Table of Contents
Family Law
History
What is a family?
Sauvé, Profiling Canada’s Families III (1)
Hovius, Family Facts (4)
Baker, Thinking about Families: Trends and Policies (6)
Regulation of Family (9)
Payne and Payne, Canadian Family Law (10)
Thompson, Rules and Rulelessness in Family Law: Recent Developments, Judicial and Legislative (17)
Hogg on Family (19)
Papp v. Papp (22, 23)
(corollary relief - DA)
Charter (29)
Bala, The Charter of Right & Family Law in Canada: A New Era (31)
Institutional Framework (35)
A Note on Procedure in Family Law Litigation (36)
Payne, “Family Conflict Resolution” (42)
ADR in Family Law
Creating a Valid Marriage (87)
Void vs. Voidable Distinction
Hahlo, “Nullity of Marriage in Canada” (87)
Effect of Invalidity (132) (see book too)
Evolution of Same-Sex Marriage
Halpern v. Toronto (City) (2003 ONCA) (90)
Reference re Same-Sex Marriage (2004 SCC) (97)
Consummation (103)
Gajamugan v. Gajamugan (1979 ON HC) (103)
Norman v. Norman (ON UFC, 1979) (105)
Aisaican v. Kahnapace (1996 SK QB) (105)
Outside Prohibited Degrees of Consanguinity and Affinity (108)
Marriage Prohibited Degrees Act
No Prior Existing (Civil) Marriage (109)
Meszaros v. Meszaros (1969 ON HC) (109)
Bate v. Bate (1978 ON HC) (110)
Consent: Capacity to Understand (112)
Banton v. Banton (1998 ON Gen Div) (112)
Consent: Duress (119)
S.(A.) v. S. (A.) (1988 ON UFC) (119)
Arranged Marriages
Parihar v. Bhatti (1980 BCSC) (122)
Limited Purpose Marriages, Fraud, and Mistake (123)
Iantsis v. Paptheodorou (1970 ON CA)
Formal Validity: Age (125)
Alspector v. Alspector (1957 ON CA) (126)
McKenzie v. Singh (1972 BC SC) (127)
Hassan v. Hassan (2006 AB QB) (129)
Divorce (135)
History of Divorce Legislation in Canada
Divorce Act (1968) – federal per s.91(26)
Divorce Act (1985,1986) (136)
Role of State
Grounds: Living Separate and Apart (166)
Rushton v. Rushton (1968 BCSC) (166)
Dupere v. Dupere (1974 NB CA) (167)
Severo Case (BC)
Divorce Act, section 8
Steinberg v. Fields (2005 ON SC) (171)
(same-sex)
(same-sex)
(annulment - consummation)
(conjugal definition)
(annulment - consummation)
(presumption of death)
(presumption of validity)
(test for capacity)
(arranged marriage)
(immigration)
(religious marriage)
(immigration marriage)
(foreign marriage)
(separate and apart TEST)
(separate and apart)
(separate and apart)
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T1
Living Separate and Apart
Dorchester v. Dorchester (1971 BCSC) (169)
Reconciliation and Resumption of Cohabitation (171)
Rogler v. Rogler (1977 ON CA) (171)
Section 8(3) DA
Adultery (172)
Orford v. Orford (1921 ON HC) (172)
MacClennan v. MacLennan (1958 Scotland Ct. Sess.) (174)
P. (S.E.) v. P. (D.D.) (2005 BCSC) (176)
Proof of Adultery
Shaw v. Shaw (1971 NS TD) (179)
Cruelty (section 8(2)(b)(ii))
Knoll v. Knoll (1970 ON CA) (182)
Gilbert v. Gilbert (1980 NS TD) (183)
Delaney v. Delaney (1971 ON CA) (184)
Barron v. Bull
Bars to Proceedings (186)
Collusion (186)
Wei v. Cao
Condonation (188)
Watkins v. Watkins (1980 NF TD) (189)
Connivance
Maddock v. Maddock (1958 ON CA) (190)
Reasonable Arrangements for the Support of Children
McIllwraith v. McIllwraith (1999 NB QB)
Willenborg v. Willenborg (2001 SK QB) (196)
Welfare/Social Assistance Issues
Orellana v. Merino (1998 ON Gen Div) (193)
Effective Date of Divorce (199)
Riddell
Family Property (201)
Historical Background
Community of Property Regime
Murdoch v. Murdoch (1975 SCC) (220)
Family Law Reform Act (1978)
Family Law Act (1986)
Miron v. Trudel (1995)
Taylor v. Rossu (1998 AB CA)
Walsh v. Bona (2002 SCC) (207)
McLeod Annotation
Constructive Trust (equitable doctrine) (221)
Rathwell v. Rathwell (1978 SCC) (220)
Becker v. Pettkus (1980 SCC) (219)
Sorochan v. Sorochan (1986 SCC) (223)
Peter v. Beblow (1993 SCC) (227)
Factors to consider in determining whether a constructive trust appropriate
Spence v. Mitchell (1993 ON Gen Div) (241)
Nowell v. Town Estate (1997 ON CA) (242)
Wylie v. Leclair (2003 ON CA) (245)
Thomas v. Fenton (2006 BC CA) (246)
Pegler v. Avio (2008 BC SC) (248)
Bell v. Bailey (2001 ON CA) (251)
Belvedere and Britton Estate (2009 ON CA) (252)
Sharing Economic Gain of Marriage (252)
Who can apply?
When can someone apply?
Caratun v. Caratun (1987 SCC) (258)
Fleming v. Fleming (2001 ON SCJ) (259)
Section 7, 8 FLA
Improvident Depletion
(separation date – mental)
(occasional sex)
(adultery – art. Insem.)
(adultery)
(same-sex adultery)
(cruelty, adultery)
(cruelty)
(cruelty – objective)
(cruelty – lack of sex)
(cruelty)
(collusion)
(condonation)
(connivance)
(reasonable custody)
(unreasonable custody)
(support – state intervention)
(separate property)
(marital status, benefits)
(common law rights)
(resulting trust)
(constructive trust)
(unjust enrichment, cnsrctv trust)
(constructive trust)
(rebutted presumption)
(mistress, constructive trust)
(unjust enrichment, monetary)
(enrichment, woman owns more)
(value survived)
(value received)
(received vs survived)
(triggering event)
(valuation date)
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T2
Interim Preservation Order
Calculating The Net Family Property (255)
Definition of Property – s. 4(1) Family Law Act
Calculating Details
Brinkos v. Brinkos (1989 ON CA) (260)
DaCosta v. DaCosta (1992 ON CA) (262)
Lowe v. Lowe (2006 ON CA) (264)
Caratun v. Caratun (1992 SCC) (268)
Rawluk v. Rawluk (1990 SCC) (272)
Reverse Constructive Trust?
Valuation of Property (282)
s.8 FLA
Heon v. Heon (1989 ON HC) (283)
Starkman v. Starkman (1990 ON CA) (285)
Sengmueller v. Sengmueller (1994 ON CA) (285)
3 rules to apply in all cases:
Deductions, Exclusions And Unconscionability
Excluded Property (s.4(2))
Anomalies Around the Matrimonial Home
Folga v. Folga (1986 ON HC) (289)
Debts and Liabilities
Da Costa v. Da Costa (1990 ON) (see above also from p.262)
Menage v. Hedges (282?)
Collier v. Torbar (2002 ON CA) (290)
Capital Gains (gift or inheritance)
Oliva v. Oliva (1988 ON CA) (295)
Ho v. Ho (1993 ON Gen Div) (296)
Cartier v. Cartier (2007 ON SCJ) (297)
Division of Property Summary
Policy and the Partnership Concept of Marriage (286)
Tracing
Bennett v. Bennett
Variation of the Equalization Payment (305)
LeVan v. LeVan (2006 ON SCJ) (306, 323)
Harry v. Harry (1987 ON Dist Ct) (307)
von Czieslik v. Ayuso (2007 ON CA) (306, 313)
Failure to disclose debts at separation
Naidoo v. Naidoo (2004 ON SCJ) (312)
Abaza v. Abaza (2001 ON SCJ) (312)
Ferguson v. Kalupnieks (1997 ON Gen Div) (312)
Intentional Depletion
Biant v. Sagoo (2001 ON SCJ) (314)
Fraudulent Conveyances Act
Stone v. Stone (2001 ON CA) (313, 315)
Policy: Short marriages and matrimonial home?
Harris v. Harris (2005 ON SCJ) (316)
Linov v. Williams (2007 ON SCJ) (317)
Waters v. Waters (1986 ON Dist Ct) (320)
Crawford v. Crawford (1987 ON CA) (284) (not discussed)
Thompson v. Thompson (1993 ON Gen Div) (312)
Mittler v. Mittler (1988 ON HC) (313)
Futia v. Futia (1990 ON HC) (316) (not discussed)
Heal v. Heal (1998 ON Gen Div) (306)
Berdette v. Berdette (1999 ON CA) (320)
LeBlanc v. LeBlanc (1988 SCC) (320)
Serra v. Serra (2009 ON CA) (324)
Implementation Of The Equalization Entitlement (332)
Pensions (339)
CPP
RRSP
Employer Pension Plans
(trusts as assets)
(custom remedy)
(disability income)
(professional degree)
(constructive trust)
(auto deduct expense)
(foreseeable costs)
(likely disposition)
(matrimonial home)
(mortgage on matrimonial)
(unsecured debt)
(unsecured debt for home)
(capital gains)
(gifts)
(gifts)
(tracing)
(unconscionability, devaluation)
(intentional depletion)
(intentional depletion)
(reckless debts)
(debts over escort)
(debts, recklessness)
(affair)
(estate, 0 NFP)
(short marriage)
(short marriage)
(unconscionability)
(unconscionability)
(bad faith)
(unconscionability)
(unconscionability)
(unconscionability)
(gift, joint title)
(contributions)
(devaluation of assets)
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T3
Sample Equalization Problems (303)
Family Home (369)
Possessory Rights in the Matrimonial Home
Occupation Rights of Unmarried Cohabitees
Identification of a Matrimonial Home
Hartling v. Hartling (1979 ON HC) (375)
Debora v. Debora (2006 ON CA) (376)
DaCosta v. DaCosta (1992 ON CA) (377)
Goodyer v. Goodyer (1999 ON Gen Div) (378)
Orders for Exclusive Possession
Pifer v. Pifer (1986 ON Dist Ct) (382)
Perrier v. Perrier (1989 Ont. HC) (383)
Dyck v. Dyck (2005 SK QB) (385)
Kooning v. Kooning (2005 ON SCJ) (389)
Vollmer v. Vollmer (1998 ON Gen Div) (388)
Hill v. Hill (1987 ON Dist Ct) (390)
Cicero v. Cicero (1978 ON UFC) (392)
Rosenthal v. Rosenthal (1986 Ont. HC) (393)
Spousal Support (403)
Legislative Framework
Application for Support: Who may apply? (405)
Sanderson v. Russell (1979 ON CA) (412)
Stoikiewicz v. Filas (1978 ON UFC) (405)
“Continuous” Cohabitation
Labbe v. McCullough (1979 ON Prov Ct) (413)
Molodowich v. Penttinen (1980 ON Dist Ct) (408)
Hazelwood v. Kent (2000 ON SCJ) (407)
McEachren v. Fry Estate (1993 ON Gen Div) (410)
Harris v. Godkewitsch (1983 ON Prov Ct) (415)
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(s.18(2))
(s.18(2))
(intention to occupy)
(MH partial exclusions)
(interim possession)
(interim possession)
(nesting arrangement)
(interim possession)
(interim possession)
(interim – other factors)
(exclusive possession)
(exclusive possession)
(continuous cohabitation)
(cohabitation)
(short cohabitation)
(cohabitation criteria)
(cohabitation)
(cohabitation)
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Spousal Support (418)
Rogerson, “The Causal Connection Test in Spousal Support Law”
Falkiner v. Ontario (2002) (not discussed)
(spouse history)
Messier v. Delage (1983 SCC) (421)
(traditional support)
Causal Connection: Pelech Trilogy
Pelech v. Pelech (1987 SCC) (423)
(clean break support)
Richardson v. Richardson (1987 SCC) (425)
(clean break)
Caron v. Caron (1987 SCC) (427)
(causal connection)
Rogerson’s Criticisms of the Trilogy and the Causal Connection Test
Compensatory Model of Spousal Support
Moge v. Moge (1992 SCC) (431)
(rejection of causal connection)
Non Compensatory Model of Spousal Support
Bracklow v. Bracklow (1999 SCC) (442)
(non-compensatory)
Rogerson “Spousal Support Post-Bracklow”
Brockie v. Brockie (1987 Man QB) (438)
(child care responsibilities)
Misconduct
Morey v. Morey (1978 ON Prov Ct) (458)
(high threshold for unconscionability – TEST)
MacDonald v. MacDonald (458)
(unconscionable conduct)
Leskun v. Leskun (2006 SCC) (452)
(consequences of conduct)
Judicial Determination of Spousal Support: Search for Guiding Principles
Lamothe v. Lamothe (2006) (not discussed)
History of Spousal Support
Bast v. Bast (ON HC, 1988) (420) (not discussed)
(spousal support)
Eng v. Eng (2006) (not discussed)
(spousal support)
Spousal Support Advisory Guidelines (income sharing)
Formula 1: Without Child Support Formula
Formula 2: With Child Support Formula  net income
DURATION
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Child Support (675)
Boca v. Mendel (678)
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(paternal responsibilities)
T4
Establishing Paternity (676)
Presumption
Child Law Reform Act
Paternity test
Williams v. Cruikshank (2000 ON CJ) (676)
Extended Definition of Parent-Child Relationship
Aksugyuk v. Aksugyuk (1975 NWT SC)
Chartier v. Chartier (1999 SCC) (679)
Collis v. Wilson (687)
Cornelio v. Cornelio (2008 ON SCJ) (289)
Jane Doe v. Alberta (2007 AB CA) (689)
Do Carmo v. Etzhorn (1995 ON Gen Div) (689)
Cheng v. Cheng (1996 ON CA) (689)
Monkman v. Beaulieu (2003 MB CA) (689)
P. v. G (2001 NS SC) (683) (not discussed)
Quantum of child support: multiple parents
Duration: Age Limits
Zedner v. Zedner (1989 ON Prov Ct) (701)
Smith v. Smith (1987 BCSC) (713)
Wahl v. Wahl (2000 AB QB) (703)
Wesemann v. Wesemann (1999 BCSC) (699, 704)
Federal Child Support Guidelines
Determining the Amount
Presumptive Rule
Determining Income: Sections 15 to 20, Federal Child Support Guidelines
Drygala v. Pauli (2003 ON CA) (727, 738-9)
Bak v. Dobell (2007 ON CA) (732)
Special or Extraordinary Expenses
Celotti v. Celotti (2007 ON SCJ) (741)
Federal Child Support Guidelines, s. 7
High Income Earners Exception
Francis v. Baker (1999 SCC) (secondary ref)
Simon v. Simon (1999 SCC) (744, 750)
R v. R (2002 ON CA) (743)
Undue Hardship
Dean v. Friesen (1999 Sask QB) (775)
Swift v. Swift (1998 ON Gen Div) (774)
Split and Shared Custody
Contino v. Leonelli-Contino (2004 SCC) (753)
Step-by-step approach (for set off)
Martin (2007 MB QB) (768)
Retroactive Child Support (778)
S (D.B.) v. G (S.R.) (2006 SCC) (778)
Louie v. Lastman (2002 ON CA) (780)
Factors to Consider
Relationship between Child Support and Spousal Support
Enforcement of Child Support Obligations (not discussed)
Custody and Access (517)
Mechanisms for determining the best interests of a child
Young v. Young (1993)
Linton v. Clark (1994 RFL) (529)
Factors Relevant to the Custody Decision
De Facto Custody
Interim Custody and the Continuity Principle
Marshall v. Marshall (NS CA, 1998) (539) (not covered)
Spencer v. Spencer (1980 BC CA) (542)
LiSanti v. LiSanti (1990 ON Fam Ct) (540)
Balancing interim issue w/ s. 283 Criminal Code
Conduct
Renaud v. Renaud (1989 ON Dist Ct) (541)
(paternity test)
(intention parenting)
(step-parent support)
(paternity/loco parentis)
(paternity/loco parentis)
(domestic contract re: children)
(paternity/cohabitation)
(parties to claim)
(grandparents)
(best interests of child)
(voluntary departure)
(realistic planning)
(hostile child, child of marriage)
(relationship maintenance)
(intentional unemployment)
(imputing income)
(high income, extra expenses)
(high income)
(high income)
(high income)
(undue hardship)
(undue hardship)
(shared custody support)
(support steps)
(individualization)
(retroactive support)
(retroactive for adults)
(retroactive support)
(best interests)
(assessments)
(interim)
(interim – stability)
(interim – abuse)
(friendly parent)
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T5
Conduct (549)
Fishback v. Fishback (1985 ON Dist Ct) (549)
(conduct, interests)
Young v. Young (1989 ON HC) (552)
(abusive conduct)
Relationship with 3rd Party
Re Reid (1975 ON Div Ct) (557)
(step-parents)
Birth and Blood Relations
Moores v. Feldstein (1973 ON CA) (544)
(biological relations)
King v. Low (1985 SCC) (571)
(biological relations)
Guest Speaker: Noel Semple. Experts in Custody and Access Cases (not examinable)
What is in the best interest of children?
Which is better for this child?
The Custody Evaluator (species #1)
Social Worker from Office of Children’s Lawyer (species #2)
Child’s Lawyer from Office of Children’s Lawyer (species #3)
Mediator (species #4)
Conference Judge (species #5)
Best Interests of the Child – different perspectives
Settlement “Mission”
Sexual Orientation of Parent
B. v. B (1980 ON Prov Ct) (not discussed)
(sexual orientation)
Tender Years Doctrine
R v. R (1983 AB CA) (559)
(tender years rejection)
Klachefsky v. Brown (1988 Man CA) (567)
(daycare v. family)
Warcop v. Warcop (2009 ON SCJ) (565)
(primary caregiver)
Harden v. Harden (1987 Sask CA) (563) (not discussed)
(primary caregiver)
Friendly Parent Principle
Jane Doe v. John Doe (1990 ON CA) (564)
(friendly parent)
Race and Culture (573)
Van de Perre v. Edwards (2001 SCC) (573)
(race)
Wishes of the Child (577)
Alexander v. Alexander (1986 BCCA) (not discussed)
(child’s wishes)
Boukema v. Boukema (1997 ON Gen Div) (not discussed)
(parental manipulation)
Stefureak v. Chambers (2004 ON SCJ) (577) (not discussed)
(practicality)
Ascertaining wishes of the child (from Stefureak)
Separation of Siblings
Wereley v. Wereley (1979 ON HC) (not discussed)
(sibling separation)
Levine v. McGrath (not discussed)
(sibling separation)
Blood Ties
Floyd v. Bertrand (not discussed)
(blood relationship)
Fullerton v. Richman (not discussed)
(psychological parent)
Access (588)
Joint Custody
Mudie v. Post (1998 ON Gen Div)
Baker and Kruger
Kaplanis v. Kaplanis (2005 ON CA) (639)
Ladisa v. Ladisa (2005 ON CA) (642)
Shaffer, “Joint Custody Since Kaplanis and Ladisa” (645)
Enforcement of Access
Denial of Access
Johnson-Steeves v. Lee (1997 AB CA) (594) (not discussed)
M v. M
Rights of Grandparents to Access (not discussed)
Enforcement
Chauvin v. Chauvin (1987 ON Dist Ct) (617)
McMillan v. McMillan (1999 ON GD) (590) (not discussed)
Parental Alienation (657)
L (A.G.) v. D (K.B.) (2009 ON SCJ) (659)
Role of the Access Parent (597)
Droit de la Famille (1993 SCC) (613)
Young v. Young (1993 SCC) (597) *REVIEW*
Relocation & Custody Issues (618)
(joint custody)
(joint custody)
(JC communication)
(JC communication)
(denial of access)
(violent conduct)
(custodial incident)
(enforcement)
(shift in custody)
(religious rights)
(religious rights)
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T6
MacGyver v. Richards (ON CA) (619)
Gordon v. Goertz (1996 SCC) (618)
Woodhouse v. Woodhouse (1997 SCC) (619)
Post-Gordon
Thompson review of the law since Gordon
Other Recourses
Hague Convention on Child Abduction
Section 282 & 283, Criminal Code
Domestic Contracts (783)
Part IV FLA (s. 51 onwards)
s.52(1) Marriage contracts
s.53 Cohabitation agreements
s.54 Separation agreements
Waldick v. Waldick (2002 ON SCJ) (792)
Hartshorne (2004 SCC) (801)
Miglin v. Miglin (2003 SCC) (807)
(relocation)
(relocation TEST)
(relocation)
(relocation)
(formal requirements)
(fairness)
(spousal support, s.15.2(1) DA)
Polygamy
Drummond’s article: Polygamy’s Inscrutable Secular Mischief
Polygamy, s. 293 CC
Bigamy, s. 290 CC
Void for vagueness and overbroad
Conjugal union
Religious marriages
Civil Marriage Act s. 2, 2005
Sexual Mischief
Shared Residence
Conjugal Unions
Non-criminal remedies
Moral Comments (con)
International Convention to Eliminate all Forms of Discrimination Against Women
Random Class Overview
Polygamy Summary from 2007
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T7
Family Law
Winter 2011
Online: Divorce Act, Family Law Act
Steinberg, Ontario Family Law Practice for annotated cases and statute
Reference to two articles:
http://www.nytimes.com/2011/01/02/magazine/02babymaking-t.html
http://www.nytimes.com/2008/11/30/magazine/30Surrogate-t.html
History
1968 – first national divorce act in Canada. Before you sometimes needed a private members’ bill!
 Phenomenal rise in number of divorces after this
 Also huge increase of women in workforce
 Decline in birth rate, to point of zero population growth
 Since, lots of non marital family relationships (common law)
 Reformation of families after dissolution
 Now also same-sex couples are legitimate
 Before 1968, adultery was only ground for divorce. Wife could only get alimony if wife entirely innocent. Women
never had to pay alimony. (now spousal support)
1986 – no fault grounds introduced.
 Formal legal equality, husbands could sue and receive support. Functional understanding of rights and
obligations.
 Principles of spousal support have changed – not really meant for people with careers.
1973 – Murdoch case
 Woman worked on farm for 40 years. At the time, whatever title was in your name was yours. But here ranch was
only in his name. She walked away with no assets.
Lots of balancing around unpaid labour since and ongoing. Children may not live with both parents. Increase in rate of
childlessness. Or kids through reproductive technologies.
Divorce Act makes it a lot easier to leave relationships now.
1983 – removed exemption from CC of marital sexual assault.
Piecemeal changes.
Chartier – financial dependency on step-parent. May have access rights.
1970s – slow recognition of cohabitation
Same sex marriage – traditional sodomy was criminalized.
 In US can still be fired for being gay!
 Canada has an attitude of staying out of bedrooms
1995 Re K – step parent adoption for lesbian couple
1999 M v H – discriminatory to prevent same-sex couples from making claims under family law act re: spousal support
Custody law is huge battle ground, lots of spousal support disputes.
Child support – if child is living in home at least 40% of time, child support obligations are nulled.
Until recently, in 85% of cases, women get sole custody. Remaining 15%, half are joint and other half father has custody
because mom is really messed up.
Last 10-15 years, special traveling inquiry on whether custody laws should be changed. Bill C-22 died on paper, aimed to
get rid of win-lose situation. Language was more about parenting responsibilities.
1
Until late 70s (1978) Children’s Law Reform Act – mattered for children whether you were illegitimate.
A lot of change:
 Huge numbers of unrepresented parties, 50%
 Hugely adversarial, not well suited to family law practice
 More emphasis on mediation
 Recalibration around collaborative lawyering
 Ought to be national? QC argues that it should have control.
o 1866 civil code, they used to have jurisdiction over marriage and divorce. 1867 Constitution Act took that
away.
o Remember uproar about Sharia law and families, wanted to use arbitration act to settle family disputes
under Sharia law. Province intervened to ensure that no religious group could arbitrate under Arbitration
Act.
 Law is almost like deer frozen in headlights. Scrambling to keep up.
2005 Civil marriage act – civil unification over marriage unlike:
In Israel, there’s no overarching civil policy for marriage. You must get married religiously and divorce will be based on
that faith’s traditions. Catholics can’t divorce there.
Charter unifies, also SCC. Labile area of law reflection political shifts and in constant flux.
Assisted Human Reproductive Act 2004 – something seriously wrong with paying donors and surrogates. Serious
implications for violations. QC challenged constitutionally saying that it wasn’t a criminal lawyer but rather, a health matter.
Therefore provincial. So now you can pay surrogates.
Question is whether there’s a right to be a parent? How does the definition of mother change with surrogacies, donors
etc? Are we quantifying babies?
What is a family?
Sauvé, Profiling Canada’s Families III (1)
 Defining a family is so difficult that many textbooks do not define it. Countries of the world could not agree on
definition at international summit.
 Vanier Institute defines broadly, accepts all types of families: …any combination of two or more persons who are
bound together over time by ties of mutual consent, birth and/or adoption or placement and who, together,
assume responsibilities for various combinations of some of the following:
o physical maintenance and care of group members
o addition of new members through procreation or adoption
o socialization of children
o social control of members
o productions, consumption, distribution of goods and services, and
o affective nurturance – love.
 Statistics Canada census: a married couple with or without children, or a couple living common-law (can be of
opposite or same sex) with or without children, or a lone parent living with one or more children. This excludes
persons living in collective households.
 Trends listed on pages 3-4.
Hovius, Family Facts (4)
 Lots of Canadian statistics
Baker, Thinking about Families: Trends and Policies (6)
 State includes government-funded agencies that enforce laws and policies
 Critics argue that state interventions are worse for visible minorities and those on social assistance
 Family is seen as basic unit of economic, physical, and emotional support
 Ideologies may not be realistic because advisors and policy makers don’t necessarily reflect everyday people
 Shift from idea that family is “safe haven from harsh world”, and distinction between “private world of family” and
“public world of work”
2
o
o
Fewer policies to the disadvantage of women and children, less turning of blind eye b/c family was seen
as private.
Increase in employer benefits, flex hours, leave time, etc.
Regulation of Family (9)
Payne and Payne, Canadian Family Law (10)
 Pre-1968, marriage = unilateral obligation on husband to provide lifelong support for dependent spouse
 Post-1968, governing consideration based on financial needs and ability to pay. Goal is self-sufficiency for each
party.
 Murdoch v. Murdoch (1975), wife’s non-financial contributions dismissed and not given ownership in ranch after
divorce. (OVERRULED by Rathwell v. Rathwell (1978))
 Unmarried cohabitants eventually awarded property rights, now extends to same-sex couples
 Children’s law: shift from Juvenile Delinquents Act to Young Offenders Act. More accountability by way of real
criminal charges but also granted protections of due process.
 Shift to collaborative family law, expansion of the field.
 Now shifting entirely to no-fault, from adultery and cruelty requirements. Will be entirely administrative procedure.
 Laws requiring adult children to support elderly parents who are economically insufficient will likely be enforced as
the system loses the ability to bear the costs of ageing population and reduced workforce.
 Children to grow increasingly involved in parenting plans, may include extended family members. Arrangements
mediated and arbitrated.
 Increased self-representation will mean judges actively manage cases from start to finish, may be separate
queues for those who have representation. Rules made more accessible and comprehensible.
Thompson, Rules and Rulelessness in Family Law: Recent Developments, Judicial and Legislative (17)
 Charter and federal divorce powers are resulting in homogenization of Canadian family law
Hogg on Family (19)
Framework 1867 – division of powers.
91(26) – marriage and divorce
 1930 – special piece of legislation for Ontario but almost immediately repealed
 1990 – marriage prohibited degrees act
 1968 – Divorce Act
 2005 – civil marriage act
 2000 – federal harmonization act
o harmonization of civil code with feds.
92(13) – civil and property rights
 Family Law Act, spousal support, division of property
 CLRA - custody
 Child Family Services Act
 Infants Act (N/A)
92(12) – jurisdiction over solemnization
 M (ON) A – Marriage Act Ontario
You’d expect the laws to be local because it’s so much about private laws and customs. In the US feds don’t have
jurisdiction.
Publishing of banns: if you announce intention to marry for three weeks at church, you can solemnize. This is how samesex marriage came about.
Essential validity of marriage – gender, age, risk of inbreeding, parental consent.
1912 – feds tried to pass piece of legislation that said marriage properly validated in one province would be recognized in
rest of country. It was found that law wasn’t constitutional, said that all marriage-related laws fell under federal jurisdiction.
Took power away from provinces. Privy Council said that provinces still had power over certain aspects, not all questions
of validity go to federal government.
3
Provinces say that you must be 16 for marriage but actually, federally is age 7!
Federal/Provincial Legislative Conflicts – Hogg (19)
Strictly provincial until 1968. Adoption reference in 1938, laid out clearly what was provincial jurisdiction. Province could
oversee adoption and maintenance of children, assumed under 92(13). Since this reference, they’ve had power over all
sorts of things like custody, guardianship, illegitimacy, welfare, maintenance, adoption.
 No comprehensive regime under Divorce Act: only child support, custody, and a bit on property.
Papp v. Papp (22, 23)
(corollary relief – DA)
(Interim custody order under DA. Issue: validity of the corollary relief provisions of the Divorce Act)
1. Test: if there is a rational, functional connection to the divorce, within the jurisdiction of federal government to
enact legislation relating to divorce  rational, functional connection is required between corollary relief and divorce
 Divorce Act provisions valid because these aspects are complementary to divorce
 Custody of children “bound up with direct consequences of marriage and divorce”
 Provincial courts have upheld decision for permanent custody orders.
 Also variation to orders upheld under DA if only issue is best interests of child (Skjonsby)
Child and spousal support orders are as valid if rational, functional connection to divorce. Original order for support need
not be made at time of granting divorce (Zacks). Payment by be periodic or lump sum (s.15(2) DA).
Property orders also permitted but feds can’t have elaborate property division scheme.
Conflicts of Laws (25)
Courts have no consistently upheld paramountcy  inconsistent patchwork of decisions. For support awards, feds
paramount.
Emerson (s. 15.2 DA) – re: marriage in different provinces, wanted variance of order but didn’t want to travel to other
province. Asked for variance under ON’s Infants Act. Judge invoked McKee & conflict of laws rule that best interests of
child is primary consideration. Understandable decision but bad idea. (judge couldn’t alter fed order from ON b/c made in
NB). This has been limited/destroyed by Ramsay and Hall (26).
 Hogg argues that since fed order must be connected to divorce, it’s inherently temporary. Court could decide that
enough time has passed and that order can be replaced by a provincial one. (26)
 Eg: order under divorce act, you don’t care about spousal support etc. Then you change you mind and you need
child support but that wasn’t decided under divorce act.
 Hogg refers to Richards case, saying that it goes too far on other side of spectrum from Emerson. You need an
actual inconsistency, conflict to trigger paramountcy. Must be two different orders that conflict.
 Next scenario: what if there’s a long separation arrangement and later divorce? Can the terms of the divorce
match the separation? Gillespie case – 1972. Order for custody under Ontario Infants Act. Then order in NB CA
under divorce act in custody. Express conflict so paramountcy prevails. Later order will prevail over prior order.
Charter (29)
 Ss. 7 (life, liberty, security) and 15 (equality) most used
 Violation of human dignity (from Law v. Canada) MORE RECENTLY RESTATED IN R. v. KAPP (30)
o 1) pre-existing disadvantage, stereotyping or vulnerability of the claimant or the group at issue
o 2) extent to which the law takes into account the actual need, capacity or circumstances of the claimant or
group
o 3) any ameliorative purpose or effect of the law
o 4) nature and scope of the interest affected
 no violation if s.1 Oakes test passes
Almost no impact on Family Law until 1982. Attachment to family is part of life, liberty. Now lots of polygamy cases under
s.15. AABBCC case – prohibited having more than one mother on birth certificate.
Bala, The Charter of Right & Family Law in Canada: A New Era (31)
 M. v. H (1999) – same-sex support, recognition of family unit’s fundamental importance
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
Walsh v. Bona (2002) – differential treatment between married and unmarried couples not discriminatory
NB v. G (J) (1999) – child protection proceedings pose fundamental threat to “security of the person” (context of
state powers to apprehend children)
***sympathetic factual context is essential, judges likely to invoke the Charter if it’s the “right thing to do”***
Review, Constitutional Issues:
1968 – Divorce Act came about. Added federal powers to provincial divorce legislation. Extensive, includes provisions
related to corollary relief: child support, custody, property. Dispute over which power prevailed, found constitutional. Feds
prevail with paramountcy if there’s a dispute. You’re not bound to use federal law, apply rational, functional test (Papp).
Marriage status (vs. Common law) will dictate whether common law or statute applies.
Institutional Framework (35)
Only federally appointed judges can sit on matters of superior courts: homes, divorce. 92.14: admin of justice in province,
incl. constitution, maintenance of provincial courts civ and crim. Provinces can create inferior courts. Means that there’s
lots of confusion. Some matters of family law: custody, access, support, can be dealt with in both superior and inferior
courts. Child welfare and youth court – exclusively prov courts. Divorce – superior court only.
Movement to create unified family courts. Jurisdiction over all legal issues related to family. Must be established by
province but judges are appointed by feds. There are 17 UFCs in Ontario. Mediation services are affiliated with courts.
Family Law Information Centres as well: help unrepresented parties. Superior: divorce, division of property, custody &
access to children. If not raised in course of divorce proceedings, child support and access can go to inferior court. Also
child protection and adoption matters.
A Note on Procedure in Family Law Litigation (36)
1.
2.
3.
4.
5.
6.
Case Conferences
Motions
Questioning and Document Production
Settlement Conferences
Trials
Costs
Payne, “Family Conflict Resolution” (42)
1.
2.
3.
4.
5.
Recent Trends in Family Dispute Resolution
The Crises of Marriage Breakdown
The Emotional Divorce
Marriage and Family Counseling
Negotiation
5
ADR in Family Law
Frustrations with court: lengthy, acrimonious, expensive. Lawyers/adversarial system likes adds to anger. Back-story
doesn’t get resolved, just minute functional arrangements. Over 95% of disputes settled outside of court. Generally
stressful/harmful for children. Evidence collected mostly through examination and x-exam, the subtlety may be lacking to
determine what’s in best interest of child. As family law moves from fault-based system, proving past events is no longer
necessary, examinations irrelevant.
Some provinces have mandatory education programs for those involved in custody – implications of separation and
divorce for the children. Parenting responsibilities, how much to share with children of different ages, access to resources,
community resources, parenting strategies.
Other modifications to family law b/c examinations are not the best way of evaluation children. Now, 3rd party
assessments from child psychologists or social workers are permitted. Assessors are informal first level adjudication. May
have less weight in court because it’ll be assumed that certain assessors consistently make certain recommendations. If
made through Office of Children’s Lawyer (MAG) – if a lawyer is appointed from here, they can provide legal
representation for child and social work assist. It’s free. Each home is assessed and parents interviewed. Children
interviewed and interaction with parent observed. School visit and interview with teacher. These reports are most
persuasive with court.
Case conference: judge will meet with family to get sense of issues if things went to trial. Trial is a different judge.
Effective alternative. Orders are avoided here because it can create harmful status quo in the long run, exceptions for
emergencies. (steps from p. 37)
 Explore the chances of settling the case
 Identify the issues that are in dispute and those that are not in dispute
 Explore ways to resolve the issues that are in dispute
 Ensure disclosure of the relevant evidence
 Note admissions that may simplify the case
 Set the date for the next step in the case
 Have the parties agree, if possible, to a specific timetable for the steps to be taken in the case before it comes to
trial
 Give direction with respect to any intended motion, including the preparation of a specific timetable for the
exchange of material for the motion and ordering the filing of summaries of argument, if appropriate
 Organize a settlement conference, or hold one immediately if appropriate
Social context to dissolution of family. Emotional crises. Parenting crises. Economic crises. Acrimony. Can take lifetime to
work out trauma of divorce but can be just as bad if family remained intact. Children often used as pawns.
Negotiation – goal is to minimize blinders. Reasonable settlement for both parties. Focus of negotiation is interest, not
positions. Forward focus, not past.
Mediation – parties determine themselves what kind of agreement they want to come up with. Can be lawyer but usually a
social worker. Tries to develop agreement that both parties can live with. More likely to stick with it because both sides
voluntarily agreed. Can be problematic because: concerns about whether mediation protects weaker party. Maybe be
inequitable for weaker party. Vulnerable party may want to quickly settle, especially battered women. Property issues may
be so complex that social workers don’t have the expertise to sort things out. Must make full financial disclosure,
mediation may not get at all of the required info. Solution may be to get agreement reviewed by independent parties to
even out inequities. Move to impose mandatory mediation.
Collaborative family law – anything disclosed with collaborative lawyers cannot be used in court if it goes there. You have
to start over if you want to go to court. Agreement to work things out, not win/lose. Changes how they relate to client and
other lawyer, they try to work out common resolution.
Arbitration – still an option. Enforceable in court.
Sharia law – amendment to provincial arbitration act in 1991 to allow provincial officials to use any law of foreign
jurisdiction applied if mutually agreed to. Mostly muslim Ismailis and Orthodox Jews used it, went along well.
 In 2003, Muntas Ali decided that musllims should be able to use the act like other religious groups. He advertised
that his mosque would perform family law arbitrations. (few actually happened)
 Lots of rumblings about having sharia law in Ontario.
6
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

Report was commissioned by same person who led amendments in 1991. Marian Boyd said it wasn’t a problem,
listed about 26 recommendations to ensure that weaker party had access to independent counsel.
Reaction was huge internationally. “Sharia courts coming to Canada”. The next day, McGuinty banned religious
arbitratio in Ontario. Next day passed the Family Statute Law Amendment Act. Thereafter, can only arbitrate
family law matters using Canadian laws.
You can still mediate religiously. Lots of private law making was left in place.
Aside: if you’re civilly married, you cannot arbitrate a divorce, nor can you get custody. If married religiously, there’s no
civil validity (unless officiator acts civilly as well).
In France, it’s criminally prohibited to get married religiously before civilly. Consider whether it should be the same here.
Or will people just arrange themselves according to beliefs anyway? Keep in mind that s.2 of Charter increasingly has
relevance to Family Law matters.
Creating a Valid Marriage (87)
Practical contexts: action for annulment is quite rare. About 15 per year vs 50,000 divorces.
States usually recognized foreign marriages but same-sex marriages have caused problems. Divorce doesn’t apply if
marriage was never valid.
Comes up also in estates disputes, old person marries young under pressure, children dispute esp. if case of intestacy.
Essential validity (capacity to marry): 91.26
 Mostly from common law at time of confederation (1867)
Formal validity (ceremony): 92.12
2005 – first civil marriage act. Before then, no specific federal marriage act. No comprehensive legislation, it’s common
law.
(Marriage) Prohibited Degrees Act 1990 – who you can marry, who you can’t
Before 2005, there was section s.1.1 of modernization of benefits act. Flows from 1999 M v. H decision. Interpretive
definition of marriage: man & woman.
2001 – federal act passed in 2001. Federal harmonization act.
1866 – QC entered confederation with their own civil code. 1994 – QC passes new/modernized civil code. Harmonized
with federal code. Harmonization act in 2001, federal. Sentence in there that applies only to QC, marriage between man
and woman (s.5).
Definitions of essential validity are embedded in common law. Most issues in regard to validity of marriage re: capacity are
governed by common law.
Ontario – Marriage Act of ON: solemnization. Requirements of ceremony, etc.
Essentials:
 Before Halpern, would not be valid if parties not of opposite genders
o No remedies, did not have to go to court to have it declared void
o Hyde v. Hyde (polygamy) – definition of marriage: one man, one woman. Christian take.
 Rights and obligations to each other and to the state. Also third parties, spousal benefits, hospital visits, accident
benefits.
 Concerted campaign by gays and lesbians to change definition. 1892 – 1969, same-sex sex was criminalized,
esp. sodomy. Was also considered a psychiatric disorder. Could not serve openly in armed forces.
 1980, 90s – move to eliminate homosexual discrimination
 1990 – allowed to use constructive trust doctrine
 1995 – Egan. Appellants go to SCC. Two gay men lived together since 1948, including financial interdependence.
Partner applied for spousal allowance. Application rejected because he wasn’t a spouse. Challenged under s. 15.
SCC ruled that discrimination on basis of sexual orientation is an analogous ground. But exclusion of same-sex
partners of benefit didn’t violate equality provisions of the charter. Asked if there is a distinction between claimant
7
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
and others. Does the distinction impose a burden? Yes. Irrelevant personal characteristics? Yes. Biological and
social reality that hetero couples have linked to ability to procreate. Egan failed on this last question. LaForest
defined nature of marriage. Sopinka had swing vote, sided with Laforest. Government didn’t need to be proactive
in recognizing new social relationships. Suggests evolutionary approach, which it catalysed.
1998 – Vriend: failure of AB to include sexual orientation as prohibited right in human rights statute.
1999 – M v. H: support claim from lesbian couple. Wanted to use s.29 from Family Law Act for spousal support.
Precluded same-sex couples. SCC: exclusion of same-sex couples violated s.15 and was not saved by s.1.
Involved different legislation from Egan so not bound. Weighs on private individuals, doesn’t tap state resources.
Recognition by majority that economic interdependence can arise in same-sex relationships. Demeaning to
exclude from definition of spouse, suggests that less worthy. Emphasize lesbian couple to cohabiting couple, not
married couples. Remedy proposed: province given 6 months to respond. Ontario/Harris was cowardly: Act
because of M v. H: made 67 amendments. Same-sex partner was given same rights and obligations. Where it
said spouse, same-sex partner was added. Didn’t confuse spouse definition. Other provinces followed suit. Feds
passed the Modernization of Benefits Act in 2000 to ensure that all common law relationships be treated equally
under federal law. Meant that same-sex couples were now treated almost equally to married couples.
Review
Marriage
91.26: CMA, M(PD)A, FHA, Modernization of Benefits Act
Common Law: remember Hyde v. Hyde for def of marriage (old)
92.12: MA Ont.
Divorce/Dissolution
91.26: Divorce Act
92.13: FLA s. 29 b/c of M v. H, CLRA
After the three core cases above, flurry around the world to give gays and lesbians everything but the symbolic marriage.
Other proposals: civil unions, registered domestic partnerships (RDPs). You can register relationship, rights arise from
time of registration. Some jurisdictions excluded right of adoption. Sometimes RDPs only available for gays and lesbians.
Also consideration of roommates and allowing registration. Easy dissolution: unregistration. QC offered: civil union
imbedded in civil code, equivalent to marriage but for name.
Efforts to change law: systemic and concerted
 Egale (2001 BC, 2003 CA): same-sex couples wanted to marry and had applied for prov marriage licence. Each
was refused. Applied that marriage of same-sex not prohibited at common law or by statute. Lower court: Pitfiled
denied application because 91.26 implicitly defined marriage. Definition frozen. That argument was overturned on
appeal and in Hendricks. Constitution is a living tree, allows for evolution.
o Appeal: Also suspended legislation and gave gov 2 years for amendments.
 Halpern (2002 ON, 2003 CA): denied provincial marriage licence, Hyde definition again. Also attempt to marry
through publishing of banns (3 weeks of posting at church). Were not permitted to register despite banns. Lower
court allowed application, held that Hyde definition unconstitutional under s.15. Issued order of invalidity for 24
months, opportunity to amend legislation.
o Appeal: CA agreed with lower court but said Hyde was invalid under s.15. Didn’t want to give gov 2 years,
declared it invalid immediately. Rejected procreation essence. Formal distinction on basis of sexual
orientation is discriminatory. Emphasized that refusing right to gays & lesbians to marry assaulted dignity.
Because issue was common law decision, not necessary to wait for parliamentary reform. As of June 10,
2003, same-sex marriage was possible in Canada.
o June 17, 2003, PM issued statement that Halpern decision would not be appealed. Feds couldn’t dictate
whether religious officiants would be required to perform same-sex marriage.
 Hendricks (2002 QC): challenge to Federal Harmonization Act. QC defined marriage in civil code. Held
unconstitutional, again attempt to give everything but marriage.
Marriage ref:
 Upheld definition of marriage as constitutional and this became the Civil Marriage Act.
Comparing right to refuse to do abortions: doctors aren’t public officials.
Distinction between gov official and religious official. As result of Civil Marriage Act, amendment to prov legislation that
removed gender from legislation, one minister refused to performed same-sex marriage.
8
Ref: Marriage commissioner case in CanLii (Kamloops). Proposed legislation tried to grandfather commissioners before
2004 so that they could exempt themselves. 2004 onwards, objection possible with referral. Held to be assault on dignity,
still.
Statute Amendment Act (2002) – amendment to marriage act in 2005 (note 4 in hovius?), added to s.20(6). Allows people
who are registered to perform marriage ceremonies to refuse to perform marriages if violates religious principles. Interacts
with s.24, legislatively it’s judges and justices of peace but under regulations you can register as an officiant. Religious
officials can wear two hats: civil servant and religious official. Exemption only applies to those registered uner s.20(6). So
if you’re permitted to marry under legislation, exception doesn’t apply. Does apply to everyone else, so basically the
religious officials.
Void vs. Voidable Distinction
Void = fatal defect, marriage never formed (e.g. same-sex marriage 10 years ago)
 Not necessary for court to declare marriage void
 Third parties may challenge validity of a void marriage (even after death)
 Arises with respect to obligations to provide benefits to third parties, children after the death of a parent
Voidable = valid until court pronounces the marriage annulled with retroactive effect
 Only the parties to the marriage may challenge validity of a voidable marriage during lifetime
 Voidable marriage may end by divorce but no divorce may be granted if the marriage is void
 Court action essential to retroactively nullify, discretion of judge whether void or voidable
These common law rules are altered by statute – protections for children notwithstanding validity of marriage; spousal
support (if cohabitation); division of property (constructive trust)
Constitutional Framework




