Art 585 – obligation of support – looks at the means of the party asked
to pay support and the needs of the party seeking support
- Other relevant factors:
o Are individuals abusive? At birth did they decide not to be
involved?
o Conduct of parents while children were growing up.
- In Civil law, there is a sense that the state exists to provide help for
people who need assistance. But this is not meant to replace family
responsibilities. It is meant to help you but this support should not
overtake family responsibility.
o Privatize care of the elderly where we can and here we can
because daughter is a millionaire.
- The court refers to various authorities to support this argument.
o « Le nouveau [CCQ], en reprenant l’article 585, confirme le
principe que la solidarité familiale passe avant l’intervention
de l’État. Dans le meilleur des mondes, la solidarité familiale
est une obligation morale et éthique et s’impose d’elle-même.
À défaut, comme dans le cas présent, elle demeure une
obligation légale. »
o « C’est également une question de respect pour un enfant que
d’aider et supporter ses parents dans la misère. »
o « L’enfant, à tout age, doit respect à ses père et mère (art. 597
C.C.Q.). »
- Court emphasizes that parents tried their best to try to find work when
company closed. He was 59 at that time and it was very difficult for
him to find work (genuine bona fide effort). Furthermore, parents had
acted as a guarantor of loan for daughter.
- The parents might have done things badly, but they never acted in bad
faith. They were trying. The Court paints them as earnest blue-collar
workers.
- The court assesses conduct with respect to one’s ability to become
self-sufficient (the judgment also articulates some moralistic
overtones).
Family solidarity is a moral and ethical obligation, but in cases such as this
one, it is a legal obligation. While the state exists to provide help for people
who need assistance, family responsibilities should first be met.
Claims under these articles are for people who have formal filial connection
(can’t be someone acting as a parent)
Willick v Willick, [1994] 3 SCR 670
At the time of their separation, the (soon to be former) husband made
Facts
$40,000 annually, and the (soon to be former) wife had no income. The
Separation Agreement included an obligation to pay $450 month for each
of their two children. Before the Divorce Judgment was granted, the wife’s
49
income increased to $5000/month plus a housing allowance of $4600. The
Divorce Judgment incorporated the Separation Agreement as it initially
stood. Within two years after the divorce, the ex-husband’s salary increased
to $154,000 per year. The ex-wife successfully amended the order to
increase child support o $850/month per child. The Court of Appeal
allowed the appeal, stating that the conditions for variation of the Divorce
Judgment laid out in s. 17(4) of the Divorce Act were not met.
S. 17(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
Issue
Holding
Reasons
The Supreme Court allowed the appeal, validating the trial judge’s variation
order. Three of the 7 presiding judges wrote a concurring opinion.
The majority found that the trial judge did not misapprehend evidence and
did err in her interpretation of 17 (4) of the Divorce Act. In their own
interpretation, the provision requires,
 A material change in circumstances, which, if it had been known at
the time, would “likely have resulted in different terms.”
 Variation must be based on a change in circumstances of the child
or either of the former spouse’s circumstances.
 The trial just must reassess the needs of the children in light of the
change, doing so with reference to the standard set by their parents
(the children’s “reasonable expectations”). The children’s
reasonable expectations of future support are not frozen at the date
of the judgment.
 Rationale of s.17 (4): The child may benefit from an improvement
in lifestyle but a parent whose income is reduced may have his
obligations reduced accordingly.
Concurring Opinion
To determine ex-spouses’ financial obligations to their children, according
to the Paras formula, the Court first ascertains the sum required to care for,
support and educate the children. The Court then divides the sum in
proportion to the parents’ resources, reserving an amount for basic personal
subsistence.
The Court notes that parents cannot always accurately foresee all costs
associated with raising their children, and that custodial parents face greater
costs and are more susceptible to having to deal with hidden costs, though
access costs are also factored in for the non-custodial parent.
Questions the Court should ask
1. Has there been a change in circumstances?
a. Determine that “there has been a change in the condition,
means, needs or circumstances of either former spouse or
any child of the marriage.”
2. Was the change in circumstances sufficient to warrant a variation
order?
50
a. Note that the Court may take judicial notice of the fact that it
is more expensive to care for older children, compounded by
inflation, and that this change may be sufficient to warrant a
variation order.
3. To what extent will the Court consider the circumstances underlying
the change? If the changes are so dramatic as to render the original
order irrelevant, then the Court will reconsider the entirety of the
present circumstances of the family members and assess the impact
of the change.
These three judges find that both the children’s needs and the father’s
means had increased, that change in the father’s income was significant,
and that the Court was fully entitled to reexamine circumstances. The three
judges found that in doing so the trial judge considered all evidence and
made no errors in principle.
Comments Theme: Variation Order under s. 17(4) of the Divorce Act
Francis v Baker, [1999] 3 SCR 250
A Bay Street lawyer and a high school teacher, earning $945,000 and
Facts
$63,000/year respectively, at the time of trial (9 years after initial
application), get divorced. There are two children. The trial judge awarded
the Table amount applicable to the ex-husband’s income bracket (total 10k
month). The Court of Appeal dismisses the appeal, which was based on
s.4(b) of the Federal Child Support Guidelines.
Incomes over $150,000
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,
o
(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;
o
(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
o
(iii) the amount, if any, determined under section 7.
The Court of Appeal concluded that the word “inappropriate” meant
inadequate, meaning that no downward adjustments could be made. In the
alternative the Court of Appeal found that even if parents agreed to a
reduction the Court still had the discretionary authority to declare a lower
amount “inappropriate.”
Issue
Holding
The Supreme Court dismissed the appeal, upholding the Table amount
awarded by the trial judge.
51
1) Unlike the ONCA, the SCC interprets “inappropriate” to mean
“unsuitable” as opposed to inadequate, giving the Courts the
discretion either to reduce or increase the quantum.
2) Parliament created a presumption of the appropriateness of the
guidelines. The appellant did not meet the burden (note that the
judge did not ask the ex wife for a budget on which he could crossexamine her).
a. The ex-husband’s “sheer size” argument was unacceptable
given,
i. the presumption of appropriateness and the fact that
parliament did not create distinctions among the
high-earner group, or place a cap on awards.
ii. Focusing on the size of the payment disregarded the
central feature of the inquiry: whether it met the
needs of the children.
Comments Theme: Federal Child Support Guidelines and High Income Earners
Note: The SCC goes out of their way to make him look like an asshole,
way up in the headnote. He left his wife 5 days after the birth of their
second child, and was worth $78 million. Neither of these facts are
relevant to the Guidelines (which focuses on revenue, not property).
Reasons
Contino v Leonelli-Contino, 2005 SCC 63
Mother and father enter into a separation agreement providing for joint
Facts
custody for their son, who resides with his mother. The father was to pay
$500/month, which was later increased to $563. Three years later the son
changes situation and stays with the father 50% of the time, so the father
asks for a reduction under s.9 of the Federal Child Support Guidelines. At
the time, the mother made $68k and the father made $87k. Motions judge,
trial judge, and Court of Appeal yielded widely divergent outcomes. The
Court of Appeal delivered a support order for $399.61/month.
Shared custody
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
Issue
Holding
Reasons

(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.
The appeal was allowed (with only one dissent). The Court required the
father to pay $500 monthly.
a) Interpreting s.9
52
Once the 40% threshold is met, child support is to be determined on the
basis of the Tables, the increased cost of the shared custody arrangement,
and the “conditions, means, needs and other circumstances” of each spouse
and child.
 The weight given to each factor will vary according to the case.
 There is no presumption that s.9 awards should be greater than s.3
awards.
 A judge has discretion to award the s.3 Table amount after a s.9
review.
b) The S.9 Review:
The SCC states that a Court cannot rely on “common sense,” and requires
budgets and financial statements to make a s.9 determination.
S.9(a): While there is no formula given to review the parents’ financial
situation, the simple “set-off amount” is the preferred starting point,
followed by an assessment of the parents’ continuing ability to support the
child given that many costs are fixed. The amount arrived at should then be
compared to the Table amount. The judge may modify the “set-off amount”
to prevent any significant change in standard of living.
NB. The “set-off amount” is based on the idea that both parents in a shared
custody arrangement pay eachother child support. The set-off amount is the
amount that covers the difference between the two, to become the only
payment required. So if Lisa owes Mike 500$ and Mike owes Lisa $450,
then Lisa only owes Mike 50$.
