Dispute Resolution Mechanisms ................................................................................................ 13
Introduction ................................................................................................................................. 13
Definition Issues ....................................................................................................................... 14
Statistics Canada ....................................................................................................................... 14
2006 Census Highlights ............................................................................................................ 14
Families in the Law ..................................................................................................................... 15
Sefton Holdings v. Cairns 1988 UK p. 13 ................................................................................ 15
Baker v. Canada (Minister of Citizenship and Immigration) 1999 SCC .................................. 15
Immigration Policies ................................................................................................................. 16
Tania das Gupta, Families of Native People, Immigrants and People of Colour, p. 18 ........... 16
Family Law Policies/Themes ...................................................................................................... 17
Mavis Maclean, p. 24 Policy Models........................................................................................ 17
Theoretical Frameworks ........................................................................................................... 17
Re S.M. 1991 ............................................................................................................................ 18
Re R. 1993 ................................................................................................................................ 18
Charter Implications .................................................................................................................. 18
Canada (Attorney General) v. Mossop 1993 SCC .................................................................... 18
Miron v. Trudel, 1995 SCC ...................................................................................................... 18
Egan v. Canada, 1995 SCC ....................................................................................................... 18
Vriend v. Alberta, 1998 SCC .................................................................................................... 19
Rosenberg v. Canada 1998 ON CA .......................................................................................... 19
M. v. H. 1999 SCC.................................................................................................................... 19
Halpern v. Canada 2003 ON CA .............................................................................................. 19
Nova Scotia v. Walsh 2002 SCC .............................................................................................. 19
Trociuk v. British Columbia (Attorney General) 2003 SCC .................................................... 19
Kreklewetz v. Scopel 2002 ON CA .......................................................................................... 19
Gill v. Murray 2001 B.C. Human Rights Tribunal ................................................................... 19
Dependency Issues ...................................................................................................................... 19
Moge v. Moge 1992 SCC ......................................................................................................... 20
Marriage v. Cohabitation ........................................................................................................... 20
Nova Scotia v. Walsh 2002 SCC .............................................................................................. 20
Constitutional Authority for Marriage ..................................................................................... 20
Constitution Act, 1867 .............................................................................................................. 20
Reference re Marriage Legislation in Canada 1912 PC............................................................ 21
Kerr v. Kerr 1934 SCC ............................................................................................................. 21
Attorney-General of Alberta v. Underwood 1934 SCC............................................................ 21
1
History of Marriage and Annulment .................................................................................... 22
Re Noah Estate 1961 NWT....................................................................................................... 22
Dutch v. Dutch 1977 ON .......................................................................................................... 22
Guptill v. Wilfred 2009 NS SC ................................................................................................. 22
Nullity ........................................................................................................................................... 23
Mental Capacity .................................................................................................................... 23
Durham v. Durham 1885 UK.................................................................................................... 23
Webb v. Webb 1968 NS ........................................................................................................... 23
Duress ................................................................................................................................... 24
Scott v. Sebright 1886 ............................................................................................................... 24
Cooper v. Crane 1891 ............................................................................................................... 24
Buckland v. Buckland 1967 UK ............................................................................................... 25
S.(A.) v. S.(A.) 1988 ON .......................................................................................................... 25
Arranged Marriages as Duress .............................................................................................. 25
Singh v. Singh 1971 UK CA..................................................................................................... 25
Singh v. Kaur 1981 UK CA ...................................................................................................... 25
Hirani v. Hirani 1982 UK CA ................................................................................................... 25
Parihar v. Bhatti 1980 BC SC ................................................................................................... 25
Singh v. Singh 1980 ON ........................................................................................................... 26
In the Marriage of S. 1980 Australia ........................................................................................ 26
Limited Purpose Marriage .................................................................................................... 26
Iantsis v. Papatheodorou 1971 ON CA ..................................................................................... 26
S.(A.) v. S.(A.) 1988 ON .......................................................................................................... 26
Singla v. Singla 1985 NS .......................................................................................................... 26
US v. Rubenstein ...................................................................................................................... 26
Consummation ...................................................................................................................... 26
M. v. M. 1984 PEI .................................................................................................................... 27
Norman v. Norman 1979 ON.................................................................................................... 27
Chirayath v. Chirayath 1980 ON CA ........................................................................................ 27
Prohibited Degrees of Consanguinity and Affinity .............................................................. 27
Marriage (Prohibited Degrees) Act 1990, c. 46 ........................................................................ 27
Polygamy - must have no prior existing marriage ................................................................ 28
Knight v. Knight 1995 ON........................................................................................................ 28
Polygamy ...................................................................................................................................... 28
Baines: The constitutional challenge of polygamy ................................................................... 28
2
Drummond: You really want them all charged? ....................................................................... 29
Age ........................................................................................................................................ 29
Legebokoff v. Legebokoff 1982 BCSC .................................................................................... 29
Solemnization Formalities .......................................................................................................... 30
Marriage Act R.S.O. 1990 ........................................................................................................ 30
Alspector v. Alspector 1957 ON CA ........................................................................................ 30
Reaney v. Reaney 1990 ON ...................................................................................................... 30
Debora v. Debora 1999 ON CA ................................................................................................ 30
Same-Sex Marriage Reform....................................................................................................... 31
Hyde v. Hyde 1866 UK ............................................................................................................ 31
North v. Matheson 1974 Man ................................................................................................... 31
Haig v. Canada 1992 ON .......................................................................................................... 31
Re Layland (1993 ON).............................................................................................................. 31
M. v. H. 1999 SCC.................................................................................................................... 31
EGALE Canada Inc. v. Canada (Attorney General) 2001 BC SC............................................ 31
Halpern v. Canada 2002 ON ..................................................................................................... 31
Halpern v. Canada 2003 ON CA .............................................................................................. 32
Re Civil Marriage Act SCC ...................................................................................................... 32
Civil Marriage Act S.C. 2005 c. 33 – Current Legislation ....................................................... 33
Family Relationship Reform ...................................................................................................... 33
Law Commission Report On Conjugality................................................................................. 34
A.A. v. B.B. and C.C. 2007 ON CA ......................................................................................... 34
Doe v. Alberta 2007 ON CA..................................................................................................... 34
Parent-Child Relationships ........................................................................................................ 35
Birth ............................................................................................................................................. 35
Vital Statistics Act ON.............................................................................................................. 35
Kreklewetz v. Scopel 2002 ON CA .......................................................................................... 36
Trociuk v. British Columbia (Attorney General) 2003 SCC .................................................... 36
Johnson-Steeves v. Lee 1997 AL CA ....................................................................................... 36
Adoption....................................................................................................................................... 37
Re Attorney General of Ontario and Nevins 1988 ON ............................................................. 38
Re F.L. 1987 BCSC .................................................................................................................. 38
Re T. and CAS 1992 NS SC ..................................................................................................... 38
Re S.S. 2009 ON ....................................................................................................................... 39
MAC v. MK 2009 ON .............................................................................................................. 39
Adoption and Race...................................................................................................................... 41
3
A.N.R and S.C.R. v. L.J.W. 1983 SCC .................................................................................... 42
H. v. M. 1999 SCC.................................................................................................................... 42
C. (J.M.N.) v. Winnipeg Child and Family Services 1998 Man .............................................. 42
Re British Columbia Birth Registration no. 030279 1990 BCSC ............................................ 43
C.(D.H.) v. S.(R.) 1990 Al ........................................................................................................ 43
International Adoptions ......................................................................................................... 43
Assisted Reproduction ................................................................................................................ 43
Assisted Human Reproduction Act ........................................................................................... 44
Child Protection .......................................................................................................................... 47
Child and Family Services Act ................................................................................................. 48
B. (R.) v. Children’s Aid Society of Metropolitan Toronto...................................................... 49
Winnipeg South Child and Family Services Agency v. S. (D.D.) 1990 Man .......................... 49
Winnipeg Child and Family Services (Central Area) v. W. (K.L.) 2000 SCC ......................... 49
Re Brown 1975 ON .................................................................................................................. 49
Canadian Foundation for Children, Youth and the Law v. Canada 2004 SCC ........................ 49
Re E.C.D.M. 1980 Sask ............................................................................................................ 49
Family and Children’s Services of London and Middlesex v. G. (D.) 1989 ON ..................... 50
Regional Dir. Of Child Welfare v. R. (R.) 1989 Al .................................................................. 50
Bessner: Duty to Report Child Abuse ....................................................................................... 50
Accused white supremacist ....................................................................................................... 50
Sexual Abuse................................................................................................................................ 50
J.(L.A.) V. J.(H.) 1993 ON ....................................................................................................... 50
K.L.B. v. British Columbia 2003 SCC ..................................................................................... 50
Spousal Violence.......................................................................................................................... 50
Behrendt v. Behrendt 1990 ON ................................................................................................ 51
Astor: Weight of Silence ........................................................................................................... 51
R. v. Lavallee 1990 SCC........................................................................................................... 52
R. v. Malott 1998 SCC.............................................................................................................. 52
R. v. J.V. 1998 ON.................................................................................................................... 52
Domestic Violence Protection Act............................................................................................ 52
Elder Abuse ............................................................................................................................... 52
Processes of Divorce .................................................................................................................... 53
Edmonton Journal v. Alberta 1989 SCC................................................................................... 53
Schulp v. Mackoff 1994 US...................................................................................................... 54
Lawyers and Divorce .................................................................................................................. 54
New Brunswick v. G.(J.) 1999 SCC ......................................................................................... 55
4
Problems of Private Ordering.................................................................................................... 55
Neave: Resolving the Dilemma of Difference .......................................................................... 55
Mnookin: Limits on Private Ordering....................................................................................... 56
Majury: Unconscionability in an Equality Context .................................................................. 56
Clayton v. Clayton 1998 ON .................................................................................................... 56
Bossenberry v. Bossenberry 1994 ON ...................................................................................... 56
Bradley v. Bradley 1997 ON .................................................................................................... 57
Economic Consequences of Divorce .......................................................................................... 57
Falkiner v. Ontario 2002 ON .................................................................................................... 57
Gosselin v. Quebec (Attorney General) 2002 SCC .................................................................. 57
Legislative Authority for Divorce .............................................................................................. 58
Papp v. Papp 1969 ON CA ....................................................................................................... 60
Re Adoption Reference 1938 SCC ........................................................................................... 60
Spiers v. Spiers 1996 BC SC .................................................................................................... 60
Brooks v. Brooks 1998 ON CA ................................................................................................ 60
Divorce Act Jurisdiction Provisions ......................................................................................... 60
Grounds and Bars to Divorce .................................................................................................... 60
Separate and Apart ................................................................................................................ 60
Rushton v. Rushton 1968 BCSC ............................................................................................... 60
Dupere v. Dupere 1974 NB SC................................................................................................. 61
Calvert v. Calvert 1997 ON CA ................................................................................................ 61
A.A. v. C.D. 2009 BC CA ........................................................................................................ 61
Adultery ................................................................................................................................ 62
Burbage v. Burbage 1985 ON ................................................................................................... 62
Cruelty – can be mental or physical ...................................................................................... 62
Knoll v. Knoll 1970 ON CA ..................................................................................................... 62
Chouinard v. Chouinard 1969 NB CA ...................................................................................... 62
B.(Y.) v. B.(J.) 1989 Al ............................................................................................................ 63
Traditional Bars .................................................................................................................... 63
Leaderhouse v. Leaderhouse 1971 Sask ................................................................................... 63
Reasonable Arrangements for Children ................................................................................ 64
Harper v. Harper 1991 ON........................................................................................................ 64
Kalsi v. Kalsi 2009 BC SC ...................................................................................................... 64
Religious Bars ....................................................................................................................... 64
Syrtash: Religion and Culture ................................................................................................... 64
5
Reconciliation ....................................................................................................................... 65
Spousal Contracts ....................................................................................................................... 67
Family Law Act Part 4 .............................................................................................................. 67
Balfour v. Balfour 1919 UK CA ............................................................................................... 69
M. V. H. 1999 SCC................................................................................................................... 69
Hartshorne v. Hartshorne 2004 SCC ........................................................................................ 69