Essential validity = legal capacity to marry (federal government, section 91(26))
Formal validity = ceremonial or evidentiary requirements (provincial government, section 92(12))
Essential validity of marriage is governed by the common law as the federal government has not occupied the
field until the Civil Marriage Act (2005)
Except:
o Federal Marriage Prohibited Degrees Act (1991)
o Federal Modernization of Benefits and Obligations Act (no longer operative)
 Section 1.1 defined marriage as “the lawful union of one man and one woman to the exclusion of
all others”
o Harmonization Act (2001): harmonized Quebec civil law and federal private law, section 5 defined
marriage as heterosexual (overturned)
Hahlo, “Nullity of Marriage in Canada” (87)
Distinction between an annulment and divorce:
 Divorce presupposes a valid marriage (based on a post-nuptial event)
 Nullity results from some defect or disability which exists at the time of the marriage ceremony and prevents a
valid marriage from coming into existence
Effect of Invalidity (132) (see book too)
Same-sex: valid
Second marriage: void ab initio
Prohibited degrees: void ab initio
Prior existing marriage: void
Identity of sex: void
Religious marriage: void (per state)
Failure to comply with formalities: generally valid, except where the applicable Marriage Act, expressly or by necessary
intendment, decrees nullity
Non-age: void but ratifiable
Minors (below age of consent): valid
Insanity, drunkeness: void, ratifiable
9
Force, fear, duress: voidable by coerce party
Mistake re nature of ceremony: void, ratifiable
Mistake re qualities of spouse: valid
Fraud, unless by material mistake: valid
Formally correct without true intent (immigration): valid
Limited purpose: valid (but controversial)
Non consummation: voidable by either spouse
Evolution of Same-Sex Marriage
 Traditionally, marriage was defined “as understood in Christendom, the voluntary union for life of one man and
one woman to the exclusion of all others” (Hyde v. Hyde, 1866)
o Egan and Layland referred to this definition
o Hyde was decided in the context of polygamy laws (“one”) not same-sex marriage
 Several cases challenged this position under Section 15 of the Charter
 Only married individuals had certain obligations vis-à-vis the state, spouse and third parties
 Cohabiting individuals were recognized as spouses even if unmarried
 Miron v. Trudel (1995): cohabiting couple successfully challenged the definition of spouse under an automobile
insurance policy for the purpose of entitlement to benefits
o SCC held the definition of spouse which excluded unmarried cohabitants violated section 15
(discrimination on the basis of marital status)
 In Alberta, Taylor forced the government to expand the definition of spouse to recognize common law
relationships in the Alberta spousal support legislation
 Common law relationships challenged the traditional concept of family which launched a series of same-sex
marriage challenges  extending definition of “spouse” to afford same-sex partners equivalent rights as common
law opposite-sex partners
 Significant reversal of the discriminatory policies and laws historically faced by same-sex couples
 In 1989, Canadian Human Rights Code defined same-sex couples as “family”
 In 1990, same-sex couples could invoke trust doctrines for the division of property on separation; recognized
adoption rights of a lesbian partner of a child’s biological mother; recognized same-sex couples for the purposes
of granting medical consent
 Layland (1993): Charter challenge by same-sex couple who were refused a marriage license
o In upholding the decision not to grant a marriage license, Ontario court ruled that precluding same-sex
partners from marriage was not discriminatory because the legal definition of “marriage” was a union of
“one man and one woman”
o Justification: “one of the principle purposes of the institution of marriage is the production and care of
children, which cannot be achieved in a homosexual union”
 Egan v. Canada (SCC, 1995): Applicants were two gay men (committed long-term relationship characterized by
interdependence). When one partner turned 65, he began to receive old age security. When the other partner
turned 60, he applied for a spousal allowance but was rejected because he was not considered a “spouse” under
Old Age Security Act which provided benefits to married spouses and common law opposite-sex cohabitants for
at least 1 year.
o Split decision: dismissed Charter challenge
o SCC ruled that sexual orientation is an analogous section 15 ground of discrimination and the distinction
was based on a relevant personal characteristic (sexual orientation)
o Therefore, the exclusion was discriminatory but saved under section 1 – since same-sex couples could
not biologically procreate, differential treatment was not discriminatory
o Sopinka J. indicated that while court was reluctant to recognize novel social relationships, inaction by
legislature to address discrimination against same-sex couples would merit intervention of the courts 
opened the door to recognize evolution of Canadian law and society
o Sopinka J. also suggested that the government was not obliged to proactively recognize protect the rights
of same-sex couples in the context of entitlement to benefits which require expenditure of public funds
(relationship to polygamy?)
 Vriend (SCC): Alberta precluded from excluding discrimination based on sexual orientation as a ground for
complaints under HRC
 M v. H (2000, SCC): SCC ruled that Ontario FLA which excluded same-sex couples from the definition of
“spouse” (excluding same-sex partners from spousal support obligations), FLA violated section 15 and was not
saved by section 1
o Not bound by Egan because concerned different legislation and private interest (not public benefits)
o Rejected procreation justification: same sex relationships involve children by adoption, etc., eligibility for
support does not require opposite sex couples to have children
10
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Recognition that economic dependence arises in same-sex relationships, demeaning to human dignity to
exclude same-sex couples
o However, comparator group limited to cohabiting individuals and NOT opposite-sex married relationships
(not characterized by the same economic and other inequalities)
In response to M v. H, Harris government passed the Amendments Because of the Supreme Court of Canada
Decision in M v. H. Act – amended the Family Law Act and 66 other statutes to recognize the rights and
obligations of same-sex couples
Did not redefine definition of “spouse” but included separate provisions indicated that the statutes applied to
same-sex, cohabiting partners (other provinces passed similar legislation)
In 2000, federal government passed the Modernization of Benefits and Obligations Act which amended 67 federal
statutes  same benefits and obligations applicable to married persons afforded to “common law partners”
o However, while legislation treated same-sex and heterosexual cohabitants equally, maintained the
distinction between same sex partners and opposite sex married individuals in Section 1.1 – “For greater
certainty, the amendments do not affect the meaning of the word marriage, that is, the lawful union of one
man and one woman to the exclusion of all others”
o This is only an interpretive provision (no legal force)
Therefore, same-sex couples entitled to all rights except marriage
Significant movement around the world to create “civil union” or “registered partnership” legislation in anticipation
of same-sex marriage in Canada – effectively provides same sex partners with the same rights and obligations as
married persons except marriage
In 2002, Quebec passed civil union legislation
Halpern v. Toronto (City) (2003 ONCA) (90)
(same-sex)
(Application by group of same-sex couples denied marriage licenses. Lower court ruled that the common law definition of
marriage was unconstitutional.)
HELD: Common law definition of marriage is unconstitutional (violation of s. 15 and not justified under s. 1) – declaration
of invalidity effective immediately
 Rejected reasoning in Egale that the definition of marriage is constitutionally entrenched (contrary to pluralistic
society, Constitution as a living tree, Marriage Reference)
 Common law definition of marriage creates a formal distinction which violates human dignity notwithstanding the
substantive rights afforded to same-sex partners (e.g. Modernization of Benefits and Obligations Act)
 In light of the social significance of the institution of marriage, denying same-sex couples the fundamental right to
marry perpetuates the view that same-sex relationships are not worthy of the same respect and recognition as
opposite-sex relationships (right to marriage is not merely symbolic)
 Rejected notion that procreation is the only purpose of marriage (intimacy, companionship, societal recognition,
economic benefits, etc.)
o Heterosexual married couples will not cease having children because same-sex couples are permitted to
marry, many children are born to and raised by same-sex couples (encouragement of procreation is not a
pressing and substantial objective of maintaining marriage as a heterosexual institution)
 Remedy: since common law definition of marriage was challenged, not necessary for Parliament to redefine
marriage
o Reformulated the definition of marriage as “the voluntary union for life of two persons to the exclusion of
all others”
Note: Federal government had the opportunity to appeal but declined
11
Reference re Same-Sex Marriage (2004 SCC) (97)
(same-sex)
(Federal government referred a Proposed Act redefining the definition of marriage to SCC which contained two provisions:
1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others
2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in
accordance with their religious beliefs)
Reasons:
Question 1: Is the Proposed Act within the exclusive legislative authority of the federal government?
 Section 1 (definition of marriage) is within the exclusive legislative competence of Parliament while section 2 is
not
o In pith and substance, pertains to the legal capacity of marriage (section 91(26))
o Effects on provincial jurisdiction (section 92(13)) are incidental
 Section 2 is ultra vires federal jurisdiction because matter of solemnization under section 92(12)
Question 2: Is section 1 consistent with the Charter?
 Section 1 is consistent with the Charter
 Recognizes equality rights of a minority group and therefore, no violation of the rights of other groups
Question 3: Does the freedom of religion protect religious officials under section 2?
 Guarantee of freedom of religion in the Charter affords religious officials protection
 Proposed Act is limited to civil consequences of marriage and not religious marriage
 Section 2 is interpreted as ensuring that religious officials are not compelled to perform civil same-sex marriages
Question 4: Is the opposite sex requirement for marriage consistent with the Charter?
 Declined to answer this question
 Not necessary to answer this question as government is introducing legislation, federal government refused to
appeal Halpern, would undermine uniformity of the law in Canada
 Judicial activism concern
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Federal government passed the Civil Marriage Act (2005)
o Section 2: “marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others”
o Section 3: religious officials may refuse to perform marriages not in accordance with religious beliefs
o Section 4: “a marriage is not void or voidable by reason only that the spouses are of the same sex”
o Section 8: amends Divorce Act to redefine spouse as “either of two persons who are married to each
other”
Harper government: free vote on whether to reopen the question but would not invoke the notwithstanding clause
(defeated by a vote of 175 to 123)
Canada is the 4th country to legalize same-sex marriage
United States: constitutional problem (federal government has no jurisdiction to legislate)
Marriage as a contract ceding to marriage as a status (state intervention)
Law Reform Commission of Canada queried interest of the state in marriage
o Limited to regulating vulnerable relationships
Transexuality: no longer relevant with respect to validity of marriage (definition of marriage)
Consummation (103)
 Some jurisdictions have abolished ability to consummate as a requirement to a valid marriage; however,
continues as a requirement in Canada
 Incurable inability to consummate renders the marriage voidable
o Voidable only by a party to the marriage
 Requirement of consummation requires a single act of heterosexual intercourse
 After consummation, absence of sexual relations will not affect validity (although potential ground of cruelty for
divorce)
 Difficult to reconcile with validity of same-sex marriage (Civil Marriage Act, section 4)
o Not voidable by reason of same-sex only. Gender no longer an issue, act of penetration required.
o Only parties themselves can have it declared void
 Consummation related to traditional concept of marriage (not relevant today)
 Policy: is the state’s interest in protecting institution of marriage justified?
 These cases reflect the traditional hetero-normative conception of marriage and traditional characterization of
sexual relationships (husband’s right, penal penetration of vagina)
12
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Until 1983, husband had the legal right to have sex with his wife even after separation without consent
Inability to consummate is not concerned with satisfaction or ability to conceive
Gajamugan v. Gajamugan (1979 ON HC) (103)
(annulment - consummation)
(Arranged marriage. Wife had scars on her face he was not aware of. Husband plaintiff claiming he developed a mental
revulsion and was therefore, unable to consummate. Whether his inability to consummate was sufficient for annulment of
the marriage?) Annulment granted, marriage voidable and declared void.
Reasons:
 Essential elements to be proved in an action of nullity because of inability to consummate:
o (1) Impotence must exist at the time of marriage
o (2) Incapacity must render intercourse impractical
o (3) Incapacity may result from a physical or mental or moral disability
o (4) Impotence must be incurable
 Court satisfied inability to consummate was incurable. Medical evidence wasn’t necessary because he testified.
Sympathy of male judge to man in this case.
 Wife attempted to commit suicide, shameful in her religion and was forced to return to her country.
Note: irrelevant today because divorce available, implications for woman (forced to return to country repudiated by exhusband)
Norman v. Norman (ON UFC, 1979) (105)
(conjugal definition)
(Elderly couple married for companionship (second marriage for both parties) and separate because of a quarrel rather
than lack of sexual contact. Lived together for 6 months. Wife demanded annulment for non-consummation. Voidable, not
void.)
1. A marriage is not invalidated for inability to consummate where there is an implied waiver of consummation.
HELD: Annulment not granted
 Rejected application because of lack of sincerity – true reason for separation was quarrel and not failure to
consummate
 Due to age of the parties, no real expectation of intercourse
 “Not open for an applicant who knowingly entered into a platonic marriage, to complain of the absence of sexual
intercourse”
Aisaican v. Kahnapace (1996 SK QB) (105)
(annulment - consummation)
(Two weeks before the marriage, husband was rendered quadriplegic and incapable of intercourse. Wife sought an
annulment.)
1. A petitioner’s knowledge of the impotent spouse’s incapacity prior to the marriage is a bar to a decree of nullity.
Held: Declaration of nullity denied for two reasons
 (1) No medical evidence that the impotence was incurable
 (2) Wife had knowledge of the condition before the marriage (onus on petitioner to establish lack of knowledge)
Note: Element of concept of marriage as a contract (she had knowledge of the defect and waived consummation)
Outside Prohibited Degrees of Consanguinity and Affinity (108)
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If two persons fall within prohibited degrees of consanguinity (relationship by blood) and affinity (relationship by
marriage), prohibited from marriage
Traditionally restrictive
Marriage (Prohibited Degrees) Act (1991)
o Old definition = two persons are within prohibited degrees only if they are (i) related lineally by
consanguinity or adoption; (ii) brother and sister by consanguinity, whether by the whole or half blood; or
(iii) brother and sister by adoption  “no person shall marry another person if they are related lineally, by
consanguinity or adoption”
o Incidental amendment in 2005 – same-sex partners. Changed a slew of definitions, including this one.
 Step-parent can no longer marry step child. No case law on interpretation.
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Traditional policies: insulation of the nuclear or extended family from sexual meddling, genetic defects,
preservation of social norms or religious beliefs
Repeal of all relationships based on affinity by marriage
Bill C-38 (Civil Marriage Act)
o New definition = “no person shall marry another person if they are related lineally, or as brother or sister
or half-brother or half-sister, including by adoption”
o “Consanguinity” removed (unclear)
o Therefore, prohibited from marrying parent or grandparent including by adoption
o However, child may regard a step-parent as a parent (in loco parentis) but permitted to marry if not
adopted
Civil Marriage Act resulted in consequential amendments to other statutes (only intended to legalize same-sex
marriage)
If mischief targeted is preventing step parents from marrying step children, this mischief remains (similar to
polygamy)
Marriage Prohibited Degrees Act
 Senate got sick of seeing the private bills for marriage within degrees
 General principle: can’t marry person who has close genetic or social relationship to you
 Previously, you could marry your adopted sister/brother etc.
 Now scheme, s. 2. No person shall marry the person if related in direct line, or as sibling or half-sibling, including
adoption. Consanguinity applies.
 Marrying step-father would be permitted.
No Prior Existing (Civil) Marriage (109)
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A marriage is void: ab initio if one of the parties is, at the time of the marriage, already a party to a prior existing
marriage. This is a common law concept.
Bigamy is criminally prohibited
Meszaros v. Meszaros (1969 ON HC) (109)
(presumption of death)
(Petitioner married Mr. Hamaida. Shortly before he deserted her, he advised her that he had a wife in Russia but she was
unable to verify this information. She secured an order declaring Mr. Hamaida dead. Under the Marriage Act, order
granted if spouse continuously absent for 7 years and no reason to believe spouse is living. Petitioner married Meszaros
until he forcibly ejected her from the matrimonial home. She petitioned for divorce on the grounds of cruelty. Meszaros
claimed marriage not valid because prior existing marriage and therefore, may not grant divorce.)
1. The second union is presumed valid unless and until it is demonstrated that the person presumed dead was not in
fact dead at the time of the solemnization of the second marriage
HELD: Marriage valid (presumption of death), divorce granted and corollary relief available.
 Hamaida marriage: presumption that parties who have lived together and held themselves out as man and wife
are validly married
o Interest in stability, protects third parties
 If her first husband was married by the time she wanted to marry again, the Hamaida marriage would be void and
she could married Meszaros.
 Evidence of Hamaida’s prior marriage was insufficient and therefore, marriage valid
 No evidence to suggest Hamaida was alive at the time of the second marriage – presumption of death. This is
redundant.
She didn’t present enough evidence re: first marriage but presumption of death applies. May not be correctly decided, you
cannot have a previously valid marriage if you want to remarry.
14
Bate v. Bate (1978 ON HC) (110)
(presumption of validity)
(Petition for divorce on the grounds of adultery and 3 years’ separation. Husband opposed the action on the grounds that
the marriage was void by reason of a valid marriage subsisting between the petitioner and her first husband (avoiding
support obligations). First marriage was purportedly dissolved by a divorce decree granted in Nevada “quickie divorce”.)
1. Presumption of validity of the marriage and prior divorce decree if evidence of marriage ceremony and divorce decree
are adduced.
HELD: Divorce not recognized in Canada, first marriage valid and therefore, marriage to respondent void.
 Burden shifts to husband to adduce some evidence as to the invalidity of the divorce decree
 In Nevada, no residency requirement to obtain divorce
Not as relevant today because if cohabiting for period, rights to support. State interest in stability and presumption of
validly formed marriage, even if records are destroyed or something.
S.24(3) of provincial marriage act – if you’re married by a civil servant or registered official, there are formal requirements
but also mandatory provision for all marriages. No particular set of words is required, except that at some point during
ceremony, “I do solemnly declare that I do not know of no lawful impediment to marriage … why I cannot be married”.
Review
Eg: you’re married civilly by catholic priest. (and formalities are fine) Under jewish law, husband must grant divorce. In
Catholic case, you may get a civil divorce but not religious one. So would a previous marriage count? Religious
marriages are regarded as nullities for the state. So no lawful impediment.
 Conjugal union on family law: need to understand status of religious marriage. What’s a lawful impediment?
o Eg: Israel and France – polar opposites for marriage. In Israel, millet system, no civil marriage. No judicial
civil divorce, you can only marry religiously. Religious law has validity for state. Opposite in France,
religious marriage prior to civil ceremony, priest is liable! No validity of religious marriage. Canada is
somewhere in between with common law.
 England before 1836 – similar to Israel. Had to be married by church unless Jewish. 1836 new
law that allowed civil marriage.
 Marriage Act S.23 – allows registration of religious officiates as civil servant.
 1857 England – Matrimonial Causes Act brought in judicial divorce.
 So Canadian laws make religious ceremony a nullity, must be civil bureaucracy as well.
 Marriage Act, s.24(3) – must go through these sections for civil marriage.
Consent: Capacity to Understand (112)
Marriage is a voluntary and consensual union – you have to give true and informed consent. Analogies to contract law.
May not be valid consent if there’s fraud or a mistake.
Banton v. Banton (1998 ON Gen Div) (112)
(test for capacity)
(Elderly man suffered from illness – prostate cancer, incontinence, loss of testes – and lived in a retirement home. His first
wife died when he was 64 and he married his sister in law who died. He was befriended by Muna (31 year old waitress in
the restaurant at the home). Under Mental Health Act, he was declared financially incompetent and his assets were
placed under guardianship. Unknown to his children, he married Muna and a ceremony was performed at her apartment.
He remained at Muna’s apartment that night and returned to the home the following day. He instructed a new will to be
drafted providing Muna a power of attorney. Medical evidence indicated he lacked capacity to manage property (although
conflicting opinions). The children challenged Muna’s inheritance claiming that both the will and marriage were invalid
(marriage void because he lacked the mental capacity to enter into the marriage).)
1. Test of capacity to marry: “an individual will not have capacity to marry unless he or she is capable of understanding
the nature of the relationship and the obligations and responsibilities involved” (low standard)
 Low standard, contract between spouses. Presumption of validity.
 If no capacity for consent, marriage is void. But there’s middle ground, possible to ratify marriage by conduct after
marriage is in question. Cohabitation after marriage would ratify.
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Two different thresholds for marriage and will
Consummation unlikely but would be merely voidable. Muna would have to claim it (no 3rd party claim).
Suspicious circumstances around will – undue influence from Muna.
Despite incapacity to manage property, he did have capacity to marry.
15
Consent: Duress (119)
Can be grounds for setting marriage aside. Initiates consent, fear of violence. Courts aren’t quick to set aside marriage on
duress – presumption of validity again.
S.(A.) v. S. (A.) (1988 ON UFC) (119)
(16 year old girl was sexually abused by her stepfather. Her parents arranged a marriage for the purposes of immigration
for which the parents received $2,000. Duress did not emanate from the husband groom but her mother. Marriage was
not consummated and there was no physical force.)
1. To constitute duress, it must be established that the applicant’s mind was so overcome by oppression that there was
an absence of free choice. Oppression may take various forms – psychological (fear, persuasion, pressure) or
physical force.
 Marriages are voidable on the grounds of duress subject to judicial discretion
 Subjective test = state of mind of the applicant
o Physical force is not required
o Circumstances considered: age, maturity, emotional state and vulnerability of the applicant; lapse of time
between the conduct alleged as duress and the marriage ceremony; whether marriage was
consummated; whether the parties resided together; lapse of time between the marriage ceremony and
the annulment proceeding
HELD: Annulment granted.
Thomson – 1981 case SK: woman depressed, consistently asked to marry him. Changes mind just before ceremony. But
unwilling to cancel, fears social consequences. Mother urges her to go forwards. This was considered insufficient duress
for invalidation. Mere reservations insufficient. Prefer certainly over flexibility or fairness. Clear public act, court holds to
commitment or termination under Divorce Act.
Arranged Marriages
Parihar v. Bhatti (1980 BCSC) (122)
(arranged marriage)
(Arranged marriage. If she refused to marry, she would face repudiation and profound social alienation by her family and
the community.)
 Facts presented not sufficient to nullify the marriage
 There are many situations where families impose pressure to enter into a marriage; however, the duress sufficient
to set aside the marriage must be of such a nature that her powers of volition were so affected that there really
was no consent
Is this because it would nullify cultural practice? Why differentiate from other cases?
Note:
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In SA v. SA, duress existed notwithstanding lack of physical harm
Compare to polygamy (Bountiful community)
Hirani v. Hirani: choice of marrying or leaving home with no means of support = duress
Limited Purpose Marriages, Fraud, and Mistake (123)
 Marriage valid even if for citizenship and no consummation
 Consent: “they must assent to entre in to the relation as it is ordinarily understood, and it is not ordinarily
understood as merely a pretence, or cover, to deceive others” (Rubenstein case, Judge Learned Hand)
Iantsis v. Paptheodorou (1970 ON CA)
(immigration)
(Marriage ceremony when the wife was 20 for immigration purposes. She alleges she was an innocent party as a victim
of her husband’s deception as to purpose (i.e. mistake). No cohabitation, uncertain whether consummation.)
1. A fraudulent or innocent misrepresentation will not of itself invalidate a marriage unless the fraud or mistake induces
an operative mistake as to the nature of the ceremony or identity of one of the parties to the marriage (limited
grounds).
 May be invalidated where there’s a mistaken identity or mistaken about nature of ceremony. Other mistakes about
other aspects of party (fake pregnancy etc), too bad.
 Transexuality? If marry and partner is really a man (sex change), not invalid given Civil Marriage Act
16
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Parties are only required to intend to create a valid marriage (motivation irrelevant) – court thereby avoids
addressing the proper content of a marriage
In Canada, a marriage is not invalidated solely on the basis that the marriage was for convenience or the purpose
of evading immigration laws
Policy: encouraging awareness of individuals to motives of spouse. Serious public undertaking, hold them to
marital tie.
Issue of validity of marriage and immigration status are distinct – even if a marriage is valid, immigration
authorities may not recognize a marriage and refuse immigration status if the marriage was not bona fide
Parties to an limited purpose marriage are entitled to divorce under the Divorce Act if living separate and apart for
one year (however, collusion may bar granting of divorce)
Questions of validity of marriage and immigration status are entirely separate. Immigration may still be refused, requires
bona fide marriage.
Summary: we dealt with opposite-gender, Halpern case. Ability to consummate, must render impractical. Can be moral or
mental incapacity, must be incurable. Not necessarily grounds for invalidation. Dealt with prohibited degrees.
Consanguinity. Can’t have second marriage unless first is taken care of. Presumption of validity. Consent: low threshold,
just need to appreciate nature of decision. Can ratify afterwards by subsequent behaviour. Marriage is valid unless there’s
fraud or mistake re: nature of ceremony or identity of person.
Formal Validity: Age (125)
s.91(26) – Technically 7 yrs but voidable once male turns 14 or female 12. Ratifiable by conduct.
Solemnization – Marriage Act (ON). You can form marriage through public notice, through licence or publication of banns.
Rules relating to celebrant, can be religious officiant or civil servant. Two witnesses – s.25. Marriage must be registered to
be valid, duty on celebrant (officiant) to register.
Complex issue on constitutional grounds. Legitimate policy concerns. Bizarre void in law: establishing age for valid
marriage is one of areas that feds haven’t occupied. Divorce Act ON, 1930, repealed by 1968 Divorce Act: common law
understanding of valid age for marriage. Under fed common law, marriage under age 7 is void ab initio. If male child is
older than 7 but younger than 14, it’s merely voidable (assailed by one of marriage parties). If female older than 7,
younger than 12, voidable. Some provincial legislation has attempted to fill the void. Provincial age 18 or 16 with parental
consent (S. 6 of provincial marriage act) but that’s probably ultra vires. It would fail constitutional scrutiny. Age goes to
essential capacity to marry, federal jurisdiction.
 Age laws are out of whack with social expectations.
 If you entered into marriage that was void because of age, being married for 20 years there after, it could be
ratified.
17
Marriage Act, ON, ss. 5, 6
Provinces hugely frustrated on principle by federal government failure to pass minimum age standard. S.5(2) of ON
Marriage Act – requires parental consent for minor under age 16 to get marriage license. This is ultra vires. S.6(1) of ON
Marriage Act – can do away with parental consent by court order.
Who may marry
5. (1) Any person who is of the age of majority may obtain a licence or be married under the authority of the publication of banns,
provided no lawful cause exists to hinder the solemnization. R.S.O. 1990, c. M.3, s. 5 (1).
Idem
(2) No person shall issue a licence to a minor, or solemnize the marriage of a minor under the authority of the publication of banns,
except where the minor is of the age of sixteen years or more and has the consent in writing of both parents in the form prescribed by
the regulations. R.S.O. 1990, c. M.3, s. 5 (2).
Application to dispense with consent
6. (1) Where a person whose consent is required by section 5 is not available or unreasonably or arbitrarily withholds consent, the
person in respect of whose marriage the consent is required may apply to a judge without the intervention of a litigation guardian for
an order dispensing with the consent. R.S.O. 1990, c. M.3, s. 6 (1).
May be implications around property or pension. S.1(1) FLA – definition of spouse that includes married for spousal
support. S.29 FLA speaks to cohabitating spouses. Even if you lack good faith (Alspecter), you can still have access to
spousal support under s.29.
Alspector v. Alspector (1957 ON CA) (126)
(religious marriage)
(Elderly couple married intending to move to Israel. Ceremony was performed in Toronto by a cantor in accordance with
the requirements of the Jewish faith. The parties neglected to obtain a marriage license. Husband was aware that
absence of a license would render the marriage invalid in Ontario but believed license not necessary because moving to
Israel. Wife was aware that no license was obtained but did not understand the consequences. Couple lived together for 7
years and the husband died. Husband’s family challenged the validity of the marriage to exclude the wife from the estate.)
 See s. 31 Ontario Marriage Act: if the marriage was solemnized in good faith and intended to comply with the Act,
the marriage is deemed valid if the parties, after such solemnization, lived together and cohabited as man and
wife (notwithstanding an irregularity or defect)
 If one of the parties solemnized the marriage in good faith, the other party is not permitted to benefit from the
defect (on the basis of his or her own fraud)  wife intended to comply with the law
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Presumption of validity of marriage if the parties act in good faith
Law gives effect to expectations and promotes stability of relationships
Provinces may legislate with respect to formal validity of marriage; however, presumption of validity applies
unless legislation explicitly provides that marriage is invalid if formal requirements not satisfied
Marriage valid.
McKenzie v. Singh (1972 BC SC) (127)
(immigration marriage)
(Immigration purpose marriage, parties never cohabited or consummated. Notice of marriage form defective.)
 Lack of good faith and therefore, marriage invalid (although ordinarily immigration purpose marriage valid)
 Defect in licensing procedure, needed to wait three days for license to be issued. So here defective licence.
Hassan v. Hassan (2006 AB QB) (129)
(foreign marriage)
(Islamic marriage, wife in AB and husband in Pakistan in 1984. Marriage certificate from Pakistan. She sponsored
husband to come here in 1987. Separated in 2000. In Pakistan action she claimed that marriage existed but claimed
nullity in Canada when husband wanted share of matrimonial property.)
 S.23(1) of Alberta’s Marriage Act: marriage not invalidated by reason only of a contravention of or non-compliance
 Went through great pains to have marriage recognized in Pakistan
 Is claiming legitimacy in Pakistan, claim otherwise in Canada is manipulation
 If marriage does not comply with lex loci celebrationis it may be valid at common law
o a) where it is impossible to conform to the local form of marriage, or
o b) where the parties have not submitted to the local law
 even though intent is to have marriage deemed valid only in Pakistan, they still tried to register in Canada
(differentiates from other cases)
AB Marriage invalid, left to further argument re: claims. Maybe in Ontario it would have been deemed valid under s. 31.
There was no marriage under civil law, only under religious law.
18
Divorce (135)
s.11(b) Divorce Act – judge may stay divorce if inadequate provisions for child support.
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Interrelationship between custody, support, access and divorce
Social and emotional implications of divorce in addition to economic consequences
In Canada, trend of increasing divorce rate following liberalization of divorce legislation
Notwithstanding these variances, slightly more 30% of marriages end in divorce
Divorce rate related to economic cycle (individuals are rarely wealthier after divorce)
Average duration of marriages ending in divorce is approximately 13 years
Social Consequences of Divorce
 Not a lot of reasons to oppose anymore, it’s just a question of time now.
 US: 1 in 2 marriages end in divorce. Canada is around 38% since 1990.
 1 in 2 involve dependent, 50,000 children per year involved in divorce
 fewer divorces where there are children
 Divorce is stressful and disruptive for children, effects may persist long after separation
 If there are positive outcomes for children, this depends on many factors:
o Whether custodial parent is able to function after divorce (e.g. required to rely on child care because reentering the workforce)
o Whether separation is amicable or ongoing hostility (however, argument that child would have suffered
even if parents remained together)
o Whether the family is economically stable after divorce
 Feminization of poverty, women’s financial state usually takes nosedive after divorce
o Level of contact with both parents after divorce  law encourages maximum contact with both parents
 Also helps if not only child for transition
o Relationship of the children to ongoing support network (e.g. grandparents)
 Pervasive social problem that a significant proportion of children lose contact with one parent (as a result of the
custodial parent preventing access and the failure of the non-custodial parent to foster a relationship)
o Often lack of contact with father, almost half see non-custodial parent less than once a month
 Children of single parent typically have significantly have lower academic results and have lesser chances of
attending university
o Also studies going the other way, performance improves
Economic Consequences of Divorce
 Feminization of poverty: typically, parties are financially in a worse position after divorce – particularly women
(Moge v. Moge)
 Men are statistically wealthier after divorce if not paying child and spousal support but are typically worse off if
paying both
 In 1997, reforms to child support legislation (difficult to determine whether courts will award child support –
significant judicial discretion)
 Spousal Support Advisory Guidelines: whether clarification of financial obligations will influence a woman’s
decision to seek child support
 85% of women obtain sole custody
 In 10-12% of cases father is the custodial parent, 30% joint custody, mother has custody in the remaining cases
 Policy: whether increasing the access to divorce encourages divorce and whether the state has an interest in
limiting access to divorce to shore up the institution of marriage (however, couples may live separate and apart
regardless)
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Only 10% of men had income below poverty line after paying child support. Few women applies for spousal
support. Canadian study, women in first year after divorce make 60% of ex-husband’s income.
o Some women wanted to maintain independence
1997 Child Support Guidelines – depends on income of non-custodial parent. Easier to predict now.
Before 1965 – fault-based system. Women could argue that they would give husband divorce as bargaining chip
for fair division of property. Not sure whether tougher divorce laws would really address feminization of poverty
now.
History of Divorce Legislation in Canada
 Ongoing tension between enacting responsive divorce laws vs. concern of encouraging dissolution of families by
increasing access to divorce
19
But divorce rate doesn’t necessarily reflect rate of marriage breakdown
Some couples separate but don’t obtain divorce. Study on p. 154, almost half of children from broken
marriage doesn’t see divorce within 3 years. After 5 years, 28%. So significant number remain married –
means that stats don’t mean all that much.
In 1968, Parliament enacted the first national divorce legislation (Divorce Act) – previously, divorce law varied
across the provinces
Required private member’s bill
Before 1968, two methods of obtaining a divorce:
o Parliamentary divorce: required to procure private Act of Parliament if province did not enact legislation
o Provincial divorce legislation: judicial divorce on specified grounds (matrimonial offences)  not gender
neutral
 Husband could obtain divorce only by proving wife’s adultery
 Wife required to prove aggravated adultery (i.e. adultery including rape, sodomy, beastiality,
bigamy)
o
o
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In US: proposal to devise covenant marriage. Two options: ordinary marriage, divorce based on living apart for 6 months
or adultery. Covenant marriage – Christian fundamentalism – great commitment. Marriage course that both parties must
attend, can only divorce in cases of adultery, abuse, felony, two years separation, chronic poor mood(?). Only about 2%
enter this form of marriage.
Divorce Act (1968) – federal per s.91(26)
Used to be hodgepodge of laws between feds and provinces. Adultery has never been crime in Canada but yes still in US.
Criminal conversation (tort) in 1619 – only the husband could sue 3rd party interloper for taking husband’s right to his wife.
In fact, if he wanted separation he was forced to go to ecclesiastical court claiming criminal conversation.
Divorce, 2 types: mensa et thorno vs. a vinculo. A vinculo was the private member’s bill to override canon law. Only
husbands could plead adultery. Woman had to plead adultery + cruelty or incest, bigamy, desertion. Double standard
between men and women until 1925.
1857 England – Matrimonial Causes Act. Prior to Confederation, maritime provinces except NF allowed judicial divorce
(divorce a vinculo). After 1867, provinces fell under Matrimonial Causes Act. No judicial divorce in ON. That’s why feds
passed Divorce Act Ontario in 1930. Then QC and NF still didn’t commit divorce a vinculo, needed private member’s bill.
Expensive and embarrassing.
Under fault-based divorce, often innocent spouse got divorce, not the other? Usually woman. Couldn’t claim own cruelty
or adultery. This lasted until 1968. Still fault-based: matrimonial offence: adultery, physical and mental cruelty, sodomy,
bestiality, rape. Divorce for spouse being engaged in homosexual acts or other forms of marriage with 3 rd parties. Missing
spouse.
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Goal to reduce adversarial process and increase chances of reconciliation
Removed gender bias but continued to provide judicial divorce on fault based grounds
o Since only the innocent spouse was typically able to obtain divorce, provided innocent spouse with
leverage to obtain economic rights
No fault divorce permitted for the first time in Canada
Introduced concept of permanent marriage breakdown as a ground for divorce where a husband and wife were
living separate and apart for a period of not less than 3 years (petitioner could also rely on the marriage
breakdown ground by establishing imprisonment, alcohol/narcotic addition, whereabouts of spouse unknown,
non-consummation in addition to separation and desertion*)
Reflected an increasingly relaxed attitude about divorce  generated climate for further political reform
Divorce Act (1985,1986) (136)
 Two types of reforms:
o (1) Substantive: changes in grounds of divorce
o (2) Procedural: changes in process for obtaining divorce
 Affidavit evidence permitted
 Meant to reduce adversarial approach to divorce. Hoping to decrease hostility and negative impact on children –
inappropriate in the context of marriage dissolution
 Optimism about advantages of divorce in society (state should facilitate adjustment)
 While fault based grounds remain, many argued for removal altogether
20
o

State should not attempt to uphold the sanctity of the traditional family by reducing the incidence of
marriage breakdown (restrictive divorce laws simply force those committed to obtaining a divorce to
fabricate grounds)
o Adultery, etc. are merely symptoms of marriage breakdown – why should the state care?
o Moralistic overtones that infuses the institution of marriage with content that does not accurately reflect
societal attitudes (grounds of divorce are symbolic)
o Cruelty is addressed through criminal legislation
S.8(1) – breakdown of marriage. Close to divorce by mutual consent.
Grounds (Divorce Act, 1986)
 Marriage breakdown is the sole ground for divorce
 Section 8(2) – marriage breakdown is established if
o (a) spouses have lived separate and apart for at least 1 year immediately preceding the determination of
the divorce proceeding and were living separate and apart at the commencement of the proceeding (no
fault ground); or
o (b) spouse against whom the proceeding is brought has committed adultery or physical or mental cruelty
of such a kind as to render intolerable the continued cohabitation of the spouses (fault based ground)
 Most recent stats at 171: 94.7% on grounds of living apart of a year, 5.2% adultery including 1% cruelty.
 Practical differences between these grounds: use of fault grounds allow for immediate divorce (rationale: moral
and pressing reasons); in practice, since possible to file for divorce before living separate and apart for one year,
questionable whether fault grounds provide an advantage
o There was also still a sort of moral content requirement for marriage. It’s contrived and difficult to include
real grounds, usually relationship is bad and that leads to adultery.
o Using moral grounds far more likely to increase adversarial nature of proceedings – another argument for
no-fault.
 Inching towards no-fault: 1985 – s.15.2(5) of Divorce Act indicates that court, for child or spousal support, will not
take cruelty or adultery in consideration. Custody s.16(9) – past marital conduct is not to be factor in custody
unless it has harmed the child. Sole test is best interest of child. You had to appear before judge in court to get a
divorce.
 1968 s.9(1)(a) judge instead of jury – less embarrassing.
 1985 s.7 – affidavit divorce, not required to attend court. Must not be any opposition on any issue.
 S.25(2)(b) 1985 – allows province to make rules allowing conduct and proceeding of hearing – sets up institution
of affidavit divorce
o Family Law Rules (Ontario Courts of Justice Act) s.36(5-7) allows for judicial divorce based on affidavits.
“desk divorce”
 Notwithstanding no fault grounds, cruelty may be relevant to other issues such as possession of matrimonial
home, spousal support, custody and access
 Closer to divorce based on mutual consent (however, still required to wait one year) – contrast to Quebec Civil
Union legislation (may apply for civil union and dissolve immediately)
 Unlikely to raise adultery ground if unnecessary (also more difficult to prove)
***need to know changes over the years but not dates precisely***
Sole application vs joint application for divorce. Sole application filing affidavit, confirm the marriage took place, details per
Family Law Rules. Info re: support (s.11(1)(b) of divorce act) for children. Sole application has to attach info re: income
and finances. Must be on grounds of living apart for a year S.8(2)(a). Still can’t claim your own cruelty etc.
Not many reasons to apply on cruelty, adultery grounds. Judges don’t care about conduct, generally.
////
Reconciliation and Mediation
 Required that lawyers inquire re: reconciliation and advise re: counseling
 Must inform of advantages to mediation and negotiation
o Section 9(1)(a) – duty of a lawyer acting on behalf of a spouse in a divorce proceeding to draw to the
attention of the spouse those provisions of DA that have as their object the reconciliation of spouses
o Section 9(1)(b) – obligation to discuss the possibility of reconciliation and to inform the spouse of the
marriage counseling or guidance facilities known to the advisor that may assist the spouses to achieve
reconciliation
21
o
o
o
Section 8(3) – period of living separate and apart is not interrupted by reason only that the spouses
have resumed cohabitation during a period of, or periods totaling, not more than 90 days with
reconciliation as its primary purpose
Section 11(3) – continuation or resumption of cohabitation during a period of, or periods totaling, not more
than 90 days with reconciliation as its primary purpose shall not be considered to constitute condonation
Section 10 – duty of the court to satisfy itself that there is no possibility of reconciliation (paternalistic but
unlikely in practice)
Spousal and Child Support
 Section 15.2(5) – fault or misconduct of spouse eliminated as a consideration in making an order for support
 Should take only conditions, means, needs and other circumstances of each spouse into account (meant to take
plight of women into account – court can make orders as necessary)
Child Custody and Access
 Section 16(9) – past conduct (e.g. adultery or cruelty) is not considered as a factor in custody or access disputes
unless the conduct is relevant to the ability of that person to act as a parent of a child (underlying fault
consideration)
 Sole criteria for custody and access order is “the best interest of the child as determined by reference to the
conditions, means, needs and other circumstances of the child”
 Subject to the best interests of the child, is the principle of “maximum contact” – a child should have as much
contact with each parent as is consistent with his/her best interests
Procedures
 (1) Parties may petition jointly when no matters are in dispute (neither may claim adultery or cruelty)  reduces
hostility, less costly, less embarrassment
o If 1 year elapses (unless adultery or cruelty), consent not required for sole application
o Section 36(5), Ontario Family Law Rules – if sole applicant files application and respondent files no
answer, sole applicant shall file an affidavit that
 (a) confirms that all of the information in the application is correct
 (d) contains information about arrangements for child support required by s. 11(1)(b) of DA
(remember: judge may stay divorce if child support arrangements inadequate)
 Divorce granted because not contested, not because parties consent (marriage is a status and
not merely a contract)
 (2) Section 7 – if no matters are in dispute, no formal trial is required (judge may grant divorce without an oral
hearing, by affidavit evidence)
o Section 25(2)(b) – provinces may make rules respecting the conduct and disposition of proceedings
without an oral hearing
o Ontario Family Law Rules (ss. 36(5) to (7)) – allows divorce judgment based on affidavit evidence without
oral hearing (“desk or affidavit divorce”)
////
22
Role of State
 State has overriding interest in not letting spouses voluntarily establish divorce
 Judge must be satisfied of conditions even though they don’t usually contest
 Rare for parties to disagree to actual divorce, terms are another story
 Sometimes opposition is for tactical reasons but it’s always a question of time
 Marriage is still not simply a contract, it’s a status.
o Why doesn’t the state just allow you to dissolve it? <seems like good exam question>
o Duty of lawyers to draw attention to parts of divorce act to options for reconciliation, still a bit paternalistic.
3 months of sex allowed post-separation.
o Uncontested divorce can cost as little as $1000, $1500. Separation agreement included would be closer
to $2500.
Grounds: Living Separate and Apart (166)
Remember: living apart and separate for a year, adultery or cruelty are the grounds for divorce.
s.8(2)(a) – either parties can apply on grounds of living apart for a year, or joint application. You can apply any time after
separation but divorce won’t be determined before 1 year has elapsed.
 Allows for creation of evidence
 Can ask for corollary relief
Living separate and apart: must be both physical and mental elements to separation.
 Two elements: physical and mental
 Consider what the state regards as marriage
 Parties may live separate and apart but together under the same roof
 Implications for interim relief
Rushton v. Rushton (1968 BCSC) (166)
(separate and apart TEST)
(The parties lived in the same suite in an apartment building but in separate rooms. Sexual intercourse ceased entirely.
No domestic services were provided by his wife (shopping, cooking and washing independently). He paid her a monthly
sum for maintenance.)
1. There must be a withdrawal from the matrimonial obligation with the intention of destroying the matrimonial
consortium AND physical separation constitute living separate and apart for a year.
 Held to be living separate and apart
 “The mere fact that the parties are under one roof does not mean that they are not living separate and apart”
Dupere v. Dupere (1974 NB CA) (167)
(separate and apart)
(Parties separated and entered into a separation agreement in 1966. In 1968, he subsequently resumed cohabitation and
sexual relations for a month. However, the parties began to occupy separate bedrooms. She performed housework and
he supported the family. There was some communication and mutual discussion regarding the children. He claimed he
only stayed in the same house “for the sake of the kids”.)
1. 6 factors indicating living separate and apart (not necessary to establish all 6, fact specific)
(a) Spouses occupying separate bedroom
(b) Absence of sexual relations
(c) Little, if any, communication
(d) Wife providing no domestic services for husband
(e) Eating meals separately
(f) No sharing of social activities
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She provided domestic services and communication regarding the children
An atmosphere of severe incompatibility may exist but remain one household
o Effectively allowing divorce by mutual consent if mere unhappiness establishes living separate and apart
– why is the state interested in preventing this?
Physical separation may exist within a single dwelling unit
If a spouse remains in the same dwelling for reasons of economic necessity, this will not preclude living separate
and apart
23
HELD: Not living separate and apart, distinction between unhappy household and separation. Otherwise, it would =
divorce by mutual consent.
Note:
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E.g. while married, husband serves in the army and after 1 year writes to wife that he no longer wishes to be
married
Case law suggests this may not be sufficient to establish LSA
Severo Case (BC)
(separate and apart)
(bottling plant, she was living in plant he lived in the plant. He supported her, occasional ex. She was involved in finances
of business. On income tax return, he indicated status was married. He argued they separated in 2000, she claimed 2005
 pension issue.)
 Even though living in separate residences, were not held to be living separate and apart.
Summary: look at each case on facts. Physical separation within same unit is possible if emotional separation is sufficient.
Dupere tells us that there are economic necessities for sharing dwelling. Court is shoring up status of institution of
marriage to separate from cohabitation.
Divorce Act, section 8
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.
Breakdown of marriage
(2) Breakdown of a marriage is established only if
(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the
divorce proceeding and were living separate and apart at the commencement of the proceeding; or
(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
(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.
Calculation of period of separation
(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.
Moral overtones preserved, two fault-based ways of proving break-down of marriage. Section 8 makes this clear. S.8(2)
provides grounds, 8(2)(a) living apart, 8(2)(b) adultery and cruelty.
Steinberg v. Fields (2005 ON SC) (171)
 Separated Dec 6, 2003, according to husband. He moved out of home.
 She was under impression that might reconcile but he was clear that would not.
 He changed his will, no sex, he saw other woman, they were cordial, would sometimes sit together at family
events. Interaction at golf club was friendly.
 Applied for divorce in January 2005, divorce heard 2005.
 She can join golf club as family member after 5 years of marriage, would have to pay $125k otherwise. It’s on the
line here, central to dispute. He wants peace at club.
 She applied for corollary relief to delay proceedings and meet 5 years of marriage. Judge gives a month but takes
31 days for judgment to take effect. She gets to stay at the golf club.
Living Separate and Apart
 Mental element
 Could be in same home yet living separate and apart
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Case of woman living in Afghanistan for a year. She writes him to say that she’s met someone and marriage is over.
What’s the date of separation?
Dorchester v. Dorchester (1971 BCSC) (169)
(separation date – mental)
(Husband brought his wife to a psychiatric facility and lived apart for 3 years while she received treated for mental illness.)
1. Mere physical separate will not establish living separate and apart. In addition to physical separate, an intention to
terminate the relationship is required.
a. (Section 8(3)(a) – 1 year period begins to run when an intention to terminate the relationship is formed by at
least one of the spouses)
HELD: Not living separate and apart
 Physical separation is a factor considered but mere physical separation will not establish living separate and apart
 Husband only formed intention to terminate the relationship at the end of the 3 year period
 Only one person’s intent is required, doesn’t matter that wife in this case didn’t have the capacity
Note: there is no requirement to communicate this intention to spouse
Reconciliation and Resumption of Cohabitation (171)
 What if the parties attempt to reconcile after forming an intention to separate?
 See duty of lawyers
 Section 8(3)(b)(ii) – period of living separate and apart is not interrupted by reason only that the spouses have
resumed cohabitation during a period of, or periods totalling, not more than 90 days with reconciliation as its
primary purpose
 Policy: encouraging attempts at reconciliation
Historically, single act of intercourse would reset separation clock.
Rogler v. Rogler (1977 ON CA) (171)
(Husband and wife separated but had occasional sexual intercourse. How much sex is allowed?)
(occasional sex)
1. Resumption of sexual relations, if intermittent, will not interrupt the period of living separate and apart. However, there
reaches a point where the contact becomes sufficiently frequent that the relationship becomes indistinguishable from
marriage (not merely a sexual relationship
 “In the nature of an affair” rather than a marital relationship (no intention to reconcile)
 ok as long as no more than 90 days – see legislation below
Section 8(3) DA
(a) spouses are 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.
Adultery (172)
 Focus on penile penetration of vaginal
 Adultery ground is rarely invoked
 Adultery is not defined in the Divorce Act but is judicially defined = voluntary sexual intercourse between a
married person and another person (however, nature of this intercourse unclear)
New Brunswick did criminalize adultery at one point. No cases were ever processed so effectively it’s never been
criminalized. Used to be a tort called criminal conversation: husband against interloper. We got rid of the tort in 1978.
Adultery not defined in statute but yes in common law. Very little case law on the issue, rarely plead as grounds for
divorce.
25
Orford v. Orford (1921 ON HC) (172)
(adultery – art. Insem.)
(Woman became pregnant by another man but she claimed the child was conceived as a result of artificial insemination.
Whether artificial insemination constitutes adultery? Confined to act of sex?)
1. The essence of the offence of adultery consists not in the moral turpitude of the act of sexual intercourse, but in the
voluntary surrender of the reproductive powers of the guilty person to any person other than the husband or wife
(invasion of the reproductive function, martial rights.)
 Adultery provided the possibility of introducing a false strain of blood into the family of the husband
 Note: same-sex marriages?
MacClennan v. MacLennan (1958 Scotland Ct. Sess.) (174)
 more consistent with current position with respect to artificial insemination
(adultery)
1. For adultery to be committed there must be two parties physically present and engaging in the sexual act at the same
time. To constitute the sexual act there must be an act of union involving some degree of penetration.
a. This proposition is absurd in the context of same-sex marriage (i.e. unable to commit adultery)
b. Adultery consists of the introduction of a foreign marital relationship, the physical contact with an alien and
unlawful sexual organ, and without that element there is no adultery
HELD: Artificial insemination itself does not constitute adultery