S.9(b): This paragraph recognizes not just the increased cost due to the
extra time spent, but the increased global cost of shared custody situations.
The Court must examine ALL of the paying parent’s costs, looking at
budgets and actual expenditures. The expenses are then apportioned
between parents in proportion to their incomes.
S.9(c): This paragraph gives Courts broad discretion to assess the needs of
children and the costs of maintaining a consistent standard of living at both
residences in light of the parents’ resources (and the objectives of the
guidelines). Financial statements and child expense budgets are necessary.
Dissent (Fish J)
Though it is discretionary, the method of achieving the outcome of
consistency of living standard pre and post-divorce, and from one house to
another, must be evidence-based. S.9(a) requires the Court to consider the
Tables and the set-off amount is a convenient starting point. S.9(b) requires
the Court to consider increased global cost (ie. of duplication). S.9(c) is the
appropriate place for Courts to consider the apportionment of expenditures
relative to the parents’ income.
In this case the set-off amount is $128/month and only certain expenditures
can be considered when equalizing between the two parents: duplications
and incremental costs which increase due to shared custody. The disparity
between the parents’ net assets, and, since this case is a variation and not an
original order, the previous support amount, must be considered. Note that
the previous amount does not create any rights. The Court of Appeal’s
53
order of $399.61 was within the acceptable range.
Comments Ratio: The SCC determined the award on the basis of the facts of the
case, which called for the application of all three subsections of S.9.
Conjugal Life/ Vie Commune
C.C.Q. arts. 392-396
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.
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.
Family Law Act (Ont.): ss. 19(1), 20(1), 21(1), 29, 30
Possession of matrimonial home
19. (1) Both spouses have an equal right to possession of a matrimonial home.
Designation of matrimonial home
20. (1) One or both spouses may designate property owned by one or both of them as a
matrimonial home, in the form prescribed by the regulations made under this Act.
Alienation of matrimonial home
21. (1) No spouse shall dispose of or encumber an interest in a matrimonial home
unless,
(a) the other spouse joins in the instrument or consents to the transaction;
(b) the other spouse has released all rights under this Part by a separation agreement;
(c) a court order has authorized the transaction or has released the property from the
application of this Part; or
(d) the property is not designated by both spouses as a matrimonial home and a
designation of another property as a matrimonial home, made by both spouses, is
registered and not cancelled.
Definitions
29. In this Part,
“dependant” means a person to whom another has an obligation to provide support under
this Part; (“personne à charge”)
54
“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”)
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.
R v Tolhurst, 1937 CarswellOnt 35 (Ont Sup ct)
Appeal by James Tolhurst and May Wright, each convicted of unlawfully living in
Facts
Issues
Holding
Reasons
a conjugal union with each other contrary to s. 310(b) of the Criminal Code
T and W lawfully married to other people yet living together as man and wife
(“living in adultery”)
T and W had four children born and registered to them
Section 310(b) of the Criminal Code, R.S.C. 1927, ch. 36, provides that everyone
is guilty of an indictable offence “who lives, cohabits, or agrees or consents to live
or cohabit in any kind of conjugal union with a person who is married to another
or with a person who lives or cohabits with another or others in any kind of
conjugal union”.
Does s. 310(b) of the Criminal Code cover adultery?
Appeals allowed and convictions quashed - s. 10(b) does not cover adultery,
“however much the conduct is to be condemned”.
The crucial words of 310(b) are “any kind of conjugal union”. These words
predicate some form of union under the guise of marriage.
Parliament had no intention in this section of the Code of dealing with the question
of adultery.
The section is headed “Polygamy and Spiritual Marriages” and was originally
enacted as an amendment to An Act Respecting Offences Relating to the Law of
Marriage.
Section is aimed at the prohibition of polygamy under any guise and does not
purport to deal with adultery.
Comments
Quebec (Attorney General) v A, 2013 SCC 5 (excerpts)
The couple had three children together, born in 1996, 1999 and 2001. During the
Facts
Issues
Holding
Reasons
time they lived together, A did not hold employment. She regularly accompanied
B on his trips, and he provided for all her needs and for the children’s needs. A
consistently wanted to marry but B refused.
Whether it is valid to exclude de facto spouses from the patrimonial and support
rights granted to married and civil union spouses in the Civil Code. Does this
exclusion violate the right to equality guaranteed by s. 15 of the Canadian Charter
of Rights and Freedoms (“Charter”)?
The exclusion is not discriminatory within the meaning of s. 15(1) and accordingly
does not violate the right to equality guaranteed by s. 15 of the Charter.
[per LeBel, Fish, Rothstein and Moldaver, JJ, Majority]:
For the application of s. 15(1) of the Charter, the claimant can show that the
55
impugned disadvantageous law perpetuates prejudice against members of a group
or the claimant can prove that the disadvantage imposed by the law is based on a
stereotype.
The provisions relating to the family patrimony, the family residence, the
compensatory allowance, the partnership of acquests and the obligation of support
therefore have the effect of creating a distinction based on an analogous ground,
and that distinction can result in a disadvantage. What remains to be determined is
whether the exclusion of de facto spouses form the framework applicable to
marriage and civil unions discriminates in a substantive sense by violating the
principle of substantive equality protected by s. 15(1) of the Charter.
Has the legislature in this way established a hierarchy between the various forms
of conjugality?
 The Quebec legislature has imposed these regimes only on those who, by
agreement with another person, have demonstrated that they wish to
adhere to them. The legislature did not view cohabitation on its own as an
expression of such consent.
 In Quebec family law, these rights and obligations of spouses are always
available to everyone, but imposed on no one. Their application depends
on an express mutual will of the spouses to bind themselves.
o In this regard, the conclusion of a cohabitation agreement enables
de facto spouses to create for themselves the legal relationship
they consider necessary without having to modify the form of
conjugality they have chosen for their life together.
 In Quebec family law choosing a de facto union permits spouses to opt out
of the primary regime that is mandatory in the case of marriage or a civil
union.
 Conclusion: the articles of the Civil Code of Québec whose constitutional
validity is being challenged by A do not express or perpetuate prejudice
against de facto spouses. On the contrary, it appears that, by respecting
personal autonomy and the freedom of de facto spouses to organize their
relationships on the basis of their needs, those provisions are consistent
with two of the values underlying s. 15(1) of the Charter.
There is a second way for A to prove substantive inequality. She can try to show
that the disadvantage imposed by these legislative provisions is based on a
stereotype that does not correspond to the actual circumstances or characteristics
of de facto spouses.
 This argument essentially focuses on the issue of the validity of the basic
premise of Quebec family law, namely the exercise of autonomy of the
will.
 If this premise is false and the decision to marry or not to marry does not
imply consent to be bound by or excluded from the regimes in the Civil
Code, the provisions challenged by A could well be based on an
inaccurate characterization of the circumstances of Quebec couples.
 The Quebec scheme, the effect of which is to respect each person’s freedom
of choice to establish his or her own form of conjugality, and thus to
participate or not to participate in the legislative regime of marriage or
civil union with its distinct legal consequences, is not based on a
stereotype.
56
 Recognition of the principle of autonomy of the will, which is one of the
values underlying the equality guarantee in s. 15 of the Charter, means
that the courts must respect choices made by individuals in the exercise of
that autonomy.
[per Abella, J., dissenting]:
The spousal support and family property provisions in Quebec are aimed at
recognizing and compensating for the roles assumed within the relationship and
any resulting dependence and vulnerability on its dissolution.
Many de facto spouses — the term used in Quebec for those who are neither
married nor in a civil union — share the characteristics that led to these
protections. They form long-standing relationships; they divide household
responsibilities and develop a high degree of interdependence; and, critically, the
economically dependent — and therefore vulnerable — spouse is faced with the
same disadvantages when the union is dissolved.
Moge v. Moge: spousal maintenance “seeks to recognize and account for both the
economic disadvantages incurred by the spouse who makes such sacrifices and the
economic advantages conferred upon the other spouse” (p. 864)
Thus the mandatory nature of both the compensatory allowance and family
patrimony regimes highlights the preeminent significance Quebec has accorded to
concerns for the protection of vulnerable spouses over other values such as
contractual freedom or choice.