Khan v Kahn 2005, ON ............................................................................................................ 70
Kaddoura v. Kaddoura 1998 ON .............................................................................................. 70
N.V.M. v. N.S.M. 2004 BC SC ................................................................................................ 70
Simon v Simon 1999 ON .......................................................................................................... 70
Dochuk v. Dochuk 1999 ON .................................................................................................... 70
Rosen v. Rosen 1995 SCC ........................................................................................................ 71
Puopolo v. Puopolo 1986 ON ................................................................................................... 71
Saul v. Himel 1995 ON ............................................................................................................. 71
Salonen v. Salonen 1986 ON .................................................................................................... 71
LeVan v. LeVan 2008 ON ........................................................................................................ 72
Property ....................................................................................................................................... 74
Murdoch v. Murdoch 1973 SCC............................................................................................... 74
Rathwell v. Rathwell 1978 SCC ............................................................................................... 74
Rawluk v. Rawluk 1990 SCC ................................................................................................... 74
Nova Scotia (Attorney General) v. Walsh 2002 SCC............................................................... 75
Equalization of Net Family Property ........................................................................................ 76
Family Law Act Provisions ...................................................................................................... 76
Applying Part I of the FLA: ...................................................................................................... 78
Property Sharing Rationale: ...................................................................................................... 79
Stone v. Stone 1999 ON............................................................................................................ 80
Oswell v. Oswell 1992 ON CA................................................................................................. 80
Caratun v. Caratun 1987 ON .................................................................................................... 80
Russel v. Russell 1999 Sask CA ............................................................................................... 81
Bartoluzzi v. Bartoluzzi 1992 NWT ......................................................................................... 81
Rawluk v. Rawluk 1990 SCC ................................................................................................... 81
Harrington v. Harrington 2009 ON CA .................................................................................... 81
Paddock v. Paddock 2009 ON CA ............................................................................................ 82
Exclusions from NFP ............................................................................................................ 82
Silverberg v. Silverberg 1990 ON ............................................................................................ 82
6
Flatters v. Brown 1999 ON ....................................................................................................... 82
Vanderaa v. Vanderaa 1996 ON ............................................................................................... 82
Tracing .................................................................................................................................. 83
Lefevre v. Lefevre 1992 ON ..................................................................................................... 83
Matrimonial Home ................................................................................................................ 83
DaCosta v. DaCosta 1990 ON .................................................................................................. 83
Valuation Considerations ...................................................................................................... 83
Oswell v. Oswell 1990 ON ....................................................................................................... 84
Montague v. Montague 1997 ON CA ....................................................................................... 84
Deductions ............................................................................................................................ 84
Sengmueller v. Sengmueller 1993 ON CA ............................................................................... 84
Unequal Shares of Equalization ................................................................................................ 84
Family Law Act ........................................................................................................................ 84
Sullivan v. Sullivan 1986 ON ................................................................................................... 85
Waters v. Waters ON ................................................................................................................ 85
Leblanc v. Leblanc 1988 SCC .................................................................................................. 85
Merklinger v. Merklinger 1992 ON .......................................................................................... 85
Fillipponi v. Fillipponi 1992 ON .............................................................................................. 85
Abaza v. Abaza 2000 ON ......................................................................................................... 86
Hines v. Hines 1988 ON ........................................................................................................... 86
MacNeill v. Pope 1999 ON CA ................................................................................................ 86
Futia v. Futia 1990 ON ............................................................................................................. 86
Serra v. Serra 2009 ON CA ...................................................................................................... 86
Matrimonial Home...................................................................................................................... 87
Family Law Act ........................................................................................................................ 87
OLRC Report on Family Property Law .................................................................................... 88
Rosenthal v. Rosenthal 1986 ON .............................................................................................. 88
Pifer v. Pifer 1986 ON .............................................................................................................. 88
Hill v. Hill 1987 ON ................................................................................................................. 88
Behrendt v. Behrendt 1990 ON ................................................................................................ 89
Wilson v. Wilson 1989 ON ....................................................................................................... 89
Paul v. Paul 1986 SCC .............................................................................................................. 89
Wynn v. Wynn 1989 ON .......................................................................................................... 89
Pensions ........................................................................................................................................ 89
Best v. Best SCC ....................................................................................................................... 91
7
Boston v. Boston 2001 SCC ..................................................................................................... 91
Cohabiting Couples Property Division ..................................................................................... 91
Pettkus v. Becker 1980 SCC ..................................................................................................... 91
Sorochan v. Sorochan 1986 SCC .............................................................................................. 92
Verson v. Rich 1988 Sask CA .................................................................................................. 92
Stanish v. Parasz 1989 Man ...................................................................................................... 92
Georg v. Hassanali 1989 ON .................................................................................................... 93
Peter v. Beblow 1993 SCC ....................................................................................................... 93
Matta v. Smith 2002 ON ........................................................................................................... 93
Nowell v. Town Estate 1997 ON CA ....................................................................................... 94
Pelechaty v. Martyniuk Estate 1999 Sask ................................................................................. 94
Same Sex: ................................................................................................................................. 94
Forrest v. Price 1992 BC SC ..................................................................................................... 94
Buist v. Greaves 1997 ON ........................................................................................................ 94
Caregiving/Illness: .................................................................................................................. 94
Knoll v. Knoll Estate 2001 Sask ............................................................................................... 94
McLean v. Danicic 2009 ON .................................................................................................... 94
Spousal Support .......................................................................................................................... 96
Divorce Act Provisions ............................................................................................................. 97
Family Law Act Provisions ...................................................................................................... 97
Quick Reference Table ............................................................................................................. 99
Definition of Spouse ........................................................................................................... 100
Molodowich v. Penttinen 1980 ON ........................................................................................ 100
Sullivan v. Letnik 1994 ON .................................................................................................... 100
Stoikiewicz v. Filas 1978 ON ................................................................................................. 100
Brunette v. Quebec 2000 Que ................................................................................................. 100
Brebic v. Niksic 2002 ON CA ................................................................................................ 101
De Souza v. De Souza 1999 ON ............................................................................................. 101
Mahoney v. King 1998 ON ..................................................................................................... 101
Variation Orders.................................................................................................................. 101
Messier v. Delage 1983 SCC .................................................................................................. 102
Pelech trilogy: Pelech, Richardson, Caron – emphasize clean break ..................................... 102
Davis v Crawford, 2011, ONCA............................................................................................. 103
Moge v. Moge 1992 SCC ....................................................................................................... 103
Sheppard: Lessons from Moge ............................................................................................... 103
8
Rogerson: Spousal Support After Moge ................................................................................. 103
G. (L.) v. B. (G.) 1995 SCC .................................................................................................... 104
Wilkinson v. Wilkinson 1998 Al ............................................................................................ 104
Bailey v. Plaxton 2000 ON ..................................................................................................... 104
Hough v. Hough 1996 ON ...................................................................................................... 104
Nock v. Nock 1998 ON .......................................................................................................... 104
Julien Payne: Spousal Support ................................................................................................ 104
Keast v. Keast 1986 ON.......................................................................................................... 104
Bracklow v. Bracklow 1999 SCC – non compensatory support ............................................ 105
Spousal Support Advisory Guidelines (SSAG) ...................................................................... 105
Without Child Support Formula ............................................................................................. 106
With Child Support Formula for Amount ............................................................................... 106
With Child Support Formula for Duration.............................................................................. 106
Restructuring ........................................................................................................................... 107
Exceptions ............................................................................................................................... 107
Fisher v. Fisher 2008 ON CA ................................................................................................. 107
Chutter v. Chutter 2008 BC CA .............................................................................................. 108
Private Spousal Agreements .................................................................................................... 108
Miglin v. Miglin 2003 SCC .................................................................................................... 108
Rick v. Brandsema 2009 SCC ................................................................................................ 110
Conduct ...................................................................................................................................... 110
Ungerer v. Ungerer 1998 BC CA ........................................................................................... 110
Smith v. Smith 2002 ON......................................................................................................... 111
Stewart v. Stewart 2000 NS SC .............................................................................................. 111
B. (S.) v. B. (L.) 1999 ON ...................................................................................................... 111
Belleville v. White 2002 ON .................................................................................................. 111
A. (T.) v. A. (J.) 2000 ON ....................................................................................................... 111
Mills v. Mills 1992 ON ........................................................................................................... 111
Krigstin v. Krigstin 1992 ON.................................................................................................. 111
Leskun v. Leskun 2006 SCC .................................................................................................. 112
Social Assistance and Property Considerations ..................................................................... 112
Mossman and MacLean: Family Law and Social Assistance ................................................. 112
Gosselin v. Quebec (Attorney General) 2002 SCC ................................................................ 112
Falkiner v. Ontario 2002 ON .................................................................................................. 112
Child’s Support for Parents ..................................................................................................... 112
9
Ontario (Dir. Of Family Support Plan) v. Burgess 1994 ON ................................................. 112
Dragulin v. Dragulin 1999 ON ............................................................................................... 113
Skrzypacz v. Skrzypacz 1996 ON .......................................................................................... 113
Introduction to Children’s Issues ............................................................................................ 113
Gordon: Multiple Meanings of Equality ................................................................................. 114
Smart, Neale & Wade: Changing Experiences of Childhood ................................................. 114
Emery: Renegotiating Family Relationships .......................................................................... 114
Other Perspectives .................................................................................................................. 114
Custody and Access................................................................................................................... 115
Baker v Baker, 1979, ON:........................................................................................................... 115
Kruger v Kruger, 1979, ON: ....................................................................................................... 115
Biamonte v Biamonte, 1998, ON:............................................................................................... 115
Mudie v Post, 1998, ON: ............................................................................................................ 115
Kaplanis v Kapnlanis, 2005, OCA:............................................................................................. 116
Ladisa v Ladisa, 2005, ON: ........................................................................................................ 116
Lawson v Lawson, 2006, OCA: ................................................................................................. 116
Ursic v. Ursic 2006 ON CA .................................................................................................... 116
Quick Reference Table ........................................................................................................... 117
Divorce Act ............................................................................................................................. 117
Children’s Law Reform Act.................................................................................................... 118
Office of the Children’s Lawyer ............................................................................................. 120
UN Convention of the Rights of the Child ............................................................................. 121
Best Interests Principle ............................................................................................................. 121
Carton v. Watts 1998 Al ......................................................................................................... 121
Talsky v. Talsky 1976 SCC .................................................................................................... 122
R. v. R. 1983 Al CA................................................................................................................ 123
Klachefsky v. Brown 1988 Man CA....................................................................................... 123
S.(B.A.) v. S.(M.S.) 1991 ON CA .......................................................................................... 123
Tyabji v. Sandana 1994 BC SC .............................................................................................. 123
Fishback v. Fishback 1985 ON ............................................................................................... 123
Violence .............................................................................................................................. 124
Renaud v. Renaud 1989 ON ................................................................................................... 124
Li Santi v. Li Santi 1990 ON .................................................................................................. 124
Howard v. Howard 1999 ON .................................................................................................. 124
Same Sex Issues .................................................................................................................. 124
Re Barkley and Barkley 1980 ON .......................................................................................... 124
10
Bezaire v. Bezaire 1980 ON ................................................................................................... 124
Saunders v. Saunders 1989 BC ............................................................................................... 125
Meyer: Lesbian Parenting Research ....................................................................................... 125
Blood Ties ........................................................................................................................... 125
K.K. v. G.L. and B.J.L. 1984 SCC ......................................................................................... 125
Crocker v. Sipus 1992 ON ...................................................................................................... 125
White v. White 1994 NB ........................................................................................................ 125
Race and Religion ............................................................................................................... 125
Van de Perre v. Edwards 2001 SCC ....................................................................................... 125
Ffrench v. Ffrench 1994 NS SC .............................................................................................. 126
Camba v. Sparks 1993 NS ...................................................................................................... 126
S. v. S. 1997 SCC.................................................................................................................... 126