“A wife or husband may commit an act of gross indecency with a member of the opposite sex which would be a
complete violation of the marital relationship, but which could not be classified as adultery”
Note:
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This is an incomplete understanding of adultery
CCC definition of sexual assault does not require penetration (family law definition of adultery outdated)
Consent is a necessary element of adultery
o Woman who is raped has not committed adultery
o Only the innocent party may apply for divorce under this ground
P. (S.E.) v. P. (D.D.) (2005 BCSC) (176)
(same-sex adultery)
(hetero marriage, homosexual adultery but Divorce Act doesn’t define adultery and 1968 amendment of Divorce Act
removed homosexual grounds)
1. Adultery should reflect views of Civil Marriage Act, including same-sex grounds. Focus on violation on marital bond,
this can be hetero- or homosexual. Define on case-by-case basis, in this case there was adultery.
 Evolution of social values, concept must be redefined in the law. Now institution to provide orderly framework in
which people can express their commitment to each other, receive public support, benefit legislatively. Common
law would be anomalous if rules didn’t apply to same-sex couples as well.
 Akin to violation of marital bond
 Intimate sexual activity outside marriage may be devastating to spouse, regardless of specific nature of act.
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Babineau v. Babineau (1924 NBCA): penetrative contact required
Guy v. Guy (1982 ON HC): homeosexual act to be defined broadly, focus on gratification of sexual desires, not
penetration
B.(Y.) v. B.(J.) (1989 AB QB): adultery only sexual grounds for divorce, excludes homosexual conduct
United States
o extramarital same-sex is just as devastating. Construed as ultimate rejection. Adultery exists when one
spouse rejects the other by entering into a personal intimate relationship with another… Rejection of
spouse coupled with out of marriage intimacy that constitutes adultery.
Previously couldn’t conflate adultery with homosexuality, they were defined differently in 1968. You could only plead
cruelty at the time  B(Y) v. B(J) above. Must show that it’s objectively and subjectively intolerable.
Do you think it shores up values of marriage or should have state stay out of it? Does coincide with nature of marriage
and expectations, bits about lineage and husband are left out. Institution is quite irresistible to most people even if they’re
just getting married for the paperwork.
Only innocent party can make adultery claim. Must also be consensual, rape doesn’t count.
26
Proof of Adultery
Shaw v. Shaw (1971 NS TD) (179)
(petition on grounds of adultery, granted on cruelty)
 standard and nature of proof
(cruelty, adultery)
1. Standard: preponderance of probabilities, fair and reasonable inference
a. Evidence of opportunities for committing adultery is not sufficient – evidence demonstrating that the
opportunities would be used is required (intent)
b. Inference should be drawn with caution and evidence that creates only a suspicion of adultery is insufficient
c. Don’t need to name 3rd party, affidavit sufficient
d. ON evidence: rule against self-incrimination (s. 10, Ontario Evidence Act)
HELD: adultery not committed
Section 10, Ontario Evidence Act
 no witness in an adultery proceeding shall be compelled to self-incriminate
Cruelty (section 8(2)(b)(ii))
Knoll v. Knoll (1970 ON CA) (182)
(cruelty)
(Husband drank heavily and she left the house because of his abusive conduct. He assaulted his wife on a number of
occasions and he was rude and disrespectful.)
1. If in the relationship one spouse by his conduct causes wanton, malicious or unnecessary infliction of pain or suffering
upon the body, the feelings or emotions of the other, his conduct may well constitute cruelty which will entitle her to
dissolution of the marriage if, in the court’s opinion, it amounts to physical or mental cruelty of such a kind as to
render intolerable the continued cohabitation of the spouses (DA standard)
 Not a trivial act but one of a “grave and weighty” nature
 Also subjective element: must render cohabitation intolerable (B(Y) v. B(J) – especially intolerable to her)
 Lower than old 1968 standard
 Can be single assault or ongoing
 Test is cumulative effect of overall course of conduct
 Perpetrator doesn’t need to intend cruelty
HELD: Conduct constituted cruelty
 Old standard: conduct of such a character as to cause danger to life, limb or health or a reasonable apprehension
of such danger (Russell)
Gilbert v. Gilbert (1980 NS TD) (183)
(Wife complained husband was moody and often criticized her (verbal abuse))
(cruelty – objective)
1. Required to satisfy two elements:
 Objective = conduct grave and weighty (beyond mere incompatibility or unhappiness)
 Subjective = renders continued cohabitation intolerable for the particular spouse
 Consider cumulative effect of course of conduct
HELD: No cruelty (conduct not grave and weighty  objective criteria not satisfied)
 Note: if continue cohabiting, difficult to demonstrate cruelty (however, courts may consider economic necessity)
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Delaney v. Delaney (1971 ON CA) (184)
(cruelty – lack of sex)
 relaxed conception of cruelty
(Married, separated after 14 months, husband persistently refused to have intercourse after first eight weeks of marriage,
wife suffered erosion of self esteem (despair, weight loss, nervousness))
1. Total absence of intercourse will establish cruelty in this case. (appeal reversed TJ’s non-cruelty decision)
 Conduct objectively sufficient and subjectively intolerable to wife. Must be grave and weighty.
 Quality or frequency of sexual relations will not establish cruelty (total absence of intercourse required)
 Pressuring a spouse to engage in unusual sexual practices may constitute grounds for cruelty (if intolerable 
subjective)
HELD: Divorce granted (cruelty established)
Barron v. Bull
(cruelty)
(husband petitions on grounds of wife’s mental cruelty – she wanted a child and repeatedly spoke to family and friends
about issues)
 No cruelty. This was deemed merely irritating and distasteful conduct.
Summary:
Living separate and apart,
 Can be living under same roof
 Mental element required, in only one party
 Reconciliation if past 90 days
adultery and cruelty
 No longer about penetration, now about violation of marital bond
 Weighty and grave conduct for cruelty
 Depends on how applicant views conduct
 Cumulative effect
Bars to Proceedings (186)
Duty of court to ascertain if there are any bars to proceedings per s.11 of Divorce Act. More theoretical than practical in an
undefended divorce, esp. where there is only affidavit evidence.
 Bars: collusion, condonation, connivance, reasonable arrangements for the support of children (s.11(b) Divorce
Act)
 Legal justification for preventing divorce. It’s more than just a contract between the parties, can’t just agree on
relief between the parties. State’s interest will be enforced as well.
Collusion (186)
 Absolute bar to divorce, court cannot grant divorce if found.
 E.g. party alleges adultery and the other party falsely testifies (or agreed not to defend). They went as far as
manufacturing evidence. Or agreement between parties not to defend, overlook condonation.
 Does not impact settlement agreements, not considered collusive. Also not if dependent on settlement
agreement.
 Has nothing to do with collusion about marriage, only collusion re: divorce
Section 11(1)(a): court has a duty to satisfy itself that there has been no collusion in the application for a divorce
 outdated because may live separate & apart for 1 year
Section 11(4) – In 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 [i.e. collusion does not include corollary relief, technically]
Wei v. Cao
(parties backdated the separation date)
 judge found out about it and barred divorce for collusion
(collusion)
28
Condonation (188)
 Only applies to fault based grounds (adultery and cruelty)
 DISRECTIONARY bar (judge may bar divorce unless public interest served by divorce  impact on children)
 Definition (common law) = forgiveness after the innocent party becomes aware of the offence
o Must have knowledge and intention to forgive
o Also can’t hold conduct over head of guilty spouse
Section 11(3) – For the purposes of this section, a continuation or resumption of cohabitation during a period of, or
periods totaling, not more than ninety days with reconciliation as its primary purpose shall not be considered to constitute
condonation
Watkins v. Watkins (1980 NF TD) (189)
(husbands petitions on basis of wife’s adultery but have sex afterwards)
(condonation)
1. Elements of condonation:
a. knowledge of the matrimonial offence
b. intention to forgive
c. restoration into the marriage of the guilty spouse


Sex after adultery no longer considered condonation
husband initially suspected adultery only, had no intention to restore relationship. No condonation.
Connivance
 DISCRETIONARY bar, only applies to fault based grounds (adultery and cruelty)
 Definition (common law) = knowingly or willfully permitting or encouraging a partner to commit a matrimonial
offence (barred from claiming offence as grounds for divorce)
Maddock v. Maddock (1958 ON CA) (190)
(connivance)
(Wife had affair with husband’s friend. Husband was moving out as his wife’s new lover was moving in (passed each other
as husband was leaving the house. Did husband connive re: adultery?)
1. Essence of connivance is that the person complaining of the misconduct consented or willfully contributed to the
commission of the conduct or has promoted it in some other way (“corrupt intention”)
 There is a presumption of law against the existence of connivance and the court should not find a spouse guilty
unless the evidence clearly shows all the essential ingredients
HELD: No connivance (did not encourage adultery, at the time the husband was moving out impossible to contribute to
adulterous relationship and no right to prevent the other man from moving in)
Example: husband encouraging wife to have sexual relations with another man (swinging) will bar divorce on grounds of
adultery.
Reasonable Arrangements for the Support of Children
Section 11(1)(b) – Duty of the court 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
 Applies to ALL grounds of divorce
 Reference to FCSG (standard for assessing whether reasonable arrangements made)
 Note: no judicial oversight where cohabiting spouses separate
 Rationale: children are vulnerable in the context of divorce, state has an interest in ensuring economic interests of
children are protected, custodial mother may feel pressure (not insisting on child support)
o Child’s right to support and not the parent’s right
o If custodial parent is the petitioner, court may require custodial parent to pressure other parent to satisfy
obligations
o Public obligation if not satisfied privately
s.15(7) of Divorce Act – if parties agree to reasonable guidelines, court can agree on different amount from one
recommended by guidelines.
 Difference in amount alone is insufficient to bar. Just needs to be sufficient for children.
29
11(1)(b) is simple to apply if payor is asking for divorce. May be used to pressure custodial parent to ask for appropriate
support.
McIllwraith v. McIllwraith (1999 NB QB)
(reasonable custody)
(Father’s income was low. Under an informal agreement, he arranged to pay for clothing and trips for visits with the child
but no child support was paid. Nominal discrepancy between the amount he would be required to pay under FCSG and
the amount he was actually paying.)
HELD: Granted divorce (parties negotiated a reasonable arrangement)
 Where the parties negotiate a reasonable agreement for the support of the children, courts should defer to the
agreement
 “Such arrangements, when freely entered into are an important manifestation of their wishes to resolve issues
between themselves and should accordingly be given appropriate weight by the court”
 Professor Thompson: “If the parties are able to agree upon something “reasonably close” to the table amount,
then squeezing out that extra few dollars to achieve “certainty and constituency” sacrifices the objective of
encouraging settlement”
Willenborg v. Willenborg (2001 SK QB) (196)
(unreasonable custody)
 Arrangement made between parties is compared to government guidelines and deemed unreasonably low
 Remember to calculate taxes on payment
Welfare/Social Assistance Issues
 State may pursue payor if custodial parent is receiving social assistance
 S.33(3) Family Law Act allows state to be applicant for support
 Rare unless there’s extreme violence or other reason to make spouse confront former spouse
 Implications is that amount received from social assistance is reduced by amount received from spousal support.
No interest for women to pursue it.
o Should family law be intervening in these cases where custodial parent is not seeking support?
Orellana v. Merino (1998 ON Gen Div) (193)
(support – state intervention)
(Mother had custody of two children. Support order granted under Family Law Act for $50/child/month. Husband in default
of the order (left Canada and returned). Wife applied for divorce after he returned but was unable to locate him. She was
seeking to remarry, social services serves documents. Judge initially refuses on grounds of s.11(1)(b). New husband
prepared to support mother and children. She decided not to pursue father for support because concerned that father
would want access to children.)
 Not at the applicant’s discretion to determine whether to pursue child support (right of the child and mother may
not waive this right)
 Biological father has primary support responsibility
HELD: Stayed divorce (obligation to pursue father for CS)
Note: access and support are unrelated but custodial mothers often believe that if the father provides support he will
remain involved with the child
Policy concerns: judges shouldn’t interfere if not requested to. Misuse of family law to protect state interests.
Effective Date of Divorce (199)
Section 12(1): divorce takes effect on 31st day after the day on which the judgment granting the divorce is rendered
(i.e. 31 day waiting period and no marriage certificate unless documentation of divorce produced)
Section 22(2): court may order that the divorce is effective in less than 31 days if there are “special circumstances”
and the parties agree not to appeal (discretionary)
Rule 69.22: requirements for issuing an order
Section 22(3): if a divorce is appealed, the divorce takes effect when the time for instituting any further appeal has
expired, if no appeal has been instituted within that
30
Riddell
Nov 14, 2001 – CPP appeal board found divorce effective midnight Nov 14, 2001. Husband died at 5 am and she couldn’t
qualify for CPP spousal benefits.
Family Property (201)
4 historical regimes for married spouses. Community property (common law) to late 19th century (to 1884). Separate
property regime 1884 – 1978. Family Law Reform Act 1978. Family Law Act 1986. Consider what changes and why over
time.



Significant economic adjustment when a spousal relationship ends – property rights and support are negotiated or
litigated
Statutory default regime applies to married couples who do not have a marriage contract while a common law
regime applies to cohabiting couples (constructive trust)
Policy: consider what the marital relationship is about and what is exchanged during marriage (reciprocity)
Historical Background
Community of Property Regime
This was default in QC for long time. Ontario has readopted some of these values.
 Doctrine of Unity of Legal Personality = women had no property rights (legal personality) upon marriage. Any
assets vested in husband.
 Until the end of the 19th century, at common law, married women were prohibited from owning property – upon
marriage, a woman’s property would vest in her husband
 Husband (the legal personality) was at liberty to dispose of property according to his inclinations (wife required
husband’s consent to dispose of property)
 Therefore, in the unlikely event of divorce, property not disposed of were resumed by her.
 Provisions in equity available for women to protect her assets (i.e. pre-marital property)
 Estate planning could alleviate some of harsh results
Separate Property
 Each spouse could hold property in their name
 Separate property regime was introduced by Married Women’s Property Act (1884) persisted until 1978, allowing
married women to own property
 On separation, each party retained property in which he/she had legal title
 While this regime improved the unfairness of the concept of unity of legal personality, inherently unfair:
o Hardship suffered by women when marriage ended
o Traditional role of women (lacked wealth) meant that property acquired during the marriage was paid for
by husband and title remained with him
o While superficially gender neutral, women typically left marriage with no property (inequality evident
notwithstanding neutral laws)
 Only in cases of joint tenancy was there a force equal division (because held in common)
 She took no property of his unless it was joint. (think Murdoch case)
 Huge problem because most women worked in the home
Murdoch v. Murdoch (1975 SCC) (220)
(separate property)
(Murdochs married for 25 years and worked on ranches as hired couple. Both were paid, the money earned was held by
the husband. Valuable farm properties were acquired in the husband’s name with their earnings and a loan from Mrs.
Murdoch’s mother. She continued to assist in the operation of the ranches until separation, partly because the husband
maintained his outside employment. Only husband had legal title.)
1. Resulting trust: non-titled spouse could be declared to have an interest in property based on a direct contribution to
the purchase price if there is a common intention to share the beneficial interest in the property
 SCC held no resulting trust , wife had no right to assets.



No clear indication that there was an intent to share
No financial contribution to the property by wife was established
Wife’s contribution was no more than “the work done by any ranch wife” (since the wife’s contribution could be
characterized as the performance of the usual duties of matrimony, no resulting trust)
31
DISSENT (Laskin): resulting trust applied (wife had made a modest financial and substantial physical contribution to the
acquisition of the ranch) and introduced constructive trust as a remedial device in property disputes on marriage
breakdown
 Unjust enrichment
 Separate property regime provided certainty but outcome practically unfair to women
 No recognition of contribution of non-earning spouse to the relationship
Spousal support was inadequate – difficult to enforce, limited amount (less valuable than property), ceased if wife
commenced new relationship. Huge political pressure for legislative action after Murdoch. Each province enacted
matrimonial property regimes to protect principally the position of wives.
Family Law Reform Act (1978)
 Compromise for non-titled spouse (marriage as a partnership), contribution approach.
 FLRA designated 2 classes of assets:
o Family assets = “ordinarily used or enjoyed by both spouses or one or more of their children while the
spouses are residing together for shelter or transportation or for household, educational, recreational,
social or aesthetic purposes” (e.g. matrimonial home)  presumptively divided equally
o Non-family assets = all other property (e.g. pensions, investments, property not used by family members
excluded from division – pension valuable asset held by employed spouse)  title determinative unless
contribution to asset established
 Significant judicial discretion to vary presumptive awards equitably. Became one of the main problems with this
legislation.
o Under FLRA, regime of separate property during course of marriage (e.g. each spouse treated
independently with regards to creditors); however, judicial discretion to divide property equitably upon
separation (or by agreement between the parties)
 Criticisms of FLRA:
o (1) No justification for distinction between family and non-family assets. House and car make sense but
lots of other important assets accumulate like a pension.
o (2) No distinction between property acquired before or after marriage: presumptive division of assets
acquired before marriage even if spouse did not contribute to these pre-owned assets
o (3) Considerable judicial discretion (uncertainty) to avoid inequitable results. Almost discouraged
settlement and encouraged litigation, gamble on judge.
o (4) FLRA did not provide for death.
 Cumulative effect of the FLRA was to not recognize marriage as partnership in which each spouse contributes to
the financial gain of both spouses (only property to which the non-owning spouse has contributed should be
shared)
Eg case: $100 million accumulated from business during marriage. Under 1978 regime, she’d get nothing, 1986, she’d get
half.
Family Law Act (1986)
Division of family gains. Formula:
1. Value of property at separation – value of property at marriage = net family property
 Exclusion of inheritance
2. (Wealthier party – less wealthy party)/2  wealthier party transfers to less wealthy party (equalization payment)





Principle of the division of financial gains of the marriage
Limited judicial discretion (s. 5(6) FLA)
Court may adjust division of property if unconscionable
Separate property regime while marriage is an ongoing concern; upon separation, profits of marriage divided
equally
Domestic contracts (prenups or marriage contract) permitted
Common property  separate property  regime that did not fully recognize a woman’s contribution in the home 
presumptive division of property
*Regime does not apply to cohabiting spouses
Number of Charter cases that accelerated tendency to extend statutory treatment to common law couples.
32
Miron v. Trudel (1995)
(marital status, benefits)
 Extension of spousal accident benefits but concerned common law couple
 5-4 SCC: unjustifiably discriminated on basis of marital status, analogous ground under s.15
Taylor v. Rossu (1998 AB CA)
 Support provisions in Domestic Relations Act unconstitutional because applied only to married persons
Provinces amended the legislation to extend spousal support to parties in common law relationships. With few exceptions,
federal legislation treats cohabiting couples the same way as married couples if have lived together for a year. Ontario did
grant spousal support for cohabitants but didn’t extend definition of spouse to part 1 of Family Law Act. (?) In SK, took
three years for same treatment, everywhere else were distinctions: recourse to constructive trust regimes, not same
system. So challenge came about in NS:
Walsh v. Bona (2002 SCC) (207)
(common law rights)
(Challenged the Nova Scotia Matrimonial Property Act for failure to include unmarried cohabiting opposite sex couples as
a violation of section 15(1). Whether exclusion of cohabiting couples from the MPA violated the Charter?)
1. To presume that common law couples wish to be bound by the same obligations as married couples is contrary to
their choices to live in a common law relationship without the obligations of marriage.
 CA: Definition of spouse in MPA unconstitutional (suspended the provision for 12 months)
 SCC: Exclusion not discriminatory

Followed Law v. Canada framework. Differences based on 1+ characteristics? Analogous ground? Differential
treatment substantive discrimination?
o Bastarache concluded that differential treatment between groups wasn’t substantive.
o Reasonable heterosexual unmarried cohabiting person would not find that failure to include him/her was
demeaning and affected his/her dignity.
o Would actually take liberty away from cohabitating couples re: chosen family structure. Fundamental
individual autonomy.


Choices exists: marry or register (common law partnership) for inclusion
Rather than undermining the dignity of the parties, the law respects the cohabiting couples freedom of choice
o Could draft contract that says law of married persons applies
o Constructive trusts are available to equity
New legislative scheme deems married persons to have agreed to an economic partnership wherein both
pecuniary and non-pecuniary contributions to the marriage partnership are considered to be of equal worth
The discriminatory distinction at issue in Miron concerned the relationship of the couple as a unit, to third parties –
the marital status of the couple should have had no bearing on the availability of the benefit
The MPA only protects persons who have demonstrated their intention to be bound by it and have exercised their
right to choose
It is true that certain unmarried couples may also choose to organize their relationship as an economic
partnership for the period of their cohabitation. Similarly, some couples, without making a public and legally
binding commitment, may simply live out their lives together in a manner akin to marriage. In these cases, the law
has evolved to protect those persons who may be unfairly disadvantaged as a result of the termination of the
relationship




DISSENT (L’Heureux-Dubé J):
 MPA is discriminatory, undermines the human dignity. Substantial discrimination.
 Exacerbates the systemic discrimination suffered by unmarried couples
 These couples encounter a much more complicated, uncertain, and expensive process (constructive trusts –
outcome is significantly less than half)
 Family is no longer an institution reserved for married persons
 Couples do not perceive of their relationship in contractual terms
 Needs exist wherever there’s a long term relationship
 Doesn’t buy choice option, might be that one spouse wants to marry more than the other. Could be that it’s an
easier decision for men. Leaves more women in uncertain circumstances.
McLeod Annotation
 Must make distinction if we’re going to protect marriage as an institution
33

L’Heureux-Dubé is more realistic, wants to protect reality of economic interdependence. Biology doesn’t dictate
roles anymore. Women experience choice differently because of biological clock.
Constructive Trust (equitable doctrine) (221)
Must prove 4 elements:
1. Either by contributions of money or labour, contributing party enriched legal title of the other party
2. Enrichment has resulted in a corresponding deprivation to the party who contributed
3. No juristic reason for the enrichment (e.g. contract or obligation, gift) – no explanation for why a party would have
acted to enrich another
4. Connection or relationship between the contribution and acquisition or improvement of the property in question
(causal connection or nexus to the property)
Elements 1 to 3 establish unjust enrichment. If you establish unjust enrichment but not connection to property, monetary
damages will be awarded. Doesn’t have to be super direct. Eg: childcare while other works  proprietary remedy






If there is no causal connection, court may grant only monetary award (rather than a property interest or
constructive trust)
Flexible remedy
Courts will award value which corresponds to proportion of contribution – typically, claimant will receive a half
interest in the property but there is judicial discretion to vary the award
CT not confined to family arrangements but most likely in this context (vs. business context where there is
typically a K or express intent to transfer value between parties)
CT may also be applied to married couples (e.g. cohabiting for many years followed by marriage)  FLA applies
to married period and CT applies to cohabiting period
CT applies regardless of who holds legal title
Rathwell v. Rathwell (1978 SCC) (220)
(resulting trust)
Resulting trust = common intention to share beneficial interest in property which is artificial and problematic in the family
context (difficult to prove)
 Parties often lack true intent that contribution will result in property interest



Dickson J. in dissent articulated concepts of resulting and consulting trust – emphasized shift from RT
Dickson urged CT because remedy constructive trust imposed irrespective of intention and only the elements of
unjust enrichment are required (more appropriate for cohabiting relationships)
o Fair because imposed regardless of intention, based on factual findings
Dickson’s dissenting position was affirmed in Becker v. Pettkus and Sorochan
Becker v. Pettkus (1980 SCC) (219)
(constructive trust)
(B and P cohabited for many years and eventually acquired agricultural property for a bee keeping business. All property
was acquired in Mr. P’s name. Miss B contributed substantially through her labour and earnings to the fortune of the
enterprise. For example, Miss B’s income was used to pay household expenses permitting Mr. P to accumulate savings to
purchase the properties. Miss B sought a declaration of entitlement to a half interest in lands and a share of the business.)
1. Constructive trust may apply to cohabiting individuals to recognize the interest of a party who contributes (whether
financially or by labour) to the acquisition of property where this contribution has unjustly enriched the other party’s
title to the property (*shifting conception of contribution*)
 Constructive trust, Miss Becker entitled to one-half interest in lands and share of business




Dickson J. rejected resulting trust – no evidence the parties agreed to share beneficial ownership or engage in a
common enterprise
o Trial judge rejected RT: Miss Becker’s investment (contribution to household expenses) was in the nature
of “risk capital” to induce P to marry (i.e. contribution was a gift)
Constructive trust: P was enriched by B’s financial support and labour with a corresponding depravation to B;
contribution of B enabled P to acquire the assets (causal connection)
Reversed notion that a woman’s contribution to her partner constitutes a gift
No juristic reason for enrichment is satisfied “where one person in a relationship tantamount to spousal prejudices
herself in the reasonable expectation of receiving an interest in property and the other person in the relationship
freely accepts benefits conferred by the first person in circumstances where he knows or ought to have known of
34


that reasonable expectation, it would be unjust to allow the recipient of the benefit to retain it” (in the absence of
evidence establishing a contrary intention, presumption that the parties expected to share in the assets created
during the relationship, Peter v. Beblow)
Extent of the claimant’s interest in the property must be proportionate to the contribution
o Equity is said to favor equality – where there are no prior assets and no children, equal interest is likely
where a long term relationship exists
Contribution is not limited to a financial contribution, can be unpaid labour.
By the time it got to the SCC, she’d gotten an award of money. Assets worth about $300k after trial. He squandered
assets, transferred and hid. Ms. Becker acquired only about $80k which were pocketed by lawyer, she committed suicide.
Sorochan v. Sorochan (1986 SCC) (223)
(unjust enrichment, cnsrctv trust)
(Sorochans lived together for 42 years. Mary performed all of the domestic work and childcare and worked on the farm
which Alex owned before entering into the relationship. Mary had asked Alex to marry and he said they would marry “later
on.” Alex claimed Mary did not contribute to the acquisition of the property.)
1. Constructive trust remedy may apply where a non-titled cohabitee contributed to the property owned by the other
cohabitee prior to the relationship (i.e. contribution to acquisition not required)
 Constructive trust in favor of Mary, awarded 1/3 interest in the property and a lump sum payment
2. Test for unjust enrichment
 Devotion of labour and earnings without compensation may constitute a benefit and deprivation and satisfies the
requirement of the absence of a juristic reason for the enrichment



He derived benefit from her labour in the home and the maintenance and preservation of the farmland without
providing remuneration
She had reasonable expectation of fair compensation
No juristic reason: she asked to be married and requested the transfer of part of the land into her name 
indicates reasonable expectation of receiving an interest in the property from her contribution; he had knowledge
or ought to have known of that reasonable expectation. No reason for such big difference between the parties.
Remedy:
 To establish property interest, not necessary that her contribution went to acquisition. Merely needed to contribute
to maintenance, preservation, and improvement of property. (causal connection)
 When contribution is established, proprietary relief may be constructive trust
 In assessing whether a proprietary remedy is appropriate, the duration of the relationship is considered
Peter v. Beblow (1993 SCC) (227)
(constructive trust)
(Plaintiff brought insignificant assets, man pre-owned house at the time. Small mortgage on house which was paid of
during course of cohabitation. 12 year relationship, she cared for her and his children while working p/t and performing
domestic duties at home. He acquires and ends up living on houseboat. He provided financial support for the appellant
and all of the children and acquired a van and houseboat. After he became abusive, the relationship terminated. The
parties vacated the house after which the respondent lived on the houseboat subsisting on his pension. The respondent
had paid a housekeeper $350/month before the appellant lived with him.)
Trial: awarded 50% (for the benefits she received) of $350/month x 12 years (quantum meruit)  since value of services
equaled value of house, granted title to the property
CA: she was compensated for her services by the respondent’s provision of shelter and groceries for the appellant and
her children (implicit bargain); therefore, appellant suffered no deprivation
 Distinguished between married and unmarried spouses. Man argued that there was implicit bargain between the
two. She and children were cared for rent free if she provided domestic services. She came in impecunious and
left impecunious.
SCC awarded title to the property (constructive trust), disagreed with trial court and CA’s approaches to valuing
contribution (Drummond: unsatisfactory result, common law remains uncertain)
 Judicial discretion to grant monetary award or proprietary interest (CT): constructive trust remedy is available
where monetary compensation is inadequate and there is a link between the contribution and the property (causal
nexus)
 Parties expect not just compensation but share in value of assets. Presumption of reasonable expectation that
other party should have been aware of.
35
o
o
o
In determining whether a monetary award is insufficient, consider the probability of the award’s being paid
and the special interest in the property acquired by the contributions
Proprietary remedy is appropriate where: relationship is lengthy, unlikely to enforce monetary award (e.g.
respondent relying on pension), nature of contribution (psychological attachment to property)
Appellant was living on social assistance – monetary award would have precluded social assistance
(SCC appeared to consider this by granting full interest in the house)
Lots of judicial discretion for unmarried spouses, must prove contribution. Difficult solution.
Two approaches in assessing value of constructive trust:
 (1) Value received (quantum meruit) = value of services rendered (e.g. $350)
 (2) Value survived = amount by which the property has been improved (i.e. apportions value of the assets
accumulated, including appreciation, based on the contributions made by each party)
 Majority (McLachlin) favored the value survived approach – individuals expect to share in the wealth generated
from the relationship, rather than to receive compensation for services performed
 Cory J. emphasizes unfairness of the value received approach
E.g. where defendant has high income, inappropriate to consider the cost of domestic services

Note:

“[Granting a property interest] to the provider of domestic services should adequately reflect the fact that the
income earning capacity and the ability to acquire assets by one party has been enhanced by the unpaid
domestic services of the other” – legal recognition of the value of domestic services
Less emphasis on reasonable expectations than in Becker v. Pettkus, Sorochan
Factors to consider in determining whether a constructive trust appropriate
1. Is the plaintiff’s entitlement relatively small compared to the value of the property in question?
2. Is the defendant able to satisfy the plaintiff’s claim without a sale of the property in question?
3. Does the plaintiff have any special attachment to the property in question
4. What hardship might be caused to the defendant if the plaintiff obtained the rights flowing from the award of an
interest in the property
Spence v. Mitchell (1993 ON Gen Div) (241)
(rebutted presumption)
(Property purchased in woman’s name as gift to incite her to move from Montreal to Burlington. Both parties paid into it
even after he moved out. He fought for undivided half interest, forced sale, and accounting of proceeds.)
 Clearly a gift, he had seen lawyer and made arrangements for trust.
 Clear juristic reason.
 Can rebut presumption of expectations
Nowell v. Town Estate (1997 ON CA) (242)
(mistress, constructive trust)
(Famous painter, Towne, was married with a weekend mistress (maintained property with her). She had employment. He
assured her that he would take care of her. She terminated relationship after 24 years and requested settlement. Gives
her $245k in paintings. He dies, she sues estate.)
Held: Awarded lump sum settlement based on constructive trust, these assurances did not create a legal relationship
 She was not a spouse under the FLA but claimed constructive trust
 Characterized relationship as quasi-spousal (he was enriched by her services, she organized social events to
entertain friends), she suffered depravation
 Criticism: recognizing weekend mistresses as spouses, plural relationships
36
Wylie v. Leclair (2003 ON CA) (245)
(unjust enrichment, monetary)
(cohabitation for 15 years, two children. Monetary award of $150,000 for unjust enrichment at trial, Wylie appealed)
applied value received approach (monetary award)
1. Decision confuses approach for determining monetary awards  follow Peter v. Beblow
 Here monetary award appropriate for unjust enrichment. Value should be assessed on basis of value received.
 At trial, woman awarded half - $150k.
 Man wanted to give her $35-40k, CA agreed. She had not contributed for initial years and lived rent-free. Award
reduced to $70k. (none of this analysis is required under Family Law Act)
Note: gift will constitute a jurisdiction reason (no constructive trust)
This case decided just before Walsh v. Bona. Peter v. Beblow distinction between value survived and received caused
much confusion.
Thomas v. Fenton (2006 BC CA) (246)
(enrichment, woman owns more)
(2 years cohabitation before the woman buys house for $44k, $12k down, $32k mortgage. Man renovated. She paid for
mortgage and most expenses, included renos. Finances kept separate. TJ awarded 25% of profits on sale of house when
sold in 2004 for $382,000.)
 Man had made contribution to home, woman unjustly enriched.
 CA: Benefits were conferred on man, 30 year relationship. Absence of juristic reason for conferred benefits?
o No children, he could have worked. In non-traditional relationships, each party contributes without
expectation of payment.
o Here two independent people who give each other gifts. Gifts are outside realm of contractual, common
law, equity, or statutory law.
o Feels that it comes out in the wash, she bestowed more on him than he on her.
o Gift, so no reason to go through value survived/received.
o Again, because not married must argue why contributions are not gifts.
 He got nothing from CA. All gifts during relationship.
Pegler v. Avio (2008 BC SC) (248)
(value survived)
(Pegler 51 yrs at trial, Avio 65. Prof-student relationship, Avio had two children from previous marriage. Avio wanted
marriage contract and accrual in home only, nothing else re: assets. Had one child together, she contributed a bit but
health deteriorated (due to MS) and Avio took on responsibilities. He got overwhelmed. She leaves with child to move in
with sister, Pegler sought compensation for unjust enrichment. He earned about $80k/year, owned mortgaged house,
$200k+ pension, also awaiting inheritance and proceeds from a lawsuit. Had discussed marriage and cohabitation
agreement but never finalized. He always insisted that inheritance and lawsuit proceeds would be separate from any
agreement.)
 Echoes Beblow, he was unjustly enriched by her services. Clear domestic services and maintenance of home for
many years, he benefited from enriched household and family life.
 Compensatory award of $44k re: increased value in home (45%), $400k re: pension (35%), lawsuit and
inheritance untouched.
 Did take into account his contributions re: home contributions
 Value survived analysis
 Court basically mirrored what she would have gotten under family law act.
Review: confusion between value survived/received under constructive trust. In ON
Bell v. Bailey (2001 ON CA) (251)
(value received)
1. Value received calculation of monetary award may, to some degree, reflect to some extent to which the value of the
asset was enhanced by the claimant’s direct and indirect contributions.
 Not talking about value on market. Ontario tends to reject value survived unless there’s a constructive trust. Two
approaches are quite similar.
37
Belvedere and Britton Estate (2009 ON CA) (252)
(received vs survived)
(parties lived together for only 2 years. He has a child in daycare and has full custody. He does most of daycare. She was
flight attendant on leave to live with this man and his child. He paid almost all expenses and gives her various gifts. She
used airline privileges to arrange trips, she wouldn’t even take her wallet. Father dies in farming accident, child is
beneficiary. She sues for unjust enrichment.)
 Court holds that benefit alone doesn’t mean unjust enrichment
 No evidence that she suffered any sort of deprivation
 Both benefitted from care and companionship, she didn’t pay for airline tickets and didn’t do daycare.
 If there’s unjust enrichment, should be based on value received. He didn’t receive any value that she should be
compensated for.
Range of results under constructive trust. Fairly uncertain and unclear re: value received vs survived. Lots of judicial
discretion, must make case on contributions. Critics say hurdles are too high and expensive. Argument that we should just
revert to default provisions under Family Law Act.
Review
B/c of Walsh case, unmarried spouses can’t default to FLA. Saskatchewan did equate them.
Sharing Economic Gain of Marriage (252)
Important: ss. 4, 5, 7, 8, 9, 12.



Spouses are entitled to an equal share of the property acquired during the marriage when the relationship ends
(subject to exclusions)
FLA property regime does not provide for a transfer of assets but rather, a financial transfer (one spouse owes
debt to the other spouse)
Regime of separate property  each spouse is free to dispose of or deal with his/her separate property subject to
exceptions:
o Matrimonial home
o Section 5(6) – where a spouse intentionally or recklessly depletes his/her NFP, court may determine that
equalization is unconscionable and may vary the equalization entitlement in favour of the other spouse
o Fraudulent Conveyances Act
Key elements:
 Equal division of assets
 Valuation-based, monetary remedy
 Very narrow judicial discretion (unlike Family Law Reform Act)
o Only unconscionability can lead to variance
 Can be contracted out of it with a domestic contract
 Separate property regime, historically husband had title to all
 Each spouse may deal with own assets except for matrimonial home
o Only on dissolution do you get hiving off of assets and equal split
 At end of marriage, each spouse may apply for equalization of net family property
o Calculated at date of end of marriage
o Deduction of debts and liabilities
o Assessment of net value on entering relationship
o End – beginning = net for each individual. Wealthier – lesser /2 is equalization to poorer.
Policy Rationales Underlying the Default Regime



Both spouses make a vital and essential equal contribution to the economic viability of the family unit (financial
and other sacrifices) and the acquisition of wealth by the unit
o Implicit assumption that there’s a model of sharing in marriage. Deemed equality of contribution.
o Assumption that it’s usually the woman who sacrifices career. Equal sharing is fair, gender neutral.
Legislative regime reflects the reasonable expectations of spouses that property will be divided equally when the
relationship ends
o Where this does not reflect the reasonable expectations of the parties, may contract out of the default
regime (subject to exceptions for child and spousal support)
Attempts to quantify contributions to child care and domestic work is difficult. No value received analysis, only
assets are calculated at end of relationship.
38
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

Equal division of property assists dependent children and custodial mothers. (statistically most common)
Default regime has generated predictability, reduced litigation (less expensive)
Effort to recognize marriage as partnership – s. 5(7).
Spouses leave marriage with whatever property they had title to with debt owing to other spouse. Residual discretion in
place at s.5(6). Where unconscionable, courts can vary equalization.
Contracting out many elements of marriage. Most common opting out in marriage contracts is for pre-existing assets.
Who can apply?
Regime only applies to persons who qualify as spouses
Section 1(1) – “spouse” means either of two persons who
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on
this clause to assert any right
Section 1(2) – In the definition of “spouse,” a reference to marriage includes a marriage that is actually or potentially
polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid
 Good faith requirement = claimant must have intended to be validly married according to the applicable law (may
relate to capacity)
When can someone apply?
 When “triggering events” occur, spouse whose NFP is less than the NFP of the other spouse is entitled to half of
the difference (section 5(1))  valuation date
Section 4(1) – “valuation date” means the earliest of the following dates:
1. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation (most
common)
2. The date a divorce is granted
3. The date the marriage is declared a nullity
4. The date one of the spouses commences an application based on section 5 (3) (improvident depletion) that is
subsequently granted
5. The date before the date on which one of the spouses dies leaving the other spouse surviving
Cases decided under the FLA generally apply the concept of “living separate and apart” in determining the valuation date
 If only one spouse’s attitude indicates that will not reconcile, it counts.
 Newton (reservations about this approach): courts will exercise extreme caution in fixing a valuation date in the
absence of evidence of an actual separation (i.e. cohabiting) because economic interdependence likely
Caratun v. Caratun (1987 SCC) (258)
(triggering event)
(Wife supported husband to assist him in attaining his dental license. The parties separated in 1981. Husband led wife to
believe there was a prospect of reconciliation for two years. In order to obtain a custody agreement, husband saw wife
frequently and had sexual relations with her. He further put off resumption of cohabitation until she “quit smoking and lost
weight”. Wife claimed date of actual separation was 1984 (Valuation Date) because there was a reasonable possibility of
reconciliation until that time (husband had no assets in 1982))
1. Intention of one party to separate is sufficient for determination of date of separation.
 valuation date was 1982
 No intention by the husband to reconcile and no reasonable prospect of reconciliation after 1981
 Unfairness of his leading her to believe to the contrary may be assessed in determining whether equalization is
unconscionable
 Found that she didn’t suffer, were financially independent.
Fleming v. Fleming (2001 ON SCJ) (259)
(valuation date)
(Husband argued separation would have occurred 13 years earlier if he had been aware of the wife’s affairs)
1. Under the FLA, no judicial discretion to alter the valuation date.
2. Separation is when economic union comes to an end.
 date of separation was Validation Date
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
Economic union lasted over the extra 13 years
Backdating unfair because she might not have been aware of possibility to launch claim on assets/
Section 7, 8 FLA
Section 7(1) permits the court to “determine any matter respecting the spouse’s entitlement under section 5”
Section 8 – In an application under section 7, each party shall serve on the other and file with the court, in the manner and
form prescribed by the rules of the court (Form 13), a statement verified by oath or statutory declaration disclosing
particulars of,
(a) the party’s property and debts and other liabilities,
(i) as of the date of the marriage,
(ii) as of the valuation date, and
(iii) as of the date of the statement;
(b) the deductions that the party claims under the definition of “net family property”;
(c) the exclusions that the party claims under subsection 4(2); and
(d) all property that the party disposed of during the two years immediately preceding the making of the statement, or
during the marriage, whichever period is shorter
 Where an application is made under section 7, each party is required to serve on the other and file with the court
a statement of property (section 8)

Court applies the net family property formula by this mechanism
 Lawyers have an obligation to ensure clients provide full disclosure
Improvident Depletion
Used in cases of gambling or excessive gifts to another in anticipation of separation or simply as part of adultery.




Triggering event occurs on the date one of the spouses commences an application under section 5(3) that is
subsequently granted
Section 5(3) – When spouses are cohabiting, if there is a serious danger that one spouse may improvidently
deplete his or her net family property, the other spouse may on an application under section 7 have the difference
between the net family properties divided as if the spouses were separated and there were no reasonable
prospect that they would resume cohabitation (Stone)
Section 5(3) permits equalization claims during an ongoing marriage relationship
Section 5(4) – Where a court grants an order based on section 5(3), neither spouse may make a further
application under section 7
Watch interplay between s.7(3) and s.2(8)
Improvident depletion of spouse’s net family property
5. (3) When spouses are cohabiting, if there is a serious danger that one spouse may improvidently deplete his or her net
family property, the other spouse may on an application under section 7 have the difference between the net family
properties divided as if the spouses were separated and there were no reasonable prospect that they would resume
cohabitation. R.S.O. 1990, c. F.3, s. 5 (3).
Extension of times
2. (8) The court may, on motion, extend a time prescribed by this Act if it is satisfied that,
(a) there are apparent grounds for relief;
(b) relief is unavailable because of delay that has been incurred in good faith; and
(c) no person will suffer substantial prejudice by reason of the delay. R.S.O. 1990, c. F.3, s. 2 (8).
Limitation
7. (3) An application based on subsection 5 (1) or (2) shall not be brought after the earliest of,
(a) two years after the day the marriage is terminated by divorce or judgment of nullity;
(b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation;
(c) six months after the first spouse’s death. R.S.O. 1990, c. F.3, s. 7 (3).
Interim Preservation Order
 Section 12 – In an application under section 7 or 10, if the court considers it necessary for the protection of the
other spouse’s interests under this Part, the court may make an interim or final order
(a) restraining the depletion of a spouse’s property; and
40


(b) for the possession, delivering up, safekeeping and preservation of the property
Rationale: ensure there are sufficient assets held at trial by spouse with greater NFP to satisfy equalization
payment
Note: courts are reluctant to apply section 12 because statutory entitlement to equalization payment does not
create any interest by one spouse in the property of the other. It’s just a financial payout.
Calculating The Net Family Property (255)
(good comments in the book on each step)
1. Determine the valuation date in accordance with the definition in s. 4(1).
2. List the property interests owned by the spouse on the valuation date and determine their values at that time.
Total the values.
o If joint tenancy, include on each side. If single name on title, include on that side.
3. Determine if any of the spouse’s property interests are excluded by s. 4(2). Deduct the value of any excluded
property interests from the total reached in Step 2.
o Not shareable if it’s an inheritance, gift, anything specific that was excluded, damages for personal
injuries.
4. Calculate the amount of the spouse’s debts and liabilities on the valuation date. Deduct the total of these debts
and liabilities from the figure determined under Step 3.
5. Deduct the martial property deduction. Determine the martial property deduction of the spouse by adding up the
values of all property interests, other than those in a matrimonial home, that the spouse owned at marriage and
then subtracting from that total the value of the debts and other liabilities of the spouse on the date of the
marriage other than those directly related to the acquisition of a matrimonial home.
6. If the result is a negative number, it is deemed to be zero by s. 4(5). (more assets at beginning then at end of
relationship)
Under s. 5(6) court may alter figure if would otherwise be unconscionable.
Review
Marriage as partnership – deemed equality. Leads to Equalization Claim.
Net family property of wealthier spouse – net family property of poor spouse. Divide by two. Wealthier spouse owes that
sum.
Valuation date vs marriage date.
Valuation date (triggering event). Sum all of assets in each spouse’s name = net worth at valuation date. Calculate assets
for each at marriage date. Subtract marriage date from valuation date.
 Remember that some assets are excluded, you can either show this or mention on exam.
If valuation – marriage value = negative, it’s deemed to be zero.
Anomaly – if zero assets on valuation date but had come into relationship with $40k in student loans. Negative amount on
marriage is deemed positive and it must become positive figure at valuation. Principle driving this is that spouse has
helped you pay off student loans in course of marriage.
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Definition of Property – s. 4(1) Family Law Act
“Property” means any interest, present or future, vested or contingent, in real or personal property and includes,
(a) property over which a spouse has, alone or in conjunction with another person, a power of appointment
exercisable in favour of himself or herself,
(b) property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a
power to revoke the disposition or a power to consume or dispose of the property, and
(c) in the case of a spouse’s rights under a pension plan that have vested, the spouse’s interest in the plan including
contributions made by other persons


FLA reform included a broader definition of property and not only assets “used” for family purposes
Various interests are considered “property” for the purposes of determining NFP including: pensions, RRSPs,
retirement allowances, survivor rights under a pension, entitlement to compensation for unused sick days, stock
options, interest in discretionary trusts, goodwill
Excluded property
4. (2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net
family property:
1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date
of the marriage.
2. Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be
excluded from the spouse’s net family property.
3. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and
companionship, or the part of a settlement that represents those damages.
4. Proceeds or a right to proceeds of a policy of life insurance, as defined under the Insurance Act, that are payable on
the death of the life insured.
5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.
6. Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family
property.
7. Unadjusted pensionable earnings under the Canada Pension Plan. R.S.O. 1990, c. F.3, s. 4 (2); 2004, c. 31,
Sched. 38, s. 2 (1); 2009, c. 11, s. 22 (5).
Calculating Details
1. Determine property (s. 10)
2. What is property?
a. Usually title.
b. May include constructive trust interest
3. If questions re: ownership, use s. 10 of Family Law Act. Determination of ownership between party and spouse.
4. Move to excluded property – s.4(2).
a. Exclude personal injury and insurance payouts
b. Exclude traceable gifts.
i. Eg: $10k birthday gift and purchase of painting. If it appreciates in value, full value including
capital gain is excluded.
ii. If spouse helped contribute to appreciation, might be able to argue constructive trust.
5. Matrimonial home – s. 4(1). Different character, psychological value. Will be divided equally regardless.
a. Unconscionability s. 5(6) may soften blow if short relationship or unusual circumstance.
b. Inflationary gains not taken into account – only nominal dollar value.
6. Consider s. 5(6). (unconscionability)
7. Remedy is usually dollar amount owing. Possibility of getting interest from time of separation.
8. S. 9 of Family Law Act allows for more flexibility in remedy.
a. Repayment may be postponed.
b. Property can also be transferred to satisfy claim but courts don’t like this. Can also order sale.
42
Brinkos v. Brinkos (1989 ON CA) (260)
(trusts as assets)
(wife had trust account since childhood which provided income. At time of marriage, trust had value of $225k, $610k at
separation after the addition of gifts from parents. Agreed that she could deduct asset of $225k. Issues: corpus of trust
and income entitlement. Is life income property for purposes of s.4(1)? Court says yes, interest is vested. She’s able to
exclude under s. 4(2) the present value of right to trust attributable to post-marriage gifts. She did have to include value of
income from gift – much like a pension.
1. Present right to future interest income is property – to be included in assets.
DaCosta v. DaCosta (1992 ON CA) (262)
(custom remedy)
(Husband had right to share in capital of his great-grandfather’s estate upon the death of the sole surviving grandchild
(Isabella Sage). Husband claimed future contingent interest (inheritance) should be excluded from net family property.)
1. Future contingent interest held in the present constitutes property under Section 4(1) and is therefore, subject to
equalization – court has the authority to fashion a fair remedy (Section 9)
HELD: husband unsuccessful, interest in estate included in NFP
 Present right to future interest contingent on surviving Isabella Sage (vested)
 Since husband’s interest in the estate is a contingent interest = “property” under s. 4(1) (although contingent)
 Husband claimed he should not be required to pay immediately for an asset he may never receive (unfair)
o Proposed method of assigning value: discount the value of future contingent interest to take into account
contingency of the interest
o However, court fashioned fair remedy under Section 9(1)(d)(i): ordered husband to hold 50% share of his
interest in capital of the estate in trust for the wife to the extent of her interest therein
 Therefore, since payment is made only if husband inherits, present value discounting for possibility of
Husband predeceasing Isabella not required
o Since the asset is located in a foreign jurisdiction, husband required to provide wife with security (Section
9(1)(b))
Note:


Court held property was akin to inheritance but there is no such thing as “akin to inheritance” (either inheritance or
not)  decision poorly reasoned, only apply DaCosta for definition of property
If assigning value today to property that will only materialize in the future, determine present value of equalization
payment (discount value by interest rate)
o $ today is worth more than $ in the future (accumulation of interest)
Lowe v. Lowe (2006 ON CA) (264)
(disability income)
(husband splits from wife while receiving two monthly disability benefits under Workman’s Comp (one for life, the other to
65). Applications deemed disability compensations a future interest in property. WTF!)
1. If disability benefits represent income replacement and, from the perspective of family property and spousal support,
are more appropriately treated on the same basis as income for employment.
 Section 4 is broadly defined, does include future and contingent interests if they’re vested. Includes pension and
goodwill.
s. 4 should be read a bit more strictly. Purposive interpretation – meant to reflect marriage partnership. Disability income
should not be included because it’s not related to marriage. Comparable to future income based on personal service
rather than pension.
43
Caratun v. Caratun (1992 SCC) (268)
(professional degree)
(whether a dental license (university degree or qualification) is property for the purposes of determining NFP?)
1. Professional degree/license does not constitute property for purposes of equalization. Practices (businesses) do have
value.
 “License constitutes wealth in the matrimonial context” (significant value)
 However, difficulties in treating license as property for matrimonial purposes:
o License is not tangible or transferable right (traditional indicia of property is inherent transferability)
 Right is personal to the holder and not arbitrary  value reflects intelligence, personal efforts of holder to be of
value in the future (not earned or existing at VD)
o Policy of FLA emphasizes partnership during marriage, self-sufficiency upon termination  inclusion in
NFP frustrates these objectives
 Valuation of these rights are unfairly speculative in the matrimonial context; many contingencies (inclination,
probability of success, capability, competition, etc.); no amendment of equalization payment if circumstances
change (vs. support orders)
 Appearance of servitude (spouse as an investment)
 What if degree acquired before marriage and license is treated as property?
o E.g. MD 500,000; VD 200,000  no equalization payment (non-licensed spouse would not benefit from
equalization)
 Degrees are a depreciating asset.
o Eg: medical degree earned before long-term marriage. Attribute value to expected earnings before
retirement. Would result in negative value because of depreciation (fewer number of years for future
earning as time goes on) so legislators found it more fair to exclude from calculation. Spouse would get
no equalization.
 Court will consider career gains and corresponding sacrifices in determining spousal support orders rather than
property division
Note:

In US, 2 states regard university degrees and licenses as marital assets subject to division (by determining
present value)
Rawluk v. Rawluk (1990 SCC) (272)
(constructive trust)
(Rawluks were married for 29 years and had 3 children. Prior to the marriage, husband owned a farm property. During the
marriage, husband undertook a business venture and acquired a family farm to which he had sole title. Wife was
responsible for childcare and played a significant role in the farming operations. Wife was a qualified nurse and motivated
by her desire to gain an independent income, worked part time during the marriage. The Rawluks acquired several
properties in the husband’s name except for a cottage (in wife’s name for tax purposes). The funds to purchase these
properties derived from a bank account maintained in the husband’s name. After separation and before trial the value of
the properties increased dramatically. To share in this increase in value, wife claimed by means of a constructive trust
remedy, a beneficial one half interest in the assets.  whether the doctrine of constructive trust can be applied to
determine the ownership of assets under the FLA.)
1. Family Law Act does not preclude the application of the doctrine of constructive trust in the context of marriage
(residual discretion affirmed by SCC)
 Constructive trust in favour of wife
Majority (Cory J.)
 CT is intended to prevent unjust enrichment (unfairness) and should not be disregarded – if FLA intended to
eliminate equitable remedies would have provided as such
 FLA incorporates constructive trust remedy in the process of ownership determination and equalization
(recognition of ownership)
o Definition of property includes legal and beneficial ownership
 CT is deemed to arise when the unjust enrichment first occurred
 “Where both spouses have contributed to the acquisition or maintenance of the property, the [non-titled] spouse
should be able to claim an interest in that property by way of a constructive trust and realize the benefits that
ownership may provide. The non-titled spouse’s constructive trust interest is distinct from the right to an
equalizing share of property value that is derived not from an independent property right but from the status as a
married person”
 “Application of the [constructive trust] remedy in the context of the FLA can achieve a fair and just result”
44
Dissent (McLachlin J. in Obiter)
 FLA is a comprehensive regime that recognizes the contributions of both spouses during the marriage – it
addressed the question of unjust enrichment by providing for a monetary equalization payment based on value of
NFP at VD (while CT provides beneficial interest in property which persists to the date of trial – proprietary
remedy)
o Wife has not contributed since separation and therefore, is not entitled to an interest (enrichment occurs
b/c of appreciation in value of land after separation and not depravation to wife)
 Constructive trust is not a property right but a proprietary remedy for unjust enrichment; therefore, other remedies
for unjust enrichment must be considered before declaring CT (discretionary)
 Inequality (unjust enrichment) is remedied under the narrower discretion in section 5(6) (unconscionability)
o McLachlin would only allow remedy under section 5(6)(h) if unconscionable (however, no
unconscionability in this case because husband had title)
 Allowing another vehicle for judicial discretion will increase uncertainty and promote litigation
Reverse Constructive Trust?
Where property is not jointly owned and there is a significant decrease in value after separation, should this decrease in
value also be shared by the spouses? There are cases where courts have held that constructive trust does not apply if
property depreciates in value. There are a few exceptions.
 Constructive trust is meant to apply to unjust enrichment.
 Also option of selling asset, untitled spouse doesn’t have that option.
Review:
Actuaries usually hired for valuation of income streams. Don’t worry, won’t have to calculate on exam!
Sometimes policy reasons aren’t clear. S. 4(5) – no net negative NFP, deemed to be zero. When debt is paid off, it’s
included in calculation because it’s assumed that partner helped pay off. 1974 Reform Commission looked into whether
debts should be share. Fear that husbands might amass debts without wife knowing, unfair that she share the debts. But
what if debts are accumulated for family purposes? Remember that debts are deducted from assets in valuation formula.
Most of the time, it is share and it comes out in the wash.
Examples
Valuation
S1: Assets: 100k, 0 debts = 100k NFP
S2: Assets: 20k, 10k debt = 10k NFP
Equalization of 45k from S1 to S2. (90/2)
This example is ok but what if it was unconscionable under s.5(6)(f). eg:
Valuation
S1: 10k assets, 0 debts. 10k NFP
S2: 1k assets, 5k debt. -4k NFP, deemed zero.
Equalization: 5k. Would be unfair because spouse carrying debt for family is left with only $4k. Judge would likely award
$7k so that they both end up with $3k.
Greater problem when assets cannot be distributed.
S1: 1k assets
S2: 2k assets, 5k debt. NHP -$4k.
Equalization: $500. S2 still ends up with debt of $3500. Full $1k from S1 could be given to S2, doesn’t entirely remedy
problem. Legislation is clear, if there are no assets to be distributed, cannot be redistributed.
***applies to family debt only!***
Valuation of Property (282)
General focus is on real property, valuable personal property.
45




Arbitrary value assigned at marriage date – however,
Section 4(3) imposes onus on the party claiming a deduction to prove the value of the deduction
o “Value” is not defined in the FLA and no particular method of valuation is prescribed
Ordinarily, fair market value is the appropriate measure of value where there is a market (however, there is no
market for assets such as pensions)
Problem of disposition costs – assigning value to assets which cannot be disposed of without incurring disposition
costs (e.g. cashing in RRSPs)
o Tax liabilities – capital gains.
o What about valuing if won’t actually be sold?
s.8 FLA
Statement of property
8. In an application under section 7, each party shall serve on the other and file with the court, in the manner and form
prescribed by the rules of the court, a statement verified by oath or statutory declaration disclosing particulars of,
(a) the party’s property and debts and other liabilities,
(i) as of the date of the marriage,
(ii) as of the valuation date, and
(iii) as of the date of the statement;
(b) the deductions that the party claims under the definition of “net family property”;
(c) the exclusions that the party claims under subsection 4 (2); and
(d) all property that the party disposed of during the two years immediately preceding the making of the statement, or
during the marriage, whichever period is shorter. R.S.O. 1990, c. F.3, s. 8; 2009, c. 11, s. 24.
Heon v. Heon (1989 ON HC) (283)
(auto deduct expense)
(overruled by Starkman)
 Appropriate approach is to automatically deduct disposition costs and taxes as of VD
 Provides certainty to valuation of assets and accurately reflects true value to the owner
 May be unfair because many parties won’t need to sell asset to make equalization payment
Starkman v. Starkman (1990 ON CA) (285)
(foreseeable costs)
1. Onus on owner to establish evidence that disposition of asset is foreseeable in the future before allowing deduction of
disposition costs
 Rejected automatic deduction in Heon
Sengmueller v. Sengmueller (1994 ON CA) (285)
(likely disposition)
1. Appropriate to consider notional disposition costs in reducing value of NFP if there is evidence of a likely disposition
date and if it is clear that such costs will be inevitable when the owner disposes of the assets.
 CA allowed deduction of disposition costs
3 rules to apply in all cases:
1. Apply the principle of fairness (i.e. costs of disposition and benefits should be shared equally)
2. Deal with each case on its own facts, considering the nature of the assets involved, evidence as to the probable
timing of their disposition, and the probability of tax and other costs of disposition at the time, discounted as of
VD; and
3. Deduct disposition costs before arriving at the equalization payment, except where it is not clear when, if ever,
there will be a realization of the property
Example:
One spouse purchases painting for $200k. Worth $310k at separation. But auction fees of $10k must be paid. 100k capital
gain, usually 25%. So asset is really only worth $275k. Will need to prove that intends to sell to get this value in
calculation.
46
Deductions, Exclusions And Unconscionability
Excluded Property (s.4(2))
(generally property not related to marriage)
Section 4(2) – The value of the following property that a spouse owns on the valuation date does not form part of the
spouse’s net family property: MUST BE IDENTIFIABLE AT VALUATION DATE
1) Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of
the marriage.
 If gift or inheritance was acquired before marriage, value at marriage date is deducted but value at valuation
date is NOT excluded
 Therefore, if enter marriage with gift or inheritance that increases in value, increase in value of the property
during marriage is shared by the parties (deducted at MD and included at VD); if gift or inheritance acquired
after marriage and increases in value, increase in value is also excluded (original value + appreciation
deducted at VD)
2) Income from property referred to in paragraph 1 (gift or inheritance), if the donor or testator has expressly stated that it
is to be excluded from the spouse’s net family property.
 Eg: dividends on shares, income from real estate, capital gains, etc.
3) Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and
companionship, or the part of a settlement that represents those damages. (Lowe v. Lowe)
4) Proceeds or a right to proceeds of a policy of life insurance, as defined under the Insurance Act, that are payable on
the death of the life insured.
5) Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.
 However, if proceeds from gift or inheritance acquired BEFORE marriage are used to purchase property
during the marriage, this property is INCLUDED in NFP  tracing
6) Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family
property.
7) Unadjusted pensionable earnings from CPP are not included.
Policy
 excluded property is generally only intended to benefit one spouse
o Default regime: presumption that both spouses contributed equally to wealth accumulated during the
marriage  existence of excluded property is not attributed to the partnership effort, no contribution by
other spouse to asset
 Section 4(3) – onus of proving a deduction under the definition of “net family property” or an exclusion under
subsection (2) is on the person claiming it
Matrimonial home is NOT excluded even if inheritance or traced
 Policy: recognition of the special nature of the matrimonial home; premise that both spouses contribute
significantly to the preservation and maintenance of this asset
Anomalies Around the Matrimonial Home
Folga v. Folga (1986 ON HC) (289)
(matrimonial home)
(Husband entered the marriage owning a house ($12,000). The parties lived in the house for 3 years following the
marriage. House was sold and the proceeds were used to purchase a more expensive home. Whether the husband may
deduct the value of the first home as property owned before the marriage.)
1. Value of a property owned before the marriage date is deductible if that property is no longer a matrimonial home on
the valuation date.
2. “Status of a MH is not immutable and a spouse may lose the protection given by the matrimonial home status and a
spousal owner may regain the right to deduct under s. 4(1)(b)” – since the property is no longer a MH, qualifies for
deduction (see section 4(1)(b)).
 $12,000 deduction permitted
 At MD property constituted the matrimonial home but no longer owned at VD
 Matrimonial home = property occupied as the family residence on VD qualifies as a matrimonial home
Note:
47
E.g. If spouse owns house worth $500,000 before marriage, sells immediately before marriage and uses proceeds to
purchase a new home the day after marriage, may deduct $500,000 because cash is owned on the date of marriage 
inconsistency in the FLA.
 Where the property is retained as the matrimonial home, no deduction (criticism of formulation of matrimonial
home)
Debts and Liabilities


If the pre-marital property deduction is negative (i.e. MD net debt), this increases the spouse’s net family property
(i.e. negative value at MD increases equalization payment)
o VD – (-MD) = VD + MD
Rationale: if a spouse enters the marriage with a net debt and during the marriage the debt is eliminated,
assumption that the other spouse has contributed to paying the debt
Da Costa v. Da Costa (1990 ON) (see above also from p.262)
(mortgage on matrimonial)
(Husband owned a house subject to a mortgage before marriage. At the separation date, the property was the
matrimonial home. What happens to original mortgage on valuation date? Becomes positive but debt should be shared
equally.)
1. If the debt is secured against the land in the form of a mortgage, the debt should NOT be deducted from the marriage
date value of property owned on the marriage date (distinguished from Menage).
 This is fair, mortgage is read in by judge.
HELD: mortgage deducted from value of matrimonial home on valuation date


Prohibited from deducting pre-marital property if became marital home
Entered marriage with a non-deductible asset (matrimonial home); however, mortgage debt became a valuation
date asset
o Mortgage reduced the value of the matrimonial home
o Unfair because husband is required to share value of pre-owned asset and debt (double dipping by nontitled spouse)  not the intent of the FLA
o Including mortgage as a pre-marital debt but not excluding the property (MH) would lead to an absurd
result
Menage v. Hedges (282?)
(what if there is an unsecured loan (from father) against the matrimonial home?)
(unsecured debt)
1. if an unsecured debt is incurred to purchase a matrimonial home, the amount of the debt is deducted from the
marriage date value of property owned on the marriage date
 unsecured debt was transformed into a valuation date asset and subject to equalization
Collier v. Torbar (2002 ON CA) (290)
(unsecured debt for home)
 affirmed DaCosta for unsecured debts
(Before the marriage, wife purchased home financed by an unsecured housing loan under the Income Tax Act (loan by
corporation to shareholder wife). The debt was transferred to mother’s corporation pursuant to the Income Tax Act. The
wife’s house became the matrimonial home. Treatment of the housing loan in calculating the wife’s NFP?)
1. If the borrower can demonstrate that he/she is subject to a legal or financial constraint linking the debt to the
matrimonial home, the debt should not be deducted from the marriage date value of property owned on the marriage
date.
Loan should not be deducted from the MD value of property owned on MD
 Recognized unfairness of this double burden
 Loan is not registered against the home and does not diminish the owner’s equity in the home (owner is free to
dispose of home without constraints imposed by a mortgage)
 However, housing loan must be documented and the borrower is subject to significant tax consequences when
disposing of the home
o These constraints represent a sufficient link between the debt and the matrimonial home to apply the
DaCosta principle
 Obiter: court leaves an opening – “unsecured and undocumented family loans may require different treatment”
48
Even though not secured, there are enough similarities to rules under Family Law Act. Should be treated as debt.
2009, legislation rectified:
“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns
on the valuation date, after deducting,
(a) the spouse’s debts and other liabilities, and
(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after
deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or
significant improvement of a matrimonial home, calculated as of the date of the marriage; (“biens familiaux nets”)
Note: Courts follow Collier with respect to unsecured debts and DaCosta for secured debts
 Objection to Collier approach – spouse who borrows to purchase MH before marriage is in an advantageous
position vis-à-vis spouse who pays cash for MH and acquires other pre-marital property by borrowing (cash
deductible at marriage date, increasing NFP)
 Whether the special treatment accorded to the matrimonial home (given rules of pre-marital property deductions
and exclusions) is justified – FLA treats spouses who enter the marriage with matrimonial home differently
Deduction in respect of pre-marital property is permitted even where the property no longer belongs to the spouse on VD
or is not traceable to other property owned by the spouse. However, section 4(2) exclusions are permitted only if the
property still belongs to the spouse on VD or is traceable to the property (other than the matrimonial home) that belongs to
the spouse on VD.
Capital Gains (gift or inheritance)
 If acquire asset after marriage, exclude asset and increase in capital gains
 If acquire asset before marriage, only exclude original value of asset but increase in capital gains is shared
between the parties
 If excluded asset and income generated, rental income under section 4(2)(2) is only excluded if the donor has
expressly stated income is to be excluded
 If asset inherited before marriage, increase in value and income is shared between the parties
 Law Reform Commission advocates elimination of capital gains distinction in NFP context and equal division of all
gifts and inheritances, etc.
Oliva v. Oliva (1988 ON CA) (295)
(capital gains)
(Husband acquired interests in real rental properties before and after the marriage as gifts from relatives. Title was in the
husband’s name and rental incomes were used to pay the mortgages. Partial exclusion under 4(1) for properties received
after marriage. Issue is over exclusion amount.)
1. For properties acquired before marriage, permitted to deduct marriage date value (value – mortgage)
2. Capital gains:
 If asset (inheritance or gift) acquired AFTER marriage, capital gains linked to that asset are also excluded
 If asset (inheritance or gift) acquired BEFORE marriage, may only exclude original value of the asset and capital
gains are shared
 Income generated from an asset (inheritance or gift) acquired AFTER marriage (e.g. rental income) is excluded IF
the donor expressly stated that income is to be excluded
 If the asset (inheritance or gift) is acquired BEFORE the marriage, income generated from the asset is shared
Policy: during the marriage, the other spouse contributed to the maintenance and management of the property
 Held: since relatives had not expressly stated exclusion of income, section 4(2)(2) did not apply and income
generated from the properties was shared
 Note: with respect to property acquired after MD, separate capital gains and income generated from the asset
Exclusion is value including capital appreciation at valuation date. Rental income, however, was not expressly excluded.
Must separate equity income generating properties and assets acquired before/after marriage.
Ho v. Ho (1993 ON Gen Div) (296)
(gifts)
(Husband and wife acquired gifts from husband’s parents during the marriage. He claimed the gifts were intended for him
but transferred to his wife for tax purposes.)
Reasons:
 “Mr. Ho cannot have it both ways”
49
o If he benefited from reduced taxes by transferring the assets to his to wife, the assets belonged to his wife
Wife loaned $ from the gifts to her husband to invest in property
o No documentation of a loan to her husband but also no evidence of gift
o Unclear whether this was a gift and therefore, court treated as a loan traceable to the third party gift (from
parents) Court lists loan as receivable in her assets but it’s a gift from his family so it’s excluded.
HELD: Wife has a receivable from loan to husband (asset on VD) AND may also exclude value (traced to gifts acquired
after marriage) while husband had a debt (deductible) on valuation date
 Wife’s position is more favourable than anticipated (vs. while receivable was a VD asset, deduction for gift) She’s
effectively ahead ½ value of loan.

Cartier v. Cartier (2007 ON SCJ) (297)
(gifts between spouses. Husband’s mother gave him valuable farm land during marriage, he sold to acquire four
investments held jointly with wife. He wanted to exclude value of interests from NFP.)
(gifts)
Court held should be able to exclude only ½ of value. Half was gifted to her, his half is excludable as gift.
Division of Property Summary
1. Determine ownership (section 10)
 Constructive trust (Rawluk)
2. Determine valuation date (trigger date)
3. List property owned by each spouse on:
a. Valuation date
i. List all assets owned by each spouse on VD
 Deduct disposition costs (Sengmueller)
ii. Deduct all debts and liabilities of each spouse on VD
iii. Deduct value of excluded property (section 4(2))
b. Marriage date
i. List all assets owned by each spouse on MD, excluding matrimonial home
ii. Deduct all debts and liabilities of each spouse on MD
4. VD – MD = NFP for each spouse (if negative, deemed 0  section 4(5))
5. (NFP wealthier spouse – NFP other spouse]/2
6. Wealthier spouse owes the other spouse equalization payment
7. Section 5(6) analysis
VD
S1
Assets – Debts = VD1
MD
Assets – Debts = MD2
S2
Assets – Debts = VD1
Debts X1
Assets – Debts = MD2
VD1 – MD1 = NFP1
VD2 – MD2 = NFP2
(NFP1 – NFP2)/2 = EP
*NFP1 is wealthier
NOTE: spouses may opt out of Part I FLA or modify the rules applicable to the relationship by entering into a domestic
contract
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Policy and the Partnership Concept of Marriage (286)

Flaws: overcompensation for homemaker spouse; appropriate for “traditional” marriages and not “modern”
marriages in which both spouses work outside the home and accumulate wealth; based on formal equality which
provides inadequately for the needs of many wives on marriage breakdown
Property, Ownership and Value
 What is property?
o Generally title
 Determine issues of ownership of property before calculating NFP
 Section 10 – A person may apply to the court for the determination of a question as to the ownership or right to
possession of particular property (independent of equalization under section 5) and the court may,
o (a) declare the ownership or right to possession;
o (b) if the property has been disposed of, order compensation;
o (c) order that the property be partitioned or sold for the purpose of realizing the interests in it; and
o (d) order that either or both spouses give security, including a charge on property, for the performance of
an obligation imposed by the order,
and may make ancillary orders or give ancillary directions.
Section 9 – In an application under section 7, the court may order,
(a) that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled under
this Part;
(b) that security, including a charge on property, be given for the performance of an obligation imposed by the
order;
(c) that, if necessary to avoid hardship, an amount referred to in clause (a) be paid in installments during a period
not exceeding ten years or that payment of all or part of the amount be delayed for a period not exceeding
ten years; and
(d) that, if appropriate to satisfy an obligation imposed by the order,
(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of
years, or
(ii) any property be partitioned [division of assets] or sold.
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Tracing
 Section 4(2)(5) – Excluded property (other than a matrimonial home) is deductible if traceable
 Tracing laws were designed to protect beneficiaries under trusts
 General rule: “first in, first out” (rule in Clayton’s Case)  ABOLISHED in family law
 E.g. $100 in bank account from income of both parties. One party receives $100 inheritance and includes
in account ($200 in account). Party who received the inheritance purchased a $100 bond that remains
owned at valuation date.
 Under trust rule, not traceable to inheritance
 Under FLA, it would be traceable and may be excluded
 If commingled with family assets, asset is presumed a family asset
 In Mittler, court held that she could not establish the FIFO rule and therefore, funds payable during the
marriage was a VD asset
 Courts oppose strict application of these rules in family law context
 Courts have found that tracing rules are devised to address situations where a trustee has intermingled assets
with assets of a beneficiary
 However, spouses should be treated differently than trustees and beneficiaries (no similar records)
Bennett v. Bennett
(tracing)
(Husband received inheritance of $40,000 (excludable) and included the funds in a joint account. Shortly after, he
purchased property for $35,000.)
1. Where a gift or inheritance is proximate in time to the purchase of an asset, the asset is traceable to the gift or
inheritance and deductible.
 Under tracing rules, he could not claim an exclusion (FIFO)
 However, given the proximity of the events (inheritance and purchase), property was traceable to the
inheritance
 Common sense approach to tracing rules is favored
Negative Net Property
 While a negative MD net debt may exist, a spouse may NOT have a negative NFP (however, this rule may result
in inequities)
 Section 4(5) = negative NFP is deemed zero (essentially debt is shared by the spouses)
 Negative NFP will occur when the total deductions a spouse may claim exceeds the value of included property
owned by the spouse on VD
 Deeming provision may result in ignoring debt incurred by one spouse
o If net gains are shared, why are net losses not also shared?
 However, section 5(6)(f) recognizes an exception
 Section 5(6)(f) specifies that one of the items the court must consider in determining whether equalization of the
net family properties would be unconscionable is “the fact that one spouse has incurred a disproportionately
larger amount of debts or other liabilities than the other spouse for the support of the family”
 E.g. One party with disproportionately more debt: On VD, the wife has included assets valued at $1,000. She
owes her mother $5,000 for repayment of a loan used for some of the living expenses of the family. Her NFP
would be -$4,000 but for section 4(5) that deems NFP to be 0. Her husband has acquired some assets during the
marriage and has no debts related to the living expenses. His NFP is $10,000.
o In this situation, may be unconscionable for the court to perform an ordinary NFP calculation and grant
her $5,000 ($4,000 of which will be used to pay family debts). An order requiring the husband to pay
$7,000 is possible (indeed probable) under section 5(6). Therefore, the husband and wife share the debt.
 HOWEVER …
o Section 5(6) is only DISRECTIONARY and only applied when the amount of the debt is “disproportionate”
o Unlikely that section 5(6) will be applied to order one spouse to pay a sum that is greater than that
spouse’s NFP (therefore, other spouse may still bear a disproportionate share of the family debt)
 E.g. Employing property to provide for the family: A husband has an investment valued at $50,000 at the time of
the marriage. During the marriage he gradually uses this investment to supplement the funds needed for family
expenses. He has assets worth only $10,000 on the valuation date. He would have -$40,000 NFP but for section
4(5) which deems NFP 0. Meanwhile, his wife has acquired assets using her income during the marriage valued
at $50,000 on the valuation date. Her NFP is $50,000.
o She would ordinarily owe him $25,000 equalization payment. In this situation, he is left with a $15,000 net
loss and she is left with a $25,000 net gain  unconscionable under section 5(6)?
o What if the wife had inherited the $50,000? Her NFP would equal 0 (excluded). She would have a net
gain of $50,000 while he would have a net loss of $40,000.
52
o
This situation could result from capital losses which are not offset by included property
Variation of the Equalization Payment (305)




After calculating NFP, judicial discretion to vary an equalization payment where unconscionable (high threshold)
o Policy: limiting judicial discretion
Test = circumstances that “shock the conscience of the court”
Section 5(6) provides an exhaustive list of factors (indicating unconscionability)
Most of the litigation relates to section 5(6)(h) (residual category)
Section 5(6) – The court may award a spouse an amount that is more or less than half the difference between the net
family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having
regard to,
(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly
or in bad faith;
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately
large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other
spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of
property.
Doesn’t allow creation of debts on side of person that would owe equalization. High onus, more than unfair, harsh, or
unjust.
LeVan v. LeVan (2006 ON SCJ) (306, 323)
(unconscionability, devaluation)
(validity of pre-nup, drastic drop in value of business and shares after separation. Equalization was adjusted.)
1. “Unconscionability” is a much more difficult test to meet than “fairness” and, as a result, the courts have only minimal
discretion to order anything other than an equal division of family property. Unconscionable conduct has been defined
as, among other things, conduct that is harsh and shocking to anyone’s sense of justice, or shocking to the
conscience of the court.
Harry v. Harry (1987 ON Dist Ct) (307)
(intentional depletion)
(father gifts assets to daughter for later collection)
 Judge used s.5(6) to give ½ of assets given to daughter to wife to return to position had he not made the gifts
von Czieslik v. Ayuso (2007 ON CA) (306, 313)
(intentional depletion)
(husband gifted property worth $190k to a friend prior to separation. She only found out after separation. His NFP $74k,
hers $63k.)
 Trial: found that husband intentionally depleted assets but was still limited by 5(6) and could award only sum of
difference between NFP
 Appeal: awarded his entire NFP to wife.
 “grammatical and ordinary meaning of section 5(6), you could go higher than difference of two NFPs” Court still
can’t order payment higher than higher NFP.
Some provinces will force redistribution of gifts but Ontario doesn’t have such a statute.
53
Failure to disclose debts at separation
 s.5(6)(c) can help but marriage debts are already treated as addition to NFP
 hangover from old Family Law Reform Act
 under FLA act, you can’t exclude gifts from spouse
s.5(6)(f)
 where assets can’t be distributed (no NFP to distribute) there may be unfair outcomes
s.5(6)(g)
 rarely used.
 Verbal agreement that he won’t take interest in matrimonial home. She invests 100k inheritance in renovating
home. Remember that you can’t exclude matrimonial home (oral agreement doesn’t hold), even if inheritance is
funneled into matrimonial home. This section might get applied, very little case law on this.
Reckless debts (s.5(6)(b))
 Debts don’t come up much because they’re effectively shared at end of relationship through NFP calculation.
Could be unfair depending on why debt was incurred.
 Debt must be in existence on valuation debt to use this. If already paid off, engage s. 5(6)(d).
Naidoo v. Naidoo (2004 ON SCJ) (312)
(reckless debts)
(Husband was a doctor and his wife worked for him. Both parties had assets and debts at valuation date. She owed $
after NFP calculation. She claimed that an equal division was unconscionable under sections 5(6)(b), (d), and (h). He had
a gambling problem and a fairly high income. He claimed this was a leisure activity similar to golf. He provided her with a
gold card and she recklessly incurred expenses. However, the expenses were mostly for the family. On average, he was
losing approximately $20,000/year from gambling (although not in debt))
1. Gambling itself is not unconscionable, need to look at proportion of family needs that have been put at risk and
whether conduct was condoned
HELD: Section 5(6) claim successful, increased equalization payment so that she didn’t share in gambling debts
 Although the court recognized that section 5(6) imposes a high threshold, he was reckless – his gambling placed
the family at risk and he had recklessly dissipated family assets
 However, “speculative activity including gambling per se does not equate to unconscionability and reckless
deprivation of NFP”
o Other factors considered: amounts involved, proportion of family means at risk, parties’ incomes, whether the
conduct was condoned
Abaza v. Abaza (2001 ON SCJ) (312)
(debts over escort)
(Parties were married for 18 years and had 2 children. He frequented strip clubs and paid for escort services because he
was not receiving sexual satisfaction. She hired a private investigator and discovered his behaviour. She decided to
renovate the home before separating. He had significant assets of $580,000 but fairly significant debts of $92,000 (income
tax and credit card debts). His NFP was approx $300,000 her NFP was approx $140,000. She claimed that his debts
resulted from the costs of escort services and strip clubs and therefore, equalization was unconscionable under section
5(6)(b).)
1. Where a spouse has knowledge of circumstances which may form a basis for a section 5(6)(b) claim, he or she
should trigger the valuation date or seek recourse under section 5(3)
HELD: Disallowed deduction of a portion of the debts by husband ($16,000) after she discovered his activities
 Court partially agreed that he could have reduced his debts if he had not incurred the costs of these activities
 However, “once she became aware of what he was doing, she had the choice of triggering the valuation date or
seeking recourse under section 5(3)” (however, she failed to do so and in fact, renovated the home)
 Therefore, she was not responsible for debts incurred in the period during which she had no knowledge
 Note: moral overtones
54
Ferguson v. Kalupnieks (1997 ON Gen Div) (312)
(debts, recklessness)
(Couple accumulated many assets during the marriage primarily in the name of the wife. He was a dentist with a high
income. One of his patients died as a result of his negligence and his license to practice dentistry was suspended. He
incurred significant legal costs to reacquire his license. Before separation, he went bankrupt. She claimed that the
equalization payment should be reduced or eliminated pursuant to section 5(6)(b) – debts incurred recklessly or in bad
faith.)
1. Section 5(6)(b) claim based on depletion of family property requires mala fides, or an improper intent or reckless
disregard for the economic effects of a spouse’s conduct on family property. “It is not enough that the person was
careless or made an honest mistake”
HELD: Section 5(6)(b) claim failed (no variation)
 Legal costs resulted from his professional negligence but were not recklessly incurred, rather the costs resulted
from an unsuccessful attempt to preserve his license
 Conduct complained of must “shock the conscience of the court” (high threshold)
 No evidence of bad faith (conduct reasonable)
Intentional Depletion
 Consider motivation, quantum, timing
 Wasteful spending won’t be examined in depth by court but they can make determinations
Biant v. Sagoo (2001 ON SCJ) (314)
(affair)
 Would be unfair to compensate for entire cost of affair
1. It would be a novel proposition that a philandering spouse is responsible under section 5(6) for paying to the other
spouse a sum equal to the cost of an affair, either direct costs (jewellery and such) or indirect costs (diminished profits
from business).
Fraudulent Conveyances Act
 If a conveyance is intended to limit or escape obligations to creditors or other parties, the conveyance may be
deemed fraudulent and the transaction is void
 Fraudulent Conveyances Act is applied set aside gifts or sales below FMV intended to evade obligations to
creditors or other parties
 Archaic, claims have to have been launched already?
 Drummond thinks judges should have authority to return assets to family when necessary
Stone v. Stone (2001 ON CA) (313, 315)
(estate, 0 NFP)
(Husband wanted his children from his first marriage to inherit his estate. When he learned of his imminent death, he
prepared a new will, devising a lump sum payment of $250,000 and a life tenancy in the MH to his second wife. He then
began to transfer his business assets, a condo and the remainder interest in the matrimonial home to his children. He died
with virtually nothing in his estate (NFP = 0). His wife applied for equalization of NFP and commenced a claim under
section 5(6). Trial: set aside inter vivos gifts, returned gifts to the estate and allows equalization claim (children appeal))
1. A spouse is a “creditor or other” under section 2, FCA even if the spouse failed to exercise remedy under section 5(3)
because she had no knowledge of the improper conveyances.
HELD: Inter vivos gifts set aside, returned to estate
 Note: a party may invoke FLA equalization claim on death as well as separation (rather than estates law)
 CA considered the Fraudulent Conveyances Act, section 2: only a “creditor or other” may invoke the provisions of
the FCA
 Wife is not strictly a “creditor or other”, as she did not have an existing claim against her husband at the time of
the conveyances
 Court considered the triggering events under the FLA: she could not have triggered a valuation earlier under
section 5(3) as the husband acted secretly and deprived her of this remedy
 She would have been a creditor or other if she had known about the conveyances and exercised remedy under
section 5(3)
 Therefore, she was a “creditor or other” and therefore, entitled to set aside the transfers under section 2, FCA 
not necessary to invoke section 5(6)
 Section 5(6) discussion:
o Children claimed the court should have determined the equalization amount based on NFP first before
setting aside the transfer under the FCA
55
o
o
o
o
Court disagreed
(1) Calculate NFP under section 4, (2) determine equalization payment under section 5(1), (3) consider
section 5(6)
If fraudulent conveyances had not been set aside at VD to calculate NFP, no basis for wife to claim
entitlement to equalization and therefore, no opportunity for the court to consider unconscionability
Therefore, fairness requires setting aside the transfers under the FCA before determining the equalization
payment
Policy: Short marriages and matrimonial home?
s.5(6)(e) allows court to take this into account for marriages under 5 years.
Harris v. Harris (2005 ON SCJ) (316)
(short marriage)
(13 week marriage, he contributed a $400k home)
 She received $10k because of relationship prior to marriage and unjust enrichment re: home improvements
 S.5(6)(e) applied so she wouldn’t get half of house
Linov v. Williams (2007 ON SCJ) (317)
(short marriage)
(each party owned a home at marriage, she sold hers to move into his. Means she can deduct full value but he’d have to
pay her half of his home. Relationship lasted almost 5 years.)
 Judge says it’s too close to 5 years, wanted to reduce litigation and enforce stability.
 Sometimes courts will prorate or share only capital increase for duration of marriage
s.5(6)(h) – where spouse has disproportionately contributed. You get equalization even if you’ve stayed home the entire
time. But what happens when spouse does all of the housework, work, and child rearing?
Waters v. Waters (1986 ON Dist Ct) (320)
(unconscionability)
 section 5(6)(h)
(Parties were married for 30 years. No children. Both parties worked in a factory and at the end of the marriage, the wife’s
income was considerably greater than the husband’s income. She cared for the children and performed the majority of the
household duties. Husband was an alcoholic. His alcoholism impacted his income earning ability and contribution to the
home.)
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Court considered the wife’s contribution to the marriage but refused to invoke section 5(6)(h)
Referred to section 5(7), FLA which provides that equal contribution is inherent in the marital relationship
(principle underlying equal division of property = deemed equality of contribution)
Court will not generally assess differences in contribution, financial or domestic in varying equalization payments
– “departures from equality should be uncommon”. Rough justice.
o (Unequal contribution is considered only if unconscionable)
o Drummond: affirms high threshold for unconscionability
Policy: presumption discourages litigation (unequal contribution is common)
This case was followed for a long period of time but was a bit too restrictive.
Crawford v. Crawford (1987 ON CA) (284) (not discussed)
(unconscionability)
(Husband re-mortgaged house to consolidate his debts)
 Court held that although spending appeared excessive in hindsight, not unconscionable
 Rejected section 5(6)(b) claim as equal sharing was not unconscionable given that the debts related to family
expenses
56
Thompson v. Thompson (1993 ON Gen Div) (312)
(bad faith)
(The husband incurred a large debt load for the benefit of the family. However, the debt was tainted with recklessness and
bad faith. Husband had dealt with his debts in a secretive way that denied his wife of the opportunity to attempt to secure
the rest of the family’s finances.)
HELD: Section 5(6)(b) claim successful (husband responsible for his debts, ordered unequal division of property)
Mittler v. Mittler (1988 ON HC) (313)
(unconscionability)
(Wife was seeking to rely on section 5(6)(d) (intentional or reckless depletion of net family property). Husband transferred
assets to his son from a previous marriage. Half were transferred in 1970 and the remainder 3 years before separation.
The shares were valued at approximately $500,000. He also gave his son gifts of money, including $ 82,500 to purchase
a home.)
HELD: Equalization not unconscionable
 Given the work expended by the husband in the development of the companies and since Ronald was his only
child, husband’s acts were not unconscionable
 He wished to pass on his company to his son and was not attempting to deprive his wife but rather, to benefit his
biological child
 He was also generous to her two daughters from a previous relationship and the transfer occurred 3 years before
separation
 Courts are more likely to invoke section 5(6)(d) (i.e. spouse’s acts unconscionable) if the disposal or gifts of
property occur shortly before the date of separation
 Key considerations: motivation of the donor, timing of the gift, quantum of the gift in relation to the value of the
property owned by the donor.
Futia v. Futia (1990 ON HC) (316) (not discussed)
(unconscionability)
 section 5(6)(e): in determining whether equalization is unconscionable, the court may consider the fact that the
equalization payment would be disproportionately large in relation to a period of cohabitation that is less than five years
(Couple was married for 2 years. She claimed abuse. He purchased a matrimonial home before the marriage ($106,000).
He was responsible for almost all of the cost of maintaining the MD. The amount subject to division between the parties
was $84,000. He claimed she should receive less than 50% under section 5(6)(e). She claimed that his abuse and cruelty
should neutralize section 5(6)(e) since this was the reason for the brief marriage.)
 Spousal conduct is irrelevant to the determination of whether equalization is unconscionable under section 5(6)(e)
 Held: Reduced equalization to 40% (however, ruling reflected consideration of conduct)
Heal v. Heal (1998 ON Gen Div) (306)
(unconscionability)
(Parties were married for almost 30 years and raised 2 children. Wife used first inheritance to purchase the matrimonial
home and the second inheritance to purchase a van and for family purchases. Husband developed a severe drinking
problem but was able to continue his employment.)
HELD: Equalization not unconscionable, notwithstanding husband’s limited contributions (unfair but not so shocking as to
be unconscionable)
Note:
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“Gross disparity in contributions is only relevant if the failure to contribute is mala fides. If one spouse is unable to
contribute as a result of illness or disability and his or her spouse acquiesces, the gross disparity will not affect
property division” (Berdette)
However, if there is bad faith or virtual abdication of all family responsibilities, court may conclude that
equalization is unconscionable
57
Berdette v. Berdette (1999 ON CA) (320)
(gift, joint title)
(During the marriage, wife inherited substantial income from an estate. Husband unilaterally decided to return to university
and the wife funded his education and maintained the family. She used the inheritance to purchase a home and cottage.
She was urged by her family to purchase the properties in her name but he persuaded her to purchase the property in
joint title.)
Note: under section 18, FLA, each property is a matrimonial home
Reasons:
 Court accepted that she made a gift in joint title to her husband (joint title nullified equalization claim)
o “Wife may not make a gift of property to her husband and then claim it would be unconscionable for him
to retain the value of such gift”
 Notwithstanding the gross disparity in contributions, equalization is not unconscionable and there was no undue
influence (no basis for invoking section 5(6) because wife made a gift to the husband)
 Cited Leblanc, “Whether the lack of effort should result in an unequal distribution will involve an assessment of all
the facts, including the extent of the failure to contribution (partial or total abdication?), length of the marriage and
the knowledge by the other spouse of the lack of effort (acquiescence?).”
 Application: since the NFP of each spouse was equal, section 5(1) was inapplicable (i.e. no equalization claim)
and therefore, there is no jurisdiction for section 5(6) to apply (i.e. no basis for unequal division)
 Note: CA refused to determine whether LeBlanc applied
LeBlanc v. LeBlanc (1988 SCC) (320)
(contributions)
Case is not technically authoritative because the decision was based on different legislative provisions. However, LeBlanc
softens the general tendency to not assess contributions.
(Parties married for 25 years with 7 children. Husband was an alcoholic and his financial and childcare contributions were
extremely limited. She commenced a restaurant business and worked hard to develop the business. She purchased a
house, cottage and car for the family. He ran errands and contributed $1,000 to the down payment for the house.
Business was in the wife’s name at separation.)
Note: Standard for variation of equalization payments in NB legislation is “inequitable” and business assets are not
normally divisible in NB
1. A radical disparity in contributions to childcare, household management and financial provision between the spouses
may justify variation of the equalization payment under section 5(6)(h)
HELD: Unequal division ($6,000 to husband, $44,000 and business to wife)
 Court considered the equivalent of section 5(7), ON FLA
 Three categories of contribution: childcare, household management and financial provision.
 Since he did not contribute to any of these categories, unequal division is justified even though court loathe to do
so:
o Sufficient to shock the conscience of the court and vary the equalization payment
o “This does not mean that a court should put itself in the position of making fine distinctions regarding the
respective contributions of the spouses. Nonetheless, where the property has been acquired exclusively
or almost wholly through the efforts of one spouse and there has been no, or a negligible contribution to
child care, household management or financial provision by the other,” the court may exercise discretion
Leblanc is cited frequently in ON courts (although standard is “unconscionability”)
Commentary:
If spouse fails to contribute due to illness or disability, it is not reason for unconscionability. Other remedies to compensate
hard-working spouse may include lump-sum spousal support.
 Now consideration of alcoholism as illness
Law Reform Commission considered whether threshold was too high. There are cases where individual justice not met
but fair overall. Goal is to reduce litigation and increase consistency.
58
Serra v. Serra (2009 ON CA) (324)
(devaluation of assets)
(recall Rawluk, again redivision of assets. 24 year marriage, separate in 2000, divorce in 2003. Both spouses have
luxurious standard of living. Husband valued at 9.25-9.5M at separation, reduced by 8.9M by 2003. It was clear that it
wasn’t his fault, most textile factories had gone out of business due to huge changes in industry. He argued it would be
unconscionable that he pay half of NFP at separation because he didn’t have assets.)
1. S. 5(6)(h) may apply to cases of devalued assets even though unconscionability, especially where there is no fault
and bad faith.
 Trial said that time elapsed between separation and divorce should not be taken into account.
Appeal:
 CA: started action in 2002, she claimed significant periodic support but also a constructive trust in business. Also
interim restraining and preservation order re: management of his assets. She also requested a property in FL,
high monthly support, etc.
o He did everything he could to keep business alive and afford this support.
o By trial he had nothing left, couldn’t sell assets because of restraining order
 S.5(6)(h) can be applied given change in circumstances of business. She wanted share in business if it went up
but not down. Not fair to him.
 Final payment significantly reduced but not to exactly half of devaluated sum. Extra $250k taken into account for
the likelihood of business turning around.
Implementation Of The Equalization Entitlement (332)
Section 9(1) – In an application under section 7, the court may order,
(a) that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled under
this Part;
(b) that security, including a charge on property, be given for the performance of an obligation imposed by the
order;
(c) that, if necessary to avoid hardship, an amount referred to in clause (a) be paid in instalments during a period
not exceeding ten years or that payment of all or part of the amount be delayed for a period not exceeding ten
years; and
(d) that, if appropriate to satisfy an obligation imposed by the order,
(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of
years, or
(ii) any property be partitioned or sold.
Applies when assets not readily available, or if it would put assets at risk (sale of business, etc.) Court doesn’t have to
award interest but usually does.
Remember that asset transfer is usually cash, not a property but it could be.
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Various orders under section 9 with regards to payment which enables the court to consider both the needs of the
debtor spouse and creditor spouse.
Orders are only effective after an equalization payment is calculated
Section 9(1)(a): order payment forthwith (most common)
Section 9(1)(b): order that security be given for the performance of an obligation imposed by the order
o Usually where there are concerns related to satisfaction of the obligation or payments in installments
Section 9(1)(c): order payment in installments, during a period not exceeding 10 years or postpone payment for
a period not exceeding 10 years to avoid hardship to the payor spouse (e.g. matrimonial home, pensions)
o Section 9(3): where there is a material change in circumstances, court may vary the schedule (subject to
10 year restriction) or other terms of payment but may NOT vary the amount
o Section 9(2) (corollary orders under section 9): when deferred payment or payment by installments is
ordered, court may require the debtor spouse to furnish the other spouse with financial information, or
permit inspections of the property by or on behalf of the other spouse
o Court of Justice Act, sections 139 and 140: court may order interest on installment or deferral payments
Section 9(1)(d)(i): order transfer of property or in trust
o Ordinarily, Part I FLA will not grant property interests, rather monetary payments
59
o