As attitudes shifted and the functional similarity between many unmarried
relationships and marriages was accepted, this Court expanded protection for
unmarried spouses. In Miron v. Trudel, the Court found that marital status was an
analogous ground under s. 15(1) of the Charter, because while in theory an
individual is free to choose whether to marry, there are, in reality, a number of
factors that may place the decision out of his or her control: the law; the reluctance
of one’s partner to marry; financial, religious or social constraints
The first step in s. 15(1) is to identify the distinction at issue and determine
whether it is based on an enumerated or analogous ground. This is easily
demonstrated in this case. The exclusion of de facto spouses from the economic
protections for formal spousal unions is a distinction based on marital status, an
analogous ground.
Is the distinction is discriminatory? The law excludes economically vulnerable and
dependent de facto spouses from protections considered so fundamental to the
welfare of vulnerable married or civil union spouses that one of those protections
is presumptive, and the rest are of public order, explicitly overriding the couple’s
freedom of contract or choice.
[finding a violation of s.15, Abella J. moves onto a s.1 analysis]
An outright exclusion of de facto spouses cannot be said to be minimally
impairing of their equality rights.
57
A presumptively protective scheme, on the other hand, with a right on the part of
de facto spouses to opt out, is an example of an alternative that would provide
economically vulnerable spouses with the protection they need, without in any
way interfering with the legislative objective of giving freedom of choice to those
de facto spouses who want to exercise it.
A further weakness of the current opt-in system is its failure to recognize that the
choice to formally marry is a mutual decision. One member of a couple can decide
to refuse to marry or enter a civil union and thereby deprive the other of the
benefit of needed spousal support when the relationship ends.
Changing the default situation of the couple, however, so that spousal support and
division of property protection of some kind applies to them, would protect those
spouses for whom the choices are illusory and who are left economically
vulnerable at the dissolution of their relationship.
The salutary impact of the exclusion, on the other hand, is the preservation of de
facto spouses’ freedom to choose not to be in a formal union. Leaving aside the
trenchant observation of McLachlin J. in Miron about whether such choices are
realistically genuine, this freedom would be equally protected under a presumptive
scheme. Those for whom a de facto union is truly a chosen means to preserve
economic independence can still achieve this result by opting out.
[per Deschamps, Cromwell and Karakatsanis, JJ, partially dissenting]:
I cannot agree that this measure meets the minimal impairment test. The affected
interest is vital to persons who have been in a relationship of interdependence.
The rationale for awarding support on a non-compensatory basis applies equally to
persons who are married or in a civil union and to de facto spouses. If the legal
justification for support is based on, among other things, the satisfaction of needs
resulting from the breakdown of a relationship of interdependence created while
the spouses lived together, it is difficult to see why a de facto spouse who may not
have been free to choose to have the relationship with his or her spouse made
official through marriage or a civil union, but who otherwise lives with the latter in
a “family unit”, would not be entitled to support.
The concept of “mutual obligation” as the non-compensatory basis for the
obligation of support must guide legislators in seeking ways to promote the
autonomy of the parties while interfering as little as reasonably possible with the
right to support itself. A total exclusion from the right to support benefits only de
facto spouses who want to avoid the obligation of support, and it impairs the
interests of dependent and vulnerable former spouses to a disproportionate extent.
[per McLachlin, CJ, concurring on the result]:
Unlike LeBel J., I conclude — as do my colleagues Deschamps J. and Abella J. —
that the law violates the equality guarantee in s. 15 of the Charter. However, I find
that the limit on the equality right of de facto spouses imposed by the law is
reasonable and justifiable in a free and democratic society.
Quebec’s goal is to enhance the choice and autonomy of couples in conjugal
58
relationships. .
Those who choose to marry choose the protections – but also the responsibilities –
associated with that status. Those who choose not to marry avoid these stateimposed responsibilities and protections, and gain the opportunity to structure their
relationship outside the confines of the mandatory regime applicable to married
and civil union spouses.
The distinction made by the law between married, civil union and de facto spouses
is rationally connected to the state objective of preserving the autonomy and
freedom of choice of Quebec spouses. Without this distinction, the clear choice
between a regime of division of property and support on the one hand, and a
regime of full autonomy on the other hand, would be absent.
There is no doubt that schemes can be conceived — and indeed have been adopted
in other provinces — that impair the equality right of de facto spouses to a lesser
degree than the Quebec scheme. However, such approaches would be less
effective in promoting the goals of the Quebec scheme of maximizing choice and
autonomy for couples in Quebec.
 A presumptive scheme that applied the mandatory regime to all spouses,
subject to the right to opt out, would automatically sweep in all couples.
Even if de facto spouses were given the opportunity to opt out, this
scheme would offer a narrower conception of choice than does Quebec’s
current approach.
[re proportionality] A suggests that the legislation achieves only a formalistic
autonomy and an illusory freedom. However, the question for this Court is
whether the unfortunate dilemma faced by women such as A is disproportionate to
the overall benefits of the legislation, so as to make it unconstitutional. Having
regard to the need to allow legislatures a margin of appreciation on difficult social
issues and the need to be sensitive to the constitutional responsibility of each
province to legislate for its population, the answer to this question is no.
Comments
Halpern V Canada (AG) [2003] OJ No 2268 (QL)
Seven gay and lesbian couples applying for civil marriage licences from the Clerk
Facts
of the City of Toronto commenced an application.
In roughly the same time frame, the Metropolitan Community Church of Toronto
("MCCT"), a Christian church that solemnizes marriages for its heterosexual
congregants, decided to conduct marriages for its homosexual members.
Previously, MCCT had felt constrained from performing marriages for same-sex
couples because it understood that the municipal authorities in Toronto would not
issue a marriage licence to same-sex couples. However, MCCT learned that the
ancient Christian tradition of publishing the banns of marriage was a lawful
alternative under the laws of Ontario to a marriage licence issued by municipal
authorities.
Two of the couples were married in a religious ceremony at MCCT.
MCCT submitted the requisite documentation for the two marriages to the Office
of the Registrar General. The Registrar refused to accept the documents for
registration, citing an alleged federal prohibition against same-sex marriages. As a
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Issues
Holding
Reasons
result, MCCT launched its application to the Divisional Court.
The applications of the seven couples and the MCCT were consolidated and heard
by a panel of the Divisional Court.
The court unanimously held that the common law definition of marriage infringed
the couples' equality rights under s. 15(1) of the Canadian Charter of Rights and
Freedoms and was not justified under s. 1 of the Charter.
The court ruled that an appropriate remedy for the Charter infringement was to
allow Parliament two years to amend the common law rule.
The Attorney General of Canada appealed on the equality issue; the seven couples
and MCCT cross-appealed on the question of remedy.
1) What is the common law definition of marriage? Does it prohibit same-sex
marriages?
(2) Is a constitutional amendment required to change the common law definition
of marriage?
(3) Does the common law definition of marriage infringe MCCT's rights under
ss. 2(a) and 15(1) of the Charter?
(4) Does the common law definition of marriage infringe the Couples' equality
rights under s. 15(1) of the Charter?
(5) If the answer to question 3 or 4 is 'Yes', is the infringement saved by s. 1 of
the Charter?
(6) If the common law definition of marriage is unconstitutional, what is the
appropriate remedy?
The appeal by the Attorney General was dismissed; the cross-appeals respecting
remedy were allowed - declared the existing common law definition of marriage
to be invalid and the reformulated definition to take immediate effect.
 The definition of marriage in Canada has been based on the classic
formulation of Lord Penzance in Hyde v. Hyde at 133: "I conceive that
marriage, as understood in Christendom, may for this purpose be defined
as the voluntary union for life of one man and one woman, to the
exclusion of all others."
 The preamble of the Ontario Human Rights Code affirms that "the inherent
dignity and the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the world".
(1) The common law rule regarding marriage
 The preliminary argument on this appeal advanced by the Couples is that
there is no common law bar to same-sex marriages.
 The Divisional Court was correct in concluding that there is a common law
rule that excludes same-sex marriages. This court in Iantsis
(Papatheodorou) v. Papatheodorou adopted the Hyde formulation of
marriage as the union between a man and a woman.