Fruitman v. Fruitman 1998 ON .............................................................................................. 127
Young v. Young 1994 SCC .................................................................................................... 127
Access ................................................................................................................................. 127
Craig v. Antone 1987 ON ....................................................................................................... 127
S. v. S. 1998 BC CA ............................................................................................................... 127
D.(G.) v. M.(G.) 1999 NWT ................................................................................................... 127
T. v. P. 1999 Al CA ................................................................................................................ 128
Arnink v. Arnink 1999 BC...................................................................................................... 128
Mobility............................................................................................................................... 128
Carter v. Brooks 1990 ON CA ................................................................................................ 128
MacGyver v. Richards 1995 ON CA ...................................................................................... 128
Gordon v. Goertz 1996 SCC ................................................................................................... 129
Woodhouse v. Woodhouse 1996 ON CA ............................................................................... 129
Luckhurst v. Luckhurst 1996 ON CA ..................................................................................... 129
Bailey and Giroux: Relocation of Custodial Parents .............................................................. 130
Lickfold v. Robichaud 2008 ON ............................................................................................. 130
Hague Convention on Abduction........................................................................................ 131
Thomson v. Thomson 1994 SCC ............................................................................................ 131
Kinnersley-Turner v. Kinnersley-Turner 1997 ON CA .......................................................... 131
M.(B.P.) v. M.(B.L.D.E.) 1992 ON CA ................................................................................. 131
Dinelle v. Sametz 1994 ON .................................................................................................... 131
Fullarton v. Fullarton 1994 NB ............................................................................................... 131
11
Armstrong v. Kahn 1998 ON .................................................................................................. 131
Smith v. Smith 1987 Sask ....................................................................................................... 131
Assessments and Lawyers................................................................................................... 131
Levine v. Levine 1993 ON...................................................................................................... 132
Marko-Laschowski v. Laschowski 1999 Al ........................................................................... 132
Bazinet v. Bazinet 1998 ON ................................................................................................... 132
Access Enforcement............................................................................................................ 132
L.B. v. R.D. 1998 ON ............................................................................................................. 132
McMillan v. McMillan 1999 ON ............................................................................................ 133
A.G.L. v. K.B.D. 2009 ON ..................................................................................................... 133
Custody Theories ................................................................................................................ 133
Custody and Access Reform .................................................................................................... 133
For the Sake of the Children Report ....................................................................................... 133
Maccoby and Mnookin: Dividing the Child ........................................................................... 134
Rhoades: shared parenting laws .............................................................................................. 134
Katelynn’s handover ............................................................................................................... 134
Determining Who is a Parent................................................................................................... 134
Divorce Act Definition ........................................................................................................... 135
Family Law Act ...................................................................................................................... 135
Children’s Law Reform Act ................................................................................................. 135
Sullivan v. Sullivan 1999 ON ................................................................................................. 135
Hyde v. Lange 1996 ON ......................................................................................................... 136
Parsons v. Parsons 1996 ON ................................................................................................... 136
Louis v. Lastman 2002 ON ..................................................................................................... 136
S. (L.) v. P. (E.) 1999 BC CA ................................................................................................. 136
Low v. Low 1994 ON ............................................................................................................. 136
Re Rhan and Pinsonneault 1979 ON ...................................................................................... 136
S.(E.A.) v. B.(K.M.) 1989 ON ................................................................................................ 137
P.(K.) v. N.(P.) 1988 ON ........................................................................................................ 137
S.(C.) v. L.(V.) 1992 ON ........................................................................................................ 137
Chartier v. Chartier 1999 SCC ................................................................................................ 137
W.P.N. v. B.J.N. 2005 BC CA................................................................................................ 138
Child Support ............................................................................................................................ 138
Divorce Act Provisions ........................................................................................................... 139
Family Law Act ...................................................................................................................... 140
12
Child Support Guidelines........................................................................................................ 140
Thibaudeau v Canada, 1995, SCC: ......................................................................................... 143
Francis v. Baker 1999 SCC..................................................................................................... 143
R. v. R. 2002 ON CA .............................................................................................................. 143
Pakka v. Nyguard 2002 ON .................................................................................................... 144
Froom v. Froom 2004 ON ...................................................................................................... 144
Drygala v Pauli, 2002, ON:..................................................................................................... 144
Riel v Holland, 2003, ON ....................................................................................................... 144
A v A: ...................................................................................................................................... 144
Odendahl v Burle, 1999, ON .................................................................................................. 144
Baldini v Baldini, 1999, ......................................................................................................... 144
Bak v Dobell, 2007, OCA ....................................................................................................... 145
Bak v. Dobell 2007 ON CA .................................................................................................... 145
D.B.S. v. S.R.G. 2006 SCC .................................................................................................... 145
Dispute Resolution Mechanisms

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Negotiation
Mediation
Arbitration
Collaborative family law: clients and lawyers sign an agreement stating if not able to reach
resolution of issues, the lawyers will not take case to court but the clients will have to find new
lawyers, intended to put everyone on the same page
 Court
There are times where one or more are effective for the particular family, problematic when we make
assumptions that one process is always right
When domestic violence or other imbalances of power are involved, it’s best to avoid mediation and
go to court
Problems with access to legal aid funding remain
Introduction






Move away from role of law when things go wrong towards an interest on how law regulates
ongoing families
Relationships btn private families and public sphere are challenged by legal claims that require
courts to balance individual autonomy with the need to protect vulnerable family members
We are getting closer to achieving a national family law in Canada
Katherine O’Donovan: we must think about what family law was, is and is about to be
Boyd:
o We have a tendency to get lost in technicalities of legal rules and niceties of legal
distinctions made by judges
o Need to study legal change in light of the wider social context
Canadian Bar Association: family law combines limited resources and unduly complex
procedures with lack of respect and inadequate financial reward, the amount of justice family
lawyers can produce for their clients is severely limited
13
Definition Issues
 Multiple forms and structures co-exist with more traditional units as families evolve and changedual earner, never married, reconstituted, cohabiting, gay and lesbian
 New challenges in relation to validity of same-sex marriage and entitlements to benefits for samespouse co-habitees
 Need to recognize parenthood in a variety of new situations in such as adoption and assisted
reproduction
 People often define families without taking account of the law, family law does not define family
but rather it defines particular relationships
 Ideas about relationships of families as well as obligations that bind members of families with
their communities may often diverge from legal definitions and principles
Statistics Canada
“a now-married couple (with or without never married sons and/or daughters of either or both spouses), a
couple living common law (again with or without never-married sons and/or daughters of either or both
partners), or a lone parent of any marital status, with at least one never-married son or daughter living in
the same dwelling”
 2001 addition: two people of the opposite sex or of the same sex who live together as a couple but
who are not legally married to each other
 Policy makers use Stats Can data to support initiatives relating to families so definition is critical
 Not included in definition: extended family, siblings, in-laws, friends
 Vanier Institute Criticism: does not deal with important matters such as emotional bonds that
continue to tie parents and children even after the children have left home
 Alternative definition: 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 variant combinations of maintenance, addition of new members, socialization
of children, social control of members, goods & services and love – based more on what families
DO, what brings them together in units
 Carol-Anne O’Brien & Aviva Goldberg:
o Studies have found lesbian and gay relationships are more egalitarian than hetero
o Both partners are wage earners and are often characterized by a high-level of “material
self-sufficiency”
o Lesbian and gay couples most commonly negotiate a division of labour based upon skill,
preference and energy related to age and abilities
2006 Census Highlights
 Census Definition: count if you fall within def’n, now married or common law couple with or
without never married sons and or daughter, lone parent with at least one never married son or
daughter living in the same dwelling
 Married couples are the largest group but numbers are decreasing
 Number of common-law families has increased
 Lone-parent families are on the rise for both men and women
 Number of same-sex couples are growing
 Households are declining in size
 More unmarried people than married people
 Growing number of young children (under 4) have a mother in their 40s
 Proportion of young adults living in parental home is increasing
 Birthrates are declining and life expectancy is increasing
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
Workforce participation among family members is increasing
Families in the Law
Why do we have family laws:
 Protecting vulnerable family members
 Establishing regulations and standards for functioning family
 Mechanism for dispute resolution
 Equitable property distribution
 Having a legal regime for support and obligations for children
 Mary Ann Glendon: the law seems only to reflect the fact that in modern society more and more
is expected of personal relationships at the very time that social conditions have rendered them
increasingly fragile
Sefton Holdings v. Cairns 1988 UK p. 13
Facts: applicant is a woman who accepted invitation of parents of female friend to live with them, 45
years later her friend and the parents had died, applicant sought to establish she was a member of the
family in order to remain in the home
Issue: Is she a member of the family?
Decision: No bc didn't meet def of family despite certain names and living with them
Ratio: To be a member of a family is different from being treated as a member of the family
Baker v. Canada (Minister of Citizenship and Immigration) 1999 SCC
Facts: mother of 4 children born in Canada ordered deported after living in Canada for 11 years, applying
for an exemption on humanitarian and compassionate grounds pursuant to Immigration Act
Decision: her appeal allowed
Ratio: the best interests of the child are to be considered anytime children are involved in the court’s
decisions as Canada has ratified the Convention on the Rights of the Child
Rule: the decision-maker should be alert to possible humanitarian grounds, should consider the hardship
that a negative decision would impose on the claimant and close family members, and should consider as
an important factor the connections btn family members
Application: the lower courts’ reasons for their decision do not indicate that it was sensitive to the
interests of the children and did not consider them to be an important factor, this is an unreasonable
exercise of their power
Note: the legislature is presumed to respect the values and principles contained in international law, both
customary and conventional
Jane Doe v Alberta
 Couple in common law relationship, JD wants a child, her partner doesn’t want to be a parent to
the child, JD is fine with that. JD has child through assisted reproductive measures, they want to
ensure that their decision about roles will be respected, they want a legal declaration that Mr. JD
wont be considered a father
 Mr. JD has no intention to be, hasn't consented and isn’t biological father
 Ct isn’t willing to say he is not a father, bc of relationship with JD, he could become a parent
 Best interest of child is first, ct will maintain overarching ability to intervene – SO ct says Mr. JD
is living in house, and Mr. JD is functionally acting as father – also familialism,
man/women/child – looks like a family
 How can you be in house and not perform parental functions, if ct in advance concludes he is not
a parent, is that potentially a conflict with child’s best interests later on
 Perception of child about relationship
JH v FA:
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Mom brings child to ON seeks refugee status bc of abusive ex (denied) during that proceeding
has a child in ON, Mom seeks residence on humanitarian and compassionate grounds, wants to
stay with ON child. Result of that application is a deportation order.
Immigration Policies
A) Forced removal of children to learn another language and religion away from their parents:
Natives
B) Forced removal of children because their parents’ way of life did not meet the standards of the
dominant culture: Native families
C) Use of a head tax to make it difficult, if not impossible for immigrant wives to follow their
husbands to Canada: Chinese
D) Separation of adult men and teenage boys from other members of their families in relocation of
these families: Japanese during WWII
E) Immigration policies that required workers to be single and not in common law relationships-off
shore domestic workers
a. Live-In Caregiver Program: gain entry into Canada through moving in with a family
already present and caring for their children
b. Issues of leaving their own children behind in their home country
F) Invisibility due to sexual orientation: same-sex couples
Tania das Gupta, Families of Native People, Immigrants and People of Colour, p. 18
 Native People History:
o Families vary in lineage and locality but they were extended
o Men and women related to each other with reciprocity and sharing
o Family structures supported by economic infrastructure based on reciprocity, sharing and
production for subsistence in community
o In order to subjugate and dis-empower Natives, the mercantile colonizers embarked on a
campaign to penetrate, exploit and distort Native families, and finally to destroy them
altogether
o Residential schools were hostels where children were separated from their families,
prevented from speaking their own language and their own traditions and made to
practice a semi-militaristic lifestyle including wearing uniforms and having hair shaved
off
o There was severe corporal punishment and sexual abuse of the children sent to these
schools
o Generations of depression, alcoholism, suicide and family breakdown are a result of these
experiences
o Once residential school system phased out the CAS came in – removing children from
their Native households b/c the parents were inconsistent or abusive
 Chinese Families:
o Once the railway was completed in 1885, head tax imposed that rose to $500 per head by
1903
o Wives usually stayed behind in China as they could not afford head tax
 South Asian Families
o Had to possess $200 to enter Canada
o Women could not enter Canada until 1919 and then only as wives
o Older children could not emigrate to reunite with parents
 Japanese Families:
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o
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Children were excluded from provincial schools, camp residents themselves had to build
their own schools with their own finances and staff them
o Second and third generation families quite often became assimilated into Anglo-Canadian
culture
Black Caribbean Families:
o Remain in Canada only in the job and with the employer with whom the contract exists
o Mostly female domestic workers
o Status as single and temporary deliberately organized by immigration policies
Family Law Policies/Themes
Mavis Maclean, p. 24 Policy Models
 Family is trusted by society with self-regulation but this model tends to favour the status quo
 Extreme communitarianism: close legal control over discipline for children
 Facilitative rights-based model: fits well with increasing experience of multiculturalism,
individual choice is maximized but within constraints of protecting human rights
 Quebec government example: availability of cash payments to parents at birth of a child with
higher amounts payable on birth of third or subsequent child, characterized as a pro-natal policy
rather than a family law policy
Example: The Dionnes
 Government intervened in the lives of the Dionne quintuplets not pursuant to child protection
regime but to manage them as natural resources
 Mothers and children were managed and administered through processes normally associated
with the regulation of the economy
Theoretical Frameworks
 Positivism: assertion of what the law is, a system of rules deriving its authority from law
 Functionalism: examines what families actually do
 Familiarise: ideologies modelled on family values or values taken to be associated with families
 Public/private: reflects the dichotomy within liberalism btn the public world of state, market and
politics (generally a male world) and the private realm (female world) associated with the family
 Critical family law: law is political, inherent contradictions btn ideas of individualism and
community
 Postmodernism: opportunities to consider families from the perspectives of the excluded and
oppressed as it encourages various realities, stories and standpoints
 Autopoietic theory: law and society are not separate, legal system engages in reproduction of
overall social system, thereby participating in society’s construction of reality
Family Law Themes:
 Role of state v role of family/Autonomy v protection
o State’s right to become involved in child rearing
o Who should be responsible for financial support of dependant family members (highly
political)
 Many think state obligation – ODSP
 Many think its up to family
 How do decisions get made – practices, processes, who is viewed as the ‘knower’ within those
processes, whose knowledge counts
o Increasing reliance on experts in many areas of family law, this takes away from reliance
on actual families
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Eg: financial advisor, psychiatrists, mental health experts, Office of the
Children’s Lawyer, parenting co-ordinators, Childrens Aid workers, lawyers
Equality: fair amount of charter litigation that deals with relationships, both in context of adult
relationships and children (not as successful for children)
o Arguments that have been instrumental in moving us forward: same-sex marriages,
legitimate/illegitimate children, M v H (spousal support for same sex parties), Nova
Scotia v Walsh (spousal support, common law v marriage, SCC said it was a choice not
to get married and enter into K)
o Doesn't mean no recourse, just means to division of assets must go route of unjust
enrichment – common law trust remedies
 Harder than if it was just in the family law act
o Trociuk v BC: Contrary to s 15, violated father’s equality rights, mother chose not to
name father on birth certificate
Legal process issues:
o How to we get to know what true facts are in a family case? What processes are most
fruitful? Who brings them forth? Whose story gets to be heard?
 Does it matter at law that one had an affair?