E.g. matrimonial home, pensions (if and when spouses receives pension, appropriate share transferred to
the other spouse)
o Equalization claim may have accounted for disposition costs which are no longer applicable if property is
transferred between spouses (i.e. ITA rollover provisions)
Section 9(1)(d)(ii): order partition and sale of any property
Pensions (339)
Pension is usually huge asset, may be worth more than home.
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CPP
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RRSP
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Under Family Law Reform Act, pensions were not required to be split equally
Not saleable or transferable property, no market value
Issues relate to assigning value to pensions, also contingent on uncontrollable factors (e.g. when retired, death)
Pensions are a significant valuable asset, especially to middle class.
CPP is addressed independently (wash)
Everyone in labor force contributes to CPP (% of income up to specified maximum of income), credits
accumulated based on contribution
On separation, each spouse has a right to half of CPP accumulated by the other spouse during the period of
cohabitation
Notify CPP and CPP performs division of credits **must fill out forms!**
Each spouse on retirement will receive separate pension
In theory, should include under FLA calculations but in practice, not
Not taxed on income from RRSP generated until retirement
Employee undertakes to place own money in investment portfolio, payments under plan are tax deductible
Figure is easy to calculate, there may be a tax rollover to spouse as part of equalization process
Courts are reluctant to order if the parties do not agree
If required to cash in, consider disposition costs (25% reduction rate)
Employer Pension Plans
 34% of employees in ON are members of occupational pension plans. 80% of people in public sector, only 25% in
private sector.
Defined contribution: contributions made by employer and employee at fixed amount. Sums are invested. On retirement,
an annuity is purchased and person receives monthly payment. This is easy to value.
Defined benefit: annual pension is typically defined by formula. Product obtained by number of years of service with
employer multiplied by specified percentage (2%), applied to average salary earned immediately preceding retirement.
Section 4(1): pensions included in definition of property
 Actuary is usually hired to calculate present value for value at retirement. Two valuation methods:
o (1) Termination method: determine present lump sum value of asset, divisible in two (lump sum
payment based on present capitalized value) (unfavors non-member spouse)
 Advantages: clean break
 Courts favour this method
o (2) Retirement method: wait until retirement, divide pension as received (Martin)
 No need for employee spouse to buy out non-employee spouse, spouses connected indefinitely
 Choice may depend on age of parties
 In theory, necessary to determine both figures to determine final equalization payment
 If using if and when approach, necessary to assess value for family law purposes
 Required to pro rate for period during which parties are married  Rutherford
Biggest issue with pensions is settlement, not valuation. How do you equalize? You could pay out in cash.
60
Lump Sum vs. If and When
Advantages of lump sum:
 Clean break, no need for future contact between spouses
 Employee spouse may retire whenever he or she wishes
 Employee spouse must have large capital sum (liquidity)
 Preferable if far from retirement
 Easier for plan administrator
Advantages of if and when:
 Non-employee spouse obtains own pension (not necessary to use funds and reinvest)
 Court must deal with early and late retirement and survivor benefits  formula more complex
 No need for large capital sum immediately
 Trust imposed on plan administrator  half of value accumulated only during course of marriage
 Risk: non-member spouse is wholly dependent on when you retire and could be left without funds when they want
to retire.
Law Commission of ON: Considered deferred payment method, recommended immediate settlement method.
Legislation now reflects this.  s.10(1)(1). Passed at legislation but not proclaimed yet. Details of regulations not yet
public, balancing isn’t clear yet.
 Courts will consider circumstances
Sample Equalization Problems (303)
#1
VD
A
D
S1 (Husband)
250K
150K
S2 (Wife)
125K
0
MD
A
D
150K
50K
100K
0
Husband – X1 = 100K, Z1 = 100K – NFP = 0
Wife – X1 = 125K, Z1 – (100K cannot be deducted b/c it is the MH) – NFP = 125
125 divided by 2 = 62,500 she owes to husband.
MH – but special treatment b/c it is inherited – d/n matter if inherited before or after.
NB: for exam, include everything and then indicate why it is excluded, or simply list excluded items also.
Home owned b/f married and inherited, they live in the MH until separation. At MD this is her only assets and no liabilities
– valued at 100K.
 H assets you 150K, liabilities 50K
 At VD the home valued at 125K – W has no assets and no liabilities.
#2 Wife inherits the home after the marriage – the EC is exactly the same as above b/c it makes no difference if inherited
before or after.
#3 – spouses never move into the home, wife rents it out and uses the income to rent a home for herself and husband.
VD
A
D
S1 (Husband)
250K
150K
S2 (Wife)
125K
0
MD
A
D
150K
50K
100K
0
61
House is inherited and not MH, acquired after marriage – it is excluded. You are excluding the net value of its.
 If you acquire a gift after marriage – excluded.
#4 House acquired b/f marriage and rented to a TP after a year.
Premarriage value deducted.
VD
A
D
S1 (Husband)
250K
150K
S2 (Wife)
125K
0
MD
A
D
150K
50K
100K
0
She owes 25K divided by two = 12.5K
#5
S1 (Husband)
VD
A
50K (RRSP)
25K (gift)
26K (shares)
10K (personal account)
2K (joint account = 4K)
100K (MH)
5K (furniture)
D
50K (mortgage)
X1 = 86K – 10K = 76K
MD
A
D
9K (car) + 1K (shares) = Y1 10K
0
S2 (Wife)
250k (pension)
10K (personal account)
2K (joint account)
10K (ring ex husband)
12K (car)
100K (MH)
5K (furniture
50K (mortgage)
X2 – 282K – 10 = 272K
25K (pension)
15K (student debt)
= Y2 10K
SHE OWES HIM 196 divided by 2 = 98K
NOTE: the pension was valued in this case  so no worries about what the value – it is the increase in value that has to
be shared.
NOTE: if it was an engagement ring of 10K, she would get to deduct it at MD.
NB: if she only had debts at MD, then that becomes a net figure, but since she has assets, you need to still subtract the
two. In that case, that now positive amount, would be moved up to her VD assets.
Aside – if she has debts but no assets.
#5
VD
MD
#5
VD
MD
S1 (Husband)
A
D
A
D
S2 (Wife)
- 10K becomes 10K
10K = Y2 = -10K
S1 (Husband)
A
D
A
D
S2 (Wife)
If you pay off 5K, then 5K remains as an asset.
10K = Y2 = -10K
At marriage H has assets = 9K
 He has shares worth 1K
62
W – property 25K
 Loan of 15K
At VD – mutual funds and RRSP = 50K – H, car = 25K given by father = gift = excluded, shares worth 26K now.
 W = 250K
Sep accounts
Joint accounts
Ring from H worth 10K – exclusion only when a TP gift, not gifts b/w husbands.
She has car worth 12K – money comes from joint account. Registered in her name – it would go into Ws column b/c she
is the titled owner.
Home – joint tenancy – mortgage on it of 100K – 200K value. 100K in each of assets, 50K of debt in each.
#6
VD
A
S1 (Husband)
350K (MH)
400K (pension)
30K (furniture)
35K (lexus)
15K (joint account)
S2 (Wife)
15K (joint account)
350K (house)
10K (furniture)
430K (pension)
5K (car)
250K (home)
50K
300K
20K (furniture)
250K (house)
320K (pension)
20K (car)
20K
10K (furniture)
D
MD
A
D
H x1 – 830 K
W x2 – 810K
Y1 = 370
Y2 = 620K
= z 460K (NFP)
= z 190K (NF)
135K EP from H to W.
Unconscionabiilty – you can ask for 4/5 of the EP (108K), or you can argue that all she should get is the increase in net
value of the home = 50K  two options b/c courts use both.
NOTE: 250K struck th/ b/c he cannot claim a deduction on the MH.
Each owns on a home on MD, decide to move into his home and she rents hers.
 AT MD he has furniture 20K, 300K pension (what happens to this – it gets a full deduction), no debts.
 Hers – 320K pension (deducted), car 20K, bank 20K, furniture 10K.
 VD – H – still living in his house – four years of marriage, unconscionability 5(6)(f)  less than 5 years.
63
#7
S1 (Husband)
VD
A
130K
mortgage = 280K)
D
33K
X1
97K
MD
A
D
Y1
S2 (Wife)
50K
NB; home 360K (gift so excluded – 80K
x2 50K
3K
-3K
Z1 = 97K –(-3000) = 100k
#8
VD
MD
D
X1
S1 (Husband)
190 (MH)
6,225 (joint)
21
11
460K
25
713,225
52K
661,225
A
D
Y1
5K
0
5K
A
460-100K = 360K exclusion
S2 (Wife)
190K
6,225
2
12
40
250,225
52K
198,225 (less 14K, car/furniture)
184,225
5K
0
5K
H NFP 301,225 – 5K = 296,225
W NFP 184,225 – 5K = 179,225
EC = 117,000 divided by 2 = 58,500K.
She gets a car for 14K 2 years after marriage, she sells it and gets a car and furniture – tracing issue here.
 He inherits home after marriage 400K, sells share to renovate the house, shares were purchased during the
marriage, house was never used as a family residence – 460K asset.
 MH is jointly owned thus in both columns – with value shares and mortgage shared.
 Exclusion issue re the house – he inherits it after marriage, not MH, can exclude net value – 460K – but you have
to subtract the family assets – b/c he uses shares – VD = 460K less 100K used from family assets to renovate –
so you can exclude only the net value, less the family property.
64
Family Home (369)
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Significance of the matrimonial home: MH occupies a special position in family property relations because the MH is
usually the single most valuable asset owned by the family and the source of significant emotional attachment
Part II of the FLA recognizes that the right to occupy the matrimonial home is important and should not be governed
by reference to ownership alone
MH is treated differently under Part 1 (family property) and Part II (matrimonial home)
o Part I: total value of MH is divisible regardless of when and how the property was acquired (sections 4(1) and
4(2)(1))
o Commentators claim MH should be treated the same as any other asset under Part I
o However, stronger justification for treating MH differently under Part II
Rationale: reflects psychological significance of MH for both spouses and children and reflects the fact that the
acquisition, maintenance and preservation involved joint contributions of both spouses
Possessory Rights in the Matrimonial Home
Section 19(1) – Both spouses have an equal right to possession of a matrimonial home (regardless of title)
 Titled spouse may not evict the other spouse on the basis of legal title
 Spouses may only lose section 19(1) rights under section 19(2) exceptions:
o (1) Separation agreement may waive rights
o (2) Order for exclusive possession under section 24
o (3) Cease to be spouses (divorce or death) unless a separation agreement or court order extends
possessory rights
Section 19(2) – When only one of the spouses has an interest in a matrimonial home, the other spouse’s right of
possession,
(a) is personal as against the first spouse; and
(b) ends when they cease to be spouses, unless a separation agreement or court order provides otherwise.
1. Separation agreement
 Separation agreement = binding agreement made after separation resolving remaining disputes (e.g. custody,
support, possession of matrimonial home)
 Marriage contract = made before marriage, may address proprietary rights (title and ownership of MH) but NOT
possessory rights
 Section 52(2) – A provision in a marriage contract purporting to limit a spouse’s rights under Part II (Matrimonial
Home) is unenforceable
o Rational: spouse may prospectively relinquish proprietary rights but NOT possessory rights, particularly if
children are involved (requiring one spouse to have sole possession)
2. Order for exclusive possession
 Section 21: no spouse shall dispose of or encumber (mortgage) without the consent of the other spouse
 Section 23: court may order disposition or encumbrance of the matrimonial home dispensing with the
requirement to obtain consent under particular circumstances (e.g. unreasonably withholding consent)
 Section 24: court may order exclusive possession of the MH after separation (regardless of who has title)
 If a section 24 order is obtained, court may delay Part I equalization
o Orders for possession in favour of a spouse who does not have an ownership interest in the home may
affect the other spouse’s ability to satisfy an equalization claim
Reasoning:
 Relationship between possessory rights and spousal support: exclusive possession order may affect quantum of
SS (reduces needs of spouse remaining in the MH and means of the other spouse)
 Relationship between possessory rights and custody: spouse with custody has a stronger claim for exclusive
possession (rationale: children of divorce require stability, minimizes disruption, MH has emotional significant for
child, economic benefits)
o Section 24(3)(a): in determining whether to order exclusive possession, court will consider best interests
of the children
o Spouse without possession is less involved with the child, difficult to obtain custody
 Eviction of one spouse to prevent domestic violence may be necessary
65
Occupation Rights of Unmarried Cohabitees
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Section 1(1) definition of “spouse” applies to Part II (married or have entered into a marriage that is voidable or
void, in good faith)
o Different definition for purposes of support
o Possessory rights apply only to married spouses
Under Part 1 and II, common law spouses are NOT “spouses”
Potential constitutional challenge under Part II
However, cohabiting spouses have other mechanisms for protecting rights
Part III (support obligations) includes common law spouses
Courts may invoke section 34(1)(d) to order exclusive possession as part of a spousal support order:
o Section 34(1)(d) – In an application under section 33, the court may make an interim or final order, (d)
respecting any matter authorized to be ordered under clause 24(1)(a), (b), (c), (d) or (e) (matrimonial
home)
Courts may also use constructive trust doctrines to provide a joint beneficial interest in the property (i.e. joint
possessory rights)
o However, limited benefit if domestic violence AND joint possessory rights will not provide exclusive
possession
o UK: implied contractual license (no Canadian authorities)
Section 46: restraining order against abusive spouses or common law spouses, exclusive possession granted as
a term of bail
Bill 133 – Family Statute Law Amendment Act (for protection in cases of domestic abuse)
 Also used to fix inequity if there’s a loan against home but not mortgage
 Also complications around s.10 b/c regulations aren’t in place yet. Prompted by pension reform.
 Now s.46 says you can get a restraining order and exclusive possession if you’re married or cohabitating.
 Also restraining order & exclusive possession against person other than spouse if person has cohabitated after
any amount of time
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In the absence of a court order, title holder in a common law relationship may evict common law partner or
dispose of the property without consent
Identification of a Matrimonial Home
Section 18(1) – Every property in which a person has an interest and that is or, if the spouses have separated, was at the
time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial
home.
Section 18(2) – The ownership of a share or shares, or of an interest in a share or shares, of a corporation entitling the
owner to occupy a housing unit owned by the corporation shall be deemed to be an interest in the unit for the purposes of
subsection (1).
Section 18(3) – If property that includes a matrimonial home is normally used for a purpose other than residential, the
matrimonial home is only the part of the property that may reasonably be regarded as necessary to the use and
enjoyment of the residence.
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If property is identified as a matrimonial home, consent is required for sale
Section 18 defines “matrimonial home” = every property in which a person has an interest and that is or was at
the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their
matrimonial home
Parties may have more than one matrimonial home in Ontario
o Folga, may have once been matrimonial home and lose that character
o Family residence = city dwelling and cottage may constitute matrimonial homes
If simply an investment property, single visit, will not qualify as MH
If change in use after separation will not change the character of a property as a MH (retrospectively regarded as
MH)  therefore, spouse may NOT dispose of the MH after separation without consent
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Characteristics of Matrimonial Home
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Section 17: “property” means real or personal property (ownership and leasehold interests)
o Value for exclusive possession purposes although not equalization
o Even if leasing a property, both spouses have equal rights to possession
o If one spouse signed the lease for a property designated as MH, may not evict the other spouse on the
basis of the lease
Section 18(2): ownership of shares of a corporation entitling the owner to occupy a housing unit owned by the
corporation is included as MH
o Debora v. Debora case
Section 18(3): if the property that includes a matrimonial home is normally used for a purpose other than
residential, the matrimonial home is only the part of the property that may reasonably be regarded as necessary
to the use and enjoyment of the residence
o E.g. If farm land, only farm house and immediate surroundings are regarded as MH but not the remainder
of the property (unless ordinarily occupied as family residence)
o Therefore, USE and not size is determinative
o Default position: if recreational property is ordinarily used by the family, all of the property constitutes the
MH
Hartling v. Hartling (1979 ON HC) (375)
(s.18(2))
(Couple lived on a 200 acre farm house. Couple also occupied an apartment owned by a corporation in which the
husband owned 50% of the common shares and a business partner owned the other 50%.)
 Depends on whether it’s considered a lease – no property interest
HELD: s.18(2) only really applies to condominiums (opposite of Debora case). Farmhouse + 1 acre constituted the
matrimonial home (necessary to the use and enjoyment of the residence)
 Interest in the apartment unit (entitlement to occupy) arises not from share ownership but status as lessee
 Spouses entitled to share value of leasehold interest and not FMV of the rental unit
Debora v. Debora (2006 ON CA) (376)
(s.18(2))
(moved in together in 1986, met in 1985. Company in which husband is sole shareholder, purchased cottage as
investment in 1993. Married in 1994, separated in 1995. She wanted to claim cottage as matrimonial home, she
contributed to expenses.
 S.18(1 & 2) – cottage deemed matrimonial home, clear that they occupied as residence but was it a matrimonial
home?
 Husband argued that shareholder had no interest in asset, only the shares. He claimed only shares were subject
to equalization. He would be allowed a deduction for value of shares at marriage date.
o If this were possible, people would buy shares in corporation that owns home to get around possessory
rights
 Real control of corporation amounts to real control of residence. If shares give right of residence, then owner has
interest in property for purposes of statute. Court pierces corporate veil.
DaCosta v. DaCosta (1992 ON CA) (377)
(intention to occupy)
(Several months prior to separation, husband purchased a hobby farm in his name. Both parties intended to occupy the
farm as a weekend retreat. Husband claimed property was traceable to an inheritance (excluded if not MH). Wife attended
the farm on only a few occasions. They did not stay overnight nor cook at the farm. Husband visited the farm frequently.)
1. Intention to occupy a property as a matrimonial home is insufficient
 Not matrimonial home (husband entitled to exclude from NFP)
 Spouses never occupied the property as a matrimonial home, emphasis on ordinary use
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Goodyer v. Goodyer (1999 ON Gen Div) (378)
(MH partial exclusions)
(Husband inherited family home with a granny flat occupied by his wife’s mother (separate external entrance but was not
sealed off from the rest of the house). Wife and grandchild visited the mother in her flat. Husband claimed the flat should
be excluded from the MH.)
1. In determining whether a property is ordinarily occupied as a family residence, “family” is interpreted broadly to
include grandmother or other close relations of either of the spouses
2. Exclusing a portion of a house from the matrimonial home requires not only a separate entrance but a distinct nonfamily use (i.e. “normally used for a purpose other than residential”, section 18(3))
 E.g. doctor’s office, however, home offices are often included in MH because ordinarily occupied by family
 Flat was included as part of the MH
 Family ordinarily occupied the granny flat
Orders for Exclusive Possession
Orders can only apply to property in Ontario but can give orders for exclusive possession. Court can also determine that
value of foreign property should be split.
Section 24(1) – Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse's
equal right to possession), the court may on application, by order,
(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;
(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the
court directs and release other property that is a matrimonial home from the application of this Part;
(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the
other spouse;
(d) direct that the contents of the matrimonial home, or any part of them,
a. remain in the home for the use of the spouse given possession, or
b. be removed from the home for the use of a spouse or child;
(e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities
arising in respect of it, or to make periodic payments to the other spouse for those purposes;
(f) authorize the disposition or encumbrance of a spouse's interest in the matrimonial home, subject to the other
spouse's right of exclusive possession as ordered
(2) The court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e).
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a)
(b)
(c)
(d)
(e)
(f)
the best interests of the children affected;
any existing orders under Part I (Family Property) and any existing support orders;
the financial position of both spouses;
any written agreement between the parties;
the availability of other suitable and affordable accommodation; and
any violence committed by a spouse against the other spouse or the children.
(4) In determining the best interests of a child, the court shall consider,
(a) the possible disruptive effects on the child of a move to other accommodation; and
(b) the child's views and preferences, if they can reasonably be ascertained.
(5) A person who contravenes an order for exclusive possession is guilty of an offence.
(6) A police officer may arrest without warrant a person the police officer believes on reasonable and probable grounds to
have contravened an order for exclusive possession.
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Section 28: Part II only applies to MH situated in Ontario
However, Part I applies to property NOT situated in Ontario (i.e. subject to equalization but not exclusive
possession)  see Perrier
Section 24(1)(b): Regardless of ownership and despite section 19, the court may order exclusive possession
Section 24(5) and (6): offence to violate an order for exclusive possession (subject to arrest without warrant) –
provision has teeth!
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Section 24(3): criteria court must consider in determining whether to order exclusive possession
o (a) Best interests of the children (determined under section 24(4))
 Section 24(4): in determining the BIOC, court must consider: (a) disruptive effects of a move and
(b) child’s views and preferences, if they can reasonably be ascertained
 In practice, significant disruption required (some disruption is inevitable)
o (b) Existing orders under Part I or III (family property and support)
 E.g. delaying equalization where there is an exclusive possession order
o (c) Financial position of both spouses
 In practice, primary consideration because often financially impossible to retain MH (sale
necessary to satisfy equalization)
o (d) Written agreement between the parties
 Typically, separation agreements are persuasive (not binding) unless invalid K
o (e) Availability of other suitable and affordable accommodation
o (f) Violence committed against a spouse or the children (physical and psychological, Hill)
Under FLRA, courts were reluctant to grant exclusive possession orders (promoting clean break, if one spouse
obtains possession without title, ongoing hostility)
o Prevents couple from moving on because of ties to property
FLA was intended to expand the scope of exclusive possession orders (courts remain reluctant because
insufficient finances to create two homes)
Courts are less reluctant to grant exclusive possession orders if one spouse has already left the house and
children remain
o Custodial parent more likely to get possession
Courts are reluctant to grant exclusive possession orders if parties are living separate and apart under the same
roof (order effectively results in eviction)
Pifer v. Pifer (1986 ON Dist Ct) (382)
(interim possession)
 best interests of the children
(Parties were living together with infant children and seeking an interim exclusive possession order based on affidavit
material.) Difficult for court to decide possession based on competing affidavits
HELD: Interim custody and exclusive possession awarded to wife
 Factors enumerated in section 24(4) (best interests of the children) are not exhaustive
 Best interests of the child may include other factors such as the psychological stresses and strains to a child
arising out of the daily friction between parents
 Best interests of the children to separate the parents to relieve stress and strain
 Court consider that the father had more time to devote to caring for the children but were persuaded by evidence
of his drinking and abusive behaviour (affidavit evidence from babysitter)
 Note: father did not have the opportunity to file affidavit material (ex parte order)
Perrier v. Perrier (1989 Ont. HC) (383)
(interim possession)
(2 children. Each parent blamed the other for marital problems. There had been physical altercations between parents.
Father claims she abused daughter. Whether court should grant interim exclusive possession order?)
1. The court will not grant interim exclusive possession if the request is based on gaining a tactical legal advantage
rather than the best interests of the child.
HELD: NO exclusive possession
 Mother’s discipline of daughter not regarded as evidence justifying exclusion. Both parents are good enough
parents, they’ll have to continue joint custody pending trial.
 Decision was an interim decision
 Temporary until there is an eventual trial and custody and exclusive possession is decided
Dyck v. Dyck (2005 SK QB) (385)
(nesting arrangement)
(kids stay in house, parents move in and out (historically disastrous). Parties married in 1999, father seriously injured in
car accident in 2000. Also again in 2004, becomes unemployed and stays home to care for children. He eventually starts
working and nanny hired. She later claims violence, father evicted. Both want custody in separation, father suggests
“nesting order”.)
 Court takes into account that nesting orders are usually a disaster
 No exclusive possession granted
 Status quo, he does get nesting arrangement because he was the primary caregiver
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Court threatened that there might be a home assessment to determine who would be better parent
Kooning v. Kooning (2005 ON SCJ) (389)
(interim possession)
Allegations of violence. Disagree about when they separated. Mother moved out of MH to live with her mother and takes
kids with her. No physical violence, just emotion and husband stays in matrimonial home. She wants sole custody and
return to matrimonial home.)
 Court takes into account children’s best interests. Kids are 14 and 11.
 Children should return to home for minimal disturbance and should stay with mother since she was primary
caregiver.
Vollmer v. Vollmer (1998 ON Gen Div) (388)
(interim possession)
(18 year old child of marriage and another child from marriage. Parties began living separate and apart in the same home.
Both allege violence. Agreed mother would obtain custody and children wished to live with their mother. Parties also
agreed that the house will be sold ASAP and proceeds divided equally between them.)
1. Courts should exercise care in granting an order for interim exclusive possession of a matrimonial home when the
order will have the effect of forcing a party to leave the MH.  also concern for influence on trial
HELD: Interim exclusive possession awarded to the wife
 Although normally reluctance to provide interim possession order, in this instance because outcome was clear
 Therefore, no prejudice to the husband because house sold shortly
 Court concerned with repercussions to the children
 Reluctant to provide an interim order for fear of impact at trial
Other Considerations for Interim Exclusive Possession Orders (not explicit under the FLA)
Hill v. Hill (1987 ON Dist Ct) (390)
(interim – other factors)
(Couple in late sixties. She performed domestic work, he had successful business. As relationship dissolves, she asked
for separation and sought exclusive possession order and spousal support. He threatens to evict her and fight her in court
(badly). She suffers from psychological abuse. Doctor recommends she remain in MH. Whether the inability of the parties
to continue cohabitation is grounds for an exclusive possession order?)
1. The factors for granting interim exclusive possession of matrimonial home (section 24(4) FLA) are not exhaustive. The
court may also consider blame and conduct of the parties in determining exclusive possession.
HELD: Granted exclusive possession
 S.24(3)(c) = wife means less than husband, he has greater ability to move
 S.24(3)(f) = violence interpreted to include psychological violence
 Factors in section 24(4) are not exhaustive
 Husband rendered MH incapable of joint possession
 Court considered blame and conduct of the husband in arriving at conclusion
Indefinite Exclusive Possession Orders
 Order made after Part I decided
 Only if necessary for benefit of children and financially feasible
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Cicero v. Cicero (1978 ON UFC) (392)
(Jointly owned matrimonial home, kids have liked in home all of their lives.)
(exclusive possession)
1. Court will order indefinite exclusive possession of the matrimonial home when this is feasible financially and in the
best interests of the children.
HELD: Indefinite order awarded to wife. Retaining MH is the most efficient way of caring for the children. Children also
have relatives in the community.
 Best interest of the child to remain in the matrimonial home
 Age often considered, more flexibility if high school age.
 Exclusive possession order without time limits
Rosenthal v. Rosenthal (1986 Ont. HC) (393)
(exclusive possession)
(3 children, one in college and the other 2 should be financially independent. She claims her living standards should not
be affected by her husband’s situation.)
1. If retaining the MH is financially unfeasible, court will order sale of the MH and equal division of the proceeds in the
best interests of the parties.
HELD: Indefinite exclusive possession order denied, house sold
 Insufficient funds to continue to occupy MH
 Husband should not be forced to indirectly support the family when they should be financially independent by
allowing wife to continue to occupy the MH
 Consider financial situation, needs of the children
If no children involved – virtually impossible to get exclusive possession.
Spousal Support (403)
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Spousal support is available to married and cohabiting individuals
In consideration of no fault divorce, why is one spouse required to use his or her means to satisfy the needs of the
other spouse?
Why does family law promote an ongoing economic relationship?
Compensatory justifications have merged with non-compensatory theories; parental partnership theories;
relationship to public law
Marriage is a status and spousal support is linked to this status (Bracklow)
Overview
Used to be Deserted Wives and Children’s Maintenance Act
 Deemed deserted if living separate and apart by reason of cruelty or uncondoned adultery. If she committed
adultery, it was an absolute bar to support.
 High Court could grant alimony but again conditional on conduct and fault
1978 Family Law Reform Act brought gender neutral support rules. Not based on fault, only needs. Also criteria for
unmarried spouses. 1986 reform, previously had to cohabit for 5 years, reduced to 3 years.
Provinces can deal with spousal support. ON FLA s.36(1) doesn’t apply under divorce. S.36(3) only refers to unmarried
spouses. S.29 allows for unmarried cohabitants to apply for spousal support (basis of M v. H).
Divorce Act, s. 15: Factors that court must take into account.  entitlement to spousal support.
Pelech Trilogy – spousal support had to be grounded in marriage itself. All had separation agreement. Led to Moge and
Bracklaw where women compensated but not made dependent.
Cases were all over the map, dependent on judge. As a result of unpredictability around quantum and duration, feds
commissioned study around two professors. Recommendations came out in 2006, final version in 2008.
 Some rambling about s.29, Family Law act 1990. Cohabit = cohabiting in conjugal relationship. But defining
conjugal? Basis on intention per Tolhurst? If it was based on intention alone, women would likely be
disenfranchised because he may claim otherwise.  Molodovich for objective criteria.
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Marriages mean so much now that it’s hard to define. We should focus on basis for support, forget conjugal
relationship, focus on economic interdependence.
Legislative Framework
Determine whether the DA or FLA applies?
Provincial Legislation (Part III, Family Law Act)  Part I and II apply to married individuals
 Provincial legislation addresses support obligations in the non-divorce context and the support obligations of
cohabiting individuals  Section 92(13)
 Section 30 (general statement) – 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
 Section 33(8) = purposes of spousal support (no comprehensive principle)
 Section 33(9) = factors to consider in determining spousal support
 Section 33(8) and (9) largely mirror the Divorce Act provisions
 Where couple has separated but not seeking a divorce (e.g. religious reasons), FLA applies
Federal Legislation (Divorce Act)  married individuals seeking divorce
 Section 15.2(6) = objectives of spousal support
 Section 15.2(4) = factors to consider in granting spousal support
 Significant judicial discretion  inconsistency arises as this is an insufficiently theorized area of law (no model
exists and therefore, unstated biases may influence decisions)
 DA trumps FLA (paramountcy)
Section 15.2(6): 4 objectives of spousal support (reflects theories underlying spousal support)  see CB 550 (summary)
An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a
spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its
breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the
marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period
of time.
Section 15.2(4): factors to consider in determining spousal support
In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration
the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Section 33(9) – In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the
court shall consider all the circumstances of the parties, including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living
while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length
of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
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(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and
unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child
eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her
parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the
spouse were devoting the time spent in performing that service in remunerative employment and were
contributing the earnings to the family’s support,
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child;
and
(m) any other legal right of the dependant to support, other than out of public money.
Procedure
 Section 15.2(2), DA: applicant may obtain an interim order for spousal support pending determination of the
spousal support application (same factors considered if applying for an interim order)
 Spousal support order may be indefinite or for a specified term, contingent on an event (e.g. remarriage), paid in a
lump sum or periodically, may involve property transfer to satisfy order or may bind the payor’s estate
 Once a spousal support order is granted, either spouse may apply for a variation of a spousal support order
(section 17, DA or section 37, FLA)  significant period since separation, remarriage, decline in income
Application for Support: Who may apply? (405)
Section 1(1), FLA (Part I & II)– “spouse” means either of two persons who
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this
clause to assert any right
Section 29, FLA (Part III) – ”spouse” means a spouse as defined in 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
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Section 29 provides an expanded definition of “spouse” for Part III
Cohabiting spouses for three years may claim spousal support under section 29 OR if natural or adoptive parents
of a child 3 year cohabitation is not necessary
Child may be born before, during, or after cohabitation
Is there something about ongoing nature of parent/child relationship that makes us believe that spouse with
means should take care of other spouse?
Increasing acceptance of and equality between cohabiting spouses and married spouses
In M v. H (SCC): same-sex partners (cohabiting spouses) are included in the support provisions
Policy: should be some support if necessary for a period of time depending on work sacrifices. Also public tax rationale,
woman will depend on social assistance if ex-partner doesn’t pay – move to privatization.
Mitigation against spousal support in same-sex couples (based on stats)
 More likely to both be working
 Less likely to have children
 Lower income to be distributed
 Shorter relationships
Sanderson v. Russell (1979 ON CA) (412)
(continuous cohabitation)
(S and R lived together as husband and wife for more than five years. R moved out of the home with some possessions
for a few days and subsequently resumed cohabitation.)
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1. A period of continuous cohabitation ceases when either party regards it as being at an end and, by his or her conduct,
has demonstrated in a convincing manner that this particular state of mind is a settled one (fact specific)
 Temporary “lovers quarrel” did not constitute an interruption in the cohabitation. Brief cooling off period doesn’t
bring relationship to an end.
Stoikiewicz v. Filas (1978 ON UFC) (405)
(cohabitation)
(Parties were never married but engaged in sexual relations. Woman became pregnant and the couple subsequently
resided together for 6 years with the child. He gave her an engagement ring and acted as father to the child. The parties
slept in separate bedrooms. She was receiving social assistance which she used for household expenses and he charged
her rent. She performed domestic services for him in satisfaction of a portion of the rent.  Whether the relationship
amounted to cohabitation.)
1. Unmarried persons cannot be found to be cohabiting unless their relationship is such that each assumed an obligation
to support the other in the same manner that married spouses are obliged to do.
HELD: Parties were not cohabiting but merely residing together (arms length relationship), child support but no spousal
support awarded
 If lawfully married, parties would not have been considered to be “living separate and apart”
 Many men and women reside together to “retain their personal freedoms unencumbered by the obligations which
law and traditional morality impose on married spouses”
 Since spousal support provisions are an intrusion upon that liberty, “cohabitation” should be construed strictly
 “Maintenance benefits flow from the intermeshing of the relative productivities of each of the spouses, together
with their economic needs, resulting from the way they have divided up their respective duties and obligations in
the marriage”
Note:
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Authorities suggest this decision is wrong (Armstrong, Thompson)
“Continuous” Cohabitation
Labbe v. McCullough (1979 ON Prov Ct) (413)
(short cohabitation)
 “relationship of some permanence,” section 29(b)
(Couple cohabited for 6 weeks, she became pregnant. During the 19 month period of the relationship, he resided with his
parents or was touring with a musical group. He lived in her apartment for 6 weeks and an additional 2 weeks while
recuperating from an injury. There was discussion of marriage in the future. He left all his possessions in his parents’
house. She claimed child and spousal support. Whether the parties constitute spouses under section 29(b)?)
HELD: spousal support awarded, limited quantum given brief period of cohabitation
 “Touch of permanence” – cohabitation not required
Note:
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Stoikiewicz and Labbe are not regarded as good law!
Is this an appropriate definition of cohabitation?
In Labbe, she is caring for the child for many years, which may impact her ability to establish a career – is there a
reason why a woman in these circumstances should obtain spousal support in addition to child support if there is
an ongoing childcare responsibility
o General understanding that you’re properly cohabitating.
Molodowich v. Penttinen (1980 ON Dist Ct) (408)
(cohabitation criteria)
 NOT a BRIGHTLINE TEST
1. Criteria to consider in determining if a couple has been cohabiting in a conjugal relationship (consider all aspects of
relationship):
a. Shelter: Living under the same roof? Sleeping arrangements? Are all rooms of the residence shared? Did
anyone else share the residence?
b. Sexual and personal behavior: Sexual relations? Infidelity?
c. Services: Conduct and habit of the parties in relation to preparation of meals, washing clothes, shopping,
household maintenance?
d. Social: Participation together in community activities? Friends and family in common?
e. Societal: Attitude and conduct of local community towards each individual? Regarded as a couple?
f. Economic: Financial arrangements regarding necessaries? Sharing of expenses?
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g. Children
h. Psychological expectation of relationship of some permanence
Hazelwood v. Kent (2000 ON SCJ) (407)
(cohabitation)
(motion for temporary spousal support. They lived in separate homes except on weekends where he joined her at her
house with children. Sexually exclusive, gave up f/t job to stay home and raise first child. Shortly thereafter, he started to
provide $1500/month. He argued that it was relationship of some permanence, both natural parents. Do weekend visits
constitute cohabitation?)
 Court applied Molodowich criteria.
 Had exclusive relationship with two children. He had his own room at her house, he kept computer and reading
materials there. She made his bed, cleaned his room (domestic work).
 He argued he only visited for children but they had numerous family social outings. Attended social functions as
couple. Had plans to marry.
 He put her down on health benefits as spouse (& children)
 Existence of children and financial support were huge factors  cohabiting in relationship of some permanence.
 He’s already paying $1500, court increases to $1900.
Current guidelines: parental partnership and merger of incomes. Some people suggest that we get rid of conjugality from
Molodowich and rely solely on economic interdependence.
McEachren v. Fry Estate (1993 ON Gen Div) (410)
(cohabitation)
(she wants support on basis that they cohabited for 3 years but had known each other for 15 years. Consummate loves
until he died, he owned farm and she owned house. Both maintained separate residences, she earned $30k/year, lived
and worked in Barrie. Spent weekends together and occasional weekday visits. He eventually sold farm to buy house.
She helped him select furniture and house. They talked about her moving in once he retired, each pursued personal
interests. He looked after her financially, helped her with house.)
 Estate’s lawyer argues they never lived together.
 Neighbours/friends considered them couple, it seems clear that deceased wouldn’t have objected.
HELD: lived together as husband and wife, need to look at context. They were committed and interdependent. Test is
objective and subjective, not intention alone. Everyone knew them as couple, held to be continuous cohabitation.
 Not unusual for married spouses to be in different homes/cities.
In QC, there’s no spousal support for common law. If you don’t like it, then get married. It’s going up to the SCC right now.
Family Law Act
Purposes of order for support of spouse
33. (8) An order for the support of a spouse should,
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the
spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial
Home).
Determination of amount for support of spouses, parents
33. (9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall
consider all the circumstances of the parties, including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the
parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time
and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
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(k) Repealed: 1997, c. 20, s. 3 (3).
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by
reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years
of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were
devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the
family’s support,
(v.1) Repealed: 2005, c. 5, s. 27 (12).
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money.
Divorce Act – 15.2 (4) – objectives of spousal support
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into
consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
15.2 (5) – doesn’t take misconduct into account.
Spousal misconduct
(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into
consideration any misconduct of a spouse in relation to the marriage.
Justifications for recognizing rights of cohabiting spouses to spousal support
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Nature of relationship – in long-term relationships between unmarried cohabiting individuals, there is a division of
responsibilities and a presumption of economic dependency, particularly if there are children (child care or
domestic work vs. financial)
o Spousal support provides compensation for career sacrifices and enables spouses absent from the
workforce during the relationship to reintegrate (encourages self sufficiency)
While cohabiting spouses are eligible to claim support under the FLA, less likely to receive support given
justifications
o Cohabiting spouses are often not involved in long term relationships, less likely to have children, more
likely for both spouses to enter workforce
Savings to taxpayers – privatization of spousal support rather than public funds
Historically – spousal support meant to maintain status of living. It was part of the deal. When no-fault divorce came along,
it went out the window. Now it depends on who has means. Theories underlying are confused to it’s difficult to decide.
Now based on parental partnership and merger of finances over time.
Harris v. Godkewitsch (1983 ON Prov Ct) (415)
(Woman entered relationship on the basis that she could come and go as she pleased. She went to Paris for four months.
Prior to her departure, she indicated to friends that she would be there for at least a year and may never return.)
1. Period of continuous cohabitation interrupted (intention to permanently sever the continuous relationship)
Separation for short period or for several months for employment purposes without an intention to terminate the
relationship will not interrupt a continuous period of cohabitation
Spousal Support (418)
Rogerson, “The Causal Connection Test in Spousal Support Law”
 Traditional model of support based on fault, presumed economic dependency of wives, guarantee of marital
standard of living  no longer acceptable (spouses regarded as equal in legal status; marriage understood as a
personal relationship in which spouses may determine internal arrangements unconstrained by traditional gender
roles; wives participating in labour force; marriage as a terminable union)
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Legislation reflects lack of consensus with respect to the purpose spousal support – three theories underlying
spousal support
o Unpredictability and uncertainty undermines the legitimacy of the spousal support obligation
o Discourages spousal support claims (increases litigation cost)
Rulelessness in the area of spousal support (significant discretion)
(i) “Needs and Means” and the Relationship of Family Law to Public Law
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Spousal support as an income security scheme
Is spousal support a private or public obligation?
Support is primarily an economic remedy, a response to economic need
Therefore, gender, status and conduct are irrational (not related to need)
Model does not require economic needs to have been caused by the marital relationship (rather entitlement arises
from the fact of marriage and existence of economic need) – therefore, may claim spousal support where need
exists because of illness, disability, unemployment or lack of job skills
In this respect, reflects traditional social assumptions based on notions of status and promise (economic
dependency)
Discretionary and problematic aspect of the needs and means model relates to determining the appropriate
standard of living as a proxy for need (marital standard, reasonable standard, subsistence standard?)
Relationship between family law and public welfare law – if spousal support is inadequate, state will assume
responsibility (similar issue arises with respect to child support)
o State is interested in divesting financial responsibility to private parties
o Family has a primary (moral) obligation to care for family members
o Why should taxpayers support a former spouse?
o However, there is an understanding that welfare costs are borne by the public (e.g. public education
system)
o To what extent should the public or private parties bear responsibility for support
(ii) Economic advantages and disadvantages of marriage: the compensatory/loss of economic opportunity model of
spousal support
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Purpose of support is to compensate the claimant spouse both for the economic disadvantages which they have
suffered as result of the marriage AND the economic advantage they have conferred on the other spouse during
the course of the marriage
Model is expressly contemplated in sections 15.2(6)(a) of DA and 33(8)(a) of FLA
Marriage is not understood as entailing a general guarantee of economic security, SS is only concerned with
redressing the economic consequences which flow from the particular relationship of the spouses
SS should compensate a spouse who has sacrificed labour force participation in order to perform family
responsibilities for the loss of economic opportunity suffered
Encompasses compensation to a spouse for contributions to the relationship which are not adequately
compensated by an award of property (including enhancement of the other spouse’s income earning capacity)
For spouses suffering from illness or disability, marriage has precluded the formation of other social/emotional
relationships which may have been a source of both emotional and economic security
o If the illness/disability does not flow from the marriage and the other spouse has not retained any
economic advantages, compensation is only for dislocation suffered in reorganizing
Assumption of the length of the marriage:
o Long-term marriage generates a stronger entitlement to support (quantum and duration)
o Longer the period of cohabitation the greater the probability of economic integration, and contribution to
the relationship
o Loss of opportunity and detrimental reliance is based upon the expectation that the relationship would
continue to provide economic security
Use marital standard of living as a proxy for the economic losses suffered and contributions made
Criticism: “enormous speculation involved in crystal-ball gazing into the past exist in all but the shortest, childless
marriages”
(iii) Self-sufficiency, spousal independence and the “clean break” model of spousal support
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Promoting self-sufficiency post marriage breakdown
Marriage has ended and should encourage the economic disengagement of the parties and their assumption of
responsibility for their own maintenance
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Expressly contemplated in sections 15(6)(d) of DA and 33(8)(c) of FLA – requires a claimant spouse to be
encouraged to utilize and develop their own income earning abilities to the extent realistically possible post
marriage breakdown so as to make a contribution to meeting his or her own needs and thus recover to some
extent what was lost economically as a result of the marriage.
Support is only for a limited duration, passage of time after divorce becomes the most significant factor in
determining support obligations
o Spouses are deemed to be self-sufficient after a few years, regardless of the negative economic
consequences which may continue to flow from the marriage AND in the absence of actual financial
autonomy on the part of the dependent spouse
o Clean break model has the least legislative support but was prioritized in several SCC decisions
(iv) Income sharing
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Criticism of compensatory theories as unduly individualistic and market based
Considers marriage a partnership, informed by norms of trust and sharing
Incomes are understood as joint and spouses are entitled to a share of incomes for a period of time after marriage
breakdown
Focus on the spouses’ post-divorce incomes, creating an obligation for the higher income spouse to transfer a
portion of their income to the lower income spouse.
Length of marriage is a crucial factor in determining the extent of sharing (prevents significant income disparity
between the parties after a long-term commitment)
Theory not expressly but indirectly articulated in case law (expansion of the compensatory model to include the
idea of compensation for economic advantages and compensation for the economic consequences of marriage
breakdown)
Income Sharing Model (I): sharing of marital gains, compensation for contributions and advantages, marital
partnership
o Aware of the gendered division of labour in the family but rejects the individualized consideration of the
wife’s loss as an appropriate method of assessing her non-financial contributions to the marriage
o Rather compensation is based on her contributions to the marriage by an ongoing share of the “earning
capacity” acquired by the husband during the marriage (“returns on joint efforts within the marriage”)
o Contribution replaces loss as the primary principle justifying spousal support (SS is an earned
entitlement)
o Example: where one spouse has funded the other spouse’s education and received “no ROI” as the
marriage ended shortly after graduation
Income sharing model (II): recognizing marital interdependency, transition payment, marriage as a community,
merger over time
o Justified not exclusively on the gains and losses of human capital, rather rationale is based on “merger of
lives” which occurs in marriage
o Includes pooling of efforts, sharing of gains but also significant expectations of reliance, obligation and
responsibility
o Income sharing is applied to determine entitlement:
o (i) Transition payments: conceptualizes spousal support as transition payments, proportionate to length of
the marriage (begin at almost equal incomes and reduced)
o (ii) Merger over time: not structured based on limits of duration but limits on quantum (indefinite sharing of
post-divorce income but percentage related to the length of the marriage)
o Based on the notion that over time human capital becomes intertwined rather than affixed to a particular
individual, joint spousal contributions but also recognizes interdependency (spouses making decisions on
behalf of the marital collective)
o Indirect reference in Bracklow
Legislative Framework
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Section 33(9), FLA: in assessing the quantum and duration of support in relation to need, the court shall consider
all the circumstances of the parties, including (m) “any other legal right of the dependant to support, other than out
of public money”
o Receipt of social assistance by the applicant is not considered; however, in practice if there is social
assistance, judges are less aggressive (particularly if the payor has other support obligations)
o E.g. Stoikiewicz: considered social assistance implicitly (no spousal support awarded)
Section 33(3), FLA: application for support may be made directly by public agency providing social assistance to
child
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Section 20.1, DA: may require recipient of welfare to assign support payments to the municipality or Ministry in
order to continue receiving benefits
o Legislation allows government to pursue private debtors who owe support
Requirement for women to seek spousal support as a condition of receiving social assistance (in practice,
preference by welfare authorities to encourage woman to initiate support applications)
o However, welfare authorities have discretion as to whether a woman is required to seek spousal support
(e.g. domestic violence)
Falkiner v. Ontario (2002) (not discussed)
(spouse history)
Historical Background
 Prior to Harris government, only considered a “spouse” after cohabitation for 3 years or relationship of some
permanence if parents of a child, for social assistance purposes
 Therefore, if man resided with a woman, she would be denied social assistance after 3 years or if father of child
 In 1995, definition of “spouse” created the presumption that if persons of the opposite sex resided together (even
if less than 3 years), woman risked ineligibility for social assistance unless rebutted (hetero-normativity,
assumption of economic dependence if a woman lived with a man)
 This disenfranchised many women living on social assistance
 Intrusive measures to asses whether women had a “spouse in the house” – however, conflicts with family law
definition of “spouse” (cohabitation for 3 years)
 Single mothers testing relationships while intending to maintain financial independence were ineligible to continue
receiving benefits as sole support parents under the Family Benefits Act
Ontario Court of Appeal
 Definition of spouse did not provide a reasonably accurate distinction between spousal or marriage-like
relationships and other relationships (overly broad definition)
 Welfare legislation deprived women of the ability to form long-term relationships without losing the right to social
assistance (even if no financial dependency existed)
 Definition of spouse imposed differential treatment on women receiving social assistance, violated section 15
(systemic discrimination) and not justified under section 1
 Violation of security of person (denied social assistance but no alternative means of support), privacy challenge
 Appeal to SCC withdrawn, legislation reformed
 Definition of “spouse” (Ontario Works Act) – A person who has been residing in the same dwelling as the
recipient for a period of at least three months, if (i) the extent of the social and familial aspects of the relationship
between the two persons is consistent with cohabitation, and (ii) the extent of the financial support provided by
one person to the other or the degree of financial interdependence between the two persons is consistent with
cohabitation
o 3 month requirement for presumptive spousal relationship (however, 3 years under the FLA) 
improvement although, still appears unconstitutional
o Gender neutral
 Ontario Works Act conflicts with definition of spouse in FLA
Messier v. Delage (1983 SCC) (421)
(traditional support)
(12 year marriage with two children. Wife sacrificed employment during the marriage to care for the children. Couple
separated and wife was awarded custody. The assets were divided equally and she received $1600/month for child and
spousal support (amount allocated to each was not specified). His income was $4600/month (after support payments, his
income was 2x income of the wife). Wife decided to pursue a Masters in translation. Son lived with his father. She had
difficulty finding employment in translation (part time, $5000/year). Husband applied for a downward variation in support
because the son was now living with him and wife has masters degree (should be self-sufficient). He claimed the losses
she suffered were not caused by the marriage.)
Trial: reduction in child support, $700/month for 8 months (thereafter expecting wife to become self-sufficient)
HELD: SCC ordered indefinite spousal support ($700/month), rejected time limited approach
 Significant judicial discretion in the area of spousal support, fact specific determination
 Should not assume ability of wife to integrate into the work force
 However, wife has an obligation to engage in reasonable efforts to become self-sufficient
DISSENT: Lamer J. (Wilson J. concurring)
 Clean break theory: gender equality requires women to become financially self-sufficient
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Support is transitional to facilitate reintegration into the labour force (Lamer would expect wife to rely on
welfare, similar to unemployed unmarried individuals, if unable to obtain employment)
o Responsibility of government rather than the former husband
o “Ability to work should be determined intrinsically and not in light of factors extrinsic to the individual, such
as the labour market and the economic situation”
Indefinite spousal support contradicts gender equality – “women cannot on the one hand claim equal status
without at the same time accepting responsibility for their own upkeep”
Causal Connection: Pelech Trilogy
 Dissent in Messier was adopted by the majority in the Pelech trilogy (Wilson J.)
 In each case, the parties had separation agreements which addressed spousal support; however, Wilson J.
appeared to extrapolate these principles to all circumstances
o After the trilogy, period during which few spousal support awards were granted
o SCC not particularly sympathetic to women
 Support is not awarded to address systemic gender inequality in the workplace or society, rather support is
intended to minimize the economic loss incurred by spouses as a result of the roles adopted in the marriage
 The mere fact that a spouse became accustomed to a higher standard of living during the marriage will not
guarantee a continuation of such standard or ongoing access to such income after marriage breakdown
 Marriage itself will not create a spousal support entitlement
 This approach led to the limitation of SS, as the trilogy was used to justify a denial of support or a limitation on the
amount of support or its duration.
Pelech v. Pelech (1987 SCC) (423)
(clean break support)
(Parties were marriage for 15 years. Wife had psychological problems. There was a separation agreement between the