(2) Constitutional amendment
 The intervener, The Association for Marriage and the Family in Ontario
("the Association"), takes the position that the word "marriage", as used
in the Constitution Act, 1867, is a constitutionally entrenched term that
refers to the legal definition of marriage between a man and a woman that
existed at Confederation.
 The Association's constitutional amendment argument is without merit for
two reasons.
60
o
First, whether same-sex couples can marry is a matter of capacity.
Parliament has authority to make laws regarding the capacity to
marry under s. 91(26) of the Constitution Act, 1867.
o Second, to freeze the definition of marriage to whatever meaning
it had in 1867 is contrary to this country's jurisprudence of
progressive constitutional interpretation.
 The term "marriage" as used in s. 91(26) of the Constitution Act, 1867 has
the constitutional flexibility necessary to meet changing realities of
Canadian society without the need for recourse to constitutional
amendment procedures.
(3) Cross-appeal by MCCT: religious rights under sections2(a) and 15(1) of the
Charter
 In its cross-appeal, MCCT takes the position that the common law
definition of marriage breaches its freedom of religion under s. 2(a) of the
Charter and its right to be free from religious discrimination under s.
15(1). MCCT argues that the common law definition of marriage is
rooted in Christian values, as propounded by the Anglican Church of
England, which has never recognized same-sex marriages.
 This case does not engage religious rights and freedoms. Marriage is a legal
institution, as well as a religious and a social institution. This case is
solely about the legal institution of marriage.
(4) Section 15(1) of the Charter
…
(b) The existence of differential treatment
 The first stage of the s. 15(1) inquiry requires the court to determine
whether the impugned law: (a) draws a formal distinction between the
claimant and others on the basis of one or more personal characteristics;
or (b) fails to take into account the claimant's already disadvantaged
position within Canadian society resulting in substantively differential
treatment.
 Parliament and the provincial legislatures have built a myriad of rights and
obligations around the institution of marriage. The provincial legislatures
provide licensing and registration regimes so that the marriages of
opposite-sex couples can be formally recognized by law. Same-sex
couples are denied access to those licensing and registration regimes.
That denial constitutes a formal distinction between opposite-sex and
same-sex couples.
 The common law definition of marriage creates a formal distinction
between opposite-sex couples and same-sex couples on the basis of their
sexual orientation. The first stage of the s. 15(1) inquiry has been
satisfied.
(c) Differential treatment on an enumerated or analogous ground
 The second stage of the s. 15(1) inquiry asks whether the differential
treatment identified under stage one of the inquiry is based on an
enumerated or analogous ground.
 In Egan, the Supreme Court of Canada recognized sexual orientation as an
analogous ground, observing that sexual orientation is a "deeply personal
characteristic that is either unchangeable or changeable only at
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unacceptable personal costs".
(d) The existence of discrimination
 The third stage of the s. 15(1) inquiry requires the court to determine
whether the differential treatment imposes a burden upon, or withholds a
benefit from, the claimants in a manner that reflects the stereotypical
application of presumed group or personal characteristics, or that
otherwise has the effect of perpetuating or promoting the view that the
individual is less capable or worthy of recognition or value as a human
being or as a member of Canadian society, equally deserving of concern,
respect, and consideration.
 This stage of the inquiry in the s. 15(1) analysis is concerned with
substantive equality, not formal equality.
 The emphasis is on human dignity.
(i) Pre-existing disadvantage, stereotyping or vulnerability of the claimants
 The first contextual factor to be examined is the existence of a preexisting disadvantage, stereotyping, prejudice or vulnerability
experienced by the individual or group at issue.
 The disadvantages and vulnerability experienced by gay men, lesbians
and same-sex couples were described by Cory J. in Egan at 600-602:
The historic disadvantage suffered by homosexual persons has been
widely recognized and documented. Public harassment and verbal
abuse of homosexual individuals is not uncommon. Homosexual
women and men have been the victims of crimes of violence directed at
them specifically because of their sexual orientation . . . .They have
been discriminated against in their employment and their access to
services. They have been excluded from some aspects of public life
solely because of their sexual orientation . . . .The stigmatization of
homosexual persons and the hatred which some members of the public
have expressed towards them has forced many homosexuals to conceal
their orientation. This imposes its own associated costs in the work
place, the community and in private life.
(ii) Correspondence between the grounds and the claimant's actual needs,
capacities or circumstances
 The second contextual factor is the correspondence, or lack thereof,
between the grounds on which the claim is based and the actual needs,
capacities or circumstances of the claimant or others with similar traits.
 The AGC submits that marriage relates to the capacities, needs and
circumstances of opposite-sex couples, that marriage is an institution to
facilitate, shelter and nurture the unique union of a man and woman who,
together, have the possibility to bear children from their relationship and
shelter them within it. This was rejected.
 A law that prohibits same-sex couples from marrying does not accord
with the needs, capacities and circumstances of same-sex couples.
 Same-sex couples can choose to have children by other means, such as
adoption, surrogacy and donor insemination.
 Intimacy, companionship, societal recognition, economic benefits, the
blending of two families, to name a few, are other reasons that couples
choose to marry.
 Denying same-sex couples the right to marry perpetuates the contrary
view, namely, that same-sex couples are not capable of forming loving
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and lasting relationships, and thus same-sex relationships are not worthy
of the same respect and recognition as opposite-sex relationships.
(iii) Ameliorative purpose or effects on more disadvantaged individuals or groups
in society
 The third contextual factor to be considered is whether the impugned law
has an ameliorative purpose or effect upon a more disadvantaged person
or group in society.
 Same-sex couples are a group who have experienced historical
discrimination and disadvantages.
 Since same-sex couples also raise children, it cannot be assumed that they
do not share that economic disadvantage.
(iv) Nature of the interest affected
 The fourth contextual factor to be examined is the nature of the interest
affected by the impugned law.
 The AGC submits that recent amendments to provincial legislation that
extends benefits to same-sex couples preclude a finding of discrimination.
This must be rejected.
 Same-sex couples are not afforded equal treatment under the law with
respect to benefits and obligations. In many instances, benefits and
obligations do not attach until the same-sex couple has been cohabiting
for a specified period of time.
 Additionally, not all benefits and obligations have been extended to
cohabiting couples.
 The AGC's submission also takes too narrow a view of the s. 15(1)
equality guarantee, which guarantees more than equal access to economic
benefits. One must also consider whether persons and groups have been
excluded from fundamental societal institutions.
 The same-sex couples are excluded from a fundamental societal institution
- marriage.
(v) Conclusion
The dignity of persons in same-sex relationships is violated by the exclusion of
same-sex couples from the institution of marriage. Accordingly, the common-law
definition of marriage as "the voluntary union for life of one man and one woman
to the exclusion of all others" violates s. 15(1) of the Charter.
(5) Reasonable limits under section 1 of the Charter
(c) Pressing and substantial objective
 It must be determined whether there is a valid objective to maintaining
marriage as an exclusively heterosexual institution.
 3 purposes of marriage advanced by the AGC:
1) Uniting two persons of the same sex is of lesser importance
 A purpose that demeans the dignity of same-sex couples is contrary to
the values of a free and democratic society and cannot be considered to
be pressing and substantial.
 A law cannot be justified on the very basis upon which it is being
attacked.
2) Encouraging the birth and raising of children
 Heterosexual married couples will not stop having or raising children
because same-sex couples are permitted to marry.
 Moreover, an increasing percentage of children are being born to and
63
raised by same-sex couples. A law that aims to encourage only "natural"
procreation ignores the fact that same-sex couples are capable of having
children.
3) Companionship
 Encouraging companionship between only persons of the opposite sex
perpetuates the view that persons in same-sex relationships are not
equally capable of providing companionship and forming lasting and
loving relationships.
 The violation of the Couples' rights under s. 15(1) of the Charter cannot be
saved under s. 1 of the Charter.
(d) Proportionality analysis
The conclusion under the first stage of the Oakes test makes it unnecessary to
consider the second stage of the test, but the Court considered it anyway.
(i) Rational Connection
 The party seeking to uphold the impugned law must demonstrate that the
rights violation is rationally connected to the objective, in the sense that
the exclusion of same-sex couples from marriage is required to encourage
procreation, childrearing and companionship.
 First, the AGC has not shown that the opposite-sex requirement in
marriage is rationally connected to the encouragement of procreation and
childrearing.