Re S.M. 1991
Facts: woman had separated from father before birth of child and remarried former partner, natural father
applying for access
Decision: in favour of mother
Ratio: best interests of the child
Application: introducing the natural father could destabilize the family unit and disturb the child who
knew him as an uncle
Re R. 1993
Facts: married woman had a child with husband but left him before birth, lived with other man and raised
child as his own
Decision: in favour of father
Ratio: it is the right of the child to know the truth as to the identity of his natural father and to have a
relationship with both natural parents
Charter Implications

In promoting equality for different kinds of families, judges have frequently compared the
functions performed within cohabiting intimate relationships
Canada (Attorney General) v. Mossop 1993 SCC
Ratio: though there is undeniable value in procreation, it is not valid to suggest that the capacity to
procreate limits the boundaries of family
Note: placing the ability to procreate as the inalterable basis of family could result in an impoverished
rather than enriched vision -this is a dissenting judgment
Miron v. Trudel, 1995 SCC
Ratio: spousal benefits under an insurance policy can be extended to an opposite-sex cohabite
Egan v. Canada, 1995 SCC
Ratio: same-sex cohabitees were not included as spouses in relation to old age security
Note: 5 judges agreed s. 15 violated but 5 agreed it was saved by s. 1
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Vriend v. Alberta, 1998 SCC
Ratio: the scope for upholding discriminatory legislation pursuant to s. 1
Rosenberg v. Canada 1998 ON CA
Ratio: Provisions of the Income Tax Act that precluded registration for same-sex couples benefits were
unconstitutional
Note: Quebec: Superior court rules that same-sex couples were cohabitees for the purposes of surviving
spousal rights in relation to rental accommodation
M. v. H. 1999 SCC
Ratio: it is unconstitutional to exclude same-sex spouses from spousal support provisions of Family Law
Act in ON
Note: led to other provinces amending legislation
AG of Quebec v B (SCC, 2012) (p 436):
 QB ct of appeal reversed a trial decision and awarded spousal support to a cohabiting spouse
following separation, even though the Code provided for such payments only to married spouses
 Pointed out legal regime didn't play a part in most couples decisions to marry or not,
Halpern v. Canada 2003 ON CA
Ratio: same-sex partners were entitled to marry
Rule: s. 15 of Charter
Application: there were no significant differences btn same-sex relationships and married couples, denial
of entitlement to marry infringes s. 15
Nova Scotia v. Walsh 2002 SCC
Ratio: it is not discriminatory for provincial legislation to establish a property-sharing regime for married
couples while excluding from its provisions the needs of cohabiting couples at the breakdown of their
relationships
Trociuk v. British Columbia (Attorney General) 2003 SCC
Ratio: provisions of B.C.’s Vital Statistics Act contravened s. 15 of the Charter that allowed a mother to
register the birth of a child without including the name of the child’s father
Note: court ordered father to apply under provincial legislation for recording of particulars on birth
registration and to request a name change that will be determined in accordance with best interests of the
child
Kreklewetz v. Scopel 2002 ON CA
Decision: dismissed father’s application
Ratio: provisions of Vital Statistics Act in ON do not contravene the Charter
Gill v. Murray 2001 B.C. Human Rights Tribunal
Ratio: lesbians who are co-parents of a child born to one of them with sperm from an anonymous donor
may register as parents on birth certificate
Dependency Issues
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Unavoidable: experienced by children and often again in old age
Accidental: those who suffer a disabling condition
Delayed: dependency arises from arrested or incomplete development
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Enforced: dependency remains for women who are engaged in both career and motherhood
Courts have focused on these issues about adequacy of financial resources in context of family
breakdown
Data about concrete financial circumstances of families may challenge theoretical legal ideas
about autonomy and independence for individual family members
State will intervene in family autonomy to provide protection for vulnerable and dependant
family members, especially those at risk to violence or abuse
Moge v. Moge 1992 SCC
Note: took judicial notice of the feminization of poverty for post-separation wives and children
Marriage v. Cohabitation
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Marriage is a contract that creates mutual rights and obligations as well as conferring a status
o Holland: no reason to differentiate btn the two based on the notion that cohabitation is
different from a traditional marriage
o Law reform is needed to eliminate the remaining legal distinctions btn the two
Cohabitees who wish to opt out of these rights and obligations would be required to contract out of
them expressly
Dual aspect of marriage is contract and status
o Contract – capacity/formalities/how it is terminated
o Status: act of being married gives rise to certain rights and obligations
Willingness to cohabit is high for Canadian-born individuals than those outside
Marriage needs to be examined in relation to cohabitation to assess implications of current reform
proposals
state’s interest in regulating marriage: monetary (benefit regulation), protecting children, promotion
of societal stability
Function of Marriage in Canadian Society:
o Proxy definition for families, stability (for kids, and adults)
Average age of marriage is rising and increasing proportion of subsequent marriages
Zheng Wu: cohabitation implies less commitment while offering many marriage advantages, allows
them to try out the relationship and see whether it will work
 High degree of functional similarity btn the two
 Need to ensure protection for dependency when either one ends
 Deech: reasons why cohabitation should not be treated as marriage:
 Different expectations
 Rejection of legal incidents of marriage
 Nature of the marriage commitment-law should respect individual freedom to create alternative
relationships without the threat of being converted to marriage by law
Nova Scotia v. Walsh 2002 SCC
Ratio: only married persons are eligible to obtain a divorce, provincial property regimes are applicable to
married couples but not cohabitees at separation
Constitutional Authority for Marriage
Constitution Act, 1867
 s. 92(13) accords responsibility to provincial legislatures in relation to property and civil rights,
this means much family law falls within provincial jurisdiction
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s. 91(26) assigns authority to legislate wrt marriage and divorce to federal Parliament, essential
validity of aspects of marriage (inherent capacity)
s. 92(12) provincial legislatures may legislate wrt solemnization of marriage in the province,
(formal validity)
federal and provincial governments have authority over spousal and child support
Civil Marriage Act to allow same-sex marriage is federal
federal law of marriage is based on common law requirements of capacity
Federal authority: 91(26): marriage and divorce
Provincial authority
o Section 92(12): solemnization of marriage
o Section 92(13): property and civil rights
Law distinguishes between essential and formal validity of marriage
o Essential validity: legal capacity of parties to marry
o Formal validity: ceremonial or evidentiary requirements imposed by state as
preconditions to marriage
Some areas that prov leg has gone that bleeds over into essential validity – but no one has
challenged them
Parliament has exclusive jurisdiction to pass laws over essential validity
Provinces have exclusive ability to legislate on formalities
Parliament hasn't done much to leg essential validity – that is why common law principles are
mingling with legislation
Validity Requirements:
 Common law:
o 2 persons (civil marriage act, ss 1-4, 8)
o Consent: Capacity – no duress, unlimited purpose
o Capacity to consummate
o Age
o No prior marriage
o Consanguinity and affinity (marriage (prohibited degrees) act)
 Formalities:
o Statute: Marriage act:
 S 4 – licence
 S 5, 6 – age
 S 7 – mental capacity
 S 17 – banns
 S 20-24 – solemnization
 S 25 – witnesses
 S 31 – curative provision
Reference re Marriage Legislation in Canada 1912 PC
Ratio: provincial legislatures could enact conditions as to solemnization which may affect the validity of
the contract
Kerr v. Kerr 1934 SCC
Ratio: consent myst be considered a part of the ceremony of marriage and not a matter affecting the
personal capacity of the parties to contract marriage
Attorney-General of Alberta v. Underwood 1934 SCC
21
Ratio: provincial authority also extended to legislating a requirement of parental consent as a condition of
validity of the marriage
History of Marriage and Annulment
 England 1753: social and legal pressures encouraged public ceremonies of marriage
 Ecclesiastical courts had responsibility for determining validity, looked at consent of parties and
public affirmation of consent by couple
 Federal legislation enacted in 1930: Annulment of Marriages Act (Ontario) conferring on ON
courts the jurisdiction to grant decrees of nullity
 Nullity actions were the only way for married couples to end relationships legally
 Decree of nullity declares there never was a marriage where divorce presupposes a valid marriage
that had legal status
 Nullity results from some defect or disability which exists at the time of the marriage ceremony
 Void marriage: one that is non-existent (void ab nitio) at the beginning, example is bigamy
 Voidable marriage: one that stands until it is annulled, example is underage parties that can have
their marriage validated if stay married after attaining age of majority
 Annulment v divorce: What is the difference
o Annulment is like the marriage never took place, there was never a valid marriage
o Divorce results from events that occurred after the marriage, it was a valid marriage
o Annulment is concerned with defect that existed at the time the marriage ceremony was
performed
o Divorce you aren’t saying there is anything wrong with marriage ceremony, something
went wrong after
 Annulment: a marriage is void or voidable: What is the difference?
o A voidable marriage is one where the status that is questionable is one that the parties can
ratify once defect no longer exists
o Void: must be no question that marriage void, couldn't have been a marriage
o A bigamous marriage – VOID (cant ever do anything to make it valid, unless you are no
longer bigamous and re-do ceremony)
o A marriage or persons who are under age – VOIDABLE (can ratify)
o A marriage entered into under duress – VOIDABLE/VOID (debatable)
 Note: Annulment of Marriage act (Ontario) 1930 – Federal Leg to grant decrees of nullity in ON
 ON Family Law Act: 1(1), para. 16:
o Definition of spouse includes either two persons who are married to each other and have
entered into a voidable or void marriage but entered into it in good faith
o IE: if one party has no idea other is in bigamous marriage, then you can get an annulment
Re Noah Estate 1961 NWT
Ratio: marriage btn aboriginal persons that was celebrated in accordance with Inuit custom is a valid
common law marriage
Dutch v. Dutch 1977 ON
Facts: former husband agreed to pay spousal support to former life as long as she remains unmarried,
wife commenced living with another man but did not marry him, husband ceased paying spousal support
Decision: spousal support to continue
Ratio: former husband has an obligation to continue to pay spousal support as common-law relationship
not the same as marriage
Guptill v. Wilfred 2009 NS SC
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Facts: parties went through a form of marriage in Sept 2001, W found out a week later H was already
married, H is seeking equal property division under Family Law Act
Issue: what does it mean to go through a void marriage in good faith?
Decision: cannot make a claim under FLA as H is not a spouse under definition in FLA
Ratio: when parties go through a religious ceremony knowing it does not comply with the legal
requirements of a valid marriage, they have not gone through a marriage in good faith
Rule: capacity to marry means that each spouse is single or unmarried, time when good faith is assessed
is at time of marriage, onus on H to establish on balance of probabilities that he reasonably believed in his
capacity to marry
Application: H was aware on date of marriage that he was not legally divorced from first wife so he did
not go through the marriage to W in good faith
Note: the law has not imposed a duty for good faith party to look into whether previous marriage has
occurred
Nullity
Federal Authority
S.91(26): marriage and divorce
Provincial Authority
S.92(12): solemnization of marriage
S.92(13): property and civil rights
Inherent Capacity
Common Law
 Consent:
Capacity
No duress
Unlimited purpose
 Capacity to consummate
 Age
 No prior marriage
 Not to be within prohibited
grounds of consanguinity and
affinity
Statutes
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Marriage (Prohibited Degrees)
Civil Marriage Act
Statute
Form
Formalities
 Marriage Act
s. 4: Licence
s. 5-6: Age
s. 7: Mental capacity
s. 17: Banns
s. 20-24: Solemnization
s. 25: Witnesses
s. 31: Curative Provision
Prohibited degrees
Parliament has not legislated wrt capacity to marry
capacity to consent to marriage means having the capacity to understand and be free from duress
and without taking account of reservations about or limited purposes of marriage
Mental Capacity
Durham v. Durham 1885 UK
Facts: Earl of Durham sued for declaration of nullity, claiming Lady Durham of unsound mind and
incapable of contracting marriage
Ratio: the burden of showing insanity at the time of the marriage rests with the party asserting it
Rule: whether she was capable of understanding the nature of the contract and the duties and
responsibilities created by it and free from morbid delusions about it
Application: LD was able to give her consent at the time of the marriage, ‘The contract of marriage is a
very simple one, which does not require a high degree of intelligence’
Webb v. Webb 1968 NS
Facts: two residents of psych hospital in NS married
Issue: was the person able to give consent to the marriage?
Decision: application for degree of nullity dismissed
23
Ratio: the fact that a person has a mental illness is not, by itself, sufficient to validate a marriage
Rule: test for determining capacity is whether there was capacity to understand the nature of the contract
and the duties and responsibilities it entailed – LOW threshold
Application: husband was mentally capable
Note: compare to provincial S. 7 (Marriage Act): No person shall issue a license to or solemnize the
marriage of any person whom he or she knows or has reasonable grounds to believe lacks capacity to
marry by reason of being mentally ill or mentally defective or under the influence of intoxicating liquor or
drugs
 Thompson: studies indicate success of mentally disabled individuals involved in marriage, little
or no correlation btn degree of handicap and success of partnership, in nearly every case the
marriage had brought substantial enrichment to the lives of those people studied
 provisions of some provincial statutes may contravene Charter rights of persons with mental
disabilities cuz the statutory language is over-inclusive and there’s a disparity caused by
provincial variations
Banton v Banton
 Mr. Banton had sufficient capacity to marry but insufficient capacity to direct a valid
testamentary disposition. Why?
 Knew what he was getting into, ct said there wasn't capacity to enter into new will, but he has
requisite mental capacity to consent to marriage
 Challenge to will allowed, but marriage still ok, underlying assumption about benefits of
marriage
o PRESUMPTION of validity for marriage
Does intoxication negate consent?
 No annulment, BC SC says marriage was valid, applicant went through deliberate and time
consuming steps all rationally connected to getting marriage, drunkenness not equal to being
incapable of understanding you are entering into a marriage
 Marriage Act s7: no person shall sue a licence to or solemnize the marriage or any person who,
based on what he or she knows or has reasonable grounds to believe, lacks mental capacity to
marry by reason of being under the influence of intoxicating liquor or drugs or for any other
reason
Duress
Scott v. Sebright 1886
Facts: W lent funds to H, fell into arrears, H told her the only way to avoid bankruptcy and harm to her
rep was to marry him, H threatened to shoot her if she told anyone she was not acting with free will at
ceremony
Decision: grant of nullity for W, subjective approach
Ratio: the validity of a contract of marriage must be tested and determined in precisely the same manner
as that of any other contract for fraud or duress, must be significantly afraid to remove consent
Cooper v. Crane 1891
Facts: H, who is W’s cousin, threatened to commit suicide if W did not marry him, H subsequently
discovered that she had no money, three years passed
Decision: valid marriage
Ratio: duress consists of harm to the person under duress, not a suicide threat
Rule: evidence must demonstrate she did not understand what she was doing or that her powers of
volition were paralyzed
Application: the facts were not sufficient to rebut the presumption of consent
24
Buckland v. Buckland 1967 UK
Facts: H claiming duress, H serving as officer in Malta, got girl pregnant, family threatened to have him
charged with corrupting a minor
Decision: marriage annulled
Ratio: fears that are reasonably entertained (objective) and arise from external circumstances for which
he is in no way responsible is duress
Application: H agreed to marriage solely to avoid prison, which judge thought was a false charge
S.(A.) v. S.(A.) 1988 ON
Facts: W applying for nullity with no response from H, W only married H after considerable pressure
from mom and step-dad, evidence step-dad sexually abused W, parents to be paid by H
Decision: marriage annulled
Ratio: new test for duress:
 Court found duress didn’t have to be physical in nature
 Onus of proving duress is on the party asserting the annulment
 There should be presence of fear, may not come from the defendant but must arise form the external
circumstances beyond the control of plaintiff, absence of free choice
 The fear doesn’t have to physical in nature
 The test of fear is subjective, not a reasonable person test.