parties. Husband obtained custody and wife received a lump sum payment of $29k (property + spousal support), no
obligation thereafter. 15 years after the divorce she was on welfare and requested a variation under the Divorce Act.)
HELD: No spousal support
 SCC emphasized policy of promoting individual autonomy to contract (if ILA, agreement not unconscionable)
 Causal connection test: in order to impose responsibility for changed circumstances on a former spouse, a
relationship between the change and the marriage is required
o Variation of a spousal support order requires a radical change in circumstances flowing from a pattern of
economic dependency engendered by the marriage
 “They made the decision to marry and they made the decision to terminate their marriage. Their decisions should
be respected. They should thereafter be free to make new lives for themselves without an ongoing contingent
liability for future misfortunes which may befall the other”
 No causal connection between wife’s circumstances and the marriage, spousal support would create “a fiction of
marital responsibility at the expense of individual responsibility”
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Richardson v. Richardson (1987 SCC) (425)
(clean break)
 freedom of contract and party autonomy
(Couple was married for 12 years and had two children. Wife ceased working during the marriage to care for the children.
Separation agreement provided for wife to receive spousal support for 1 year and child support. After divorce, wife was
unemployed and was forced to rely on welfare. She sought extension of spousal support obligations and increased child
support.)
HELD: No spousal support, child support granted
 Courts have jurisdiction to override separation agreements but are reluctant
 Policy rationale: (1) importance of finality in the financial affairs of former spouses and (2) principle of deference to
the right and responsibility of individuals to settle their affairs
 “It cannot be said that the possibility of her being unemployed was completely outside the reasonable
contemplation of the parties” and therefore, court should not intervene
Caron v. Caron (1987 SCC) (427)
(causal connection)
(14 year marriage. Woman sacrificed employment to care for the children. She signed a separation agreement which
provided that spousal support would terminate if she remarried or cohabited for more than 90 days. She began to live with
another man and spousal support ceased. She was subsequently receiving welfare and applied for reinstatement of
spousal support.)
HELD: Right to support forfeited under the agreement, denied variation or reinstatement of SS
 Affirmed causal connection test in Pelech: causal connection between hardship and the marriage (clean break)
o Must establish that current circumstances are related to marriage
NOTE: causal connection theory has been disavowed. Poverty may be related to crappy job more than marriage.
Rogerson’s Criticisms of the Trilogy and the Causal Connection Test
 Rogerson challenged McLeod’s position – Bast would undoubtedly “continue to suffer the economic
disadvantages of the marriage, absent an extraordinarily large property settlement”
 Courts were generally sympathetic to women in traditional long-term marriages
 However, with respect to medium-term marriages, emphasis on rehabilitation of the spouse and orders were
terminated once employment was attained, low income was then due to factors outside the marriage such as the
woman herself of the labor market
 Feminization of poverty: decline in the economic circumstances of women and children after marriage breakdown
March 3, 2011
Divorce Act, s.15.2(6)
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a
spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over
and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Remember: must first establish entitlement.
Recap:
SCC cases were stressing (d) self-sufficiency in Messier and Pelech trilogy. Must find causal connection between need
and marriage itself. If no connection, then she becomes ward of state.
Following Pelech trilogy were taken up by James McLeod, he compiled family law reports. He started to promote theory
from Pelech Trilogy: causal connection to need.
 Spousal support rarely awarded after this, or if awarded only for a short period of time. This was happening even
in long-term traditional marriages.
 Backlash with Moge case. Divorce Act not premised on causal connection
Compensatory Model of Spousal Support
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Moge v. Moge (1992 SCC) (431)
(rejection of causal connection)
(Long-term marriage with 3 children. He obtained blue collar employment and she was the primary caregiver for the
children and worked during the evening (at minimum wage). Her role in the labor force was secondary (non-traditional
marriage as both spouses entered the labour force but also traditional in a sense). Parties separated after 16 years (she
obtained custody). No separation agreement was signed. She struggled to maintain full time employment as a cleaner
and received limited child support payments. He remarried and purchased a house with his second wife. Children had
grown up. He applied for a variation to reduce spousal support payments. He claimed there was no causal connection
between her low income and the marriage (rather she had limited education and job skills, market for cleaners was
precarious).)
Rejection of the causal connection test as the sole basis for entitlement to support and endorsed a more expansive
compensatory model of spousal support recognizing economic disadvantages flowing from the marriage relationship.
HELD: $150/month spousal support (wife’s role in the marriage allowed her husband to maintain high income
employment)
 Trial court awards nothing, CA awards $150/month indefinitely.
Majority: L’Heureux-Dube J.
 Rejected McLeod’s application of the causal connection test to all cases, model based on self-sufficiency is
inadequate
 Judicial notice of the feminization of poverty: recognized pressure on women to sacrifice career prospects,
differential economic impact of divorce on women (gender roles)
o Time out to care for children could have lifetime effect.
 Advocates compensatory model: purpose of spousal support is to provide compensation for a spouse’s sacrifices
and contributions during the marriage and to relieve any economic hardship arising from marriage breakdown
o Compensation is not the only factor BUT significant factor
o Detailed inquiry of losses and gains in the marriage not necessary
o Referred to 4 principles enunciated in section 15.2(6), Divorce Act: each objective is important but
not all are applicable in every case
o Self-sufficiency is relevant but compensation is the primary objective (self-sufficiency is only one
objective, other factors considered)
 Quantum of exact compensation is too difficult and expensive to determine. Much of jurisprudence relies in proxy
measures based on needs, means, marital standard of living.
 Adopted Brockie v. Brockie – “To be a custodial parent involves adoption of a lifestyle which, in ensuring the
welfare and development of the child, places many limitations and burdens upon that parent … The financial
consequences of all these limitations arising from the custody of the child are in addition to the direct costs of
raising the child and are factors to which the court is to give consideration”
o  recognition of financial consequences of ongoing child care responsibilities after separation and the
impact on income earning ability
o Less likely to obtain spousal support if no children
o State can also step in if there is illness, etc.
 As marriage is regarded as a joint endeavor, the longer the relationship endures and the closer the economic
union, the greater the presumptive claim to equal standards of living upon its dissolution
McLachlin J. (concurring)
 Neither the compensation nor self-sufficiency models capture the content of section 15.2(6) (although both are
relevant) – emphasized multi-factorial approach
 Test of causation is not a tort assessment (i.e. determining precise economic losses)
 Factors considered in determining eligibility for spousal support:
o (1) Economic advantages or disadvantages arising from the marriage or its breakdown: compensation of
one spouse for the sacrifices and contributions made during the marriage
o (2) Apportionment of the financial consequences of the care of children: compensation for financial
disadvantage incurred by a spouse as a result of caring for children before or after separation
o (3) Spousal support should grant relief from any economic hardship arising from the breakdown of the
marriage (focus is not compensation but post-marital need)
o (4) Spousal support order should “in so far as practicable” promote the economic self-sufficiency of each
former spouse within a reasonable period of time
Note:
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still only 30% of women applying for spousal support but increase in awards.
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Compensation has become the predominant justification for spousal support
Effect of Moge was more generous granting of spousal support, increased prevalence of indefinite orders
Moge reflects the compensatory nature of spousal support and a sympathetic understanding of the financial
consequences of marriage roles
After Moge, judges began to apply proxy measures (based on marital standard of living) to determine
compensatory awards (actuarial methods costly and not necessarily conclusive)
o Criticism: return to status and marital standard of living (dilution of the value of a woman’s domestic
contributions as a compensatory justification for SS in favor of paternalistic response to feminization of
poverty – Rogerson)
Moge suggests a compensatory justification for support based on the obligation of family members to provide for
each other’s economic needs (e.g. illness or disability) and not roles assumed in marriage, see Bracklow
Confusion still remains with respect to the implications of the compensatory model
Moge appears driven by concerns of preventing post-divorce poverty rather than the principle of providing fair
compensation for domestic contributions and the equitable sharing of the economic consequences of marriage
o As a result, spouses who demonstrate the greatest economic need are considered the most sympathetic
candidates and youthful or employable spouses are considered self-sufficient actors, regardless of past
or ongoing child care responsibilities
Non Compensatory Model of Spousal Support
Subsequent cases explored non-compensatory justifications for spousal support unrelated to marital roles
Section 15.2(6)(a): recognize any economic advantages or disadvantages to the spouses arising from marriage
breakdown
Section 15.2(6)(c): relieve any economic hardship of the spouses arising from marriage breakdown
Bracklow v. Bracklow (1999 SCC) (442)
(non-compensatory)
(Woman entered the relationship with two children from a previous marriage. Parties married (3 years) after cohabiting for
4 years (medium length relationship). Both parties entered the labor force. She worked for 6 years and suffered a physical
and mental breakdown which led to her hospitalization. At the beginning of the marriage, the wife earned a higher income
and provided two thirds of the household expenses. Couple later divided expenses equally. Husband provided support
during the final year of the marriage because she was EI. After the marriage she was no longer employable because of
health difficulties (lived in subsidized housing and received disability benefits). Children had grown up. He earned a
significant income and remarried.)
Trial and CA: non-traditional marriage (no sacrifices and no gain), husband had no obligation to compensate (SCC
rejected this narrow analysis)
 She argued that he had to support in sickness and health
HELD: SCC remitted case to trial for determination
 (retrial) Trial judge awarded spousal support of $400/month for 5 years, reasoned time limit appropriate because
entitlement based on non-compensatory grounds and relatively short marriage (duration of cohabitation was a
critical factor). Interim award is extended for a total of 7 years.
McLachlin J.
 Issue: “what duty does a healthy spouse owe to a sick one when the marriage collapses?”
 No difference whether divorce is under provincial or federal law. Presents spectrum: basic obligation based on
needs alone to clean-break model and self-sufficiency.
 Law recognizes 3 conceptual grounds for entitlement to spousal support:
o (1) Compensatory (Moge)
o (2) Contractual:
 Express: section 15.4(c)
 Implied: Caratun
o (3) Non-compensatory
 amount of support is related to duration of relationship and marriage, also time required to
become self-sufficient.
 SCC rejected interpretation of marriage vows (“support each other in sickness or in health, till death do us part”)
as a contractual obligation to provide spousal support but rather, an “expression of hope” between the parties
 Affirmed framework in Moge BUT no single objective is paramount
 FLA and DA contemplate non-compensatory factors
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o
o
o
o
Objectives of relief from economic hardship arising from the breakdown of the marriage (section
15.2(6)(c)) and promotion of economic self-sufficiency (section 15.2(6)(d)) are not related to
compensation
Section 15.2(6)(c): encompasses not only disadvantages arising from the marriage breakdown properly
the subject of compensation but economic hardship in the non-compensatory sense
Section15.2(6)(d): inability to become self-sufficient due to illness, injury or labor market deficiencies
“Spouses may have an obligation to meet or contribute to the needs of their former partners where they
have the capacity to pay, even in the absence of a contractual or compensatory foundation for the
obligation. Need alone may be enough.” (obligation arises from the marriage relationship itself)
 If need is not satisfied by compensatory support or self-sufficiency achieved by the former
spouse’s efforts, marital obligation may justify support
A bit frightening that it’s to the healthy spouse’s advantage to leave when other partner is sick. Support is related to
duration of relationship. So have we come full circle back to needs alone?
 all three models must be considered in analysis.
Rogerson “Spousal Support Post-Bracklow”
 Bracklow created inconsistency and uncertainty in spousal support law
 How to achieve an appropriate balance between encouraging self-sufficiency after divorce, yet providing
compensation for contributions during the marriage, or if in the absence of contributions, the needs of the
vulnerable party?
 Compensatory model was viewed as replacing the clean break model (confusion in Bracklow)
 In Moge, compensatory model was based on the concept of marriage as a partnership while in Bracklow the
compensatory model was characterized as individualistic and market based
 Non-compensatory support based on the fundamental social obligation of mutual support arising from marriage,
reflects traditional concept of marriage as a status with obligations inherently attached to this status. (i.e. marriage
is a “serious commitment not to be undertaken lightly”)
 Rogerson prefers to confine non-compensatory support to a narrow range of cases and analyze typical support
cases within the compensatory framework
 Shift from the feminist concept of support as an entitlement earned by women from domestic contributions, to
traditional justifications based on means and needs
 Non-compensatory model may result in the termination of payments once the recipient remarries (need no longer
exists); however, this would not occur under the compensatory model (support earned)
Brockie v. Brockie (1987 Man QB) (438)
(child care responsibilities)
(5 year marriage (short term) with one child, got pregnant in high school. Woman had no previous employment experience
and remained at home to care for the child. She hoped to attend university. After separation, she worked as a store clerk
and wished to attend university to achieve financial independence.)
1. Court recognized restrictions on career prospects arising from child care responsibilities (section 15.2(6)(b)). Gives
rise to new parental partnership theory underpinning duration and quantum.
 More expensive to rent
 New relationship may be more difficult to find
 Full time work may be restricted by caregiving responsibilities
HELD: Ordered $600/month spousal support for 3.5 years to enable her to attend university
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Misconduct
 Dissonance between public perceptions and legislation (e.g. should a spouse who committed adultery which
ended the relationship receive support? What if recipient of support has been violent to the payor?)
 LRC recommended a no fault system (however, limited consideration of fault remains)
 Critique of fault based theory: generates hostile disputes between parties, increases litigation costs, harmful to
children
Section 15.2(5), Divorce Act – Court shall not take into consideration any misconduct of a spouse in relation to the
marriage in ordering spousal support
HOWEVER,
Section 33(10), FLA – The obligation to provide spousal support exists without regard to the conduct of either spouse, but
the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to
constitute an obvious and gross repudiation of the relationship.
 Uncertain whether the court should consider only the payor’s conduct or also the recipient’s conduct
 Melanson suggests that section 33(10) permits a court to consider the conduct of either spouse
 However, courts generally consider only whether the conduct of applicant disentitles him or her to spousal support
 Court may consider need as a factor if abuse results in psychological hardship which prevents a payee spouse
from becoming economically self-sufficient (Leskun)
No cases where conduct will result an increase in support. Very high unconscionable threshold.
Morey v. Morey (1978 ON Prov Ct) (458)
(high threshold for unconscionability – TEST)
(Couple cohabitated for 40 years. Husband worked while wife cared for the children. Husband retired and had a pension
income. Wife decided to leave him shortly after a large item of family property is sold and the proceeds are divided
equally. She sought spousal support under the FLRA. Husband claimed her conduct in unilaterally departing without just
cause was a repudiation of the relationship.)
1. List of factors to consider (strict test):
 (1) Conduct must be exceptionally bad and such as could reasonably be expected to destroy the marriage
 (2) Conduct must have persisted in the face of innocence or virtual blamelessness on the part of the other
spouse (i.e. course of conduct, single act will not qualify)
 (3) Commission of a matrimonial offence is not necessarily sufficient
 (4) Risk of punitive costs if the allegations are deemed frivolous
HELD: Conduct NOT unconscionable
MacDonald v. MacDonald (458)
(unconscionable conduct)
(24 year traditional marriage with children involving violence. She continuously assaulted him when she was drinking.
Parties desired to remain together for religious reasons. He would avoid her violence by locking himself in the bathroom.
She stabbed him twice while he was driving and was criminally convicted. He decided to leave his wife.)
HELD: Conduct unconscionable (court applied section 33(10) to reduce spousal support to wife), spousal support is
reduced and interim for only 5 years.
Note:
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
Test only applies under FLA!
If there is an FLA order and parties subsequently seek a divorce, respondent may claim rights under DA and court
may assess previous arrangements to determine whether DA requirements are satisfied
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Leskun v. Leskun (2006 SCC) (452)
(consequences of conduct)
(20 year marriage with a child. She worked and contributed to husband’s education. Wife lost her job after suffering a
significant injury. Shortly after, husband announced intention to divorce (to marry another woman with whom he’d had
long term affair). He argued that she hadn’t even tried to get p/t job. This lady was self-represented and didn’t have
medical certificates speaking to her instability.)
1. While conduct itself is not a relevant consideration under the Divorce Act, SCC appears to endorse consideration of
the emotional consequences of misconduct in ordering spousal support. Can’t penalize conduct itself but
consequences are important.
 Section 15.2(5), Divorce Act precludes consideration of conduct (applies to initial and variation orders)
 Distinction between the misconduct itself and emotional consequences of the misconduct
o Court may take into account emotional consequences of misconduct
o The fact that she suffered emotional consequences rendered her incapable of becoming economically
self-sufficient under section 15.2(6)(d)
Section 15.2(6)(d), DA – Spousal support order should promote the economic self-sufficiency of each spouse
within a reasonable period of time (objective)
Trial: support ordered of $2,500/month, wife remained unemployed and applied for continuation of support after four years
(husband claimed she was self-sufficient, section 15.2(6)(d))
CA: considered conduct
 Bitter to point of obsession with misconduct, due to age and education she was unlikely to be able to become selfsufficient. Her state is at least in part a result of her current state of mind.
Note:
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Significant criticism of consideration of conduct (moral judgment)
Globe and Mail: Leskun v. Leskun had overturned a generation of no-fault divorce and returned to the days of
fault, described as a case in which an embittered wife, who was fully capable of becoming "self-sufficient," was
allowed to claim spousal support for no other reason than to punish her unfaithful husband
Rogerson disagreed: court insisted spousal support order was based on economic impact of the marriage and its
breakdown, the needs and means of the spouses and their earning capacities
Courts routinely take into account the emotional devastation of a marriage breakdown as a factor in setting
realistic expectations for a spouse to pursue some degree of self-sufficiency
Judicial Determination of Spousal Support: Search for Guiding Principles
Lamothe v. Lamothe (2006) (not discussed)
 gender neutrality, spousal support theories
(Marriage for 21 years with a child. He suffered an injury (although not grievous) and stayed at home to care for the child
and perform domestic work. Wife urged him to gain employment but he did not. Husband applied for spousal support in
the amount of $1,000 per month, payable by the wife, on an indefinite basis. He claimed that his wife benefited from his
domestic contributions while she had the opportunity to pursue a career. Wife claimed that he unwilling to seek
employment and his injury had not prevented him.)
Held: Spousal support denied
 Compensatory: husband did not suffer any economic disadvantage as a result of the marriage, decision to stay
at home and not seek employment or further education was his own, any diminished earning capacity was a
consequence of that decision and not the result of any childcare or household duties assumed by him
 Non-Compensatory: although there was a significant discrepancy in incomes, Mr. Lamothe lacked sufficient
“need,” husband currently employed and spousal support would not relieve any financial hardship
History of Spousal Support
1. Messier: traditional approach (protection of wife)
2. Divorce Act (1986)
3. Trilogy (Pelech, Richardson, Caron): clean break
4. Moge: compensatory
5. Child Support Guidelines (1997)
6. Bracklow: non-compensatory
7. Miglin (2003)
8. Spousal Support Advisory Guidelines (2005)
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Bast v. Bast (ON HC, 1988) (420) (not discussed)
(spousal support)
 Wife was awarded support for a two year period after divorce
 Although the court concluded that “a period outside the workforce for 21 years created a causal connection
between the marriage and her dependency” and that the wife would likely never achieve the standard of living
enjoyed during the marriage, a spousal support order should promote self-sufficiency
 Two years allowed her to “gear down” to a lower standard of living
 Prof McLeod: “By acknowledging absence from the work force to care for home and family is a sufficient causal
connection between the inability to find reasonable work and the marriage to justify support, this should put to rest
fears that the notion of causal connection would deny relief to “traditional” spouses”
Commentators challenged this narrow application of the causal connection test on the basis that the Divorce Act was not
premised on a causal connection (statutory interpretation approach)
Eng v. Eng (2006) (not discussed)
(spousal support)
(Parties separated after a short relationship and before their son was born. She married another man and had two
children. The parties resumed cohabitation and married for 4 years. He was aware of her illness and indicated that he
would care for her for the rest of her life. He was wealthy. She applied for permanent support.)
1. Disparity in income (arising from disability and not the relationship) was sufficient for an award of indefinite spousal
support after 4 year relationship.
Reasons:
 Three approaches to entitlement applied to the wife (unusual) but decision driven by need
o “Ms. Eng clearly has a strong claim for non-compensatory support arising out of her need and her inability
to become self-sufficient”
o “I also find that she has some claim, though relatively weak, to compensatory support arising from the
financial losses she suffered as the result of the marriage and its breakdown”
o “Similarly, she has a claim to contractual support, albeit a relatively weak one, because Mr. Eng expressly
and impliedly agreed that he would provide for her for the rest of her life”
 Court considered his considerable means and her needs
 Confusion after Bracklow
“I do not regard the length of the marriage as a decisive factor in this case. In light of the countervailing factors,
particularly Ms. Eng's clear need, I conclude that Mr. Eng is liable to support her for an indefinite period of time”
Review
Must establish entitlement first – not only that there is a need at the end of the marriage – someone has to be entitled to
support.
 S.15(6) determines this, remember that Pelech trilogy stressed clean break
 1) compensatory model – Moge
 2) non-compensatory – need only – Braklow
 3) contractual
After Moge, proxy measures applied based on need and marital standard of living. (merger of incomes – spousal advisory
guidelines. One party shouldn’t be hugely better off.
 Post Braklow, law all over the place. Lots of litgation and people not applying for support.
Spousal Support Advisory Guidelines (income sharing)
History
 Concept of spousal support lacked legitimacy and coherency after Bracklow
o Highly individualized decisions because of the absence of certain rules (raised litigation costs, deterred
low income individuals from seeking SS)
 In response, Spousal Support Advisory Guidelines (2005) developed (had the benefit of the experience of the
1997 Child Support Guidelines)
 SSAG NOT law but advisory (flexible) (CSG are law)
Benefits and Deficiencies (Rogerson: advantages outweigh disadvantages)
 Provides a basis for negotiations and decisions
 Reduces conflict and encourages settlement
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Reduces litigation costs and improves efficiency of the process
Avoids budgets and simplifies the process
Provides structure for judicial elaboration
Increases consistency and legitimacy of spousal support awards
HOWEVER,
 Inflexible and general application (denial of individual justice)
 SS is overly complicated for a formulaic approach (given diversity of marriages)
 Discretion allows intuitive reasoning
 De facto foreclosure of litigation
Content
 SSAG do not address entitlement but only DURATION and QUANTUM
o First establish entitlement based on the legislation!
 SSAG do not address the effect of a prior spousal support agreement
 Two formulas:
o Without child support formula
o With child support formula
 Before applying SSAG, determine income
 Both formulas use income sharing as the method for determining the amount of spousal support, not budgets
 Formulas produce ranges for the amount and duration and not a precise number (negotiated based on the facts)
 SSAG provide that a discrepancy in income will not by itself entitle a party to SS!
 A ceiling and floor establishes the range of incomes to which the formulas apply
o Ceiling = income level of the payor spouse above which any formula is replaced by discretion (gross
annual income of $350,000)
o Floor = income level of the payor below which no support is paid (gross annual income of $20,000)
o Exceptions:
 Where the payor spouse’s gross annual income is greater than $20,000 but less than $30,000,
may not award SS or reduced below range
 Exception for awarding SS below the income floor in particular cases
Formula 1: Without Child Support Formula
gross income ***examinable***
You can give lump sum instead of payment over years. Goal is to determine amount and duration. See Without Child
Support Formula from guidelines. Goal is to render both parties equal at end of marriage. Merger of income philosophy
theory – captures both compensatory and non-compensatory model.
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Without child support formula is based on two factors: (1) gross income difference between the spouses and (2)
length of the marriage
Both the amount and duration of support increases incrementally with the length of the marriage
o Reflects merger over time: greater integration of the spouses’ economic and non-economic lives over
time
Gross income difference measures differential loss of the marital standard of living at the end of the marriage
(compensatory and non-compensatory spousal support objectives recognized in Moge and Bracklow)
o Longer the marriage, the greater protection afforded to the lower-income spouse against such a
differential loss
65 rule (e.g. 10 year married ended when the recipient was 55 years old): older recipients face limitations in the
labor market
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Without Child Support Formula
Amount ranges from 1.5 to 2 per cent of the difference between the spouse’s gross incomes (gross income
difference) for each year of marriage (or cohabitation) to a maximum of 50 per cent. The range remains fixed for
marriages 25 years or longer at 37.5 to 50 per cent of income difference.
Duration ranges from 0.5 to 1 for each year of marriage. However, support is indefinite (but not permanent) if the
marriage is 20 years or longer in duration OR
If the marriage has lasted at least 5 years, if when added together, the years of marriage AND the age of the support
recipient at separation is higher than 65 then support will also be considered indefinite (65 rule)
Example
If Spouse A has gross income of $90K and Spouse B has gross income of $60K (married for 20 years)
 To determine amount:
o (1) Establish entitlement
o (2) Determine the gross income difference = $60,000
o (3) Determine the applicable percentage by multiplying the length of the marriage by 1.5 to 2
 1.5% x 20 years = 30% (low range)
 2% x 20 years = 40% (high range)
o (4) Apply the applicable percentage to the income difference
 30% x 60,000 = $18K/year ($1,500/month)
 40% x 60,000 = $24K/year ($2,000/month)
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
To determine duration:
o In the example above, support is indefinite (20 years)
o Indefinite support has no limit on duration but is subject to review, variation, or termination (i.e.
indefinite support ≠ permanent support)
E.g. If the marriage was 4 years
o 0.5 x 4 = 2 (low range)
o 1 x 4 = 4 (high range)
o Duration = 2 to 4 years
Examples from casebook (& online): http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/toc-tdm.html
7.1 Hovius
20 year marriage, one child. Arthur finished commerce degree, became branch manager. Income is now $90k. She
mostly stayed home, worked p/t. Now works f/t, earns $30k per year. Child is now independent.
 Use without formula because child is self-sufficient
 Are in mid 40s, don’t use factor 65
 Determine the amount of support:
o Determine the gross income difference between parties: 90k – 30k = 60k
o Determine the applicable percentage by multiplying the lengths of the marriage by 1.5-2% per year: 1.5
x20 years = 30% to 2x20 yrs = 40%
o Apply the applicable percentage to the income difference: 30% x $60k = $18k/year (1500/month) to 40%
x $60k = $24k/year ($2000/month)
 Then move to duration: indefinite because marriage longer than 20 years
7.2
4 year marriage. No children. Annual gross income of $60k Beth earns $20k.
 No children
 Factor 65 doesn’t apply
 Determine the gross income difference between the parties: $60k – 20k = $40k
 Determine the applicable percentage by multiplying the lengths of the marriage by 1.5-2% per year: 1.5 x 4 years
= 6% to 2x4 years = 8%
 Apply the applicable percentage to the income difference: 6% x $40k = $2400/year ($200/month) to 8% x 40k =
$3200/year ($267/month)
 Duration of spousal support = (.5-1) x 4 years = 2-4 years
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Note:
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Result is 200 to 267 per month for a duration of 2-4 years. In practice this would likely be converted to a lump
sum.
A number of factors influence the precise amount or duration within the range: persuasive compensatory
claim, recipient’s needs, property division, needs and limited ability to pay of payor spouse and self-sufficiency
objectives (section 15.2(6)(d))
Restructuring allows trade offs between the amount or duration, provided the overall value of the restructured
award remains within the total or global amounts generated from the formula
o Higher amount for shorter duration
o Lower amount for longer duration
o Formulating one lump sum payment by combining both the amount and duration
Exceptions available (SSAG are only advisory) including short relationships, illness or disability, debt payment,
prior support obligations and compelling financial circumstances
Formula 2: With Child Support Formula  net income
 Assumption is that children are living with parent who is receiving spousal support. Child support takes
precedence over spousal support.
 Based on net income, divides pool of net income between two spouses
 Upper and lower limits don’t change with length of marriage
 Initial order are typically indefinite
 Restructuring awards: frontload and shorten duration, or extend and lower monthly amounts, or lump sum +
duration.
Ceilings and floors: applies to income between $20k – 350k. 20-30k income, spousal support may not be awarded at all or
may be much lower.
AMOUNT
(1) Determine the individual net disposable income (INDI) of each spouse:
 Payor’s INDI = Guidelines Income – Child Support – Taxes/Deductions
 Recipient’s INDI: = Guidelines Income – Notional Child Support – Taxes/Deductions + Government Benefits and
Credits
(2) Add the two INDIs. Determine the range of spousal support amounts that would be required to provide the lower
income recipient spouse with between 40% to 46% of the combined INDI.
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Calculations require computer software (SUPPORTMate)
Individual NET income is used as an attempt to isolate a pool of disposable income available after adjustments for
each spouses’ child support obligations (by deducting respective contributions to child support)
Notional Child Support: table amount of child support that a spouse would pay under the Child Support
Guidelines, based upon the spouse’s income, although that amount is not actually paid to the other spouse (used
as a proxy or adjustment to reflect spouse’s direct expenditures on a child as a custodial parent)
DURATION
Choice between the two tests, whichever produces the longer duration will apply
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Longer marriage test = modeled on the maximum duration under the without child support formula (above)
o 1 year of support for every year of marriage (likely governs most marriages of 10 years or more)
Shorter marriage test = establishes the outside time limit for support – when the youngest child completes high
school (typically applies to marriages under 10 years)
o Typically, review conditions attached (relatively few cases reach the time limit and reduction in amount
likely for cases reaching the limit)
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Note:
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Distinctive treatment of marriages with dependent children and concurrent child support obligations is justified by
parental partnership principle (Brockie and Moge, section 15.2(6)(b))
Child support is calculated first
Shared and joint custody situations require a slight variation of the INDI (different formula where spousal support
is paid by the custodial parent)
Limited duration but more generous than Pelech (e.g. 65 rule)
Useful help:
http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/ss-pae/index.html
http://www.law.utoronto.ca/documents/rogerson/spousal_draftreport_en.pdf
http://www.law.utoronto.ca/documents/rogerson/spousal_issues_en.pdf
Child Support (675)
Class discussion:
Woman gets guy drunk for free sperm. Lies to him and says that she’s on birth control. Gets pregnant. Child support?
 Biological parents owe child support – very clear.
 Both Canada and US refuse to allow non payment. Not basis for tort action.
Boca v. Mendel (678)
(paternal responsibilities)
(mother has child against father’s wishes)
 Reasons of public policy to avoid measuring father’s role in abortion and birth control decision.
 Conception is always joint responsibility.
Judges want to avoid making investigations into private sphere – intrusive and factually problematic.
 Corrolative of rights – to custody etc
 Public policy that state not be responsible
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No longer distinction re: wedlock, child use to lose child support rights and inheritance
You can make application for proof of paternity to ON Sup Court under s. 4, 5 Child Law Reform Act
o Usually arises in context of child support application for child born out of wedlock. Mother usually
identifies father.
o Finding of paternity is preliminary matter.
o If established, the child support responsibility exists.
o Civil proceeding, BoP. (used to be criminal standard) (s.5(3) and 8(1))
 Evidence can be supported by s.8(1) presumptions
 Also if father refuses to give blood test
Establishing Paternity (676)
Section 1, CLRA: no distinction between children born within or outside of marriage (abolished concept of legitimacy or
illegitimacy)
 However, if a child is born outside of marriage, proof of paternity may be required
 2 methods of establishing paternity:
o (1) Presumption
o (2) Blood test
Presumption
 If paternity is established, proceed to evaluating quantum of child support
 E.g. If mother testifies that the father is the only possible father and father denies intercourse, unless father
submits to paternity test, judge is required to discern credibility
 Section 5(3), CLRA – Where the court finds on the balance of probabilities that the relationship of father and
child has been established, the court may make a declaratory order to that effect
 Section 8(1), CLRA - Unless the contrary is proven on a BOP, there is a presumption that a male person is the
father of a child in any one of the following circumstances:
o 1 & 2. Married to mother at birth or within 300 days before birth (where marriage terminated by death,
nullity, divorce)
o 3. Married to the mother after birth AND acknowledges he is the natural father
o 4. Cohabited in a relationship of some permanence at birth OR within 300 days after ceased to cohabit
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o
o
5. Person has certified the child’s birth as the child’s father
6. Person has been found or recognized in his lifetime by a court to be the father of the child
Child Law Reform Act
8. (1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he
shall be recognized in law to be, the father of a child in any one of the following circumstances:
1. The person is married to the mother of the child at the time of the birth of the child.
2. The person was married to the mother of the child by a marriage that was terminated by death or judgment of nullity
within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the
birth of the child.
3. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.
4. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of
the child or the child is born within 300 days after they ceased to cohabit.
5. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another
jurisdiction in Canada.
6. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father
of the child. R.S.O. 1990, c. C.12, s. 8 (1).
Court doesn’t order blood tests because of Charter but will infer paternity if refused.
Leave for blood tests and DNA tests
10. (1) On the application of a party in a civil proceeding in which the court is called on to determine a child’s
parentage, the court may give the party leave to obtain blood tests or DNA tests of the persons who are named in
the order granting leave and to submit the results in evidence. 2006, c. 19, Sched. B, s. 4.
Inference from refusal
10 (4) If a person named in an order under subsection (1) refuses to submit to the blood test or DNA test, the
court may draw such inferences as it thinks appropriate. 2006, c. 19, Sched. B, s. 4.
Paternity test
 Exclusionary basis, test proves that a man is NOT the father
 Not conclusive proof of paternity but treated as reasonable proof in practice
 Section 10(1), CLRA: applicant may obtain an order granting leave to obtain blood or DNA tests and to submit the
results in evidence
 Section 10(4), CLRA: court may draw an adverse inference if leave is granted and a man refuses to submit to a
blood test
o Violation of section 7 Charter rights? NO. (see Williams v. Cruikshank)
Williams v. Cruikshank (2000 ON CJ) (676)
(paternity test)
Often argued that negative inference is a violation of s.7. Court has repeatedly held that it’s not a violation. Not coercive –
adverse evidentiary conclusion.
Extended Definition of Parent-Child Relationship
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Canadian family law recognizes that persons other than biological parents have rights (e.g. custody) and
obligations (e.g. child support)
Obligations are imposed on persons who establish a parent-like connection to the child
Expansive concept of what constitutes legally significant familial relationships
Jurisdiction of the court to order child support under the Divorce Act is limited to “children of the marriage”
Divorce Act
Section 2(1) – “Child of the marriage” means a child of two spouses or former spouses …
Section 2(2) – A child of two spouses or former spouses includes,
(a) any child for whom they both stand in the place of parents; and
(b) any child of whom one is the parent and for whom the other stands in the place of a parent
 Parent includes a person who stands in the place of a parent (in loco parentis)
One of the broadest definitions in the world, can include step-parents but not by default.
Family Law Act
 FLA also extends support obligations to adults who are not biological parents of the child
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Section 1(1) – “parent” includes a person who has demonstrated a settled intention to treat a child as a child of
his or her family, except under an arrangement where the child is placed for valuable consideration in a foster
home by a person having lawful custody
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May include step-parents, grandparents (if lived with the child, Cheng), same-sex partners (creates the possibility
of more than 2 persons supporting the child)
Similar to concept of a “psychological parent” = person whom child regards as a parent
Recognition of blended families and the forming of parent-child relationships
Policy rationale:
o (1) Corollary to rights: custody and access rights entail support obligations
o (2) Protection of the public purse: individuals with a closer relationship to the child than the state should
provide support
o (3) Protection of reliance expectations of the child: promoting the best interests of the child,
psychological and economic reliance, preventing financial hardship resulting from termination of
relationship
Parallels policy rationale for imposing liability on biological fathers notwithstanding intention
Concern: discouraging individuals to enter relationships with parents of a child
o Could be better to know that kid won’t enter relationship up front if he doesn’t want to support.
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Family Law Act focuses on intention, Divorce Act is more subjective in assessment.
Aksugyuk v. Aksugyuk (1975 NWT SC)
(intention parenting)
 NO LONGER GOOD LAW
(Husband divorces wife and discovers his “son” was not his biological child. Had always treated child as his. Whether he
stood in loco parentis to the child.)
1. To stand in the place of a parent, a person must intend to stand in loco parentis (i.e. based on the knowledge that
another person is the biological father)
 Mistake and unable to form intent – if he never knew the child was not his biological child, could not stand in loco
parentis
 Early subjective understanding under Divorce Act.
 Had to be based on true knowledge
HELD: No support obligation
Policy: there was a sense that mother shouldn’t be rewarded for deception. Now things have shifted towards best interest
of child, more objective standards.
Chartier v. Chartier (1999 SCC) (679)
(step-parent support)
(Man began to live with mother in 1989 for almost three years. They had a child together but there was also a child from a
previous relationship. He actively assumed a parental role for both children (including financial support). He also falsely
changed the birth certificate of the older child to indicate that he was biological father. This was the only psychological
father the older child had known. On separation, he declared he no longer viewed himself as the older child’s parent and
unilaterally ceased contact with this child.)
Issue: Whether a person who stands in the place of a parent to a child may unilateral terminate that status and escape
the obligation to provide support for the child after the breakdown of the marriage?
1. Once a step parent has assumed the role of a parent, may not unilaterally terminate this relationship (interests of the
child vs. discouragement of generosity concern)
 Legislative interpretation which best serves the interests of children recognizes that when a person acts as a
parent, children may rely on the relationship continuing (economic and psychological interests of the child)
 If a step parent could terminate the relationship unilaterally, step parents would never have child support
obligations
 Legislation would have no meaning if based on intention alone
Court of Appeal: narrow concept of in loco parentis (voluntary, not obliged to continue generosity), imposing legal
obligation to provide support may deter generosity, less likely to establish relationship with the child  SCC reversed
HELD: Child support obligation
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Siddall: adopted best interests of the child approach to establish ongoing child support obligation by step parent. If
relationships were harder to leave, fewer children may be harmed. (people less likely to come and go or enter
relationship with poor intentions)
Even if there is a bilateral breakdown of the parent-child relationship after a separation or divorce, support
obligation of a person who stands in the place of a parent continues
Test: contextual factors to consider in determining whether a person stands in the place of a parent (marriage or
cohabitation itself is not sufficient)
o Intention is a factor considered
o Child participates in the extended family
o Financial support provided to the child
o Disciplines the child as a parent, emotional relationship
o Perspective of the child (called the step parent “dad”)
o Represents to the child, family, world, explicitly or implicitly that he or she is responsible as a parent to the
child
o Nature or existence of the child’s relationship with the absent biological parent
Collis v. Wilson (687)
(paternity/loco parentis)
(grandparents are seeking appeal to find son responsible for his two children. Robert resides with Claudia from 1988 to
1991. Two children born: RRC and KC. Told by someone else that KC is not his biological child. Blood test proves it’s
true, wife moves in with Mr. Wilson. Has 3rd son and by the time it’s in court, she’s living with Mr. F. She moved far enough
away that Robert couldn’t easily visit boys.)
 Robert held to be loco parentis for first two boys. He had relied on misinformation right up until paternity test,
treated them as his own.
 Even though he treated him like a son, it wasn’t sufficient. Was just an expression of his belief. As soon as he
developed true knowledge, behaviour changed. (had it continued once finding out, would be held as condonation
and intention)
o Man must at least have suspicions that he is parent per FLA.
Cornelio v. Cornelio (2008 ON SCJ) (289)
(paternity/loco parentis)
(Under Divorce Act. He provides support until twins are 16. Mother wants to sever relationship and tries to have payments
increased. He gets paternity test and finds out he’s not father. Attempts to get retroactive reimbursement. Judge indicates
that he did have suspicion and provided supportive role regardless. Mother claimed she didn’t know who biological parent
was.)
 Loco parentis, he was the only father kids knew.
 Andrea made good point that money is for children, who would be reimbursing? Technically it’s children’s money.
Jane Doe v. Alberta (2007 AB CA) (689)
(domestic contract re: children)
(professional woman gets artificial insemination against husband’s wishes. She promised to take full responsibility for
child, financial and emotional. Arranged domestic contract and went to court re: validity.)
 Judge held that it was impractical to pretend that he won’t have a parental role.
 Much controversy: hardly right for court to decide that his decision implies his intention re: children. Doesn’t allow
for creative modern family arrangements
 Could also impinge on single mothers who want to enter relationships
Do Carmo v. Etzhorn (1995 ON Gen Div) (689)
(paternity/cohabitation)
(long-term affair with woman who had two children from previous relationship. Had 3 rd child with lover even though he was
married with children. Spent a lot of quality time with lover and children.)
 Not held parent to first two children – no biological relation, doesn’t live with children and never did for any lengthy
period of time.
 Case indicates possible requirement for cohabitation.
Cheng v. Cheng (1996 ON CA) (689)
(parties to claim)
 Mother was allowed to add paternal grandparents to a claim for child support on the basis that the FLA “does not
exclude grandparents as persons who may be responsible for support of children”.
Monkman v. Beaulieu (2003 MB CA) (689)
(grandparents)
 Confirms that very rare that grandparents would be responsible for support. No legal obligation.
 Generosity and gifts do not create obligation, only in cases where grandparents are in parent-child relationship.
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“The support obligation might fall on a broader category of persons than former stepparents. The situations where this will
occur are likely to be few and far between givent aht before the obligation can be imposed, ac ourt would have to decide
that the adult had, in fact, taken on the role of parent. In making that decision, ac ourt would examine a number of factors,
including intention, on an objective and functional basis. Act of generosity will not, in and of themselves, result in a legal
determination that an adult ahs taken on the role of a parent.”
P. v. G (2001 NS SC) (683) (not discussed)
(best interests of child)
(Mother of twins told P that he was the father of the children. Parties were married for 7 years. Before separation the
mother told P he was not the father (confirmed by a DNA test). He continued to visit the children and characterized the
relationship as “friends.” Mother eventually cohabited with CT who was the brother of ST (who was the biological father of
the children). She claimed CT acted as a father and had no intention to seek support from ST.)
Issue: Whether P stood in the place of a parent
1. Test for whether a person stands in the position of a parent is focused on the best interests of the child and not the
biology of parenthood or the legal status of the child. The test is an objective review of the factors.
 Chartier overruled the intention test
HELD: P was the de facto father during the cohabitation, P and CT have child support obligations
 Inappropriate, unjust and unfair to place the entire burden of child support upon P (P ordered to pay 1/3 of the
amount he would be otherwise required to pay)
Quantum of child support: multiple parents
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Prior to the Federal Child Support Guidelines, FLA placed primary responsibility for support on biological or
adoptive parents
Statutory presumption with respect to obligations no longer exists
Section 5, FCSG: where the party against whom the support order is sought stands in the place of a parent (nonbiological) the court is to order payment of the amount considered appropriate “having regard to these guidelines
and another other parent’s legal duty to support the child”
o If a biological parent has a support obligation, this parent will NOT receive a deduction even if there are
other parents with an obligation to support the child
o However, a person standing in loco parentis may obtain reduction, e.g. step parent)
o Note: section 5 has been interpreted inconsistently by the courts
Procedural rules
o Sections 33(5) and (6), FLA: step parent may add a biological parent as a third party to an application
for child support (e.g. if mother is not pursuing the biological parent)
In practice, initial presumption that a biological parent has a primary child support obligation and may have
greater responsibility if actually paying support and biological parent’s income is sufficient to provide adequate
support (non-biological parent may obtain a reduction)
However, if unable to locate the biological parent or non-existent, non-biological parent may NOT obtain a
reduction in child support
In some circumstances, if the biological parent has a lower income than the step parent, biological parent may not
have a child support obligation
o However, courts continue to allocate primary responsibility to the biological parent in practice
Courts apply various approaches:
o Mathematical approach: pro rata division based on total income of the parents
o Allocation according to roles assumed (e.g. if biological parent has limited contact and step parent has
significant contact)
o Budget driven analysis based on means and needs
o Treatment of each parent as an independent payor (no reductions)
Limited legislative guidance in this area
Parties to marriage contracts commonly include a statement that a person is not standing in the place of a parent
(not necessarily effective, Doe v. Alberta)
Class comments:
FLA 33(7)(b) – originally under family law act, statute put primary obligation on biological (or adoptive) parent. This no
longer exists in circumstances where there are multiple payors. If there’s a biological parent paying support, s/he gets no
reduction just because there may be other legal parents. A step-parent may get a reduction based on s.5 of Child Support
Guidelines if biological parent is supporting.
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FLA 33(5&6) – can go after biological parents. Biological parents usually has primary obligation. If found, paying, and
adequate, non biological parent’s payments may not be necessary.
Case law for multiple payors is unclear. Some cases take mathematical approach by dividing expenses amongst payors.
Some add up all incomes of payors to get total and find guideline amount for that payor based on prorating. Some base it
on role of parent in child’s life.
Duration: Age Limits
 When will a child support obligation end?
o Life is more expensive, greater debt, many children stay home for longer.
 Eventually a child will become self-sufficient or the state will assume responsibility
 However, child support will not necessarily end when the child reaches adulthood
 Section 2(1), DA: child remains a “child of the marriage” if the child
o (a) is under 18 and has not withdrawn from the charge of his or her parents
o (b) is 18 or over but unable, by reason of illness, disability or other cause, to withdraw from the charge
of his or her parents or to obtain the necessaries of life
 Section 31, FLA:
o Section 31(1) – Every parent has an obligation to provide support for his or her unmarried child who is a
minor OR is enrolled in a full time education program, to the extent that the parent is capable of doing
so (means)
o Section 31(2) – The obligation under (1) does not extend to a child who is 16 OR older and has
withdrawn from parental control
 Under the DA, parent may have an obligation to support an adult child; however, if there is no separation or
divorce, parent may not have a legal obligation under the FLA
 No disability of illness under the FLA
 Rationale for broader obligations under DA is controversial: children suffer from divorce, tendency for noncustodial parents to ignore support obligations
o DA does not apply to the children of common law parents  FLA
 Under Divorce Act, child cannot apply for relief because is not a party to divorce. Can sue under FLA, even if not
separated.
o Must still be in school and must be under parental control. Child must voluntarily leave. (s.31(2))
 If no separation or divorce, NO judicial discretion to order child support in provinces other than Ontario subject to
conditions (section 31, FLA)
Zedner v. Zedner (1989 ON Prov Ct) (701)
(voluntary departure)
(19 year old girl lived with her mother and stepfather and left to live with her grandmother. She wished to attend college.
Reason for leaving was her stepfather’s verbal abuse (mother passive). Mother married when the girl was 16. If she
remained at home, she would have been provided support for her education. She claimed child support under section
31(1), FLA (parents not separated). Mother claimed the child had voluntarily withdrawn under section 31(2). She also
sought support from her biological father.)
1. To establish a defence under FLA section 31(2), the withdrawal must be voluntary.
HELD: Mother ordered to pay child support of $300/month, child had not voluntarily withdrawn
 Haskell: “To force the child to return to that residence and endure emotional and personal stress or as an
alternative to deny him support would be unthinkable for his best interests.”
o Not in the child’s best interests to force her to return or deny support
 Parents effectively forced her leave and therefore, mother could not rely on section 31(2)
Note:
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Sections 31(1) and (2) only apply if the child is reasonably diligent in pursuing his or her education
Section 31(2) has been successful raised by parents if a child has voluntarily withdrawn to live with friends or a
boyfriend
Voluntary = unhappy (but NOT unbearable)
Smith v. Smith (1987 BCSC) (713)
(realistic planning)
(Parents divorced when the daughter was 11. Father was paying child support. At age 20, she dropped out of school,
living at home with her mother and was unemployed. She hoped to be a model. Father applied to terminate child support.)
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HELD: Child support obligation for 6 months (daughter expected to secure employment)
 Courts are not sympathetic if the child is not engaging in reasonable efforts to seek employment
 Under the Divorce Act, child support obligation may exist by reason of illness, disability, or “other cause” (includes
employment but realistic plans required)
Wahl v. Wahl (2000 AB QB) (703)
(hostile child, child of marriage)
 whether a parent has a child support obligation to an adult child who is hostile to the parent (Divorce Act)
(Daughter is 19. Under the separation agreement, father agreed to provide child support after the age of 18 provided she
continued with her education. After high school, with her father’s consent, she withdrew funds from her RESP. The
daughter sent a letter to her father indicating that she did not wish to have a relationship with him and would “take him to
court” if he failed to pay support. The daughter used a signification portion of the RESP funds to travel to Egypt
(remainder used for college education). Father had consented to RESP withdrawal (but maybe not for travel). Father
ceased paying child support when she turned 18 (upset by the letter). Whether an adult child is a child of the marriage for
child support purposes.)
HELD: Child of the marriage, child support awarded BUT conditional (required to communicate and inform her father of
her progress, summer employment, apply for financial assistance, academic performance, etc.)
 Farbon: Factors to consider in determining whether a child is a “child of the marriage”:
o Whether the child is enrolled in studies (full time or part time)
o Whether the child has applied or is eligible for student loans or other financial assistance
o Career plans of the child (reasonableness)
o Ability of the child to contribute to own support through part-time employment
o Age of child
o Child’s past academic performance (likelihood of success)
o Plans of parents for the child’s education, particularly during period of cohabitation
o Where the child has reached the age of majority, whether the child has unilaterally terminated relationship
with the parent from whom support is sought
 Court concluded that she is a child of marriage
 Quality of the relationship is only one of the factors to consider unless circumstances are grave (e.g. child
assaults the payor)
o It is possible for child to be so abusive that obligations are terminated.
Note:
What if an adult child decides to resume parental control?
 Section 33(9), FLA: factors considered in determining the amount and duration of support include: child’s
capacity to contribute to his or her own support, age of the child
 Courts will consider the post-secondary education of the parents, whether the parents cultivated an expectation
 Generally, child support is terminated at age 18 (unless illness, disability, or other cause)
 If the child remains a child of marriage (or illness, disability or other cause), child support is terminated at the end
of the first degree
 Generally, if the child is between 20 and 25 and continuing education, child support continues if reasonable efforts
(expectations considered, ability to pay)
 Child support is generally terminated automatically once the child is married or cohabiting
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Wesemann v. Wesemann (1999 BCSC) (699, 704)
(relationship maintenance)
(Parents separated when the child was 6. Mother had custody of the son but he visited his father. His last visit was when
he was 13. Father did not encourage his son to visit. Father was paying $300/month. Child accepted to UBC, from
Kamloops.)
1. A child not required to maintain a relationship with his or her parent to obtain an increase in child support (ignored
quality of relationship between the child and payor)
HELD: Awarded increase in support ($350/month)
 Guidelines may apply to a child under 18 but courts have discretion to consider the costs of post-secondary
education (section 7, extraordinary expenses for post-secondary education)
 Factors considered: costs of education, father’s income, mother’s income (new relationship with a man who would
provide support during the summer), part-time income of the child