 Second, the AGC has not demonstrated that companionship is rationally
connected to the exclusion of same-sex couples.
(ii) Minimal Impairment
 Same-sex couples have not achieved equal access to government benefits.
 The benefits of marriage cannot be viewed in purely economic terms. The
societal significance surrounding the institution of marriage cannot be
overemphasized
 This is not a case of the government balancing the interests of competing
groups. Allowing same-sex couples to marry does not result in a
corresponding deprivation to opposite-sex couples.
 The opposite-sex requirement in the definition of marriage does not
minimally impair the rights of the claimants. Same-sex couples have been
completely excluded from a fundamental societal institution. Complete
exclusion cannot constitute minimal impairment.
(iii) Proportionality between the effect of the law and its objective
The deleterious effects of the exclusion of same-sex couples from marriage
outweigh its objectives.
(e) Conclusion
The violation of the Couples' equality rights under s. 15(1) of the Charter is not
justified under s. 1 of the Charter.
(6) Remedy
 First, the court is to define the extent of the impugned law's inconsistency
with the Charter. Second, it should select the remedy that best corrects
the inconsistency. Third, the court should assess whether the remedy
ought to be temporarily suspended.
 Remedy that best corrects the inconsistency: declare invalid the existing
definition of marriage to the extent that it refers to "one man and one
woman", and to reformulate the definition of marriage as "the voluntary
64
union for life of two persons to the exclusion of all others".
This remedy achieves the equality required by s. 15(1) of the Charter but
ensures that the legal status of marriage is not left in a state of
uncertainty.
 A declaration of invalidity, by itself, would result in an absence of any
legal definition of marriage, denying to all persons the benefits of the
legal institution of marriage, thereby putting all persons in an equally
disadvantaged position, rather than in an equally advantaged position.
The Ontario Court of Appeal become the second Canadian provincial appellate
court to hold that gay men and lesbians have the right to marry - and the first to
actually allow marriage ceremonies to take place.

Ratio
Robert Leckey, “A Decade of Same-Sex Marriage in Ontario” Ottawa Citizen (9
June 2013)
 On June 10, 2003, the Ontario Court of Appeal revised the definition of marriage to stop
discriminating against gay men and lesbians.
 The past decade provides cause for pride, but it would be wrong to suppose that opening









access to marriage addressed all issues for sexual minorities and adapted the law to the
complexity of today’s family life.
Equal marriage rapidly became an ordinary part of the legal and social landscape.
Legal and social issues continue to impede those who are different from the mainstream, on
account of their sexual orientation or gender identity, from participating fully in Canadian
society.
Gay men and lesbians still confront obstacles in establishing legal ties with their children.
The regimes vary from province to province.
Transgender individuals still face obstacles in securing identity papers that reflect their
chosen name and sex designation.
Legal changes haven’t wiped away discrimination.
Family law and social policies remain built on the conjugal couple sharing a home. Indeed,
the current federal government has enriched the tax system’s rewards for traditional
families.
Our policy-makers and legislatures need to take stock of a broader range of family and
household forms (blended families, people living in an interdependent relationship with a
friend or sibling, people who are in a relationship but don’t live together).
These developments call for creativity and a willingness to do more than root out
discrimination on entry to marriage. They challenge us to rethink fundamental
assumptions about kinship and family.
Tackling these other issues to pursue sexual and family justice will require concerted legal,
political, and social efforts in multiple locations.
Dissolution of Spousal Unions
Divorce: Evolutions of Law
Divorce Act, ss 8, 11 – Power to Grant Divorces, Subsequent Duties
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
65
(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,
(i) committed adultery, or
(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
(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.
11. (1) In a divorce proceeding, it is the duty of the court
(a) to satisfy itself that there has been no collusion in relation to the application for a
divorce and to dismiss the application if it finds that there was collusion in presenting it;
(b) to satisfy itself that reasonable arrangements have been made for the support of any
children of the marriage, having regard to the applicable guidelines, and, if such
arrangements have not been made, to stay the granting of the divorce until such
arrangements are made; and
(c) where a divorce is sought in circumstances described in paragraph 8(2)(b), to satisfy
itself that there has been no condonation or connivance on the part of the spouse bringing
the proceeding, and to dismiss the application for a divorce if that spouse has condoned
or connived at the act or conduct complained of unless, in the opinion of the court, the
public interest would be better served by granting the divorce.
(2) Any act or conduct that has been condoned is not capable of being revived so as to
constitute a circumstance described in paragraph 8(2)(b).
(3) For the purposes of this section, a continuation or resumption of cohabitation during a
period of, or periods totalling, not more than ninety days with reconciliation as its
primary purpose shall not be considered to constitute condonation.
(4) In this section, “collusion” means an agreement or conspiracy to which an applicant
for a divorce is either directly or indirectly a party for the purpose of subverting the
administration of justice, and includes any agreement, understanding or arrangement to
fabricate or suppress evidence or to deceive the court, but does not include an agreement
to the extent that it provides for separation between the parties, financial support, division
of property or the custody of any child of the marriage.
CCQ art 2639 – Arbitration in the Family Context
Disputes over the status and capacity of persons, family matters or other matters of public
66
order may not be submitted to arbitration.
An arbitration agreement may not be opposed on the ground that the rules applicable to
settlement of the dispute are in the nature of rules of public order.
Droit de la Famille – 841, [1990] RJQ 1571 (CS)
Living Separately, Lump Sum Divorce Payments
Facts: This is a divorce proceeding. Plaintiff (P) claims that the two of them have been
living apart for at least a year. He has offered to pay her alimony and any additional sums
that may arise “en vertu du contrat de mariage”. Defendant (D) opposes the action for
divorce, and if it is granted, wants $340/wk, $10k as “prévue au contrat de mariage”, a
lump sum of $50k, $15k as a compensatory allowance, and a declaration that she is the
owner of all the movables in their home.
They have been married 33 years and have two adult children. When they broke up, he
moved out, she stayed in the home, and he agreed to pay her $150/wk and any expenses
related to the house.
P makes $1,051/mth, has worked for the same company for 34 years, and lives with a
new partner; his total assets are around 185k (including the house, car, retirement
savings, etc.). When he retires, though, he is expected to receive around $3,186/mth
D worked at the same company until they married. The company had a policy refusing to
hire married women. She worked a few jobs through the marriage but doesn’t have much
to her name (she even has some debt). She is struggling with depression and has not been
able to re-enter the workforce (and its unlikely she will).
D is arguing that at the moment the action was started, they were still living under the
same roof, so a divorce cannot be declared as per s 8(2). She is open in that she wants this
action rejected so that, when another divorce action is started, she can benefit from some
ongoing family law reforms. P, by contrast, is arguing that while technically correct, they
were not sharing a vie commune. The couple had been struggling for years and years –
there were even two brief separations. She counters that while the jurisprudence accepts
that you can be under the same roof and separated, you must be explicitly (to the outside
world, even) not a family.
Question: Were they living separate lives even while living under the same roof, for the
purposes of the Divorce Act?
Reasoning: The court concludes that the criteria to determine separate status is not public
perception (as D claims), but the intentions of the parties, as per s 8(3)of the Divorce Act.
P moved into a separate room; even if they occasionally had meals together and
administered a family budget, these reflected less a desire to be a couple than a desire to
“live in peace”. So the breakdown of the marriage is found, and divorce granted.
As for the cash: the compensatory allowance D claims (on the basis of work she did
during the construction of the house) is rejected (the judge says she was merely doing her
duties as a mother and spouse); the lump sum is granted (this is interesting – the judge
says that true security for the wife – something she deserves – depends on money not
only in alimony form, but lump sum as well, so that she is secure in retirement even if P
dies; the judge also concludes that the doctrine and jurisprudence permit lump sums to
assure security in retirement) and set at $35k; and the alimony is set at $300/wk since she
is unlikely to work enough to support herself and has gotten old.
What’s the Point: (1) you can be living separately (and thus qualify for a divorce) even
under one roof, provided the intention is there to be separate (2) in granting support, lump
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sums can be issued, particularly in the context of retirement and the needs of older
divorcés
Morrison v Morrison, [1972] PEIJ No 48
Homosexual Acts as Grounds for Divorce
Facts: Plaintiff (P) has asked for a divorce on the grounds that defendant (D) “engaged in
a homosexual act”. His wife was a member of the Canada Games softball team and he
claims to have seen her and another player doing all sorts of things together. She admitted
as much, and said that they were in love.