Rule: Look at age of applicant, circumstances surrounding party, emotional state, time btn duress and
marriage, consummation, whether parties lived as husband and wife for period of time
Application: applicant has discharged onus of proof
Note: public policy requires that marriages should not be lightly set aside - do not need to have physical
duress, emotional duress is enough
Arranged Marriages as Duress
Singh v. Singh 1971 UK CA
Ratio: economic, social, parental or cultural pressures must be distinguished from duress which is fear
caused by threat of immediate danger to life, limb or liberty
Singh v. Kaur 1981 UK CA
Facts: H married to avoid disgrace and loss in family business
Decision: valid marriage
Ratio: mere family pressure is not duress
Hirani v. Hirani 1982 UK CA
Facts: parents arranged for W’s marriage to Hindu man when she wanted to marry a Muslim, did not
consummate the marriage and left H after 6 weeks
Decision: marriage annulled
Ratio: Ostracism is duress
Rule: whether the threats, pressure, or whatever it is, is such as to destroy the reality of consent and
overbears the will of the individual
Application: consent vitiated - She was young, wholly dependent on parents,
Parihar v. Bhatti 1980 BC SC
Facts: W’s application to null arranged marriage
Decision: valid marriage
Ratio: duress sufficient to set aside the marriage must be of such a nature that powers of volition are so
affected that it was really no consent
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Rule: mere family pressure is no duress
Singh v. Singh 1980 ON
Facts: P adduced to participate in ceremony on promise from respondent’s family to provide material
benefits
Ratio: non-threatening pressure is not duress
Note: tone of reluctance by courts to interfere with tradition of arranged marriage
In the Marriage of S. 1980 Australia
Decision: marriage annulled
Ratio: duress creating a nullity should be broad enough to encompass non-violent but controlling parental
coercion
Rule: subjective vantage point of the unwilling bride
Note: courts are more receptive to applications by women than men, see Mahmud v. Mahmud where H
was married due to parent’s arrangement to W who he had not seen before and never did again, court held
marriage valid
Limited Purpose Marriage
 Question of whether parties have gone through a form of marriage for limited purpose that would
render marriage invalid, usually immigration
Iantsis v. Papatheodorou 1971 ON CA
Ratio: where all that is alleged is a mental reservation on the part of the D, that is not sufficient to
derogate from the effect to be given to the solemn declaration of the spouses made in the course of a
marriage ceremony. Just because parties have gone through a form of marriage for a limited purpose will
not of itself, render the marriage invalid
S.(A.) v. S.(A.) 1988 ON
Facts: W applying for nullity with no response from H, W only married H after considerable pressure
from mom and step-dad, evidence step-dad sexually abused W, parents were to be paid by H,
Decision: marriage annulled
Ratio: the mere fact that parties go through a form of marriage for a limited or extraneous purpose will
not of itself render the marriage invalid
Singla v. Singla 1985 NS
Facts: marriage arranged according to Hindu custom by brothers of P and D, P alleged marriage
fraudulently obtained by D to enter into Canada
Ratio: where there was no mistake as to the nature of the ceremony or the identity of the parties the
marriage is valid
Note: public policy perspective: to hold otherwise would be to open the floodgates for the dissolution of
many marriages on the basis that one of the parties was deceived as to the intent of the other
US v. Rubenstein
Ratio: if spouses agree to a marriage only for the sake of representing it as such to the outside world and
with the understanding that they will put an end to it as soon as it has served its purpose to deceive, they
have never really agreed to be married at all
Consummation
 Inevitably requires the presentation in public of evidence about the intimate relations of the parties
 Traditionally, consummation was understood as “ordinary and complete” intercourse between
spouses after the marriage ceremony
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Requirement is “capacity” to consummate rather than evidence proving consummation occurred
M. v. M. 1984 PEI
Decision: marriage annulled
Ratio: even if no physical impediment exists, a marriage can be annulled on the psychological basis of
inability to consummate
Norman v. Norman 1979 ON
Facts: 64 year old W and 65 year old H, W testified she expected to have companionship and did not
expect a sexual relationship
Decision: marriage valid
Ratio: it is not open to a party having entered into a platonic marriage to complain of the absence of
sexual intercourse
Gajamugan v Gajamugan (1979)
 Test for capacity to consummate a marriage:
o Impotence must exist at the time of marriage
o The incapacity pleaded must be such as to render intercourse impractical the incapacity
may stem from a physical, mental or moral disability
o The impotence must be incurable
Chirayath v. Chirayath 1980 ON CA
Ratio: medical reports are insufficient to establish capacity in an action for annulment but are satisfactory
to meet requirements of the divorce statute
Rule: s. 4(1)(d) of former Divorce Act non-consummation of marriage
Application: marriage was valid but parties can divorce
Prohibited Degrees of Consanguinity and Affinity
Marriage (Prohibited Degrees) Act 1990, c. 46
An Act respecting the laws prohibiting marriage between related persons
1. This Act may be cited as the Marriage (Prohibited Degrees) Act.
2. (1) Subject to subsection (2), persons related by consanguinity, affinity or adoption are not prohibited
from marrying each other by reason only of their relationship.
(2) No person shall marry another person if they are related lineally, or as brother or sister or halfbrother or half-sister, including by adoption.
3. (1) Subject to subsection (2), a marriage between persons related by consanguinity, affinity or adoption
is not invalid by reason only of their relationship.
(2) A marriage between persons who are related in the manner described in subsection 2(2) is void.
4. This Act contains all of the prohibitions in law in Canada against marriage by reason of the parties
being related.
5. [Repeal]
*
6. This Act shall come into force on the day that is one year after the day it is assented to, or on such
earlier day in any province as may be fixed by order of the Governor in Council at the request of that
province.
* [Note: Act in force December 17, 1991.]
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people related too closely by relationships of blood (consanguinity) and relationships by marriage
(affinity) are prohibited from marrying
relationships of adopted persons within the family are as if they were natural relationships
Adoption: may limit abuse, adoption also renders you formally a part of that family, you are like a
biological child, don't want distinction between
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Polygamy - must have no prior existing marriage
 religious background based on notion of monogamy
 there are challenges occurring to underlying value of monogamy, whether it needs to be imposed
on everybody
 Bigamy renders marriage void- but remember good faith provision in FLA
 Family Law Act s. 1(2): spouse includes persons who are parties to a polygamous marriage that
was valid in the jurisdiction where the marriage took place
 Criminal Code s. 290: polygamy is illegal but Crowns won’t prosecute due to Charter
considerations
Knight v. Knight 1995 ON
Facts: H from ON obtained divorce from first wife in Mexico, married second W in Pennsylvania as ON
did not recognize divorce from first wife, when second marriage ending he is arguing it was void as still
validly married to first wife
Decision: second marriage valid
Ratio: divorces from foreign jurisdictions can be accepted in accordance with public policy
considerations
Application: it would be against public policy to allow H’s argument to stand
Polygamy
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polygamy is a crime under the Criminal Code s. 293
 s. 153: criminal code, crime of sexual exploitation to be in a position of trust and authority and
have sex with someone under 16
 religion surrounds the entire discussion of marriage
 There are other religious groups that practice polygamy, such as Islam
 Islamic justification: bring extra women into house to protect them, ensuring ppl are cared for
 Mormon justification is that in order to get to heaven, you need to have 3 wives as a minimum,
wives can only go if husband is good husband through him having more wives, his priesthood
gets you into heaven
 Problem of young boys for whom there is no space in the configuration, kicked out at 16, known
as the Lost Boys
 Polygamy: plural marriage
 Polyandry: 1 wife and more than 1 husband, very rare, apparently not stable.
 Polygyny: 1 man and more than 1 wife. By far most common form of polygamy, polygamy refers
often solely to polygyny
 Family law context – some limited econ protections for spouses whose polygamous marriage was
valid according to the law where it was solemnized
 BC Reference Case:
o Court held that s 293 infringes freedom of relig however,
o Provision saved by s 1 (demonstrably justified in a free and democratic society)
o What are harms that s 293 is designed to protect against?
 Women and children
Baines: The constitutional challenge of polygamy
 Crown will attempt to justify infringing Charter rights on grounds that prohibition protects
women
 Second-guessing the life choices of an adult woman constitutes paternalism
 Real contest of challenge to criminal code provisions is at s. 1 justification stage
28
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Prosecutors never charge women with this crime
Protecting women is over-inclusive: not all polygamous relationships subordinate women
Also under-inclusive: monogamous women’s choices can also be subject to coercion
Prohibition on polygamy likely to fail minimal impairment as it is absolute with 5 years of
incarceration
Canada already has an anti-legalization policy in Civil Marriage Act
Issue of calling current wives to the stand: may be protected under spousal privilege evidentiary
rules
Drummond: You really want them all charged?
 For a divorce based on adultery, neither spouse can have condoned the other’s extramarital sex
and swinging with your spouse constitutes condonation
 Spouses have been free to commit adultery without consequence to determining child custody,
support or division of property
 Canadians can be civilly divorced but religiously married, the state only carries out civil divorce
 many ppl are in violation of a strict application of s. 293
 legislation is so broad that it could encompass anyone married and separated and started living
with another person, pretty common even these days
 Catholics can never divorce religiously
 we need to think through what we’re troubled about then think what the appropriate legal
recourse is to deal with those concerns
BC Reference re Criminal Code of Canada (2011):
 Reference to BC SC asking two questions:
o Is s 293 of Criminal Code of Canada consistent with the Charter? If not, in what ways
and to what extent?
o What are the necessary elements of the offence in s 293 of the CC? Does s 293 require
that the polygamy or conjugal union in question involve a minor, or occurred in a context
of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue
influence?
 Issues were if freedom of relig was infringed by s 293, and if polygamy harmed women and
children
 Ct concluded that although s 293 infringes the guarantee of freedom of relig, it is demonstrably
justifiable in a free and democratic society
o Children under 18 at the time of entering a polygamous union were excluded from the
application of s 293 and union does not have to involve a minor or occur in a context of
dependence, exploitation, abuse of authority, gross imbalance of power or undue
influence
Age
 federally, the common law still stands as they have not legislated
o Marriage to a person less than 7 is void
o Marriage to a male b/w 7-14 OR female 7-12 is voidable
 provincially, need parental consent if btn 16 and 18 and can’t get married below 16, Marriage Act s. 5
Legebokoff v. Legebokoff 1982 BCSC
Facts: W petitioned for invalid marriage as she was 15 at time of ceremony, ceremony conducted in
accordance with Doukhobor faith and parties lived together for 16 years
Decision: marriage valid
29
Ratio: a marriage where either or both parties were under age becomes validated if they continue to
cohabit as H and W after reaching the age of capacity
Rule: presumption that law has a favourable attitude toward marriage
Solemnization Formalities
Marriage Act R.S.O. 1990
 S. 4: Licence: No marriage may be solemnized except under the authority of a licence issued in
accordance with this Act or the publication of banns
 S. 5(1): Age: Any person who is of the age of majority may obtain a licence or be married under the
authority of the publication of banns
 S. 5(2): No person shall issue a licence to a minor, or solemnize the marriage of a minor … except
where the minor is of the age of 16 years or more and has the consent in writing of both parents
 S. 5(4): where the parents are divorced or living apart the consent may be given by the parent with
actual or legal custody
 S. 5(5): Where parents are dead – what procedure to follow
 S. 5(6): where the minor is a ward of s.o. other than the parents
 S. 6: Where consent not available the court may give it
 S. 7: Mental Capacity: No person shall issue a licence to or solemnize the marriage of any person
whom he or she knows or has reasonable grounds to believe lacks capacity to marry by reason of
being mentally ill or mentally defective or under the influence of intoxicating liquor or drugs
 S. 17: Banns: where a marriage is to be solemnized under the authority of the publication of banns
 Ss. 20-24: Solemnization: Who can solemnize a marriage, how records are kept, how the marriage is
solemnized
 S. 25: Witnesses: Every marriage shall be solemnized in the presence of the parties and at least 2
witnesses who shall affix their names as witnesses to the entry in the register made under s 28
 s. 31 of Marriage Act, can apply to render marriage valid, would be done in situation where you
weren’t necessarily looking to get out of rights and responsibilities but want to be married
Alspector v. Alspector 1957 ON CA
Facts: parties neglected to get a marriage licence but married under requirements of Jewish law, H did not
believe they needed a licence at the time as they would move to Israel, lived in ON for 7 years then H
died
Decision: valid marriage
Ratio: in determining what constitutes good faith under s. 31, courts can look to the parties’ intentions to
be compliant with the provincial laws, religious belief and banns can overcome licensing requirement
Rule: s. 31 of Marriage Act
Application: W did not know the absence of a licence could affect the validity of her marriage and she
intended that the marriage be in compliance with the laws of the province
Reaney v. Reaney 1990 ON
Facts: marriage void due to prior marriage of P, P applying as spouse under FLA definition
Decision: void marriage
Ratio: definition of spouse includes a party to a void marriage only if the person claiming the relief went
through the marriage in good faith
Application: because P knew he was already married at time of 2nd marriage, he did not enter it in good
faith
Debora v. Debora 1999 ON CA
Facts: parties married in religious ceremony they both knew did not comply with Marriage Act, then
remarried 7 years later in a valid ceremony
30
Ratio: Equalization is to be calculated from date of valid marriage not any prior invalid ones
Rule: policy argument for certainty of identification of the status being married as the indicator for
distribution of assets
Application: both parties knew first marriage was invalid, so no good faith to use s. 31
Keobounphan v Khamvongsa (1998) (p 114)
 Ct rejected application for divorce for women who lived with husband for 7 yrs and had two
children but only married through chinese tea ceremony, not actual marriage in accordance with
marriage act
Same-Sex Marriage Reform
Hyde v. Hyde 1866 UK
Facts: English man married woman in Utah when both were single, he changed his mind about faith, was
excommunicated and went back to England, wife free to remarry, attempting to gain grounds of divorce
based on adultery
Issue: what are the available divorce remedies available in relation to a marriage entered into in a foreign
land where polygamy is acceptable?