Support obligations usually end after first university degree. Also ends if not in school or making serious efforts to find
work.
 If child marries, support ends
 Plans must be reasonable
Federal Child Support Guidelines
Determining the Amount
Ontario support obligations are virtually identical to federal rules. New rules are revolutionary, old practice was strictly
needs based – had to provide detailed budget. Wasn’t based on objective needs standard or what people typically paid.
Also wasn’t based on means of payor.
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Traditional approach: judicial discretion, budget driven (means and needs)
Technical disputes, high litigation costs, significant variance between courts
Absence of objectivity (if earning high income, budgeted needs increase)
Federal Child Support Guidelines (1997)  significant departure
o Regulated jurisdiction of the courts to award child support in divorce and variation proceedings
o Reduced judicial discretion and provided certainty for lawyers and parents
o Mechanical calculation based on annual income of the payor and number of children
o Objectivity, consistent treatment of spouses and children in similar circumstances
o Fairness, encourages settlement
o Considers what average parents would spend on children based on income level
o ONLY based on non-custodial parent’s income (not custodial parent’s income)
 Rationale: assume custodial parent will provide a certain amount of support
o Provincial guidelines parallel federal guidelines
Average amount spent on children among different income brackets taken into account.
Bottom line: varies based on income and number of children.
Threshold if custody is shared above 40% for both parents  s. 9
Ensures that all families are treated the same based on income level. Recall that in net disposable income calculation for
child support, notional amount of child support for custodial parent is from these guidelines. (it’s the really complicated
calculation that computers run, will not be on exam.
Presumptive Rule
Section 3(1), Federal Child Support Guidelines – Unless otherwise provided under these Guidelines, the amount of a child
support order for children under the age of majority is
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom
the order relates and the income of the spouse against whom the order is sought AND
(b) the amount, if any, determined under section 7
 In the absence of an exception, court is required to order tabled amount based on 2 factors (no residual discretion
EXCEPT for determining income)
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Determining Income: Sections 15 to 20, Federal Child Support Guidelines
(apply same process as spousal support guidelines)
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Litigation may arise with respect to payor’s income for the purposes of child support
Section 15(1): a spouse’s annual income is determined by the court in accordance with sections 16 to 20
Section 15(2): court may consider an agreement in writing between the spouses on the annual income of a
spouse (if reasonable)
Section 16: annual income is determined by reference to total income in the last T1 issued by the CRA
Complicating factors: (often tax data is just starting point)
o Self-employed individuals: reported income is not necessarily a true reflection of income (vs. employed
individuals, T4)
o Section 17: court may consider income fluctuations, court may consider the spouse’s income over the
last three years and determine an amount that is fair and reasonable (average) in light of any pattern of
income, fluctuation in income or receipt of a non-recurring amount during those years (usually averaged
over 3 years)
o Section 18: where the spouse is a shareholder, director, or officer of a corporation, court may attribute
corporate income where personal income is artificially low
o Section 19: court may impute income to a person who is intentionally underemployed or unemployed,
exempt from paying tax, spouse’s property not reasonably utilized to generate income (children should
not bear the consequences of parents’ actions)
Drygala v. Pauli (2003 ON CA) (727, 738-9)
(intentional unemployment)
(Father earned $33,000 as a tool and die maker but quit his job during course of the marriage rather than working
overtime. The following year, the couple separated and the father cared for the child while the mother worked for period
from February to September. In January, the father enrolled in university. Mother commenced divorce proceedings and
applied for child support. Father indicated that he intended to complete his BA and become a teacher. Trial: career plans
were realistic but imputed $30,000 income for child support purposes.)
ISSUE: Is the spouse intentionally underemployed or unemployed? If so, is the intentional underemployment or
unemployment required by his reasonable educational needs? If not, what income is appropriately imputed in the
circumstances?
1. A parent may be “intentionally unemployed” even if he has no intention of avoiding child support obligations. Once it is
established that a parent is intentionally unemployed, the court may consider whether the parent’s actions (or
educational needs) are reasonable (whether career plans are realistic).
2. No requirement of bad faith.
HELD: Intentionally unemployed, imputed income but reduced to $16,500 (reasonable educational needs, could obtain
part-time employment)
 A parent is intentionally underemployed if he chooses to earn less than he or she is capable of earning
Bak v. Dobell (2007 ON CA) (732)
(imputing income)
(met during cohabitation in cottage, shortly after birth mother moved to Ottawa. Little contact. Father ends up having
serious psychological problems and physically disabled due to accident. He lives with new partner and father’s father
gifted him just enough to keep him afloat. Property in Stouffville, money for groceries and bills. Mother wants the court to
impute the amount given in gifts.)
Court says you can’t impute income based on lifestyle. Evidence from which court makes inference that someone isn’t
properly recording income. Lifestyle may not be predictor of income, gifts were coming from grandfather at his discretion –
not income. Grandfather would withdraw. It would also be saying that grandfather has child support obligation.
Mother had argued that this was akin to a trust (19)(1)(j).
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Special or Extraordinary Expenses
Since 2006, amendment to define extraordinary expenses. Needed objective and subjective elements. Objective
understanding of extracurricular needs: eg, competitive hockey.
Areas of Judicial Discretion and Dispute under FCSG
Section 3(1)
(a) Presumption (table amounts)
(b) Amount, if any, determined under section 7 (exhaustive list of expenses courts may consider)
(see legislation below)
 Primary or secondary school (d) and extracurricular activities (f) expenses must be extraordinary
 Child care, health care, post-secondary education expenses – necessary and reasonable
 Section 7 provides for an upwards variance in CS from the table amounts
 If expenses do not fall within these categories, NOT considered in the calculation
 Considers reasonableness in relation to the means of the payor and recipient with reference to the family’s
spending habits prior to separation
o Primary or secondary school expenses (section 7(1)(d))= extraordinary expenses includes private school
(whether parents attended a private school); if child has a disability, therapeutic needs (tutor)
o Extracurricular activities (section 7(1)(f)) = inconsistent decisions
 Some courts interpret objectively– without regard to parent’s income, rather nature of the activity
 Extraordinary = disproportionate to the usual costs associated with the activity (once court
determines expenses are extraordinary, will consider reasonableness of the expense)
 Few activities will qualify as extraordinary under this standard
 Other courts interpret subjectively– whether the expenses are unusual or exceptional with
respect to income of the particular family (compared to other families in similar circumstances)
 Many activities will qualify as extraordinary under this standard
 In some respects, FCSGs have factored these expenses into the table amounts (may result in double dipping)
 If considering income or means, may impact low income families significantly
o Based on a subjective test, low income earners are more likely to face extraordinary costs (these costs
are factored into the basic costs of a high income family)
Celotti v. Celotti (2007 ON SCJ) (741)
(high income, extra expenses)
(amicable, lived in same house until all was worked out. Father made $221k, mother had no income. Parents had agreed
to many extracurricular activities, ~$12k/year. Asked for more money when the kids joined new activities.)
 Extraordinary expense if would not be incurred in regular course.
 Mother is spending about 12% of income (spousal support) on extracurricular activities, father is spending about
5%. He’s ordered to top up.
 FCSG 7(1) outlines test
Peculiar that courts not following table. It’s a subjective standard.
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Federal Child Support Guidelines, s. 7
Special or extraordinary expenses
7. (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any
portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in
relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and
those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training
for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic
treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person,
physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the
child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
Definition of “extraordinary expenses”
(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably
cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table
or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise
determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the
spouse would receive under the applicable table or, where the court has determined that the table amount is
inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
Sharing of expense
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is
shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any,
from the child.
Subsidies, tax deductions, etc.
(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take
into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim
a subsidy, benefit or income tax deduction or credit relating to the expense.
Universal child care benefit
(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any
universal child care benefit or any eligibility to claim that benefit.
Sharing of Expenses
7(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is
shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any,
from the child [assumption that both parents are contributing to these expenses]
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High Income Earners Exception
Section 4 – Where the income of the spouse against whom a child support order is sought is over $150,000, the amount
of a child support order is
(a) the amount determined under section 3; or
(b) if the court considers that amount to be inappropriate [i.e. table amounts exceeds child’s reasonable needs],
(i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for
the number of children under the age of majority to whom the order relates;
(ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate,
having regard to the condition, means, needs and other circumstances of the children who are entitled to
support and the financial ability of each spouse to contribute to the support of the children; and
(iii) the amount, if any, determined under section 7.
Judicial discretion and both incomes are considered. Canada doesn’t go through accounting of expenses.
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Section 4 provides deviation from section 3 presumptions for high income earners
High income earners may apply to the court under section, payor has the onus of establishing inappropriateness
of the Guidelines amount to access section 4 relief
If the income of the payor spouses is over $150,000, required to pay tabled amounts for the first $150,000
For amounts exceeding $150,000,
(1) Court may order a reduction based on a prescribed formula (reduced % evaluation for income exceeding
$150,000)
(2) Court has discretion to order an amount having regard to the condition, means, needs and other
circumstances of the child
Mechanism for considering income of both parents where payor is earning over $150,000 (if payee has
significant income, non-custodial parent should not bear preponderance of the child support obligation)
Provision may alleviate problems where mothers use child support orders as leverage to settle property and
spousal support matters
Francis v. Baker (1999 SCC) (secondary ref)
(high income)
(His income was close to $1M/year. She was living at Jane and Finch earning $65,000K with two children. She applied for
a variance.)
HELD: Upheld Guidelines amount of $10,000/month
 Burden of establishing “inappropriate” is high. S.4: amount would have to be unsuitable (along the lines of spoiled,
unreasonable).
 Payor has onus to justify reduction below FCSG amounts
 Presumption in favor of table amounts
 Established a high threshold for high income earners with respect to the appropriate needs of the child.
 Still appears to be hinged on payor’s income.
Simon v. Simon (1999 SCC) (744, 750)
(high income)
(Short term marriage. Father was minor league hockey player who left wife (3 months pregnant). She was forced to rely
on social assistance. Separation agreement provided for child support, spousal support (including amount allocated to
trust fund for child). He signed with the NHL (income increased to over $1M/year). She requested increase in child
support to accord with the table amount (overriding separation agreement). Trial: no reasonable grounds for increase to
Guidelines amount, ordered increase to $5,000/month (emphasized uncertainty of father’s income, detrimental to child to
adjust to sudden decrease).)
HELD: Awarded Guidelines amount (if his income decreases, may apply for a variance)
 Payor failed to satisfy the onus of demonstrating the amount is inappropriate
 CA awards table amount of $9215 (from $5k at trial), says money shouldn’t go into trust. Spending money is
entirely to recipient’s discretion.
 Not the role of the court to require recipient to allocate funds to a trust UNLESS there is evidence that the mother
is selfish or irresponsible (refused to interfere with trust agreement) – child support award is used at the discretion
of the custodial parent
Criticism: very short-sighted, father won’t always make that much money and a trust would make sense.
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R v. R (2002 ON CA) (743)
(high income)
(Father was successful in establishing that the children had a reasonable lifestyle. His income increased significantly for
two years but there was no pattern of extravagant expenditures. Income continued increasing after separation.)
HELD: Reduction in Guidelines amount (award was ultimately higher than expenditures on the children during the
marriage but lower than the table amounts)
 Family’s lifestyle prior to the parent’s separation is relevant in determining whether the table amount is
appropriate and, if not, what amount should be ordered
 Simon was an unusual case because the parties separated before the birth of the child and therefore, no pattern
of expenditures was established
Undue Hardship
10. (1) On either spouse’s application, a court may award an amount of child support that is different from the amount
determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect
of whom the request is made, would otherwise suffer undue hardship.
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Under Section 10, court may adjust the Guidelines’ amount where the parent seeking the adjustment establishes
that (1) paying the Guidelines’ amount would cause “undue hardship” and (2) his or her household’s standard of
living is lower than that of the other parent
HIGH THRESHOLD for establishing “undue hardship” (significant judicial discretion). Extreme difficulties only.
10. (2) – Circumstances that may cause a spouse or child to suffer undue hardship include the following:
(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their
children prior to the separation or to earn a living;
(b) the spouse has unusually high expenses in relation to exercising access to a child;
(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of
life; and
(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or
disability.
List is NOT EXHAUSTIVE!
 Section 10(2) is often invoked by payors with new family support obligations
 Financial hardship associated with new family support obligations must be excessive or extreme (ensure children
of both families are treated equitably)
 Courts are most sympathetic to payors with limited means and other children to support
This is most common in cases of second families. Child support owed to previous family in addition to new family.
Section 10. (3) – Despite a determination of undue hardship under subsection (1), an application under that subsection
must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after
determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the
household of the other spouse.
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Section 10(3) limitation: if undue hardship is established, court may NOT deviate from the Guidelines’ amounts if
the party claiming undue hardship would (after determining the amount of CS) have a higher standard of living
than the other spouse
o Therefore, payor is required to have a lower income than the recipient party to claim undue hardship
o Lower standard of living + undue hardship
Courts undertake an analysis of the standard of living in each household to arrive at this determination
Excessive, extreme, unreasonable or unjustified hardship is required
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Dean v. Friesen (1999 Sask QB) (775)
(undue hardship)
(Farmer had 2 children from first marriage and 3 children from second marriage. He’s making $45k. She was a bus driver
earning $28,000/year. He could not even afford groceries for his second family. He claimed undue hardship.)
HELD: Slight variance granted (husband’s household income was lower than wife’s after child support payments)
 Court considered wife’s limited means
Note:
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Courts are more likely to grant relief under section 10 if recipient (custodial parent) has a significantly higher
income than the payor
Petrocco: mother (non-custodial parent) earned substantially less than the father
o Applied section 10 to reduce child support owed by mother
o Her role as an access parent would be “detrimentally affected by an inability to offer the children a
reasonable level of activity and comforts relative to that enjoyed in their primary residence”
Swift v. Swift (1998 ON Gen Div) (774)
(he calculated what he would pay if second family was separated to reduce income.)
 Emphasis on need to find something excessive, unreasonable hardship.
(undue hardship)
If custodial parent moves in with new partner, child support is not affected but spousal support may be reduced.
5 circumstances where recipient’s income is considered:
1. Recipient is a high income earner
2. Split custody
3. Shared custody
4. Section 7 (extraordinary expenses)
5. Section 10 (undue hardship)
Split and Shared Custody
Simple set off for split custody.
Section 8 = split custody
Where each spouse has custody of one or more children, the amount of a child support order is the difference between
the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.
 Set off Guidelines amounts (subtract one amount from the other and the wealthier parent pays the difference)
Section 9 = shared custody (joint physical custody) = one or more children lives with one parent for at least 40% of year
(146 day minimum) and with the other parent for the remainder
 there may be joint legal custody, not the same as physical custody. That’s where the child lives. If over 40% of time in
each household, it’s shared custody.
Amount of the child support order must be determined by taking into account:
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements [i.e. double resources in each home]; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is
sought.
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Significant litigation (parents attempting to satisfy 40% requirement to reduce child support obligations)
Joint legal custody vs. physical custody
Section 3 applies if one parent has sole physical custody (non-custodial parent under 40%)
Calculating child support (pre-Contino):
o If both parents have similar income, potential for neither parent required to pay child support
o However, if significant income disparity (or time sharing is unequal), courts have developed various
approaches for calculating CS
o Middleton v. MacPherson: split custody approach (set off)
o US approach: difference between the table amounts with an adjustment (multiplier) to reflect the
additional costs resulting from share custody  rejected in Contino
o Significant judicial discretion in this area, inconsistency, individualized
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Comment:
Rules used to be 50% in 1997. Men’s groups intervened, got it reduced 40%. Remember, this is about joint physical
custody, not joint legal custody. There was also an argument that time child spends in school or sleeping should be
neutral and divided equally. This time is credited to parent who has control of time at the time.
Inevitably, one parent always spent more. Very individualized, budgets are looked at more closely now.
Contino v. Leonelli-Contino (2004 SCC) (753)
(shared custody support)
(Parents entered into a separation agreement which provided that the parents had joint custody of their son who was to
reside with the mother. Father was required to pay $500/month. This amount was varied to $563/month in accordance
with the Guidelines. After the child began to live with each parent 50% if time, father applied for a reduction (relying on
section 9). Parents had similar incomes. Motions reduced to $100, next judge moved back up to table amount of $688,
then CA reduces to $400.)
HELD: $500/month ordered (SCC failed to justify how final determination was reached)
 There is no presumption of an automatic reduction for shared custody (no set off or pro rating)
 No automatic reduction with share custody, look at each case on its own merits
o Consider whether one parent is paying for the majority of expenses
o Court has discretion to award full table amount based on circumstances and income
o Court may try to equalize standard of living between homes
o Policy: Contino deters individuals from manipulating shared custody to escape child support obligations.
Hopes to reduce litigation.
 No formula is definitive
 Section 9: (1) establish 40% threshold and (2) determine the appropriate amount of support
Step-by-step approach
(support steps)
1. Determine simple set off as a starting point (determine difference between the table amounts for each parent,
parent with the higher income pays the difference)
2. Consider actual expenditures of both parents
3. Burden faced by each parent under the set off approach
o Ability of each parent to absorb increased costs and the child’s standard of living in each household (child
should have an equivalent standard of living in each household)
4. Distinction between initial and variation orders
o Variation order: assume standard of living is established (if 40% threshold is satisfied, concern of radical
reduction in child support)
o Court has discretion to adjust the set off amount where, in consideration of the financial realities of the
parents, this would result in a significant variation in the standard of living experienced by the children as
they shift from one household to the other
General approach: consider the means, needs and circumstances of each parent
 Under section 9(b), court will examine the budgets and actual expenditures of both parents in addressing the
needs of the children and determine whether shared custody has resulted in increased global costs (costs are
then apportioned with respect to the parent’s incomes)
 Under section 9(c), broad judicial discretion to consider the means and needs of both parents and the children
Martin (2007 MB QB) (768)
(individualization)
Judge takes into account the larger contextual framework. 50% of cases are self-represented, hard to know what kind of
evidence needs to be presented. Judge notes that it’s still individualized justice. People spend more on litigation than what
they get in child support. Legislation should establish presumptions: midpoint between setoffs and higher figure. There’s
still a lot of litigation.
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Retroactive Child Support (778)
 Child support is the child’s right – why should a parent have the right to waive child support by agreement?
 Certainty concerns
 Many parents can’t or don’t litigate and never collect child support. Also cases of income increasing and party not
informing the receiving parent.
 Complicated interests.
S (D.B.) v. G (S.R.) (2006 SCC) (778)
(retroactive support)
(Common law relationship for 10 years with 3 children. Father had sole custody and higher income than the mother.
Eventually, shared custody and she applied for retroactive child support.)
HELD: Granted prospective child support (NOT retroactive)
 Child support would not clearly benefit children (benefited mother)
 Incomes of both parents similar
 No blameworthy conduct by father
 Material time, must be child of marriage. Can’t go back as adult.
Bastarache:
Payors have duty to disclose income and also when it increases. Recipients have active duty to pursue CS actively.
Failure to pursue may influence award.
3 stages: court must consider conduct and reason for recipient parent’s delay in receiving child support. Also present
circumstances and hardship. (sense of weighing blame worthiness) Usually inappropriate to make retroactive award for
more than 3 years after notice was given. Don’t go back to child’s birth.
Abella disagrees with Bastarache (who set guidelines). She says that retroactive award should go back to change of
income date. Blameworthy conduct should not be relevant. Child support obligations belong to child. Presumption that
people know the law re: basic child support.
Louie v. Lastman (2002 ON CA) (780)
(retroactive for adults)
(Two brothers (38 and 42) commenced an action against Lastman for child support when they learned he was their
biological father (conceived during an affair). The mother and Lastman entered into a separation agreement and she
released claims against Lastman in exchange for lump sum payment. Claim of fiduciary duty, tort of intentional inflinction
of mental suffering and empoverishment. Also declaration of paternity.)
HELD: Retroactive child support claim unsuccessful
 No longer children, can’t claim under Child Support Guidelines
 Really just a tortious way of going after retroactive child support
 Also have to meet requirements as children of marriage.
Factors to Consider
(retroactive support)
Factors militating in FAVOR of ordering retroactive child support:
 Consider needs of the child and corresponding ability of the non-custodial parent to pay
 Blame worthy conduct by the payor (incomplete or misleading financial disclosure)
 Necessity on the part of the payor to incur debt to meet child rearing expenses
 Excuse for a delay in bringing the application where the delay is significant (e.g. fear or apprehension)
 Notice to the non-custodial parent of an intention to pursue child support
Factors militating AGAINST ordering retroactive maintenance:
 Order would cause an unreasonable or unfair burden to the non-custodial parent, especially to the extent that
such a burden would interfere with other child support obligations
 Objective of redistributing capital (award SS in the guise of CS)
 Significant, unexplained delay in bringing the application
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Relationship between Child Support and Spousal Support
Tax Implications: Child Support and Spousal Support
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Property and lump sum awards are non-taxable
Periodic payments of spousal support = deductible by the payor and taxable in the hands of the recipient (i.e.
favorable only if recipient has a lower tax rate, income splitting  taxed favorably vis-à-vis child support)
Period payments of child support = not deductible by the payor and not taxable in hands of recipient
Therefore, child support is non-taxable
Since men are more reluctant to pay spousal support, difficult to achieve favorable tax results
Feminists resisted similar tax treatment for child support (uncertain whether benefit to family unit from tax
treatment of SS would be shared)  Parliament conceded
Differential tax treatment justifies separate spousal support and child support awards
Statutory framework prioritizes child support (see also section 38.1, FLA)
Section 15.3(1), DA – Court shall give priority to child support (i.e. insufficient income for child support and
spousal support)
Section 15.3(2), DA – If as a result of giving priority to child support, the court is unable to make a spousal
support order (or reduced spousal support order), the court shall record its reasons for having done so
Section 15.3(2), DA – Any subsequent reduction or termination of child support constitutes a change of
circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the
spousal support order, as the case may be [increase in spousal support after child support is terminated]
o Difficult to obtain spousal support if not originally granted (but may succeed if spousal support was not
granted because of insufficient income)
Sections 15.1(5) to (8), DA: parties may obtain child support order on consent (i.e. resolved by a separation
agreement endorsed by the court), FCSG facilitates agreement
Section 11(1)(b), DA: court is obligated to ensure reasonable arrangements have been made to support children
and if not, court may stay the granting of divorce until such arrangements are made
o Court may review agreements to determine whether arrangements are reasonable
o Court not bound by agreements but if consent is present and clear provisions for the children (financial
disclosure, reasons for departing from Guidelines’ amounts), persuasive
Section 15.1(5), DA – A court may award an amount that is different from the amount that would be
determined in accordance with the applicable guidelines if the court is satisfied
o (a) that special provisions in an order, a judgment or a written agreement respecting the financial
obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child,
or that special provisions have otherwise been made for the benefit of a child; AND
o (b) that the application of the applicable guidelines would result in an amount of child support that is
inequitable given those special provisions
Court may refuse a consent order if the court rejects the manner in which the parties have addressed support
obligations in separation agreements
Enforcement of Child Support Obligations (not discussed)
 Historically, difficult to enforce child and spousal support
 Women were forced to return to court each month for additional orders
 Significant default
 Shift from private enforcement to public enforcement, arises from issues of fairness
 Protection of the public purse: if child support obligations are enforced, less reliance on social assistance
 Payors are reluctant to pay child support: limited means, psychological (absence of contact with child)
o However, regardless of degree of contact, child support obligation remains
 Family Responsibility Office
o Family Responsibility Arrears Act enables state action to ensure payment
o Not mandatory to have child support order listed at FRO, but methods of collection are available for
parents who opt in
o Types of enforcement mechanisms: FRO has the ability to garnish wages, confiscate passports, tax
returns, removal of licenses
o Contempt of court and incarceration for non-payment
o Onus on the person in default to establish why he or she should not be imprisoned (90 days)
o Only situation in Canada where an individual is subject to imprisonment for not paying debts
o Successful regime
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Custody and Access (517)
Principle = best interests of the child (NOT legitimate interests of parents)
 Sections 20 to 24, CLRA and Section 16, DA
 CLRA provides greater detail than DA which provides a single standard
 Fact specific, each case decided on merits
 Significant deference to trial judge before whom the parties appear
 Simple test but difficult to apply
 Drummond: ignoring interests of parents appears inconsistent with the identity of parents (hinged on relationship
with a child, happiness)
 Parental alienation syndrome = children who alienate a parent because of interaction with the other parent
 Custody is related to other issues: custodial parent obtains child support, possession of the matrimonial home
 Terminology of custody and access reformulated to parental responsibility (rather than winner vs. loser)
 Gender wars:
o Men desired presumption of shared custody (even where the woman was the primary caregiver prior to
separation), feminists claimed this was a method of avoiding child support (40% threshold)
o No presumption of shared custody
 Bill C-22 attempted to amend legislation but it died.
 No formula for determining what is in the best interests of the child (significant discretion)
o No accepted theory of what the “good life” for a child
o Whether life of ease or living in a struggling family is preferable
Professor Mnookin
 “Deciding what is best for a child poses a question no less ultimate than the purposes and values of life itself.
Normally, the custody statutes do not themselves give content or relative weights to the pertinent values. And if
the judge looks to society at large, he finds neither a clear consensus as to the best child rearing strategies nor an
appropriate hierarchy of ultimate values.”
Test doesn’t take into account best interests of parents re: role as parent. Best interest of child always prevails. Hugely
emotional conflict, may hate that other spouse is raising child. Risk of alienation. Lots of strategic maneuvering.
Mechanisms for determining the best interests of a child
Since there are no standards, courts turn to other disciplines like social workers and psychologists. Preference for
scientific model over philosophical ones. But suspicion over parent-hired expert so now there are court appointed ones.
1. Assessments by experts
 Courts rely on assessments of objective third parties (social workers, psychologists) to determine the BIOC
 Historically, parties to custody disputes each retain experts to testify
o Problem: expert is biased by parent who retained (i.e. not objective)
 Section 30, CLRA: court may appoint an assessor (professional and technical skills to assess interests of the
child and report to the court)
o Each parent is interviewed alone or together
o Child is interviewed alone and in the presence of each parent (dynamic)
o Interview of other family members
o Home visits, psychological tests
o Lengthy and expensive process (parties bear costs) BUT often less expensive than trial and less intrusive
o Reports are prepared and delivered to the parties and the court (including recommendations)
o Reports are influential (particularly if court appointed) but courts are not required to follow
recommendations
 80% of cases settle after report is issued (party challenging report has a significant burden –
establish bias, if not successful, potential costs)
o Criticism: assessor is assuming the role of judge, often based on morality rather than scientific evidence
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Young v. Young (1993)
(best interests)
 L’Heureux-Dube ruled that expert assessments should NOT be routinely required to establish the best interests of
the child
 Judges should decide custody matters based on evidence of parents
 Custodial parent normally has the best vantage point from which to assess the interests of the child and will often
provide the most reliable and complete source of information on the BIOC
Linton v. Clark (1994 RFL) (529)
(assessments)
1. Assessments should be limited to cases where there are significant clinical issues (e.g. depression)
 Over reliance: Courts are employing the assessment process abusively (automatically ordering an assessment
rather than hearing evidence)
 Practice of ordering assessments in virtually all cases should be reexamined (not mandatory) – assessments
should not be ordered in all cases as a vehicle for settlement of custody disputes
 Legislative intent was not to evacuate judges from custody determinations
HOWEVER, these cases do not reflect the view of most judges (many still order assessments)
2. Child is appointed a lawyer from the Office of the Children’s Lawyer
 Office of Children’s Lawyer (OCL) is a government agency (MAG)
 OCL provides a legal representative for the child independently of parents
 Avoids expenses associated with private assessments (free)
 Both lawyers and social workers can be retained
 S.89 of Courts of Justice Act – lawyer is legal representative of child
o Concerns that plays judge
 Social worker helps present evidence
 OLC will present views and preferences of the child to the court, child will not attend (one parent or court will
request and OCL decides whether to intervene, NOT ordered)
 Role of OLC is uncertain (representing child’s views OR presenting child’s best interests)
 Overall plays an important role in settlement.
 Strobridge v. Strobridge:
o Counsel is not entitled to express his or her personal opinion on any issue, including the child’s best
interests
o In contested cases, counsel for a child is required to lead evidence through a social worker about a child’s
preferences
o However, in many cases, the parties will agree that counsel representing the child may advise the court of
the child’s preferences
 This is another institutional mechanism which may facilitate settlement
 Significant deferral to presentation by OCL lawyer (influential), child has not appeared before the judge
 If there is no assessment or OCL lawyer, difficult for judges to avoid bias (implicit biases about “good life” for the
child)
o Warcop case. Judge’s life and values will influence.
 Also issues around legal system and procedure of court has impact on child custody decision
 Court delays may determine who obtains custody
 How to introduce interests of parents in a manner that is fair to the child and the parties?
Factors Relevant to the Custody Decision
Introduction
Section 20(2), CLRA (standard) – A person entitled to custody has the rights and responsibilities of parent in respect of
the child and MUST exercise those rights and responsibilities in the best interests of the child
Section 20(7), CLRA – Any entitlement to custody or access or incidents of custody under this section is subject to
alteration by an order of the court or by separation agreement
 Courts may determine incidents of custody (i.e. delegate incidents to particular parents)
 Chauvin
o Mother had custody, father had access, dispute as to which school the child should attend (mother –
English school, father – French school)
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o
o
o
Held: Mother obtained custody, father had right to make decisions with respect to education (i.e. incident
of custody). Child to go to French school per father’s wishes.
Separated legal and physical custody (courts may hive off incidents of custody)
Physical custody doesn’t give right to decide everything.
Section 20(4), CLRA – Where the parents of a child live separate and apart and the child lives with one of them with the
consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody
and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order
otherwise provides.
 Custody is fixed by consent upon separation (until negotiation/separation agreement or litigation otherwise
provides)
 Parent may forfeit custody rights by failing to assert consent (e.g. acquiescence)
 Custody rights may be forfeited implicitly but access rights are not denied by failing exercising rights (only by court
order)
Section 20(5), CLRA – The entitlement to access to a child includes the right to visit with and be visited by the child and
the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the
child
 Access rights = right to visit and be visited, right to information concerning child’s welfare
 Access rights can only be lost by court order. Access parent’s rights have grown over time.
 Young (1993 SCC): right to discuss religious beliefs
De Facto Custody
Section 24, CLRA
(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the
basis of the best interests of the child.
Factors considered in determining the best interests of the child
(2) A court shall consider all the child’s needs and circumstances, including
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the care and upbringing of the child;
(b) the views and preferences of the child, where such views and preferences can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and
education, the necessaries of life and any special needs of the child;
(e) any plans proposed for the care and upbringing of the child;
(f) the permanence and stability of the family unit with which it is proposed that the child will live; and
(g) the relationship by blood or through an adoption order between the child and each person who is a party to the
application.
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After separation, one parent is granted de facto custody, even if there is no court order (with consent or
acquiescence of the other parent)
Parent who already has child has stronger argument for maintaining status quo.
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Interim Custody and the Continuity Principle
Marshall v. Marshall (NS CA, 1998) (539) (not covered)
(interim)
Test to be applied on an application for an interim custody order = what temporary living arrangements are the least
disruptive, most supportive and most protective for the child?
1. Where and with whom is the child residing at this time
2. Where and with whom has the child been residing in the immediate past?
3. Short term needs of the child include: age, educational and/or preschool needs; basic needs and any special
needs; relationship of the child with the competing parties; daily routine of the child
4. Is the current residence of the child a suitable temporary residence for the child taking into consideration the
short-term needs of the child and:
a. Persons with who the child would be residing;
b. Physical surrounding including the type of living and sleeping arrangements; closeness to the immediate
community and health;
c. Proximity to the preschool or school facility at which the child usually attends;
d. Availability of access to the child by the non-custodial parent and/or family members
5. Is the child in danger of physical, emotional or psychological harm if the child were left temporarily in the care
of the present custodian and in the present home?
 Custody order should support the status quo
Spencer v. Spencer (1980 BC CA) (542)
(interim – stability)
(Parties separated and mother left the matrimonial home despite having been the primary caregiver. Children (ages 6 and
8) remained with father. He had custody on an interim basis. She wished to move to another community with her children
and commenced a custody action. Trial: granted mother custody (primary caregiver before separation and could provide
“that something that only mothers seem to be able to provide” – “tender years doctrine”))
ISSUE: Whether the tender years presumption applies such that the best interests of the children are served by granting
mother custody?
HELD: Father granted custody (preference for stability and continuity)
 Children are in a familiar environment with their father, also had a babysitter that they liked
 Stability and continuity are significant factors in determining interim and final custody orders (courts are reluctant
to upset the status quo)
 Rejected tender years presumption
Note:
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De facto (interim) custody is significant! (initial arrangement potentially determinative)
However, courts attempt to discourage parents from removing the children
LiSanti v. LiSanti (1990 ON Fam Ct) (540)
(interim – abuse)
(Mother had been the primary caregiver. Father came home one day and discovered that the mother left with the children
and moved to a transition house. She alleged physical violence. He applied to obtain interim custody on an ex parte
motion. Quickly in court, all re: interim, conflicting affidavit.)
1. Unless there is clear evidence of abuse, courts are unlikely to grant a custody order which has the effect of
destabilizing a child and thereby discourage parties from exercising a self help remedy by removing the child from his
or her familiar environment.
HELD: Interim order granting father custody (upheld status quo)
 Doctor’s testimony supported mother’s position of abuse (suspicious)
 Court protected status quo
Case effectively encourages women to stay in abusive situation. But without corroborating evidence, she could say
anything.
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Balancing interim issue w/ s. 283 Criminal Code
 A parent who removes a child from another parent who has a custody right (unless permitted by court order)
commits a criminal offense
 Parents are presumed to have custody unless it’s removed, reluctance to charge parents criminally if there is no
custody order
 Defense: if the removal was to protect the parent or child from danger or harm (although uncertain)
 Implications if a parent leaves the matrimonial home and children because of abuse
o Courts will consider whether leaving the child amounts to acquiescence of consent
Conduct
Renaud v. Renaud (1989 ON Dist Ct) (541)
(friendly parent)
(Mother claimed that she was assaulted twice and verbally abused. He locked her out of the house and she left without
the children. He had de facto custody of the children for 12 months. Grandmother cared for the children while he worked
over 11 months. He would not let mother visit or speak to the children even though she had been primary caregiver.)
1. While the courts are reluctant to disrupt the stability and continuity of the de facto environment, other factors are
considered in determining whether this disruption is in the best interests of the child
HELD: Mother granted custody
 Mother was the primary caregiver notwithstanding de facto custody
 Since she fled because of abuse, she had not consented or acquiesced to his custody (father denied access)
o She had no choice when he changed the locks, she did not consent to his custody
 Although this result disrupted the immediate stability and continuity of the children, this was not a determining
factor
 Court considered the likelihood of father abusing the children (either against them or modeling the behavior)
 Court didn’t appreciate that mother had to get a court order for phone calls and visits.
o S.16(10) “friendly parent” rule. Custody should go to parent who fosters relationship with other parent.
o He did not show concern for children’s welfare
De facto situation is important but not determinative. Time is not neutral.
Conduct (549)
 What types of conduct are relevant in custody determinations?
 Marital misconduct was a factor under the former Divorce Act (mother’s immorality made her an unfit parent)
 Section 16(9), DA and section 24(3), CLRA – past conduct of any person is not relevant unless the conduct
relates to the ability of the person to act as a parent. Spousal conduct is less relevant.
o Father abuses mother in the presence of the children (likely relevant)
o Mother commits adultery with knowledge of the children (uncertain)
Fishback v. Fishback (1985 ON Dist Ct) (549)
(conduct, interests)
(Traditional working-class marriage with 2 children. Family lived in a mobile home but have horse for child to ride. Father
is a religious man, dedicated to old fashioned family values. Court stressed that he is an exceptional father. Marriage
deteriorates as the wife lost interest in the husband. She became involved with another man and they separated. She was
awarded interim custody as the primary caregiver. Father had interim access.)
HELD: Awarded custody to father
 Factors considered: (old case)
o Stability of father in relationships, environment, remained in matrimonial home
o Personalities of both parents: impressed by the father’s new partner and moral values. Stresses
education.
o Quality of new partners of each parent: mother put new relationship first, sometimes left children alone.
o Mention of tender years doctrine
 Drummond: implicitly considered spousal conduct as parental conduct (moral value judgment), judge also put
interests of children first.
Young v. Young (1989 ON HC) (552)
(abusive conduct)
(Father was abusive to wife but lavish with the children. Mother was depressed having been abused for many years.
Children wished to live with the father and did not respect their mother. Whether abuse is a factor in determining
custody?)
112
1. Spousal abuse is a factor considered in determining the custody.
HELD: Custody awarded to mother
 Abusive conduct raised parenting concerns
 Wishes of children are NOT determinative particularly where one parent is dominant (child may not have
preferred their father but feared him)
Now CLRA 24(4)&(5) requires court to consider abuse towards either spouse or children. Not under Divorce Act yet
because Bill 22 died on order table.
Relationship with 3rd Party
Re Reid (1975 ON Div Ct) (557)
(step-parents)
(parents separate, mother moves in with Reid and takes 3 children with her. Father had Mr. Reid’s former wife and son
testify saying that he was harsh, did not care for properly, etc. Reid didn’t testify at trial, only mother. Trial judge awarded
mother custody (primary caregiver).)
1. Courts are not concerned with the common law or adulterous nature of the relationship but rather, the focus is on the
parenting ability of the third party
 Mother’s partner refused to testify in court (CA: adverse inference)
 Reid seen as surrogate father, suspicious that did not testify. Courts will assess effect of new person on child.
 Father got custody.
Birth and Blood Relations
 Birth and blood relations creates a significant custodial connection
 Presumption in favor of blood relations in determining custody
 However, with time a psychological connection and bond with a child may occur which is as significant as the
birth connection of a parent (e.g. adoption)
o If birth parent consents or acquiesces, a non-biological parent may become a “psychological parent” (i.e.
child will suffer if removed from the care of the psychological parent)
 Section 21, CLRA – A parent of a child or any other person may apply to a court for an order respecting
custody of or access to the child (see section 16(3), DA = person other than a spouse requires leave)
o Divorce Act has similar language. S. 16(3)
 Therefore, not necessary to have a blood relationship to claim custody but psychological connection is required
Moores v. Feldstein (1973 ON CA) (544)
(biological relations)
(A few days after birth, mother gave de facto custody to a couple in the hope of salvaging her marriage because her
husband was not the father of the child. Some expectation that couple would formally adopt the child. Reconciliation with
the husband was not successful and within months, the mother returns to the couple and demanded return of the child.
Couple refused to return the child. Litigation commenced when the child was 2 years old. At trial, the child was 4 years
old, mother wins based on biological relationship. Stay of judgment pending appeal.)
1. Blood relations are presumptive but NOT determinative. Adoptive couple granted custody.
 CA recognized this was the only home the child has known and were resultant to disturb the stability of the child
 As a result of the delays in the court system and notwithstanding the fact that the biological mother initiated a
claim early, the child remained with de facto family for a number of years
Note: Possible prejudice because of single mother v. couple but this really does seem best for couple. Amount of time
case takes to get to court played a significant role here.
113
King v. Low (1985 SCC) (571)
(biological relations)
(Mother had a child outside her marriage. Neither of the parents was interested in the child and commenced an adoption
process to a couple. She signed the papers but did not complete the process. 2.5 months later, the mother requested the
child’s return. (child 7.5 months at trial, 3 years old at SCC))
1. Test focuses on welfare of the child and not rights of the parent. As this was the only home the child had known, these
factors outweighed the parental rights of the biological parent
 Custody granted to adoptive parents rather than blood mother
 Parental claims should not be set aside lightly
 Courts place tremendous emphasis on stability and continuity for the child
Note: Disturbing because 3 years elapsed before a final judgment (at 2.5 months, the claim of the couple was weak, not
signed)
Guest Speaker: Noel Semple. Experts in Custody and Access Cases (not examinable)
 Current law: court shall take in to consideration only the best interests of the child.
What is in the best interest of children?
 Stability and continuity
 Relationships with two parents
 Absence of conflict
Which is better for this child?
 Lawyer parent v. travelling graduate student parent?
o Cannot be answered because draws on personal values
 A bit more stability v. a bit better relationship with the access parent?
 70% chance of a great home v. 100% chance of an ok home?
o Judges don’t like to make these decisions.
The Custody Evaluator (species #1)
 Started with psychologists/psychiatrists but now social workers etc. too
 Costs $5-20k, beyond reach of most parents
 Species is endangered because these professionals don’t want to take part in adversarial process
o Complaints if evaluation goes against them.
Social Worker from Office of Children’s Lawyer (species #2)
 Free to parties, paid for by taxpayers
 Must be requested by judge, cannot order, just ask.
o More demand than supply, 40% turned down
Child’s Lawyer from Office of Children’s Lawyer (species #3)
 Client-directed but no voice from child. Gives voice to voiceless.
 Asks child’s preferences. Child’s wishes may conflict with best interests.
o Different schools of thought
o Pseudo-evaluation followed by advocacy
Mediator (species #4)
 Best established in family law
 60% of couples in TO use some sort of mediator in divorce process
 subsidized in courtrooms
 neutrality – settlement seeking – no power to decide
 open mediation vs. closed mediation (confidential)
o more honest if confidential
o mediator can tell court if uncooperative
o open mediator has more power
o specialist family mediator also has more power – greater ability to predict court outcomes
Conference Judge (species #5)
 pretrial conference (rule 17 FLA rules)
 parties meet informally with a judge
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mandatory in all contested cases
3 sub-species
o case conference
o settlement conference
o pre-trial conference
19 different purposes
Best Interests of the Child – different perspectives
 subordinated in pursuit of settlement
Custody Evaluator: with limited exceptions… the research definitely tells us that it’s the plan the parents come up with and
agree to that always works best for the children in that family.
Social Worker: even more likely to encourage settlement than private sector.
Githinji v. Githinji, [2009] O.J. NO. 4836
 judge seeks OCL social worker investigation:
o without the intervention of the OCL, there is no way for a court to determine what custodial arrangements
are in the children’s best interests
o I am hopeful that when the parents receive help from OCL, will settle.
 But OCL said no and parties did not have resources for private evaluation.
Child’s Lawyer: also seek settlement
Mediator: child may or may not be included. Focus is on parents to bring about settlement.
Conference judge: seek settlement, it’s the whole point of the conference.
Settlement “Mission”
 Informal pursuit, by neutral family justice system workers, of voluntary settlement. (despite job saying otherwise
on paper)
 Consequences
o Judges are super expensive way of achieving settlement. Should possibly be reserved for cases requiring
authority.
o Feminist critique of mandatory mediation
 Power imbalance
 plus domestic violence
 minus right to not participate
 minus lawyers
 equals injustice
 if you’re unrepresented, outcome may be hugely unfair
 eg: Katelynn Sampson – parents’ deal wasn’t in best interests of child. There was no inquiry for her best interests.
o Evidence that this happens all the time.
 Consider when best interests are same as settlement and what this means for justice system when they’re not the
same.
Sexual Orientation of Parent
 no longer a consideration
B. v. B (1980 ON Prov Ct) (not discussed)
(sexual orientation)
After separation, mother was living in lesbian relationship with a younger woman. Father had custody of 2 sons and
daughter. Daughter (10) was unhappy living with her father and wished to live with her mother.
1. Sexual orientation of a parent is irrelevant in determining custody.
HELD: Mother awarded custody
 Determined based on evidence that the daughter would not become a lesbian because of exposure to
homosexual environment
 Social consequences not a concern
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Tender Years Doctrine
In the past, mothers always got custody for young children, to age 7. Now, in CLRA 21(1), each parent is entitled to equal
custody. Despite this legislative provision, mothers usually get sole custody. Fathers get custody about 10% of time, 25%
joint-legal custody with primary residence with mother.
R v. R (1983 AB CA) (559)
(tender years rejection)
(Adopted a child in 1978 and mother stopped working to care for the child. Parties separated in 1981. Mother moved 50
miles away to Lethbridge with child to live with her parents. Interim order granter her custody but granted him 4-day
alternating weekend privileges. Trial judge awarded custody to the father. Mother appealed.)
1. The tender years doctrine and presumption of custody to the mother is outmoded and no longer applies. There are no
presumptions based on gender. The best interests of the child is the only concern.
HELD: Custody awarded to father (upheld trial decision)
 CA rejected the tender years presumption (standard is the best interests of the child)
 Notion that mother are more capable of caring for young children is outdated and does not properly reflect the test
for the best interests of the child (reflects societal changes)
 Father had more daytime hours to spend with the child, whereas the mother would have had to rely on day care
(costs)
 Preference for child to be raised by immediate family (grandparents) rather than subjected to daycare
DISSENT: rejected consideration daycare as a factor militating against awarding custody to the mother (encourages
mother to rely on social assistance rather than seeking employment)
Case refers to Bell v. Bell (1955, ON CA) (560) case: mothers better equipped than fathers for common-sense reasons.
Discussion: daycare issue almost encourages women not to go to work. Could go either way if father is working, would
need to put child in daycare.
Klachefsky v. Brown (1988 Man CA) (567)
(daycare v. family)
(Parties had joint custody. Father remarried. Mother was transferred to Vancouver for employment and she applied for
custody. Mother would need p/t daycare while father had new wife who would help.)
1. There is no presumption that family members will provide higher quality care than daycare services
HELD: Custody awarded to mother at appeal
 CA held that the trial judge placed undue weight on the mother’s need to rely on day care
Primary Caregiver Presumption
(alternative the tender years presumption, derived from Garska v. McCoy, Virginia case)
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Courts consider retroactively who was the primary caregiver of the child
Where the parent has had primary childcare responsibilities and has carried them out properly, rarely in the child’s
best interest for the child to be uprooted and separated from that parent
Who has a closer psychological bond, cared for, educated, or nurtured the children?
o Who plays with, bathes, reads, monitors homework, cooks meals for the children?
Concern of stability and continuity of previous arrangements
Primary caregiver presumption is less vague and unpredictable than the best interests of the child test (reduces
litigation)
If both parents have equally shared primary care, final custody decision should reflect this
Determination is retrospective in terms of what standards have been established in the relationship
Potentially reduces scope for judicial discretion by determining which party was the primary caregiver
This explains why mothers are typically awarded custody
Primary caregiver presumption underlies the scope of best interests of the child
Reduced litigation and increased settlements with respect to custody issues
o Promotes settlement by fathers who anticipate direction of the courts
Primary caregiver presumption overlaps with the tender years presumption (however, this presumption is gender
neutral although women typically benefit)
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Discussion: is this still the tender years doctrine? Argument that more social change is required for fathers to more easily
step in.
Even though this is an American doctrine, it’s used quite a bit here.
Warcop v. Warcop (2009 ON SCJ) (565)
(primary caregiver)
(Mother resisted overnight access following separation, father wanted joint custody, mother wanted sole with generous
visitation. Mother tried to argue that child was young and needed nurturing.)
A consideration of giving preference to the primary caregiver must be considered objectively, based on the evidence, and
not from the perspective of any predisposition.
 Court examined primary caregiver and tender years doctrine.
 SCC disapproved tender years assumption Young v. Young (1993) and Van de Perre (2001). Decisions are to be
made according to best interests of child on case-by-base basis.
 Ontario now follows primacy caregiver presumption
Harden v. Harden (1987 Sask CA) (563) (not discussed)
(primary caregiver)
(Mother was the primary caregiver, awarded custody)
 Rejected tender years presumption and affirmed primary caregiver approach
 “It is not a part of our law that a court must find that a female, by virtue of her sex alone, is inherently superior as a
parent, in the case of a child of tender years, to her husband”
Friendly Parent Principle
Divorce Act, S. 16(10) – maximum contact rule
 Creates presumption in favour of access for both parents.
General Principle: In making an order under this section, the court shall give effect to the principle that a child of the
marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that
purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
(section 16(10), DA)
 Presumption in favor of access as the best interests of the child
 Preference of custody to parent most willing to facilitate contact with the other parent
 Friendly parent principle considered in custody, access and mobility cases
 Criticisms of section 16(10), DA: may coerce women to provide access where inappropriate particularly if father
is abusive because of fear of unfavourable custody determination
Jane Doe v. John Doe (1990 ON CA) (564)
(friendly parent)
(Parents unmarried with 2 children. Mother was the primary caregiver, father had access on an informal basis (regular).
Father granted custody at trial. Factor considered was expert opinion that mother was unable to facilitate a healthy