Just a note that this testimony is pretty detailed and very invasive – asking if she had an
orgasm, etc.
Question: Did her actions qualify of homosexual acts and thus permit the divorce?
Reasoning: Back then, the Divorce Act permitted divorce on the grounds of “sodomy,
bestiality or rape, or has engaged in a homosexual act”. The problem is, there was a real
vaguery about what exactly constituted homosexual behaviour, and this vaguery
permeates all discussions of it. The judge concludes that a lot of things that qualify as
“sodomy” or “crimes against nature” in the Criminal Code and elsewhere actually occur
in healthy, heterosexual married relationships, and that asking to grant divorces on the
grounds of “abnormal sex practices by either the husband or the wife” is challenging
because they are “inherently unprovable and rest solely upon the assertion of the party
seeking the separation, annulment, or divorce.” Here, though, the defendant admitted to
acts that the judge found to be homosexual, so there was no problem on that end. Divorce
granted.
What’s the Point: This ground of objection was removed from the Divorce Act in 1985,
which is good. This case could actually have been dealt with through adultery, rather than
through this weird provision.
SEP v DDP, [2005] BCJ No 1971
The Definition of Adultery
Facts: S files for divorce from D on grounds of his admitted “adultery” with another
man.
Question: What does adultery mean? Does it include “homosexual acts”, which one fell
in grounds for divorce pre-1985
Reasoning: So the problem is that adultery has only ever had a common-law definition…
and in Canada it typically involved an opposite sex interaction. That said, the commonlaw must be dynamic and flexible in changing social circumstances, and in light of the
Same-Sex Marriage Reference and changing attitudes, “I conclude that adultery can
include sexual acts between a married person and a person other than the married
person’s spouse of the same sex”. As for a specific definition of adultery, though, the
court refuses to offer one – it must be filled in on a case-by-case basis. Note, though, that
it is more about the rupturing of a marital bond than any type of specific sexual act.
Anyway, divorce granted.
What’s the Point: Adultery has no fixed statutory definition – it is determined on a caseby-case basis.
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Religion, Culture, Divorce
Re Morris and Morris (1973), 42 DLR (3d) 550 (Man CA)
Facts: M & M were married according to Orthodox Jewish tradition. They divorced in
civil court, but he never granted her a get (a “Jewish Bill of Divorcement”, as they put it)
and refused to do so. As a result, her civil remarriage was never recognized as valid. She
“invoked the assistance” of the court Trial judge declared that under their marriage
contract she was entitled to a get and that demanded that he go before a rabbinical court
and get her the get. He appealed.
Question: “To what extent, if at all, may a Court of law take cognizance of and give
effect to a marriage contract entered into between parties of the Jewish faith “according
to the law of Moses and Israel”? More specifically, has a court of law jurisdiction (a) to
declare that the wife is entitled, as one of her rights under such a marriage contract, to
received her husband [a get], and (b) to direct the husband to present himself before a
rabbinical court in order that that tribunal may make such inquiry and take such action as
may be appropriate in the circumstances?”
Reasoning: Appeal allowed. The majority brings in a variety of points:
1) Guy JA seems to feel (1) that she does not have the “clean hands” necessary to seek an
equitable solution at common-law since she has re-married(!!), (2) that this is a request
for specific performance, which is almost always inappropriate at common-law, and (3)
that this is not a civil matter (and were it addressed family law would “become uncertain
or schismatic by reference to various sects or religions (check out the Fournier article for
a counter to this hands-off idea).
2) Hall JA argues that none of her civil rights are affected, that she “will not suffer any
legal disability on the grounds of legitimacy or otherwise” from not having a get, and
thus that she is asking a civil court to enforce a religious right, which it cannot.
3) Matas JA agrees: “there is not such an infringement of civil rights as would warrant
intervention by a civil Court.”
The dissent (Freedman) here frames it by contrast as a question of contract: “it is
important to keep in mind that we are here simply concerned with a contract between two
parties and the matter of its enforcement.” This is a jurisdiction civil courts have (for
contractual rights are civil rights, and, as the Judge Freedman notes, if she does not get
the get her future children will be illegitimate to Orthodox Judaism, “a matter of real
concern”) and to him it in no way falls into religion so fully as to be non-justiciable. In
fact, not enforcing the contract on the grounds that it is religious has the effect of
replacing law as it applies equally to all with “the tenets of a particular religion”.
What’s the Point: First, to compare with Bruker, which adheres more to the dissent in
finding that there is an actual harm to not granting the divorce. Second, to compare with
the Fournier article, which suggests that courts need to not be afraid to enter into
substantive analyses of religious rights (i.e. what are their practical effects). Third, to
show that the dispute over the extent to which religion can play a role in family law is
composed of a number of factors – level of cultural knowledge of the minority, level of
understanding of the right, whether it appears to be contractual or not, and as we move
into Charter-era jurisprudence, the extent to which religious freedom is affected and
should be balanced.
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Bruker v Marcovitz, 2007 SCC 54
Facts: B and M married under Orthodox Jewish tradition, and then divorced civilly. In
that divorce, M agreed to give B a get, but then later reneged on this. He claimed that this
obligation was moral and thus not enforceable in Court – to do so would violate his
freedom of religion. She in turn sought both the get and damages for breach of contract.
Trial judge sided with B, but the QCCA allowed his appeal on the grounds that you can’t
enforce a religious obligation.
Question: Is the agreement to give a get enforceable? Can she get damages?
Reasoning: Yes and yes. The majority starts by noting that “The fact that a dispute has a
religious aspect does not by itself make it non-justiciable.” To them, nothing prevents
“someone from transforming his or her moral obligations into legally valid and binding
ones”, which he has done. They also stress the gender equality aspect here – how making
gets unenforceable puts Jewish women in a highly disadvantaged position when
divorcing and remarrying. They conclude that his religious freedom must be balanced
with her right to equality and autonomy.
The dissent by contrast engages in a very formalistic contracts in the CCQ analysis,
finding that there is no valid object to the prestation and thus it is unenforceable in court:
“Only her religious rights are in issue, and only as a result of religious rules… When
religion is concerned, the state leaves it to individuals to make their own choices. It is not
up to the state to promote a religious norm. This is left to religious authorities.”
What’s the Point: Like Morris, the contract plays a key role in the analysis that finds
civil jurisdiction. The big shift, though, is the recognition of the gendered effects of not
enforcing gets – in other words, how disruptive this can be to the woman (and to her
future children, who are illegitimate). Note too that the dissent is concerned that intruding
on a religious obligation actually forces the state to pick sides in religion, violating state
neutrality. As the Fournier article argues, however, sometimes maintaining neutrality and
choosing not to intervene is damaging to the rights of the parties involved.
Pascale Fournier, “The Erasure of Islamic Difference in Canadian and American
Family Law Adjudication”
This article discusses the case of Kaddoura v Hammoud, which revolved around the
enforceability of a Mahr, an amount of money owed by a husband to a wife in an Islamic
marriage contract.
In that case, the man refused to pay a remaining chunk of a Mahr to his (now ex)-wife,
claiming that while it was obligatory in Islamic law, it was not enforceable in Canadian
civil court. The Ontario Court of Justice agreed.
Fournier’s argument is essentially that taking this kind of hands off approach is, rather
than being respectful of other religions, an imposition of majoritarian values. By
concluding that a Mahr is off-limits for Canadian courts, the judge did not engage in any
substantive assessment of the function of a Mahr (which she notes is not religious but
fundamentally financial – and thus civil and enforceable – in nature). Until you start
examining these obligations as legitimate and part of Canadian society, rather than
thinking of them as alien and thus outside of the jurisdiction of the court, she argues, you
are stigmatizing minority practices.
She endorses a functional approach to religious obligations in the family context (not
unlike that which the majority in Bruker engages in). You have to look at the obligation
and determine what exactly it is, rather than turning away from it out of fear that you as a
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judge cannot accurately rule on it because its complex, confusing, and different.