Decision: no jurisdiction to hear case
Ratio: Marriage may be defined as the voluntary union for life of one man and one woman, to the
exclusion of all others – now changed to two persons to include same sex couples
Note: this definition of marriage has been cited more frequently for supporting requirement of
heterosexuality for a valid marriage
North v. Matheson 1974 Man
Ratio: a marriage is void if both parties are the same sex, registrar refused to register same-sex couple
Rules: dictionary definition of marriage, Hyde
Haig v. Canada 1992 ON
Ratio: sexual orientation is an analogous ground of discrimination under s. 15 of the Charter
Re Layland (Re Layland and Beaulne and Ontario Ministry of Consumer and Commercial Relations 1993
ON)
Ratio: s. 15 of the Charter does not alter the requirement of a man and a woman in Hyde
Application: the law does not prohibit marriage by homosexuals provided it takes place btn persons of
the opposite sex, relied on North
Dissent: Justice Greer, denying marriage application was discriminatory, common law has to grow to
meet society’s growing needs “does not remain static”
M. v. H. 1999 SCC
Ratio: definition of spouse in ON FLA in relation to entitlement to spousal support at the end of a
relationship discriminated against same-sex couples contrary to s. 15 of Charter,
EGALE Canada Inc. v. Canada (Attorney General) 2001 BC SC
Ratio: definition of marriage could not be amended at common law but only by legislation
Rule: meaning of marriage in s. 92(26) on Constitution defined at confederation and was not amenable to
Charter scrutiny
Halpern v. Canada 2002 ON
Facts: City of Toronto refused to grant licences to those married at the Community Church
Issue: Are same-sex couples entitled under Canadian law to marry?
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Decision: common law rule barring same-sex marriage is struck out, sent to Parliament to legislate
Ratio: Parliament is the forum for balancing conflicting societal interests and not the courts
Rule: once it is accepted that same-sex unions can feature the same conjugal and other incidents of
marriage, except for hetero intercourse, and if hetero procreation is no longer viewed as he central
characteristic of marriage, giving it its inherently hetero uniqueness, the s. 15 argument must succeed
Application: s. 15 of the Charter is violated and cannot be saved under s. 1
Halpern v. Canada 2003 ON CA
Decision: court overturned suspension allowing 2 years for Parliament to create legislation and
substituted an order mandamus requiring the Registrar to accept marriage certificates of same-sex couples
followed Dissent in Layland
Ratio: the common law requirement that marriage be btn persons of the opposite sex does not accord with
the needs, capacities, and circumstances of same-sex couples
Rule: purpose and effects of the impugned law must at all times be viewed from perspective of claimant,
question to be asked is whether the law takes into account the actual needs capacities and circumstances
of same-sex couples, not opposite-sex
Application: government also failed to show objectives of excluding same-sex couples from marriage
were pressing and substantial or that the means chosen were reasonable and justified in a free and
democratic society
Note: Government didn't appeal, sensitive political issue A Federal bill was then drafted and government
brought reference to SCC:
Re Civil Marriage Act SCC
Facts: legislation by the federal government stating:
1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of other
2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform
marriage that are not in accordance with their religious beliefs
 SCC Decision:
o The provision in the draft bill authorizing same-sex marriage is within Parliament’s
exclusive legislative authority over legal capacity for civil marriage under subsection
91(26) of the Constitution Act, 1867
o The provision authorizing same-sex marriage was consistent with the Canadian Charter
of Rights and Freedoms and, in the circumstances giving rise to the draft bill, flowed
from it;
o The religious freedom guarantee in subsection 2(a) of the Charter is sufficiently broad to
protect religious officials from state compulsion to perform same-sex marriages against
their religious beliefs
 Ratio: #2 is ultra vires the government, covered by s. 2 of the Charter freedom of religion
o *Note subsequent litigation in Saskatchewan about public officials (non) ability to refuse
to perform same sex marriages 94-97
 apparatus of state serves everyone equally without providing different services or
making distinctions based on factors of race, gender etc
Proposed Civil Marriage Act Reform:
 Problem: non-resident divorce
o Many same sex partners who did not reside in Canada came to Canada to be married –
now having difficulty getting divorces
o See bill C-32 (we will return to this)
 Not all same sex parties view civil marriage act as a victory
o Don't want baggage that comes with marriage, might change their culture
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One alternative to marriage – registered domestic partnerships
o True relationship can be reflected, don't have to get married – middle ground
Civil Marriage Act S.C. 2005 c. 33 – Current Legislation
1. This Act may be cited as the Civil Marriage Act.
2. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
3. It is recognized that officials of religious groups are free to refuse to perform marriages that are not in
accordance with their religious beliefs.
3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any
obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in
respect of marriage between persons of the same sex, of the freedom of conscience and religion
guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in
respect of marriage as the union of a man and woman to the exclusion of all others based on that
guaranteed freedom.
4. For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same
sex
New Challenges: trans Persons, Marriage and Sex:
 Re Kevin: AUS, ct recognized validity of female to male transsexual person
o Declined to follow Corbett v Corbett (eng) where ct held marriage between male and
male to female transsexual was void
 “The biological sexual constitution of an individual is fixed at birth (at the latest)
and cannot be changed, either by the natural development or organs of the
opposite sex, or by medical and surgical means”
o European Ct of HR - rendered Corbett inapplicable, subsequent UK legislation permits
post-operative transsexuals to marry
Corbett v Corbett (1970) (UK) (p 128)
 Held marriage between a man and a male-female trans was void bc the biological sexual
constitution of an individual is fixed at birth and cant be changed
 No longer binding due to European Court of Human Rights decision in Goodwin v UK (2002)
Goodwin v UK (2002) (EC HR) (p 128)/I v UK (2002) (ECHR)
 Confirmed violations by UK of applicants rights to privacy and to marry pursuant to articles 8
and 12 of the European Convention on Human Rights
 After this the UK introduced the Gender Recognition Act, has been criticized though for seeing
gender dysphoria and trans identity as a medical issue
Civil Unions and Registered Partnerships:
 Registered Partnerships – available in a number of European jurisdictions and Canadian
provinces
 Allows for individuals to choose to be included in legal rights and responsibilities similar to those
associated with marriage
 Discussion of registered partnerships became popular in context of same sex partnerships, but
need not be limited to these relationships
 Note Law Commission report – proposed expanding types of relationships that could be regulated
so as to recognize important values of equality within relationships and autonomy
o LCC report seems to favor expanded use of registered partnerships
Family Relationship Reform
33
Law Commission Report On Conjugality
 identifies three types of relationships
o Conjugal relationships: marriage and cohabitation, same and opposite sex
o Non conjugal households and relationships: economic families
 Persons with disabilities and their caregivers
 recognizing and supporting personal adult relationships that involve caring and independence is an
important state objective
 equality and autonomy are the two most important values
 relational equality: seeks to equalize the legal status among different types of relationships
 equality within relationships seeks to overcome unequal distributions of income, wealth & power
 autonomy requires that gov’ts put in place the conditions in which ppl can freely choose their
personal relationships
 personal security enhances the ability of individuals to make healthy choices about entering or
remaining in relationships
 state should avoid establishing legal rules that require intrusive examinations
 state should not take sides in religious matters
 coherence requires that laws have clear objectives and their legislative design corresponds with
achievement of those objectives
 where the state must ascribe rights and responsibilities to achieve its objectives, it would be
preferable to more carefully tailor laws to take into account the functional attributes of particular
relationships
 Income Tax Act provisions should be extended to all persons living together in economically
interdependent relationships
 state must provide adequate legal structures to support the relationships that citizens develop,
structures that respect the values of equality, autonomy and choice
 marriage is no longer a sufficient model
 private law model through contracts is too burdensome and costly
 ascription: infringes on autonomy
 relationship registration is the best model to follow
A.A. v. B.B. and C.C. 2007 ON CA
Facts: DD has 3 parents: biological father, biological mother and her partner, two women are primary
caregivers but believed it was in best interests of DD that BB remain involved, AA is applying for
declaration that she is DD’s mother
Decision: AA is also a parent of DD
Ratio: the court can make such an order by exercising parens patriae jurisdiction
Rule: parens patriae jurisdiction may be applied to rescue a child in danger or to bridge a legislative gap
Application: advances in our appreciation of the value of other types of relationships and in the science
of reproductive technologies have created gaps in the CLRA’s legislative scheme
Doe v. Alberta 2007 ON CA
Facts: an express written agreement entered into by the natural mother of a child and her co-habiting
male partner who did not father the child which stipulates the partner has neither parental rights not any
obligation to support the child
Issue: is this contract effective in law?
Decision: contract will not be enforced by courts
Ratio: the nature of the relationship btn parent and child are ones that must be assessed over time, cannot
contract out of parenting rights and obligations in advance of caring for a child
Rule: it is the right of a child to support in the best interests of the child
Application: contracting in advance would take away the child’s right to support
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Note: John Doe not deprived by the legislative scheme of the ability to order his life towards the child as
he saw fit, he chose to enter into the relationship of interdependence with a mother of a newborn child of
some permanence
Parent-Child Relationships
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marriage is a relationship easily terminated, parent-child ties tend to last
scope of rights and responsibilities for parents and children often appear less flexible than those
defined by marriage
Fineman: mother-child relationship should replace marriage as core family unit for purposes of legal
policies so single mothers and extended families would not be the deviant (view is exclusionary of
two male parents)
Recent medical developments wrt processes of assisted reproduction have also challenged norms
See also new census figures – more same-sex, foster parents, children from previous relationships
Identification of friends as family is regarded as reflection of how the subjective meaning of family is
changing and how individuals may by shifting their locus of intimacy away from kin, disrupting the
taken-for-grantedness of primacy of blood and marital relationships
Have significant impact on support, care and succession
Issues: biology, social parenting, assisted reproductive technology
Defining Parentage:
 Definitions of parent-child relationships
o Do not always conform to everyday notions about parents and children
o Can change depending on legal context (eg Consent to adoption v obligation to support a
child)
o Are in flux due to advances in artificial reproductive technologies
 Most laws tend to assume traditional view of parents
Birth
Vital Statistics Act ON
Certification of birth
9. (1) The mother and father, or either of them, in such circumstances as may be prescribed, or such other
person as may be prescribed, shall certify the birth in Ontario of a child in the manner, within the time and
to the person prescribed by the regulations.
(3) both parents may register a child’s birth but the mother is permitted to register alone if the father is
incapable or is unacknowledged by or unknown to the mother
How child’s surname determined
10(3) a child’s surname shall be determined as follows:
1. If both parents certify the child’s birth, they may agree to give the child either parent’s surname or
former surname or a surname consisting of one surname or former surname of each parent, hyphenated or
combined.
2. If both parents certify the child’s birth but do not agree on the child’s surname, the child shall be given,
i. the parents’ surname, if they have the same surname, or
ii. a surname consisting of both parents’ surnames hyphenated or combined in alphabetical order, if they
have different surnames.
3. If one parent certifies the child’s birth and the other parent is incapable by reason of illness or death,
the parent who certifies the birth may give the child either parent’s surname or former surname or a
surname consisting of one surname or former surname of each parent, hyphenated or combined.
4. If the mother certifies the child’s birth and the father is unknown to or unacknowledged by her, she
may give the child her surname or former surname.
35
Kreklewetz v. Scopel 2002 ON CA
Facts: Mother had on off and on relationship with child’s father. Mother didn’t include father’s surname.
Father had a promise for surname. Father was acknowledged for child-support payments
Ratio: mothers are not required to acknowledge fathers for purposes of the birth registration and surname
even though she knows his identity and has acknowledged him as the father for the purposes of access
and support
Rule: plain meaning of the statute
Application: only interpretation that gives effect to plain meaning is that the mother does not have to
acknowledge the father for the purpose of registration under the Act
Note: this is a legislative policy decision in recognition that there will be circumstances where a mother
will have the ongoing responsibility for the child and should not be forced to have the child linked by
name with the biological father
Trociuk v. British Columbia (Attorney General) 2003 SCC
Facts: T is father to triplets that M had registered on her own marking the father as unacknowledged and
registering the surname as hers alone
Ratio: the best interests of the child is the factor in determining whether to change the surname of a child
Rule: s. 1 minimum impairment
Application: There are ways of achieving the goals of statue which will infringe father’s right much less.
BC legislature had already amended the statue and court took notice of it.
Notes:
 Including one’s particulars on birth registration is an important means of participating in a child’s
life
 Evidences biological ties btn parent and child, including particulars affirms the ties
 Contribution to process of determining a child’s surname is another significant mode of
participation in the life of a child
 Claims to be the first decision to recognize men as a historically disadvantaged group in Canadian
society
Lessard’s Criticism of Trociuk
 Access was exercised infrequently
 Reducing fatherhood to genetic paternity while at the same time according genetic fathers the full
panoply of constitutionalized parental rights
 Trociuk could not even meet definition of social parent
Gallant v Ontario: similar challenge, leg in ON that allows for the non acknowledging dad and not
putting dad’s name on register is invalid
 Ct says we need to be guided by Trociuk, in this case father was involved in daily life of child
 Ct said it would be unfair to enforce the leg, if overturned same leg in BC
 Breathtaking example of sex discrim, leaving father without recourse
 Ct says has no statutory authority to deal with this, but there is a gap in leg, so can require this
 Gives all rights but do fathers then have responsibilities??