relationship with father because of her own negative feelings about the father. No evidence that mother expressed this
hostility to the child.)
1. Friendly parent principle is considered only if the negative feelings of one parent towards another are demonstrated to
affect the relationship between the child and the access parent. (i.e. parent expresses negative feelings to child)
HELD: Granted custody to mother
 Court held that merely having negative feelings about the other parent and expressing this to an assessor is
insufficient
 Mother had been primary caregiver. Insufficient evidence that mother would prevent healthy relationship with
father.
 Provision of reasonable access and compliance with all court orders and relevant agreements is a sufficient
standard which should not place custody in peril in the absence of evidence of a detrimental effect on the child or
the child’s relationship with the access parent
 Significant aspect is not the existence of hatred or hostile feelings, but the effects of these feelings in relation to
the child
Race and Culture (573)
117
Van de Perre v. Edwards (2001 SCC) (573)
(race)
(woman chases after basketball stars, sleeps with a few of them, she gets pregnant by Edwards. She says it’ll be a “profit
pregnancy”. Mother gets custody at birth, he denies paternity until test results. He becomes interested in custody once
she starts seeking financial award. Access visits with the Edwards where Mrs. Edwards plays parenting role.)
1. Race is a relevant factor in determining the best interests of the child because race is connected to the culture,
identity and emotional well being of the child. However, race is not the determinative factor in custody decisions.
HELD: granted custody to mother.
 Valerie Edwards is deemed best parent out of 3 parties, she’s considered the most stable and adequate parent of
the 3
 Trial: tender years presumption, doubts Edwards’ loyalty to marriage because of numerous affairs.
 Appeal: Val Edwards can have joint custody with father because she’s already a psychological parent. Also takes
race into account. Important that child appreciate afri-canadian heritage, dealing with racism. Best interests of
child is to live with parent who can nurture his identity. Edwards were about to move far away from BC.
 SCC: this should be a contest between two biological parents, step-mom should not be a factor. (we see that
lousy step-parent matters but not good step-parent) Mother had closer relationship, better knew child.
o Also took conduct into account. Edwards’ twin girls were bothered by father’s numerous affairs.
o Race not relevant, only raised on appeal because father lost at trial. Vancouver is more multi-cultural than
North Carolina.
o Reject argument that race is a significant factor. Each culture is important, minority race should not
control.
o Emphasis on stability and continuity, suggested primary caregiver presumption
o Insufficient evidence to consider the issue of race in determination of custody
Wishes of the Child (577)
Section 24(2)(b), CLRA – The court shall consider all the child’s needs and circumstances, including the child’s views and
preferences, if they can reasonably be ascertained
Section 64(1), CLRA – In considering an application, a court where possible shall take into consideration the views and
preferences of the child to the extent that the child is able to express them
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Wishes of a child is one factor in determining the bests interests of the child but are NOT determinative
Child placed in the difficult position of choosing between parents (pressure)
The older the child, the more likely wishes will be respected. Especially after age 14.
Alexander v. Alexander (1986 BCCA) (not discussed)
(child’s wishes)
(12 year old wrote letter to Chief Justice that he was dissatisfied with trial decision to award custody to father.)
1. At age 14, court considers a child sufficiently responsible to make his or her own decisions about the future (age of
child is a factor courts will consider)
 Child’s wishes are not necessarily the best interests of the child
 Courts will consider the context underlying a child’s views and preferences
 If appears that child has been bribed or subject to abuse, parent is dominant (influencing decisions of the child),
preferences of child are less persuasive
Boukema v. Boukema (1997 ON Gen Div) (not discussed)
(parental manipulation)
(Granted custody to father of 11 year old girl. Child was vehement that she wished to live with her mother.)
 Mother had manipulated the daughter and feared the child’s relationship with father would be threatened if
custody granted to mother
 Court will consider child’s wishes if under 14 but not assigned significant weight
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Stefureak v. Chambers (2004 ON SCJ) (577) (not discussed)
(practicality)
(Father had children 3 to 4 weekends per month and returned them to school Monday morning. In practice, he would
return them Sunday night because of convenience (long drive). The de facto situation did not correspond with the order.
Mother applied for sole custody, father then claims a return to the original order.)
 Judge must make an order that is practical
 Particularly where the child is a teenager, an order should reasonably conform with the wishes of the child
 Weight attached to any expression of preference depends on the facts and is a function of the age, intelligence,
maturity and ability of the child to articulate a view
Ascertaining wishes of the child (from Stefureak)
1. Private assessment by trained professionals (section 30, CLRA)
2. Evidence presented by other witnesses at trial
3. Lawyer from Office of the Children’s Lawyer: critical issue required to involve OCL
4. Directly ascertain preferences from the child
a) Interview in chambers with judge
b) Testifying in court
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Chambers interview with judge is not preferred: judges have no training or skill in interviewing children (i.e.
ascertaining true preferences)
o Potential for violation of due process: presence of court reporter necessary
In theory, may call a child as a witness in a trial (prevailing reluctance to involve children in this manner)
Court may interview the child (section 64, CLRA) but not ideal in terms of psychological integrity of the child
Section 112, Courts of Justice Act: investigation by assessor
Separation of Siblings
(not discussed)
 Courts accept that it is generally undesirable to separate children of the same family
 Importance of this factor will depend on the closeness of the bond between the particular children and any other
relevant circumstances (length of time they have lived apart and become accustomed to other surroundings)
 Whether best interests of the children required separation of siblings
Wereley v. Wereley (1979 ON HC) (not discussed)
(sibling separation)
(2 children of the marriage, daughter had Downs syndrome. Mother was seeking custody of the son (father would have
custody of daughter).)
Held: Father awarded custody of both children
 Non-separation of siblings doctrine
 Best interests of the children to grant father custody of both children
 Son had a healthy relationship with his sister, nature of the relationship between the children considered
 Note: section 24(2)(a), CLRA
Levine v. McGrath (not discussed)
(sibling separation)
(Father was seeking custody of the younger child. Older child was involved in swimming and had moved to Toronto with
her mother to pursue her sport. Father lived in the matrimonial home in London. The younger child was enrolled in French
immersion.)
Held: Custody of the younger child granted to father (siblings separated)
 Younger child had relationships with friends and family in London
 Mother would not have significant time for the younger child because of obligations to the older child
 Ratio: In determining whether to separate siblings for custody purposes, the relationship of a child to his or her
siblings is only one factor to consider
Rutherford v. Rutherford (NS SC, 2004)
 Court considered whether advantageous to separate a 9 year old boy from his 17 year old sister to prevent him
from being affected by her unhealthy attitude towards their mother
 Held: Separated siblings
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Blood Ties
(not discussed)
 Historically, courts emphasized the blood relations between a biological parent and child in any custody dispute
involving a non-biological parent
 Courts recognize that a closer bond may exist than a biological relationship
 Blood relationship is only one factor to consider, courts respect the concept of a psychological parent (who has
the closest bond with the child?)
Droit de la famille
(Beetz J.): A third party who wishes to obtain custody of a child must first rebut the presumption that the biological parent
is in a better position to ensure the child’s wellbeing. He or she must establish that on a BOP the development of the child
is likely to be compromised if he or she remains with the father or mother or returns to live with them. The third party must
also demonstrate that he or she is able to provide the care and affection required by the child.
*In general, third party is required to demonstrate that a biological parent is unfit
D v. P (not discussed)
“A stranger to a child cannot wrest custody from the lawful guardian of the child without demonstrating that the lawful
guardian has either abandoned or neglected the child, or without offering other commanding reasons”
Floyd v. Bertrand (not discussed)
 Children were living with the mother and step father until the mother died
 Biological father awarded custody (notwithstanding separation from step sisters)
(blood relationship)
Fullerton v. Richman (not discussed)
(psychological parent)
 Biological mother left the child with the father. Father was romantically involved with the child’s caregiver for 5
years (more involved in the child’s life than the mother). 5 years after separation, the father died.
Access (588)
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Right of the child to have access to the other parent and the a right of the parent
Critics debate whose interests are served by access
General Principles
1. Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make
inquiries, and to be given information, as to the health, education and welfare of the child (section 16(5) DA)
2. The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a
parent to make inquiries and to be given information as to the health, education and welfare of the child (section
20(5) CLRA)
Joint Custody
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May hive off incidents of custody (one parent may have physical custody while other parent has the right to
determine education, religion, etc.)
Increase in joint custody (controversial parenting arrangement)
Joint legal custody = joint legal responsibility for decision making
Joint physical custody = joint legal responsibility for decision making + child spends approximately 50% of time
in each home (less common)  40% threshold for CS purposes
Evidence that joint custody is beneficial for children but not in all circumstances
o Difficult to evaluate given lack of real control group
o Joint physical custody suggests higher incomes and more amicable split
Benefits: maximum contact, benefits children, facilitates payment of child support, children less traumatized,
parent appreciates support of other parent
Criticisms (feminists and child psychologists):
o Studies on joint custody focus on voluntary joint custody, studies also skewed towards parents with high
incomes, education (inadequate control group)
o Should not generalize from these favorable circumstances that joint custody is favorable in all
circumstances
o If violence or domination, hardship to mother (ongoing violence)
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Feminists: financial burdens of joint custody, financial situation worse, 40% threshold manipulated by
fathers to avoid support payments
o May reopen child’s wounds if split not amicable
Effectiveness of joint custody generally requires close geographic proximity, cooperative parents (maturity,
goodwill)
However, if high conflict, not beneficial for children
Joint custody may be negotiated or court ordered (where no agreement)
Contino is too expensive to argue most of the time, judges rely on set-offs. Huge argument from fathers that there should
be a presumption of joint custody.
Mudie v. Post (1998 ON Gen Div)
(joint custody)
(Father in military, strict disciplinarian. Mother believed in reasoning with the children. Father became more receptive over
time to the mother’s approach to parenting (different approaches create difficulties for child to move between parents).
Mother moved away while pregnant, father eventually left military to follow.)
1. Courts may award joint custody where there is a concern that one parent will restrict the other parent’s access to the
child (encouraging agreement).
2. This case set trend against setting custody based on communication difficulties. (one party claims that they’re fighting
too much)
HELD: JC order in best interests of the children but it’s effectively a sole custody arrangement. Mother has legal custody,
father gets on weekends.
 Concerned mother would restrict father’s contact with child
 Only practical solution to prevent this is to not provide mother with absolute control
 Judge is hopeful that if neither party has control, will establish an arrangement
 Wilson notes trend of ignoring Baker and Kruger (would result in JC today)
 Judge notes that both parents are very loving but immature, do not see effects of dispute on children.
 Rejects view that sole custody is necessary where there is much fighting
ON CA: ambiguous messages about whether courts will order joint custody despite unwillingness by parents
Baker and Kruger
(joint custody)
 If both parents willing to try joint custody, court should order joint custody
 However, court should not impose joint custody if either party is unwilling
 These decisions effectively provided veto to mother (party seeking sole custody)
o Criticism: increase pressure on parties for joint custody
 Trial judges began ordering JC without consent of both parties if believed cooperation was likely between the
parties
 Dissent (Wilson J.)
Kaplanis v. Kaplanis (2005 ON CA) (639)
(short relationship, violence. Child 3 by trial. No lawyer from Children’s Office.)
(JC communication)
1. Can’t delegate custody decision and can’t be based on hope of improved communication.
 sole custody granted to mother (significant hostility)
 order for counseling, this counselor was also authorized to order custody if differences could not be resolved.
o This was overturned on appeal.
 “Hoping that communication between the parties will improve once the litigation has concluded does not provide a
sufficient basis for ordering JC. There must be some evidence that, despite their differences, the parents are able
to communicate effectively with one another”
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Ladisa v. Ladisa (2005 ON CA) (642)
(JC communication)
(3 children, 1 older (16) could decide for herself, two younger. Lawyer from Children’s Office involved, recommended JC.
Eldest resides primarily with father, joint alternating weeks with each parent for others.)
1. Court can order joint custody if sufficient evidence that necessary communication is possible or exists.
2. Also, each parent should be in a position to hold sole custody.
HELD: Joint custody upheld on appeal for two younger children.
 If despite hostility between the parents, the court believes the parents have the ability to conflict in the child’s best
interests, may order joint custody
 Parents could not communicate by phone (emails required)
 However, parents were able to behave civilly in public
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JC is an important development
Most effective when parents cooperative
Not effective where there is a history of spousal abuse
Parents are more likely to obtain custody if cooperative attitudes, both are competent as parents, interested in
parenting, geographic proximity
JC should not necessarily be awarded in default
Shaffer, “Joint Custody Since Kaplanis and Ladisa” (645)
 Court will award joint custody to maintain max contact, many ideological decisions
 A few outlier cases where court awarded JC despite lack of cooperation/communication between parties
o Court feared that one parent would attempt to exclude the other, JC in these cases was more about
preserving relationships
 Significant gender bias where men are the problematic communicators. JC not awarded.
 Majority of cases follow rules in Kaplanis and Ladisa  must be some evidence of cooperation and
communication
 Unanticipated trends:
o 1) Overuse of Kaplanis analysis, focus on communication instead of simply denying based on problematic
parental conduct.
o 2) JC denied yet equal time ordered anyway. Conflict between legal and physical custody arrangements
where cooperation/communication is lacking.
Enforcement of Access
Sense that access parent is marginalized from children’s lives. Virtually no enforcement mechanisms, not like family
responsibilities office that makes sure that child support is paid (wage garnishing, removal of permits, etc.)
Recall legislative access rights: 20(5) CLRA, 16(5) DA
 Still difficult in practice for access parent, eg: accessing school records, etc.
Generally:
 Most common arrangement: alternate weekends, ½ winter/Christmas, March break, 3-4 weeks in summer,
special events (birthday, father’s day), one evening a week.
 Specifies phone calls and emails are permitted, but not beyond a certain hour
 If agreement is not specific, default = reasonable access
Rationale for access
 Welfare of the child
 Generally, frequent contact with both parents after separation correlates with socially adjusted children
 Benefits to custodial parent (freedom)
 Foster relationship with non-custodial parent
 Voluntarily compliance with support obligations
 However, not always in best interests of the child (exposure to ongoing conflicts)
 Understanding of the good life. Plato: deepest way of doing harm is to take away possibility for human to do good.
Aristotle rebutted that can’t do good without having children, cannot be happy human being.
Denial of Access
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Difficult to lose access rights, but possible
o Usually still supervised visits
o May be rules against use of drugs and alcohol prior to and during visit
E.g. Physical or sexual abuse (supervised access still possible)
Access is not linked to child support
Possible for a court to deny access to parent that not been in contact with the child for many years (difficult to
claim access in best interests of the child in this situation)
Focus is the best interests of the child
If problems with one parent causing alienation (657)
o Table from http://www.canlii.org/en/on/onsc/doc/2009/2009canlii943/2009canlii943.html
Johnson-Steeves v. Lee (1997 AB CA) (594) (not discussed)
(denial of access)
(Woman asked man to father child, she planned to raise on her own. Initially there was an oral agreement to provide
support. He supported the child after birth and exercised his access privileges. She demanded sole custody and
attempted to deny him access.)
 Court found that including the father in the child’s life was in the child’s best interests
 She was not entitled to choose to live as a single, self-supportive mother – child had right of access to father
 Court will consider the wishes of the child
Violence to other spouse (not discussed)
Parent risks losing access altogether if the parent is violent to the other spouse
M v. M
(violent conduct)
 illustrates extent of the abuse custodial parent is required to endure to deny access
(He was violent during the pregnancy and after the child was born. Violence escalated after separation. He had access
rights. Every time he took the child, he was abused, and threatened not to return her. Child did not wish to visit the father.
Mother alleges sexual abuse of the child.)
1. A court will deny a parent access if the parent engages in violent conduct which negatively impacts the child such that
facilitating the relationship is not in the best interests of the child.
HELD: Denied access
 Harassment occurred because of access and was detrimental to the child because the mother was stressed
 Access was not in the child’s best interests
Access is difficult to lose but courts may deny or place restrictions on access (e.g. require parent not to drink prior to
access, supervised access, etc.)
Rights of Grandparents to Access (not discussed)
1. Assumption that contact with grandparents is genuinely in the best interests of the child
 Minority approach: prefers parental decision-making
2. Key factor in determining whether grandparents should have access is whether the grandparents have an existing
healthy relationship with the child
 Difficult to divide the time amongst multiple interests, results in limited awards to grandparents (1 day in a number
of weeks)
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Enforcement
Section 36(1), CLRA: Where a court is satisfied upon application by a person in whose favour an order has been made
for custody of or access to a child that there are reasonable and probable grounds for believing that any person is
unlawfully withholding the child from the applicant, the court by order may authorize the applicant or someone on his
or her behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to custody or access, as
the case may be
Section 36(2), CLRA: Where a court is satisfied upon application that there are reasonable and probable grounds for
believing,
(a) that any person is unlawfully withholding a child from a person entitled to custody of or access to the child;
(b) that a person who is prohibited by court order or separation agreement from removing a child from Ontario
proposes to remove the child or have the child removed from Ontario; or
(c) that a person who is entitled to access to a child proposes to remove the child or to have the child removed
from Ontario and that the child is not likely to return,
the court by order may direct a police force, having jurisdiction in any area where it appears to the court that the child may
be, to locate, apprehend and deliver the child to the person named in the order. (further redress)
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Law is a blunt instrument for the supervision of delicate human relationships
Possibility of contempt of court but may have a negative impact on the child (fines or imprisonment)
o Some judges tempted to discontinue child support payments if custodial parent is preventing access
Chauvin v. Chauvin (1987 ON Dist Ct) (617)
(custodial incident)
(both parents doctors, significant alienation. Mother had custody, transferred boys from French to English school. Father
objected under. S. 21 CLRA)
1. “There has to be a strong evidential showing to support a displacement of an educational decision made by a
custodial parent, otherwise custody orders and their consequences will be bereft of meaning and effect”.
 Boys ordered back to French school
McMillan v. McMillan (1999 ON GD) (590) (not discussed)
(enforcement)
(Repeated efforts by mother to bar access of father to the children. He finally applied to court for contempt order. Judge
reprimanded her. She would cooperate temporarily and would violate the order again. After repeated offences, judge
decided to issue contempt order.)
1. Court will apply more aggressive enforcement measures where the integrity of the law is threatened by the actions of
one parent to bar access to the other, irrelevant of the best interests of the child.
HELD: Imprisoned for 5 days
 Not in the best interests of the child but there is a need to preserve integrity of justice system
 Actions of the mother were also interfering with the relationship between the child and his father; therefore, no
worse than continuation of the status quo
Note:
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Other methods of enforcing access?
May not garnish child support as punishment (harms child)
Principle exists that denial of access by the custodial parent does not affect the obligation of the other parent to
provide child support and that failure to pay support does not affect the right to access
Difficult for alienated parent to continue to willingly provide support when alienating spouse is receiving support
payments
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Parental Alienation (657)
L (A.G.) v. D (K.B.) (2009 ON SCJ) (659)
(shift in custody)
(350k spent on litigation. Mother alienated children from father, told they could never see him, cut off contact, turned off
answering machine, etc. Behaviour fine in absence of mother. Mother moved multiple times, father persistent.)
 Court ordered switch in custody to father, cut off contact to mother for period of time.
 She was not allowed within 300 m of father’s home, no communication outside of counseling sessions.
 Father allowed to take children to special therapy in Texas
o Seems to have been beneficial for children, even for oldest child who was particularly estranged.
 This switch in custody is very rare – for drastic cases.
 Alienation table/list on p. 666.
Role of the Access Parent (597)
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What if there are two parents diametrically opposed
Preferable to foster debate and disagreement or decide for the child
Court completely split on these two cases, opposite decisions by judges in each.
Droit de la Famille (1993 SCC) (613)
(religious rights)
(Father had fanatical zeal in bringing daughter to religious practices. He brought her door to door canvassing. Whether a
custodial mother may obtain a court order to restrain a Jehovah’s Witness father from teaching children his religious
practices?)
1. In the absence of a court order, custodial parent has decisional authority but access parent may share his or her
views provided the child is not harmed (BIOC)
 SCC restricted father from bringing child to religious events. However, father permitted to discuss his religious
views with the child
Young v. Young (1993 SCC) (597) *REVIEW*
(religious rights)
(Mother and father separated. Father became religious and attempted to involve the children despite their disinterest. The
mother applied to the court to restrict his access privileges, in order to prevent him from discussing his religious views with
the children. He invoked Charter section 2 (freedom of religion). Court recognized distress of the children.
1. The risk of harm to the child test is applied to determine whether access should be restricted on a case-by-case basis.
This test is informed by the notion that a child should know his or her parent as they truly are.
HELD: Father permitted to discuss his views but prohibited from involving the children in religious practices without
consent (decided under Divorce Act)
 Custodial parent has right to make decisions with respect to education, religion, health care, etc. and may restrict
religion, pets, smoking, etc.
 Charter guarantees of religious freedom do not protect conduct which violates the best interests of the child
 McLachlin CJ adopted a nominal best interests test (best interests of the child to know the father as he is)
o Whether there is risk of harm to children
 Nominal best interests test: risk of harm to the child or the absence thereof determines the limits, if any, of
access to a parent’s values (risk liberally defined)
 Sopinka J. (goes further than McLachlin): test is SUBSTANTIAL HARM
o more than mere inconvenience or upset to justify restrictions on religion and access (pro access parent)
DISSENT:
 L’HD: applied presumption of custodial parent’s interests to determine best interests of the child
o emphasized rights of custodial parent (MacGyver)
Note: Regardless of promotion of freedom of religion, court ultimately expresses a position as to what defines fanaticism,
acceptable practices, etc.
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Relocation & Custody Issues (618)
MacGyver v. Richards (ON CA) (619)
 NOT FOLLOWED
(Whether a custodial parent may relocate with the child?)
(relocation)
1. Generally, presumptive deference to decisional authority of custodial parent unless there is substantial evidence that
such decisions will impair a child’s long-term well being
 Access parent has mobility rights and therefore, unfair for access parent to hinder opportunities of the custodial
parent
o A custodial parent should not be prevented from leaving the jurisdiction if acting responsibly, even if the
relationship between the access parent and child is positive
 Abella reached beyond the facts in this case and generalized the presumption that the decisions of the custodial
parent are in the best interests of the child in all cases. Similar to L’H-D in Young v. Young.
 Approach provides no incentive to custodial parent to facilitate a relationship with access parent (custodial parent
assumes control)
 Encourages litigation because weakens position of the access parent
 Problem that has little to do with legislation
 Rejected in Gordon
Gordon v. Goertz (1996 SCC) (618)
(relocation TEST)
(Wealthy, educated parents. After separation, father had frequent contact – almost equal contact. Mother wished to
relocate to Australia to pursue post-graduate studies to become an orthodontist. Father was seeking custody. Mother had
already moved to Australia for 2 years. Mother claimed presumptive deference to custodial parent. Father claimed best
interests of the child.)
HELD: SCC ruled unanimously that mother should retain sole custody but modified terms of access in both Australia and
Canada
Majority (McLachlin J.)
 Rejected presumptive deference to custodial parent and endorsed best interests of the child approach (no onus to
demonstrate custodial parent’s decision making is improper)
 Custodial parent’s views and preferences are entitled to respect (knowledge of child’s needs) but only a factor
considered
 Short relocations (not disrupting access schedule) of if relocation not material in the circumstances (e.g. access
parent visits child infrequently)  insufficient to reconsider custody order
 Variance of a custody order requires a material change in circumstances (initial requirement)
o If absence of a significant relationship with access parent, not a material change in circumstances
 In determining the best interests of the child, custodial parent’s reason for relocation is irrelevant (job prospects,
new relationship) unless the other party’s ability to parent is adversely affected (e.g. reasons for moving relevant if
custodial parent will deny the other parent access)
 Court split over presumptive vs. best interests approach. Majority: custodial parent’s views entitled to great deal of
respect but decision must be made based on best interests of child.
TEST: Court should consider all circumstances relating to the needs of the child (BIOC) and the ability of the parents
to satisfy these needs:
o Existing custody relationship
o Existing access arrangement and relationship with access parent
o Desirability of maximizing contact between the child and both parents
o Views and preferences of the child
 But child is usually opposed to move and this must be kept in mind
o Reason for relocating only in the exceptional case where relevant to parent’s ability to satisfy the needs of
the child
 This is almost universally disregarded, courts do consider reasons.
o Impact on removal of the child from school and familiar environment and change in custody
 Application: (unclear) child was already residing in Australia, needs satisfied, wealthy and could afford visits =
status quo
DISSENT (L’H-D, LaForest)
 Should have been deference to custodial parent
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Woodhouse v. Woodhouse (1997 SCC) (619)
(relocation)
(Separation agreement provided mother would obtain custody of 2 boys. Father had frequent visitation with the children.
Separation agreement required mother to provide father 60 days notice of proposed move. She met a man who lived in
Scotland (she also had relatives in Scotland) and provided notice to the father of intent to move. He brought application to
prevent move or obtain custody. Mother left and overstayed a vacation.)
1. Courts are reluctant to defer to the custodial parent where a self help remedy is exercised (raises concerns as to
whether the custodial parent will facilitate access by the other parent).
HELD: Ordered return of the children (self help is not in a party’s interest). CA affirmed trial judgment and refused to allow
the move.
 Mother happier in Scotland, additional support, children had closer relationship with mother but close connection
to father
 Far relocation, expensive, family not wealthy
 Court considered motives for the move (new husband could easily obtain work in native Scotland)
 Relatives in Scotland, plan for mother to remain at home with the children while her new husband worked
 Mother’s earnings in ON plus child support = what they would have earned in Scotland (no change as result of
move)
 However, court considered mother’s self help, concern about whether she would undermine access by unilaterally
deciding to move. Questions whether she’ll facilitate contact with father.
Post-Gordon
(relocation)
 Since Gordon, common for separation agreements or court orders to include an explicit provision denying right to
relocate without approval
 If no stipulation, access parent required to obtain order to restrain the relocation to prevent removal of the child
o Reversal of custody order or variation
o Restriction of custodial right to move
o If there is an order against the move, custodial parent has to show/prove best interests, reasons, etc.
 Custodial parent may relocate unless there is a court order if no clause
Thompson review of the law since Gordon
 Regardless of presumptive deference, CA are interventionist
 No articulated reasons for overturning trial decisions
 Gordon applies to provincial legislation (CLRA, marriage not necessary)
 Even if there is a separation agreement containing a residence restriction may not relocation without a court order
(one a factor court will consider)
 While Gordon arose in the context of an existing custody order, analysis applies to first instance custody orders
 Trend to recognize that a relocation will constitute a material change in circumstances
 Significant deference to lower court decisions
 Duty on courts to provide reasons for why a relocation is granted
“Principles”
 Implicit presumption to grant relocation to primary caregiver unless not well behaved (i.e. prior attempts to
relocate without notice, persistent denial of access, improper notice), although NOT a formal presumption
 Assumption that if the mother is happier, improved parent to the child
 Reasons for move ARE considered (financial, new relationship)
 Courts have asked parents, if compelled to move, would you move without your child?
o CA has held that this is an irrelevant question
o If yes (less capable parent) and if not (status quo should prevail, prioritizing child’s interests to interests of
the parent)
 Trend: if de facto shared custody, no to 60-70% of cases (difficult to obtain move from the jurisdiction)
 Where relocation permitted despite shared custody, extraordinary circumstances
 Age of child: courts are inconsistent whether relocation favorable if younger child
 General trend, if child older, custodial parent permitted to move
 Increase in no cases where not only is move refused but custody to the other parent
 Lawlessness depite involvement of CA (not articulating principles but fact specific, no presumptions)
Other Recourses
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Hague Convention on Child Abduction
 only for custodial parents, access parent can’t use.
 Addresses civil and not criminal aspects of abduction
 Since 1983, Canada and other signatory countries recognized the seriousness of the abduction of children from
country to another
 If the innocent parent claims custody, court will not determine custody if a parent has abducted the child and
attempted to obtain a custody determination in another jurisdiction
 Court will send the child to the original jurisdiction for determination without considering the merits of the custody
claims by either party
 Deters wrongful removal of a child by a parent seeking legal justification in an alternate jurisdiction
 Pending custody order is not necessary (merely custody rights)
Section 282 & 283, Criminal Code
 A parent who removes a child from another parent who has a custody right (unless permitted by court order)
commits a criminal offense
 Reluctance to charge parents criminally if there is no custody order
 Defense: if the removal was to protect the parent or child from danger or harm (although uncertain)
 Implications if a parent leaves the matrimonial home and children because of abuse
o Courts will consider whether leaving the child amounts to acquiescence of consent
Domestic Contracts (783)
Parties may agree on arrangement outside statutory regime. Courts are inclined to respect contract because two parties
have agreed to it.
Part IV FLA (s. 51 onwards)
 Recognizes marriage contracts, separation agreements and cohabitation agreements as domestic contracts that
can override or modify statutory rights
 s.2(10)  generally, domestic contract dealing with statutory matter prevails
 Evidently, normal contract law for validity applies but special provisions for validity are also specified: s.56(4).
Policy: private settlement of disputes preferred to litigation but one party should not be allowed to unduly take advantage
of the other and the interests of children or other matters of public interest must be protected.
 Good article on p.784 about this
Three types: cohabitation, marriage, separation agreements. First two are very similar.
 Separation agreement more respected because other contracts address future circumstances that may not be
well conceived of
 First two are more limited/restrictive
s.52(1) Marriage contracts
 Property, support, education, settlement of other affairs
 (2) right to matrimonial home cannot be limited
 can’t contract custody matters
s.53 Cohabitation agreements
 May be almost identical to marriage contract, this was not so in the past.
 Marriage rights may be eliminated by contract
 So cohabitation agreement can build up towards marriage rights
 (2) if parties marry, agreement is deemed to be a marriage contract
s.54 Separation agreements
s.56
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best interests of child overrides, court retains supervisory role
s.33(4)
 contract may be set aside if unconscionable
s.55(1) Formal requirements
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must be in writing, signed, and witnessed. Oral doesn’t count.
Waldick v. Waldick (2002 ON SCJ) (792)
(formal requirements)
(married 1974. She had received inheritance prior to marriage. She cashed inheritance two years after marriage to help
purchase of matrimonial home. (deduction allowed for inheritance) He signed contract saying that he would not claim that
part of home on separation. It was witnessed but she did not sign it.)
 Held not to be a domestic contract because she did not sign, formal requirements not met.
s.56(4)
 court can set aside domestic contract if party fails to disclose assets etc. to other party
 regular contract laws apply
Hartshorne (2004 SCC) (801)
(fairness)
(two lawyers marry. Cohabited for 12 years, married for 3 of those years. Both had been married previously, have two
children. He has well established law practice, she comes to marriage with few assets and considerable debt. He insists
on marriage contract. She has lawyer review who advises not to sign. She signs under pressure just before wedding. She
stays home with child. Marriage falls apart after 9 years. She’s back at work making about $56k as jr lawyer. She asks to
have contract set aside.)
1. Questionably fair contracts may be upheld by the court if the party made a competent, informed decision.
 BC standard is unfairness. She’d get nothing despite taking time out of career to raise two children.
 Lower two courts agreed it should be set aside  60/40 split instead
 SCC found it fair.
 Prereq to enforceability, contract has to operate fairly on separation
 Courts should be reluctant to second-guess arrangement made by spouses
 Distinguish between marriage and separation contracts. Can’t anticipate all future circumstances.
 Court takes into account Miglin, underlines general proposition that court should be loathe to interfere with
agreement unless it substantially doesn’t comply with divorce act
 In determining whether unfair, court must determine whether apportionment is substantially fair. Whether
dissolution was reasonably within contemplation?
 Must take into account spousal and child support provisions. She was getting spousal support.
 Court must consider circumstances of both parties.
 In this case, she signed off on known assets. Had seen lawyer and was a lawyer so they upheld contract.
o But lawyer had said that was so unfair that it would never be enforced. She may have assumed that it
would never apply. Also quasi duress.
 gives an idea of how difficult it is to negate contract. Esp. since threshold is unconscionability in ON.
Overview
Standard that had been set under 1978 Divorce Act, high standard for review and variation available only.
Objectives of 1985 DA s.15(2): equitable sharing, certainty, finality, autonomy. Pelech trilogy establishes a change-based
test under which a court is permitted to override a final agreement on spousal support only if there is a significant change
in circumstances.  radical and unforeseen change related to marriage. Doesn’t deal with fairness or attention to
objectives of DA, designed to promote certainty and to facilitate a clean break.
Compensatory approach adopted in Moge and more nuanced non-compensatory approach developed in Bracklow. Then
followed femiinzation of poverty, broader understanding of support.
 Emphasis on clean break in Pelech Trilogy and the above approaches are not consistent with s.15.2.
Separation agreements can be made part of court order. If that’s not done, then it’s just a court review, you have to ask for
variance under s.17.  not radical change in circumstances, just material.
If under s.15(2) DA, court has jurisdiction to override preexisting spousal agreement. Whether court should override and in
what circumstances.
Miglin v. Miglin (2003 SCC) (807)
(spousal support, s.15.2(1) DA)
(married in 1999. 4 kids, ages 2-8. Purchased lodge in northern Ontario and ran as family business, each drew $80k/year.
After meeting with lawyers, executed three agreements: custody, business, separation. Custody: children reside primarily
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with wife. Child support agreement provided $60k/year, also for spousal support release – she would not make claim. She
would get $15k/year from business for 5 years, renewable thereafter only on consent. Property settlement, she gets
home, he gets lodge (each $500k) and also assumes mortgage on house. Relationship deteriorated thereafter. She
became religious and moved away. By the time got to court, eldest child living with father. She applies for spousal
support, he opts not to renew lodge allowance.)
Trial: $3000/month for child support and $4400/month spousal support for 5 years. Disregarded Pelech, overrode
agreement on fairness claiming that it failed to meet objectives of spousal support in s.15(7) of Divorce Act.
Appeal: Lowered child support per agreed revised income, held spousal support w/o 5 year term. Also refused to apply
Pelech Trilogy. Introduced two-stage inquiry:
 1) determination of material change in circumstances since the agreement
 2) determine appropriate amount of support was appropriate in light of the statutory principles as refined by
leadings SCC cases
SCC issue: Whether agreements concluded with the intent that they be final can, under the 1985 Act, be overridden on
grounds other than those defined in the Pelech trilogy.
 She had been primarily responsible for children, she had only ever worked in family business. Harder to gain
employment.
 Properties were of similar values but lodge generated revenue.
 Plain reading of Divorce Act does not grant trial and appeal judges discretion they applied.
 Purpose of 1985 DA militates in favour of a contextual assessment of all circumstances to balance with s.15.2
application.
1. Two-part test:
a. Investigation into all circumstances surrounding agreement at time of formation and s.15.2 application.
Examine substance of agreement and extent to which it speaks to objectives of DA act.
i. Criteria is different than would be in commercial agreement. (para 74, p. 813)
b. If doesn’t fail at first stage, consider extent to which the negotiated agreement can be said to have
contemplated the situation before the court at the time of the application.
i. Judge no longer bound to Pelech’s strict radical change rule
ii. Also not strict foreseeability
iii. Focus should be on continued correspondence to parties’ original intentions as to their relative
positions and overall objectives of the Act, not on whether a change occurred per se.
HELD: fair agreement, substantially compliant with goals of 1985 Act and no unforeseeable change in circumstances.
 Bastarache sets very high standard: many circumstances are reasonable foreseeable.
o Courts loathe to make changes.
 Courts makes it very uncertain that will review separation agreement.
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Polygamy
Drummond’s article: Polygamy’s Inscrutable Secular Mischief
 Collapse of conjugality
 Polygamy section is void for vagueness, infringes on s. 7
 Criminal law is wrong instrument for addressing worries about vulnerabilities of women and children within plural
family arrangements. Alternative regulatory means are preferable.
Polygamy, s. 293 CC
(1) Every one who (a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, or (ii) any kind of conjugal union with more than one person at the same time, whether or not it is
by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship
mentioned in subparagraph (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Bigamy, s. 290 CC
(1) Every one commits bigamy who (a) in Canada,
(i) being married, goes through a form of marriage with another person,
(ii) knowing that another person is married, goes through a form of marriage with that person, or
(iii) on the same day or simultaneously, goes through a form of marriage with more than one person; or
(b) being a Canadian citizen resident in Canada leaves Canada with intent to do anything mentioned in subparagraphs
(a)(i) to (iii) and, pursuant thereto, does outside Canada anything mentioned in those subparagraphs in circumstances
mentioned therein.
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Sociological, jurisprudential, legislative shifts in last 40 years = Parliament in position such that it can’t single out
polygamy
o Christian concept of marriage in Canada until 2005. Fell with Hyde case, now prohibition on plural unions
is embedded in Civil Marriage Act of 2005.
So vague that law enforcement officials are targeting only religious minorities
If issue is sexual exploitation (s. 153) or sexual interference (s. 151), charges should be laid accordingly
Underage marriage is not illegal: children may marry from age 7. Voidable until age 12 for girls and 14 for boys.
Doctrine must be interpreted not only for bare statutory words but in light of case law.
Legal construct of conjugal union is greatest problem.
Polygamy meant to capture having more than one spouse or being in conjugal union with more than one person
simultaneously.
Adultery is ok vis-à-vis polygamy jurisprudence (Tolhurst). Swinging ok too (Mason, Labaye).
s.293 Charter challenge under ss. 2a or 7
 Liberty to make fundamental personal choices obviously includes marriage and type of marriage
Void for vagueness and overbroad
 S.293 would catch too many people, such deprivation of liberty goes against principles of fundamental justice
 Leaves law enforcement officials to their personal predilections, in this case religious minorities
o Targeted prosecution even though many others are guilty
 Polygamous unions are more than mere multiplicity of non-state ceremonies to different partners.
Conjugal union
 Molodowich, v. Penttinen, conjugal union used to include sharing meals, sexual exchange, watching TV,
delivery of domestic services.
 Criteria for living separate and apart under same roof: Rushton v. Rushton, Dupere v. Dupere
Religious marriages
Religious marriages are nullities under Canadian law, no different than unmarried cohabitation. Nothing prohibits religious
communities from conducting exclusively religious marriages and never solemnizing civilly.
 Nullity means that it de facto tolerates plural religious marriages
 Civil Marriage Act only prohibits two civil marriages with separate partners
 Religious officials may perform civil ceremonies.
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Civil Marriage Act s. 2, 2005
“Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.”
 Doesn’t mention exclusion of religious marriages
 But bigamy definition is broader: “any form of marriage”
 Bigamy provision speaks to offence of participating in a ceremony of marriage while already (civilly) married.
Morris – obtains federal divorce but remains religiously married. So prohibition on polygamy must allow exceptions at
least for Catholics and Jews.
 Are religious marriages forms of conjugal union?
 Makes most sense to maintain nullity. So plurality of nullity is still a nullity.
 Maybe ok if civil marriage comes second. If first, bigamy kicks in. This appears to be a ridiculous legal construct.
Focus on Tolhurst and Wright decisions to show incoherence
 Tolhurst has affair with Wright. Both married to others and prosecuted. He was actually living with Wright and had
four children. That’s obviously a common-law relationship.
 Adulterous relationship not a conjugal union, only exist if in the guise of marriage
o Adultery consistent with monogamy
 Unmarried cohabitation in Tolhurst is not in the guise of marriage, a conjugal union, or any form of polygamy.
o So then both unmarried cohabitation and religious marriages don’t offend polygamy laws
 There’s no way this would hold today with understanding and definition of common law relationships (cohabitation
for at least one year)
 Most confusing is that imposition of settlement based on a constructive trust in Nowell v. Town Estate means
that she was essentially recognized as a spouse.
Sexual Mischief
 Mason (1982): swinging in private home, spouse-swapping parties did not constitute an indecent act for the
purposes of the Criminal Code. Not deemed to be polygamy.
 Labaye (2005): swing club resulted in charge of keeping a common bawdy-house under s.210(1) of CC
o Charge of running a body house. Indecent activity? Locked doors, needed code and password to enter.
Annual membership fee for code. Held that this wasn’t a body house – behind closed doors, autonomy of
public not affected by unwanted confrontation of others sexual activity. Only those in club were allowed
to watch. No evidence of improper treatment of men or women, no one pressured or treated as objects.
o Tied to indecency. SCC set threshold and tied indecency to harm.
o Acquittal – harm threshold not met, especially because in private setting.
o Labaye took actions to make sure that only willing people would see the sexual conduct
 Consentual sexual conduct in private is ok, be it simultaneous or sequential
Shared Residence
 So Tolhurst’s adultery was not polygamy, nor is swinging. What about if living under the same roof?
 How to define residence? This leads into an impossible labyrinth of residential arrangements.
Conjugal Unions
 Need to define a spouse-like relationship
 Miron v. Trudel and M v. H completely shifted legislation, now unmarried cohabitants have same rights as
married spouses
 Statutory requirement for becoming a cohabiting spouse ranges from 1-3 years
o ON Family Law Act: cohabitation = living together in a conjugal relationship, whether within or outside of
marriage
 Two ways of defining at conjugal at common law
o Subjective: depends on how couples see themselves. This dated approach fell apart before the courts b/c
of changing intentions, misunderstandings, etc. Need to protect from economic disadvantages 
constructive trust remedy.
o Functional: identification of basic elements of marital relationship
 Molodowich: criteria – shared shelter, sexual and personal behaviour, services, social activities, economic
support and children, societal perception of the couple. (not all elements necessary)
 Richardson: sexual relations don’t always exist in conjugal relationships, eg: old people having separate rooms
and living as married companions
o Results in very intrusive questioning by judge, eg: Stoikiewicz v. Filas. No conjugal relationship here
despite sex, living together.
 Flexible approach to represent variety of relationships makes it impossible to know who qualifies.
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Again problem that reasonable person cannot know whether will be prosecuted. Not ok under criminal
law, offends s.7 of charter. (Prostitution Reference)
Also see consummation cases, no longer necessary for valid marriage.
Remedy of imprisoning women for 5 years goes against goal to protect and would have disastrous impact on families.
There’s no way they’ll risk losing their children if they wish to come forward with polygamous problems in their household.
Non-criminal remedies
 Spousal support exists at common law (usually after 2-3 years). Meets federal Spousal Support Advisory
Guidelines where support depends on duration of relationship.
 Child custody depends on parents who are loco parentis, not biological or social relationship
 Constructive trust doctrine is available to the women
 National child care would help a lot, women could work or study
 Bigamy section can be changed to reflect multiple civil marriages only
 Parliament could set proper marriage age, not age 7!
Immigration: we don’t allow more than one spouse to enter Canada for immigration purposes. May be allowed on
compassionate grounds, especially if children involved. Normally it’s forbidden. Family Law Act s. 1(2) allows recognition
of polygamous marriage for division of property. The beginnings…
Moral Comments (con)
“A polygamous society consumes its young. It arms itself with instruments of abuse and shields itself behind institutions of
secrecy, insularity and control. It depresses every known indicator of women’s equality. It is antidemocratic, antiegalitarian, antiliberal and antithetical to the proper functioning of any modern, rights-based society.”
International Convention to Eliminate all Forms of Discrimination Against Women
 Canada is full signatory, many countries have signed on and added reservations nullifying other sections
 Article 6 lays out formal equality
 So do we have obligations to make sure that women are treated completely equally? Perhaps current definition is
sufficient.
 Recommendation from 1994 re polygamy: s.14 – contravenes women’s right to equality with men, fosters
dependence and ought to be prohibited. Recognition that it’s damaging to women and children. Not binding
because only a recommendation.
 Always ask if we can meet international obligations to treat men and women equally.
Random Class Overview
Constitutional issues w/ polygamy:
91(26) marriage and divorce
92(13) civil and property rights
92(12) jurisdiction over solemnization of marriage
Until recently, definition of marriage came form 1866 case: Hyde v. Hyde. Polygamy case but stood for definition of
marriage: “one man, one woman”.
Halpern: held that definition unconstitutional against same-sex
2005 – Civil Marriage Act: 2 persons. Now exclusion of all others.
So if polygamy becomes legal, what happens to definition of marriage as we know it?
Should state be involved?
BC and polygamy: fundamentalist mormon communities who practice polygamy, religious and moral obligation. Two men
were prosecuted because are openly practicing polygamy. Only two convictions since 1892. 1954, omnibus amendment
to CC – targeting of religious groups was removed. 1906 – conviction of John Harris. He married someone he thought
was divorce. 1899 – conviction. Behrs v. Shinbone. Policy of targeting aboriginal communities to revise aboriginal family
law structures. The only conviction that stands is Shinbone.
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s. 15, s.2, s. 7 – whether overbroad and vague. Conjugal is so uncertain that it does not give proper notice.
Situation of marriages to others but cohabitation with themselves – no contract.
1937 Tolhurst case – simultaneous crim charges. Two marriages (total of 4 people) living together. Held: even though are
living in guise of marriage, must be contractual arrangement. Technically committing adultery. Adultery is consistent with
monogamy, won’t get you in trouble with polygamy. Polygamy section still targeted mormons at the time. So what’s the
mischief now? Adulterous is ok, so then what’s the difference form polygamy?
Early 2000s – Mel Lastman was married to wife for 34 years but children from other relationships sued for support. Had
been with other woman for 14 years. So what’s difference from polygamy?
Article: Osgoode Law Journal – by Angela Campbell. Molodowich case defines cohabitation. Objective standards: sexual
relations, children, hold themselves out as married, sharing of money. Answered all in the affirmative.
Adultery not crime in Canada. Yes in some US states. So why are we worked out about polygamy? It’s patriarchal in
nature.
Polygamy Summary from 2007
Legal Context
 Slippery slope concern (same-sex marriage)  definition of marriage
 In BC, prosecutor hired by Attorney General to determine whether the polygamy provisions in the Criminal Code
(section 293) would withstand constitutional scrutiny
 Reluctance by police to prosecute members of the Bountiful community – concern that constitutional vulnerability
of Criminal Code provisions may result in legalization of polygamy
 Prosecutor recommended reference question to the BC Court of Appeal before charging individuals
 Hyde v. Hyde: polygamy case (not same-sex marriage)
 Mormon fundamentalists continue to practice polygamy
 Civil Marriage Act prohibits valid polygamous marriage
 Bigamy and polygamy are criminal offences
o Section 290 (bigamy): a person commits bigamy when he participates in a marriage with one person
while married to another person (formal validity)
o Section 293 (polygamy): offence to participate in a polygamous marriage ceremony and enter into any
form of polygamy OR any conjugal union with more than one person simultaneously (broader than
bigamy)
o Applies to a man who legally marries one woman and cohabits with another woman
o 5 years imprisonment
o Difficult to gather evidence (Bountiful)
 A few reported polygamy prosecutions against Aboriginals (because legal system doesn’t recognize their
ceremony as marriage)
 R. v. Tolhurst and Wright (distinguished adultery and polygamy): ON CA held that an adulterous relationship
does not constitute the offence of polygamy – concept that adultery is consistent with monogamous marriage is
absurd
 Federal government expects the Criminal Code polygamy provisions to withstand constitutional challenge
 Should polygamy remain a criminal prohibition? Why is the state concerned with this form of marriage?
Arguments for Polygamy Prohibition
 Charter, Sections 15 and 2 (challenge on the grounds that polygamy prohibition violates freedom of religion is
more likely)
 Section 1 – justified because inherently exploitive of women, patriarchal and exploitive to children
o Universal statistics on polygamy: one man with multiple women
o Protecting economic dependence of women
o Interests of children in polygamous marriages
 Criminal prohibition establishes a standard, polygamous communities should assimilate to Canadian values rather
than decriminalization
Arguments for Legalizing Polygamy
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Group sex and adultery: concern regarding polygamy is not related to sexual activity
Group sex (polyamory) is constitutionally protected if private and consensual
If the law restricts access to public resources for the parties to polygamous relationships and is not concerned
with adultery or polyamory, what is the residual effect of the polygamy prohibition?
o Therefore, the alleged harms resulting from polygamous relationships are not the mischief targeted by the
prohibition
If polygamy is about choice, why should the government intervene?
Criminal laws should address the harms arising from polygamy directly (e.g. sexual relations with minors, etc.) but
not polygamy itself
Decriminalization may emancipate women from compounds (no longer necessary to conceal activities)
Other Considerations
 Immigration concerns
 Public law concerns: economic interest, burden on taxpayers
 US concern with respect to social assistance claims in polygamous communities
 Egan: government has no obligation to proactively recognized novel social relationships
o Limited public funds
o Perhaps legalization of polygamy is a possibility in the future (similar to same-sex marriage)
 Notion that each spouse contributes equally is the rationale for equal property division – polygamous relationships
also reflect this model (mutual responsibility)
 Should the definition of marriage (Civil Marriage Act) be reformed?
 Public benefits, pension rights (public interest), division of property, spousal support? Are modifications to these
regimes required?
o Pension benefits: pro rating model based on duration of marriage (first wife would receive greater share)
o Note: reforms to facilitate same-sex marriage
 Practically impossible for men to sustain polygamous relationships
 Legalizing polygamy alone will not achieve equality for women, reforms to the broader social system surrounding
polygamous relationships is required
 Whether child support, etc. laws should operate to promote family policy objectives?
o E.g. deterring polygamy by denying child support, etc.
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Exam:
Polygamy
 How it fits into family law scheme, makes you look at all aspects of family law
 Validity of marriage
 Celestial union
 Child custody
 Child support, division of assets
 Divorce
No conflict of law, if in summary remove
Eg:
400k MH in P’s title then listed on one side and later equalized. If they both have title then it would be split evenly. Could
also be tenants in common, eg: 70/30.
What if MH sold one day after marriage then buy new home. You can deduct the money you get for the home.
Remember can’t have negative NFP. Hard to justify on policy basis, some maneuverability under 5(6), especially if debts
were incurred for family.
What happens if you enter marriage with net debt? Net negative on marriage become asset at valuation.
30k student debt at marriage, paid off by valuation date. Become asset so person owes 15k in equalization because
spouse helps pay off.
But with a mortgage, debt rules are found grossly unfair in DaCosta. Debts against house are removed. Menage case
means that we treat mortgage debts differently. In Collier, DaCosta is affirmed. (some evidentiary issues in Collier)Then
bill 133 amended legislation, any loan taken out to purchase or maintain assets should be treated under DaCosta
approach. So mortgage and home are ruled out for marriage date and net value counted only at valuation date.
 read DaCosta
What if long cohabitation before marriage? Remember constructive trust doctrine. Part I and II of FLA insufficient because
it only applies to married spouses. You would apply statute to marriage and trust to cohabitation. Can’t elect for
constructive trust if married.
Spousal support
Work out entitlement first then move to different theories + statutory, guidelines. Won’t give with child support question
(need software).
 work through examples in book
R v. R  rid of tender years doctrine
Vs.
Klochefsky  we don’t penalize for outside childcare
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