This is an interesting argument and somewhat inverted from the traditional take on how
courts marginalize minority practices. Instead of viewing the culturally western, JudeoChristian judge intruding in a world they don’t understand as a sign of imperialism,
Fournier seems to be claiming that refusing to intrude is worse. The best approach, to her,
is to engage in deep, substantive analysis of religious obligations, permitting them a
space in our cultural fabric.
Effects of Dissolution: Support Obligations Between Spouses
Moge v Moge [1992] 3 SCR 813 (headnote)
Immigrants to Canada in 1960, separate in 1973 but don’t divorce until
Facts
1980
Wife = grade 7 education, homemaker/part-time cleaner
o Wants kids and 150$/month in spousal support
Husband remarries in 1987, post-divorce pays support
Ex-Wife brings application to vary after she’s laid off in 1987
o She increase to 400$/month
In 1989 husband gets order for termination of support – she’s working part
time
COA order 150$/month for indefinite period
Should wife be entitled to support indefinitely
Issues
TJ erred in not applying all 4 objective of Divorce Act
Holding
Courts need to base their reasoning on the 1985 divorce act
Reasons
Courts must respect out of court arrangements between spouses but where
there is none they need to follow the Act.
Divorce Act Principles discussed in the case (balance them all – see S.
15(7) & 17(7))
o 1) Means and needs
o 2) Self-Sufficiency
 Not to be taken so far as to ignore the realities of the
fumigation of poverty r/t divorce
Court speaks of an equitable sharing of the economic consequences of
marriage
o Judges have a discretionary power to set the balance
 Consider economic sacrifice, domestic responsibilities,
etc…
 Any factor that places a burden on one spouse for the
other
Per Divorce Act COA intervenes only where reasons disclosed material
error
o S.21(5)
o Wife suffered economic sacrifice and loss of future potential
earnings by being in the marriage
Dissent: Gonthier & McLauchlin
o Lots of focus on the specific details of the Divorce Act – largely
in line with the majority
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Ratio: Apply all four standards of the Divorce Act. Though courts ought to
respect private agreements between spouses, where there is none, apply a
balanced approach that looks at any and all factors relevant to the
relationship dynamic (from economic standpoint)
Comments  Moge Criteria
o 1) Recognition of economic advantage or disadvantage arising
from the marriage or its breakdown
o 2) apportionment of financial burden
o 3) relief of economic hardship arising from the breakdown of
the marriage
o 4) promotion of the economic self-sufficiency of the spouses
Bracklow v Bracklow [1999] 1 SCR 420
Married for 4 yrs. First two of which she paid 2/3rds of the expenses
Facts
because of children from her previous marriage were living together and
because she was earning more
Then she became unemployed and he completely supported the family
o She is unlikely to be ever able to work again
This continued for 2 more years until they separated
o She has psychiatric issues not related to the relationship which
he knew before coming to the relationship
Initial spousal support was 275$ later increased to 400$ (based on the
husband offering – not out of legal necessity)
Trial judge found that there was no express or implied agreement for
support
o Ordered a halt to support payments after a cooling down period
of a couple of months
o In line with Moge v. Moge - found no economic disadvantage
to the wife on breakup of marriage (hence no support)
 So Judge was thinking that because she hadn’t suffered
or given anything up (ex: educational opportunities) in
contributing to the marriage she wasn’t entitled to
anything to compensate for that economically
COA upheld trial judge’s decision
Is a sick/disabled spouse entitled to spousal support when the marriage
Issues
ends? If so, how much?
When do these obligations cease?
No non-compensatory analysis was undertaken – it ought to have occurred
Holding
in assessing any remaining quantum of support owed to the wife
Remanded the issue back to the trial judge – didn’t exclude the judge’s
ability to determine that the non-compensatory obligation had already been
satisfied
There is presumption of marital support while married, this no longer
Reasons
applies post marriage
There are three competing models of evaluating the economic aspects of
marriage
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




Independent/Clean break model – limited support for a transitional
period
o Recognizes reality of short marriages
o Encourages that spouses resume independent living
arrangements
o Equality and independence of each spouse
Social obligations (mutual obligations) model provides the framework
for non-compensatory support (provide for your spouse rather than
saddling govt with the burden)
o Marriage creates inherent interdependence that likely has a
gendered or power imbalance element
o Hard to separate matters after a prolonged period of time
Contractual – whatever the parties agree on that isn’t unreasonable or
contrary to public order
Moge Criteria
o 1) Recognition of economic advantage or disadvantage arising
from the marriage or its breakdown
o 2) apportionment of financial burden
o 3) relief of economic hardship arising from the breakdown of
the marriage
o 4) promotion of the economic self-sufficiency of the spouses
Quantum: Judges must use the numerous objectives and factors in the
divorce act to establish the scope of appropriate support (to address the
economic consequences of divorce)
o All objectives must be weighed in an balanced approach
o For objectives in the Act see S.15.2(6)
o Objectives must then be balanced with S.15.2(4) – non
compensatory factors like means and needs
o Wife argued need should determine duration, husband argued
that duration of relationship should define duration of support
 Court says yes to both (in principle) BUT they can’t be
the sole overriding aspects – need balanced contextual
approach (judge’s discretion)
o Judge is given much discretion in the matter
 Judgement must address the contextual nature of the
relationship (needs, means, capacities and economic
circumstances of each spouse)
- Duration of cohabitation, ability of supporting
spouse to pay
- Ability of espouses to move on and support new
obligations
- Factors that suggest a reduction in support is
appropriate such as amount already paid
- The vulnerable spouse’s needs vs the unfairness
of indefinite burden on the stable spouse
- May consider either lump sum or installment
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forms of payment (whichever is best in the
circumstances)
 At the end of the day – where compensation is not indicated and selfsufficiency is not possible, a support obligation may nonetheless arise
from the marriage relationship itself
Ratio:
 Moge v. Moge Criteria are but one aspect of the support analysis
 Where compensation is not indicated and self-sufficiency is not
possible, a support obligation may nonetheless arise from the marriage
relationship (even in the absence of contract or compensatory
foundation)
o Based on where they have the capacity to pay
 ***Non-compensatory obligations still give rise to $$$ support to the
other spouse***
It’s a poor choice of name
Comments
Miglin v. Miglin [2003] 1 SCR 303
Facts
Couple, upon divorce, agrees on separation agreement containing a full and
final spousal support release clause:
- wife to have custody of two young children
- husband to pay 60K per annum in child support
- husband to pay mortgage on home, home given to wife
- commercial lodge they ran together goes to husband but wife gets 15K per
year for 5 years renewable on consent of both parties
4 years later, wife applies for sole custody, child support and spousal support
order under s 15.2 of Divorce Act
History
Trial: $4,400 per month spousal support for wife up to five years
Appeal: upheld trial decision and removed five-year term
Issues
Should the spousal support release clause in the separation agreement be
upheld?
Holding
Yes.
Reasoning - Old Pelech test which overrides separation agreements only where there
has been a radical and unforeseen change in circumstances that was causally
connected to the marriage is too narrow
- New test:
1. determining weight of previous agreement at time of previous agreement
(a) look to circumstances in which agreement was negotiated and executed
to determine whether there is any reason to discount it (including pressure,
oppression or other vulnerabilities)
- use of counsel generally negates reason to discount agreement
(b) does substance of agreement comply with the Act (not determinative)?
2. determining weight of previous agreement at present time
a) does agreement still reflect the original intentions of the parties?
b) does it still substantially comply with the objectives of the Act?
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- party seeking to set aside agreement must show that new circumstances
were not reasonably anticipated by the parties
In this case: separation agreement should be accorded significant and
determinative weight
- no reason to discount: both parties had counsel and negotiations took a
long time
- substance complies with Act
Dissent
- The assessment of whether or not to uphold separation agreements should
depend on the degree to which the agreement reaches the objective on an
equitable sharing of the economic consequences of marriage or marriage
breakdown
- applying a standard of near conscionability like in commercial contexts is
inappropriate for agreements often negotiated in emotionally charged and
inherently unequal parties (women are often more vulnerable)
- Support agreements must be objectively fair at time of application to be
upheld, regardless of whether the agreement was fair originally, looking to
the lived reality of both parties since the divorce
- only this lower threshold to reopen agreements will ensure that the
objective of achieving an equitable disentangling of the parties’ economic
relationship
Applied to this case:
- the wife only got 15K for 5 years which is much less than she would have
gotten if it was not a family business
- she is taking care of the children and needs more money considering the
lost employment income
- the spousal support release clause in the separation agreement should not
be upheld
Rick v Brandsema 2009 SCC 10
29 yr marriage, 5 children, dairy farm with other real property, vehicles and
Fact
RRSPs
Used Mediators for a negotiated separation agreement
Wife seeks to set that aside 1 yr later on basis of unconscionability
 She accused husband of exploiting her mental instability during
negotiations and of hiding assets
She received much less than should would have under BC’s Family
Relations Act ($600K less)
Was agreement invalidated due to exploitation and/or unfairness?