 2009 amendments to On Vital Statistics Act do not alter mother’s right to “not acknowledge”
biological father, but regulations provide for amendment to register
Johnson-Steeves v. Lee 1997 AL CA
Ratio: s. 7 of the Charter does not create a right for the custodial parent to decide on a family model
which excludes the other parent form the life of their child
Rule: best interests of the child
Application: access to F
Note: if s. 7 were to apply, it would protect the rights of both parents, not just M
36
Collier: almost a legal presumption in favour of contact or shared parenting, a presumption that may run
counter to the wishes of children themselves in relation to their fathers
-Smart: focus on welfare of the child and the concern to attach men to their children are policies that have
been developed as correctives to what have been seen as past errors in family law policy
Social Parentage:
 Consider motivations of fathers in Trociuk and Gallant
 How do these compare to motivations of fathers in GES v DLC
o Man is not bio father, becomes involved in caring for kids, habitual babysitter, mother pulls
access after man becomes depressed
o Trial level – man gets access, benefits children
o Ct of appeal – reverses, man is more than babysitter but much less than a parent
 What if he had agreed to donate his sperm? Would probably see him more as a father
than a babysitter.
Adoption
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Statutes passed in most provinces in 1920 and 1930
Pregnant unmarried women placed their babies for adoption to avoid stigma of illegitimacy and
childless couples adopted them to avoid problems of incompleteness
Adoption orders are required to meet the best interests of the child
Decline in adoptions in recent years due to increase in birth mothers or non-adopting surrogate raising
the infant
2 broad categories of adoption
o Arranged and carried out by state’s child welfare authority (non-consensual)
 Where children become permanent wards of the state (generally not consensual)
o Private adoptions (consensual)
 Agency adoptions
 Private adoptions without intermediary
Provincial adoption statutes require parental consent before the placement of children or orders for
adoption and the resulting change of the child’s legal status
Child and Family Services Act ss.136-139, 137 (1) covers adoption, but when we start to look at
parentage and def’n of parent for purposes of adoption, we need to tap into Children’s Law Reform
Act
Children’s Law Reform Act s.8 defines parent
1. People excluded from this section are the casual fornicator and people cohabiting after
the child’s birth only
Who must consent to the adoption of a child (CFSA s 137(2))
o Child must be under 16, or over 16 but not withdrawn from parental control, written consent
of every parent
Who is a parent for the purposes of consent (CFSA 137(1))
o Child’s mother, someone who has lawful custody of child, someone who has indicated a
settled intention to treat child as part of their family, has custody of family, acknowledgement
of parentage
o Father 137(1)b - an individual described in one of paragraphs 1 to 6 of subsection 8 (1) of the
Children’s Law Reform Act, unless it is proved on a balance of probabilities that he is not the
child’s natural father. Presumption he is father if:
 Married to mother of child at the time of birth
 Was married to mother within 300 days before the birth of the child
 Marries the mother after birth of child and acknowledges he is father
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Was cohabitating with mother in the relationship of some permanence at the time
of birth of the child or within 300 days after they stopped cohabiting
 Person certified the child’s birth, as father under the vital statistics Act or a
similar act in another jurisdiction in Canada
 Person has been found or recognized in his lifetime by a ct of competent
jurisdiction in Canada to be the father of the child
Changes since legislation:
1. More stepparent adoptions
2. Rise of cross-cultural adoption
3. Single parent adoption
4. Greater numbers of older and disabled children
Adoptions are carried out in 4 ways:
1. Arranged and carried out by CAS through wardship of the Crown
2. Arranged and carried out by CAS where biological parents consent to adoption and
transfer legal guardianship to adoptive agency
3. Private adoption, must be licensed by child and welfare agencies
4. Adoptions sanctioned directly by court
S. 158 CFSA: an adopted child is the child of an adoptive parent as if the adopted child had been born
to the adoptive parent
Provincial legislation often terminates birth parent’s access to an adopted child but there have been
exceptions for family adoptions
Re Attorney General of Ontario and Nevins 1988 ON
Facts: biological mother swore an affidavit that there was no father under the provisions of CFSA s. 137
(1)
Ratio: the casual fornicator is not the father for the purposes of the legislation
Rule: no legislation that a mother must make a father aware
Application: such legislation would unduly delay adoption proceedings which may result in serious risks
of long-term behavioural, emotional or psychological harm for the child
Note: the legislation is not infringing s. 15 of the Charter as biological mothers are not similarly situated
as the casual fornicator mother shows responsibility to child by carrying and giving birth, only fathers
who demonstrate minimum interest in consequences of sexual activity and don’t demonstrate
responsibility are not fathers
Re F.L. 1987 BCSC
Issue: does s. 8(1)(b) of the BC Adoption Act violate the Charter as it requires only the consent of the
mother if the parents had never been married?
Decision: Yes
Ratio: biological fathers who show interest are entitled to consent
Rule: s. 15 of Charter based on sex and marital status
Application: discriminated against unmarried fathers who do show an interest and treated them less
preferentially than unmarried mothers
Re T. and CAS 1992 NS SC
Facts: father did not know child existed, mother made adoption arrangements
Ratio: used parens patriae jurisdiction to determine it is in the best interests of the child for the court to
hear the father’s application for custody
Rule: failure to give notice to father was consistent with legislative requirements
Application: legislation does not infringe s. 15
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CA: reversed this decision, no jurisdiction in the court where the legislature has clearly decided to
exclude the need for a father’s consent
Re S.S. 2009 ON
Facts: M signed affidavit that there was no F and she was the only parent, F could be located without
significant difficulty, M chose not to tell about pregnancy and he was unaware of child’s existence,
relationship was more than casual though not one of permanence
Issue: whether the adoption could proceed without the consent of the biological father
Decision: yes
Ratio: the law does not require the mother to inform the father of the pregnancy, birth of the child or the
adoption even if the father was known and easily found
Rule: s. 137 CFSA parent definition
Application: F does not fit in parent definition
Note: policy considerations of certainty in adoptive process and security of prospective adoptive parents,
the child was already placed with the adoptive parents and introducing the child to a stranger father would
be harmful - overriding principle is the best interests of the child
MAC v. MK 2009 ON
Facts: custodial parents and primary caregivers of B, two moms, are seeking to dispense with consent of
MK who is B’s biological father and access parent, MK is a known and involved father, CAD nonbiological mom wants to adopt B but needs B’s consent and withdrawal as father to do so
Ratio: a court is not bound by the provisions of domestic contracts wrt custody and access, the ultimate
test is the best interests of the child
Rule: best interests of the child
Application: assumption that best interests of the child is to continue contact with both mothers and
father
Note:
 allowing the application to go forward would allow the women to exclude MK from B’s life as
adoption results in the final and irrevocable severance of the biological bond
 there is an indication in the legislation that society continues to place importance on the biological
relationship btn parent and child
 mothers had an alternative in AA v. BB and CC in she could have an order recognizing her as a legal
parent instead
 There are provisions for withdrawing consent after 21 days period (s 138/139 CFSA)
 Consent by minors: Where a person who gives a consent under clause (2) (a) is less than eighteen
years of age, the consent is not valid unless the Children’s Lawyer is satisfied that the consent is fully
informed and reflects the person’s true wishes. S 137(11)
 S 158: effect of adoption order
o 158(2): as of date of adoption order, child becomes child of adopted child and parent
becomes parent of adopted child, old parents cease to be parent of adopted child (except in
step-parent adoptions)
 S 143: when a child is placed for adoption, every order respecting access to the child is terminated –
cutting off ties
Access after adoption:
 In the 1989 decision in CCAS v TS the ct stated:
o Any continuing access to that adopted child given to birth parents would be given to
someone who is no longer a legal parents of that child
 This has shifted over the years to customary adoption – much more open, transfer of care
responsibilities but not cutting off all contact
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NB v L(M) (1998, SCC) (p 164):
 Some access for birth parents after adoption was confirmed
Openness orders and agreements:
 Shifting views of adoption have resulted in amendments to the CFSA to recognize openness order
and agreements
 See Re M(S) where ct dealt with agreement among 3 parties regarding adoption process
o Lesbian couple and biological dad, consent of dad required for social mom to adopt, they
come up with agreement where bio dad has continued relationship with child
o Ct recognizes this as an openness agreement, agreement also says that if moms die,
custody goes to bio-dad but cts say this is not enforceable
 Still some frailty to bio dads position within context of adoption process
 See CFSA 153.6 (openness agreements)
Post - Adoption access and BIC:
 BIC filter – adoptive parents (see Re BC Birth Registration)
o Birth father wants continued access to child, bio mom and new husband have done stepparent adoption
o Ct says it is beneficial to child but mom and husband opposed and uncomfortable so ct
says no access
o Presumption of no access
o He did consent to the adoption
 Sibling bonds – sufficient (P(MAR) v V(A))
o Conscious of siblings maintaining bonds where possible
o In this case, mom adopts two children, decides see only wants one who she sends back to
society care
o There is an initial order for access, mom wants to cut ties, other child ends up living in
foster homes and losing contract with bio sibling
Re BC Birth Registration No 86-09-038808 (1990):
 Although access by a birth father to daughter would be in child’s best interest, his claim was
denied bc the child’s mother and her husband found visit by the child’s father to be emotionally
difficult
In the Matter of Baby M (1988 NJ SC) (p 193):
 Married women with children entered into surrogacy contract with another man who artificially
impregnated her and paid her 10,000 to carry the child and allow it to be adopted by man and his
wife
 Preg woman fled with baby and other fam sued to enforce K, trial judge upheld K and gave baby
to man
 Appeal said K was invalid as a matter of public policy and unenforceable but based on best
interests of child and instability of surrogate to award custody to man/wife
 Looked at socioeconomic factors of both – How important is this?
Adoption Disclosure:
 raises issues amongst adoption triangle
o Children
o Adoptive parents
o Biological parents
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Various legislative attempts to make identifying info more readily available (inspired by
customary aboriginal adoption)
2009 amendments most recent in ON
Custom Adoptions:
Casimel v Insurance Corp of BC (1993) (p 168)
 BC Ct of Appeal recognized a custom adoption for members of the Stellaquo Band of the Carrier
People, thereby entitling the adoptive parents to death benefits after their adopted son died in an
accident. Cited earlier cases in concluding that it was appropriate to recognize a custom adoption:
o Re Katie (1961) (p 168): Inuit customary adoption conferred the status of parent and child
on the respective parties to the adoption.
o Re Beaulieu (1969) (p 168): followed Re Katie, decided that a Dogrib Indian customary
adoption should be recognized
o Re Deborah (1972) (p 169): Inuit customary adoption was challenged by the birth
parents, Ct recognized customary adoption and status it conferred and rejected claim of
birth parents.
Racine v Woods (1983 SCC) (p 170):
 The Racine’s were the foster parents of Wood’s baby L, L was returned to her mother, but when
the Racine’s visited they were given L back and applied to adopt her privately. Woods showed up
at Racine’s door and asked for L back, the Racine’s wouldn't give her back, 4 years later Mrs. W
launched an application for habeas corpus, the Racine’s applied for an order of de facto adoption.
 Trial Ct said it was in best interests that she remain with the R’s, and made a finding that Mrs W
had abandoned L for 4 years
 Ct of Appeal overturned the adoption order, gave interim custody to the R’s and gave Mrs W
leave to apply for access or a new custody trial
 SCC said holding onto L when Woods showed up was not an illegal assertion of title, it was
responsible. You do not need parental consent for a de facto adoption.
o Issue: Did the trial judge err in determining that L’s best interests lay with the R’s?
 Appeal Ct though they did bc of finality of adoption and cutting L off from
mother and Indian heritage
 SCC says must decide either way, cannot allow child to be involved in a lengthy
legal battle
 SCC “closer the cond that develops with the prospective adoptive parents the less
important the racial element becomes’
 Best interest of the child test
 SCC sides with trial judge, reinstates adoption order for the R’s of L
Adoption and Race
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adoption outside racial lines is an affirmation of ideals of racial integration and it is a blow to goals of
racial autonomy
double burden of Native adoptees: absorb negative stereotypes of Native Canadians within Canadian
society and are isolated from all positive aspects of aboriginal culture and values
much smaller percentage of adoptees who are native Canadians have developed successful
attachments to their adoptive parents
black adoptees have claimed a sense of loss and sadness even though white parents have good
intentions
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CFSA s. 136 (2): list of factors that should be taken into consideration in dealing with these
proceedings when looking at a requested order
 physical, mental, emotional needs
 level of development
 child’s cultural background
 religious faith in which child being raised
 positive relationship development
 blood relations or through an adoption order
 importance of continuity
 views and wishes of child if reasonably ascertained
 effects on child of delay due to proceedings
 any other relevant circumstances
136(3): If child is a Native, shall take into consideration of uniqueness of culture and preserve child’s
cultural identity
A.N.R and S.C.R. v. L.J.W. 1983 SCC
Facts: native mother has an alcohol problem, had child apprehended by CAS and placed in foster home,
when wardship expired child sent back to live with mother, two months later foster parents visited and
took child home with them with mother’s permission in 1978, R’s believed she had surrendered the child
on a permanent basis, mother commenced habeus corpus proceedings 4 years later
Decision: adoption allowed, de facto adoption as R’s had taken care of her for 4 years
Ratio: a child’s heritage and culture should be considered by the court as one of the factors to be weighed
as part of the circumstances
Rule: the closer the bond that develops with the prospective adoptive parents the less important the racial
element becomes, must always be best interests of the child
Application: important a factor as Indian heritage might be, duration and strength of her attachment to
R’s is more important
Re RT (2004 Sask) (p 180):
 5 aborig siblings were not put up for adoption bc the band vetoed, but noone offered to care for
them
 Trial judge considered best interest test and successfully challenged policy based on s 7 and 15 of
charter, policy was inappropriate and condemns First Nations children who have noone to care
for them to a lifetime of foster care instead of a stable family
H. v. M. 1999 SCC
Facts: American couple adopted a Native Canadian girl and raised her to adulthood, girl had a child,
discovered her birth parents, went to visit them and left the child with adoptive parents for 8 months,
came back and took the child to live in Canada for 2 years, adoptive parents commenced adoption
proceedings
Decision: adoptive parents awarded custody with reasonable access to child’s mother
Rule: best interests of the child
Application: economic situation of native family poor, receiving social assistance, child living in poverty
even though bonding and culture on the side of the native grandfather
Note issue of veto provided in some provinces to First Nations communities with respect to adoption of
children by non-aborig families (they don't have this in ON)
C. (J.M.N.) v. Winnipeg Child and Family Services 1998 Man
Facts: non-Native foster parents seeking guardianship of 5 year old Native child that had been in their
care for 22 months
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Ratio: bonding overrules heritage as time passes
Rule: best interests of the child
Application: grant the applicant’s request as it is in the best interests, child had been away from culture
for half his life
Re British Columbia Birth Registration no. 030279 1990 BCSC
Facts: Korean unwed mother consents to adoption of 2 month old, four months later she changes her
mind and wants to revoke consent
Ratio: if best interests of the child overweigh blood ties, then consent orders will not be set aside
Rule: best interests of the child
Application: factors weighed in favour of the adoptive parents
C.(D.H.) v. S.(R.) 1990 Al
Facts: natural parents consented to adoption but grandmother requested guardianship who lived in
California
Ratio: all factors are to be weighed against the best interests of the child
Application: risk of stress and development impairment of a removal from the adoptive home to the
grandmother in California
International Adoptions
 Pascal says children have become an export commodity.
o By removing the human capital
o By solving the small piece of the problem and ignoring the biggest issue.
o A neo-colonial approach
o Given huge market for adoptions, it has become a market.