Issues
Agreement set aside
Holding
Decisions about what constitutes an acceptable settlement can only
Reasons
authoritatively be made if both parties come to the negotiating table with
the information they need to consider what concessions to accept or offer
There was evidence of hiding assets which undermines the wife’s ability to
make an informed decision
Full and honest disclosure, without exploitative tactics will likely survive
judicial scrutiny
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
Defective disclosure will depend on circumstances of each case –
including the extent of the misinformation and degree to which it was
deliberately generated
o As an evidentiary matter better be persuasive that exploitation
having took place and that it was overriding of the persons
vulnerabilities
Professional assistance to compensate for vulnerabilities is an aspect to
weigh
 In this case the wife’s vulnerabilities left her unable to make use of such
assistance
Courts must also balance (and respect) the rights of the parties to reach an
agreement on their own
Ratio:
 Where exploitation results in agreement that deviates substantially from
the objectives of the governing legislation the resulting agreement may
be found to be unconscionable thus unenforceable
 Contractual autonomy of spousal separation agreements depends on the
integrity of the bargaining process
 Creates a duty of full disclosure of financial information
Comments
Kerr v Baranow 2011 SCC 10 (Along with Vanasse Appeal)
Kerr:
Facts
Separation from CML after 25 yrs, both had worked
K claims share of B’s property on basis of resulting trust and unjust
enrichment
B Counterclaimed on basis of unjust enrichment (housekeeping), after K
suffered stroke
Trial judge awarded K $315k by way of resulting trust and unjust
enrichment
 Also awarded $60k worth of equity from beginning of relationship and
$1.7K/month in spousal support (from date proceedings commenced)
COA ruled completely opposite to trial judge and held that commencement
of trial should be date to calculate spousal support
Vanasse:
12 yr CML relationship in which wife set aside her career so that husband
could pursue business opportunity (They moved twice before he retired)
 When we was bought out he was worth 11million
Trial judge ruled no unjust enrichment for the 1st two periods of move BUT
that during period in which children were born he was unjustly enriched
and that she was entitled to ½ the 11 million
COA set aside the trial judge’s finding and ordered compensation based on
Quantum Meruit
Issues
 Which Courts ruled appropriately (Trails or COAs)
 What is the role of “common intention” resulting from trust claims for
domestic partners
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
Holding
Reasons
Whether the monetary remedy for a successful unjust enrichment claim
must always be assessed on a quantum meruit basis
 When/should a mutual benefit conferral (in context of unjust
enrichment) be taken into account
 What role do the parties’ reasonable expectations play in the unjust
enrichment analysis
For Kerr – when is the effective date for the commencement of spousal
support
Kerr
 Spousal support finding of the trial judge restored
 Appeal from order dismissing K’s unjust enrichment should be allowed
and a new trial ordered
 Appeal dismissing K’s claim in resulting trust should be dismissed
 Order for new hearing in B’s counterclaim should be affirmed
Vanasse
 Order of the trial judge restored
Resulting Trust
 Arises from gratuitous transfers in two types of situations
o Transfer of property from one partner to another without
consideration
o The joint contribution by two partners to the acquisition of
property for which only one’s name is on the tile
Historical legal notion that this form of trust would arise based solely on the
“common intention” of the parties that the non-owner partner was intended
to have an interest (REJECTED BY THE COURT)
Unjust Enrichment is the avenue to pursue for CML spouses who break up
(its more comprehensive and principally sound)
 Permits recover whenever the Plaintiff can establish three elements
o An enrichment of the defendant by the plaintiff
o A corresponding deprivation of the plaintiff
o The absence of a juristic reason for enrichment (I think their
referring here to consideration sufficient to justify – as well as
the autonomy of the parties, their legitimate expectations and
right to order their affairs in contract)
 Plaintiff must show that they have given a tangible benefit to the
defendant that the defendant received and retained
o The enrichment must correspond to a deprivation that the
plaintiff has suffered (domestic services count)
Juristic Reason Analysis (Two aspects)
 Consider established categories – includes benefits conferred by way of
gift pursuant to a legal obligation
 Considerations are given to the reasonable expectations of the parties
and public policy considerations to assess whether particular
enrichments are unjust
Unjust enrichment gives rise to either personal restitutionary award OR a
restitutionary proprietary award
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
Monetary award amounts are normally appropriate BUT it can be
difficult to determine fair value for certain kinds of property ALSO
difficult to evaluate the value of each individual service
Quantum Meruit OR Proprietary Compensation
 Quantum = Fee for services or value received
 Where a plaintiff can demonstrate causal link/connection between their
contributions and the: acquisition, preservation, maintenance or
improvement of the disputed property, and that a $$ award would be
insufficient, a share of the property proportionate to the claimant’s
contribution can impressed with a constructive trust in their favour
How to quantify an award in unjust enrichment? (QUITE COMPLICATED
– court felt it had to clarify the principle for CML spousal analyses)
 The court rejected the traditional application of either the constructive
trust or the calculation of a monetary remedy based on quantum meruit
basis
o Restricting the money remedy to a fee-for service calculation is
wrong for 4 reasons
 1) fails to reflect the reality of domestic partners (unjust
enrichment ought to reflect the realities of domestic
living arrangements – unjust enrichment occurs were one
partner retains a disproportionate share of the assets)
 2) The traditional upstanding of unjust enrichment is
inconsistent with equitable remedy principles (where a
propriety remedy isn’t appropriate the monetary reward
should be fashioned to reflect the true nature of the
enrichment/deprivation
 3) Vaguely talks about unjust enrichment not being
historically compatible to quantum meruit (really doesn’t
say anything)
 Joint Family Ventures (JFV)
o Where disproportionate accumulation of the assets has resulted
in the circumstances of a JFV the monetary remedy should be
calculated according to the share of the accumulated wealth in
relation to the claimant’s contributions
o Claimant must show there was a JFV and a link between their
contributions and the accumulation of wealth
o Factors to assess if a JVF existed
 Mutual efforts, economic integration, actual intent,
pooling of effort, decision to have/raise children
together, length of the relationship, detrimental reliance,
the more extensive the economic integration the more
likely a JFV exists
o Often claimants received some return of benefits for their
contributions, this ought to be considered at the defense and
monetary award stage of the trial analysis
o Claimants must demonstrate that their contributions weren’t
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either a gift or pursuant to a legal obligation
The Test: (I have simplified it to make conceptual sense)
 Taking into account the particular circumstances of each relationship is
there a JFV? (No such presumption should arise in favour of a JFV)
o Four main categories were offered (but not a closed list)
 Mutual effort, economic integration, actual intent and
priority of the family
 Mutual Effort
o Whether the parties worked collaboratively towards common
goals
 Pooling of efforts, team work, decision to raise children
together, length of the relationship (includes finances
and domestic work)
 Economic Integration
o Degree of economic interdependence and integration of couple’s
finances/economic interests/economic well-being
 Actual Intent
o Actual intentions of the parties must be given considerable
weight
o Intent can be expressed or inferred
 Where both parties agreed it was a partnership or had
essential characteristics of marriage
 Priority of the Family
o Whether there has been some sort of detrimental reliance on the
relationship, by one or both of the parties, for the sake of the
family
 Contributions to the domestic and financial partnership
and particularly financial sacrifices (how domestic tasks
were divided, outside employment of the parties,
foregoing career or educational advancement)
Ratio
 When the parties have been engaged in a JFV, and the claimant’s
contributions to it are linked to the generation of wealth, a monetary
award for unjust enrichment should be calculated according to the share
of the accumulated wealth proportionate to the claimant’s contributions
 Court moved beyond the principles of Moge to address concerns for
CML spouses
Comments