 For underdeveloped countries, it is the relationship to the Western world which produced the drain on
resources and the inability to support children, the children themselves become an export
 Hague Conventions on protection of Chiren and Co-operation in respect of inter-country adoption
o Requires signatory countries to take appropriate steps on either side to ensure the adoption
process is legit
 Prohibition: receipt of payment
o Done so that you cant profit from human trafficking or birth of child
 Benefits:
o Saves children from conditions of home state
o Preferable to child being raised in an institution within home state
o “Charitable, human, noble act”
o Allows would be parents who are unable to conceive or adopt domestically to be able to
achieve parenthood
o Promotes inter-cultural adoption
 Negatives:
o Imperialism
o Higher prevalence gives rights to trafficking of babies; development of black markets,
coercion, exploitation
o Loss of cultural identity for children
o Lack of attention to ways of supporting bio family
o May support objectionable domestic policies
Assisted Reproduction
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autonomy of family is a higher value in terms of assisted reproduction
issues surrounding who is a parent: can be up to 5 ppl involved in assisted reproduction
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issues of disclosure: when an adoptive child wants access to biological parents
adoption should be more restrictive than artificial insemination as there are challenges of accepting a
child who is not your own biologically
fertility clinics proceed on basis that society does not require a person to satisfy a test to be licensed to
parent
increasing interest on the part of children to locate their sperm donor, sperm donors traditionally
operate on anonymity
complete surrogacy: woman becomes pregnant as a result of insemination either with anonymously
donated sperm or sperm of male intentional father
gestational surrogacy: gestational mother is implanted with embryo coming from donor egg and
sperm either anonymous or from the couple
Twiblings Video:
o Same age siblings, carried by two different surrogates
o Mother – egg donor, two surrogates and person raising kids
 Vital statistics act, assumes that person who is expelling the fetus is the mother, what
happens to gestational carrier?
 What does parentage mean?
 What if carrier had decided to take baby? But wasn't her egg
o Father – social father
o Which adults should be responsible for supporting and what principles would you use?
Ontario law reform commission (1985) – recommended surrogacy contracts be approached by
provincial ct judge prior to commencing procedure
Royal commission (1993) – recommended criminalizing commercial surrogacy and recognition of
gestational mother as legal “mother”
Assisted Human Reproduction Act, 2004:
o Not fully implemented
o Makes it an offence to pay women to be a surrogate
o There have been a number of challenges to the leg
How do you regulate surrogacy? Concern over exploitation
Some empirical research suggests a few concerns about contractual parenting and emotional damage
for surrogate mothers, children and or intended/social parents
Current problems
o Black market in eggs
o Mixed up fertility procedures
o Disputes over frozen embryos
Assisted Human Reproduction Act
6. (1) No person shall pay consideration to a female person to be a surrogate mother, offer to pay such
consideration or advertise that it will be paid.
(2) No person shall accept consideration for arranging for the services of a surrogate mother, offer to
make such an arrangement for consideration or advertise the arranging of such services.
(3) No person shall pay consideration to another person to arrange for the services of a surrogate mother,
offer to pay such consideration or advertise the payment of it.
(4) No person shall counsel or induce a female person to become a surrogate mother, or perform any
medical procedure to assist a female person to become a surrogate mother, knowing or having reason to
believe that the female person is under 21 years of age.
7. (1) No person shall purchase, offer to purchase or advertise for the purchase of sperm or ova from a
donor or a person acting on behalf of a donor.
(2) No person shall
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(a) purchase, offer to purchase or advertise for the purchase of an in vitro embryo; or
(b) sell, offer for sale or advertise for sale an in vitro embryo.
(3) No person shall purchase, offer to purchase or advertise for the purchase of a human cell or gene from
a donor or a person acting on behalf of a donor, with the intention of using the gene or cell to create a
human being or of making it available for that purpose.
(4) In this section, “purchase” or “sell” includes to acquire or dispose of in exchange for property or
services
10. (1) No person shall, except in accordance with the regulations and a licence, alter, manipulate or treat
any human reproductive material for the purpose of creating an embryo.
(2) No person shall, except in accordance with the regulations and a licence, alter, manipulate, treat or
make any use of an in vitro embryo.
(3) No person shall, except in accordance with the regulations and a licence, obtain, store, transfer,
destroy, import or export
(a) a sperm or ovum, or any part of one, for the purpose of creating an embryo; or
(b) an in vitro embryo, for any purpose.
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Mixed up fertility procedures
Disputes over frozen embryos
Assisted Human Reproduction Act (SCC Challenge 2010 (p 194):
 Quebec, AB, NB and Sask challenged
 Majority of SCC concluded that some sections of the Act were not within the fed authority to
legislate w respect to crim law, parliament had acted to establish national standard for assisted
human reproduction rather than legislating on the basis of harm
 However a number of sections were upheld surrogacy sections (payment) and s 8 concerning
donor’s consent for use of in vitro embryos
 Result of overturned sections is less national uniformity as each prov may leg differently (ON
hasn't leg yet)
Caulfield v Wong (2005, AB) (p 197)
 Women asked male friend to provide sperm for in vitro, clinic required them to sign a K that
prevented either of them from using emryos without consent of both
 After children were born parties disagreed about remaining embryos, woman wanted more
children but man didn't
 Ct refused to enforce K, held embryos belonged to woman, while giving parents joint custody of
children
o DIFF from result in Euro Ct of HR (2007) where woman couldn't use embryos fertilized
by former partner without consent after separated
Challenging (heterosexual) norms of birth registration and parentage:
Gill v Murray (2001) – successful challenge to BC HRC by two sames ex partners of birth mother
alleging their inability to be registered as parents under the bital statistics act was discriminatory - Ct
agreed
Rutherford v Ontario – lesbian parents conceived children nusing donor sperm
 Vital statistics act did not allow two women to name themselves as a child’s parents on statement of
live birth that must be submitted in order to obtain a birth certificate
 Were there any alternatives other than the relief sought?
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o Can apply for declaration of parentage
o But these parties wanted to make argument that this leg was discriminatory
How does ‘intent to parent” fit in to the analysis?
o Were in spousal relationship, it was not to say these two are necessary to determine who is a
non biological parent – that is the role of the legislature
Ct agrees and allows for leg to have a period of time to change
See amendments to the vital statistics act general regulations:
o 2(2) subject to subsection (3), for the purposes of subsection 9(1) of the Act, either of the
following groups of persons, and no other persons, are required to certify the birth in Ontario
of a child:
 1. A mother and a father
 2. The mother the other parent of the child
AA v BB and CC:
 AA – contributed ovum and gestation, BB contributed sperm, CC partner of AA, intended to be
mother
 CC seeks declaration of parentage under Children’s Law Reform Act:
o Paternity and Maternity Declarations S 4(1): any person having an interest may apply to a
court for a declaration that a male person is recognized in law to be the father of a child or
that a female person is the mother of a child
 Problem is there can only be 2, one mother and one father, there is already mother (AA) so CC wants
declaration that she is also a mother
 How does court characterize the CLRA?
o Intended to be remedial and assist children, product of its time
 Ct uses parens patriae jurisdiction to fill legislative gap
o If you are able to find that it was intention of legislation you would have a hard time saying
there was a gap
o Is in best interests of child to have both mothers recognized
 Policy considerations? Should different people be considered parents for different purposes?
DWH v DJR and DD:
 Child lived with appellant and male respondent (genetic father) until separation
 Female respondent (genetic mother) was actively involved in child’s life
 Appellant sough continued contact; respondents wer opposed – worried about appellants HIV status
and choice of sexual partners
 Evidence supported appellant’s position that he stood in place of parent
 Reasonable access allowed – best interest of child
C(MA) v K(M):
 Consent and adoption – MK was biological father to child raised by lesbian couple
 Originally parties entered into agreement confirming intention to seek declaration of triple parentage
 When child was 5 years old, MK’s access was restricted
 Mothers commence adoption proceedings for non-bio mother to adopt; sought to dispense with MK’s
consent
 Gave access to father bc didn't want to disrupt world of the child
Thomas S v Robin Y (1994 NY) (p 221):
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Gay male provided sperm to lesbian couple pursuant to oral agreement that he would have no
parental rights or obligations, he later changed his mind and ct said on appeal oral agreement
invalid and order of filiation was appropriate
Assisted Reproduction – Disclosure:
 Conventions on Rights of the Child asserts child’s right to now his or her parents
o How does this impact children conceived through artificial reproduction
o Should identity of anonymous sperm donors be disclosed? Charter rights?
o Pratten litigation – pratten’s attempt to access donor’s identity
 Successful s 15 challenge to BC adoption leg, unsuccessful s 7 argument – BC
government will appeal
Pratten v AG of BC and College of Physicians and Surgeons of BC (2010) (p223):
 Woman conceived using sperm from anonymous donor requested info about donor’s identity
from BC doctor who arranged for insemination
 Dr advised her that all records had been destroyed (only kept for 6 years)
 In 2006 Pratten commenced action on behalf of donor offspring, received injunction prohibiting
the destruction, disposal or redaction/transfer out of BC records created or maintained by people
who do insemination
 BC AG was unsuccessful in application to dismiss the claim on basis it was moot and futile and
Pratten lacked standing to pursue, claims rejected
 BC SC held that provisions of BC adoption leg contravened s 15 of charter and were not saved by
s 1 bc created distinction between adoptees and donor offspring, ct gave leg 15 months to revise
and ordered injunction be made permanent
 However, ct rejected P’s s 7 argument that she had positive rights to know her biological origins
Child Protection
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Legal principles must balance a need to protect vulnerable family members with continued support
for the intact family unit as a whole
Absence of legal regulation clearly assigns responsibilities for these matters to families
The primacy of the family as the locus for childrearing and foundational social unit is recognized in
all societies but can render child abuse invisible and remove it from the ambit of principled law
Challenge of balancing the tension btn children’s individual well-being and the autonomy of families
Legislation amendments:
o The safety and well-being of a child shall be the paramount consideration
o Standard for intervention of substantial risk is too high, likelihood of risk provides more
protection
o Neglect is now included as a basis for state intervention
Implementation of enlarged scopes is dependent on professional and financial resources both to
support families and to provide for children who are removed form their homes
Intervention decisions need to take account of the consequences of removal of children, particularly if
lengthy court proceedings are required
CCC s. 43 where corporal punishment by parents of children is permitted, some overlap with abuse
concerns
orders:
 crown wardship: parents no longer have responsibility or right to child
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society wardship: temporary wardship for a period of time, there is still some hope/reason to
believe that with some time, the parents can find the help they need to be in a position to have
children returned to their care
supervision order: judge determines the situation is such that they need ongoing state
intervention but only with someone checking in with family
courts tend to combine society with supervision following
Child and Family Services Act
 S 1(1): paramount purpose: to promote the best interest
 s, protection and well being of children
 “Child” means a person under the age of eighteen years
 Other purposes – s 1(2) must be consistent with 1(1):
o Recognize autonomy and integrity of family unit and wherever possible provide support
on mutual consent
o Least disruptive course of action should be considered
o Children’s service to recognize needs for continuity of care and for stable family and take
into account physical and mental development differences
o Wherever possible, to respect cultural, religious and regional differences
 Wherever possible, Indian and native people should be entitled to provide own child and family
services, and all services to Indian and native people should be provided in a manner that recognizes
their concept and culture of extended family s. 2 service providers
 37(1) definitions
o For child protection - “child” does not include a child as defined in subsection 3 (1) who
is actually or apparently sixteen years of age or older, unless the child is the subject of an
order under this Part;
 37(2) a child is need of protection where...
o Physical abuse (and risk)
o Sexual abuse (and risk)
o Emotional abuse (and risk)
o Neglect, in relation to caring for providing for, supervising or protecting the child
o Medical treatment required
o Child abandoned
o Child has killed or seriously injured or frequently injured and U12
o Childs parents cant are for child and parents consent and child if 12 plus
 37(3) best interests of the child delineates 13 criteria for determination of best interests of the child in
relation to decisions under part III
o Includes: child’s physical, mental and emotional needs, development, religious faith, cultural
background, child’s wishes, religious faith, positive relationships and emotional ties to
family, continuity of care, merits of each plan, effects of delay in case on child, risk child
may suffer harm through being removed from parent, degree of risk to child and any other
relevant circumstances.
o S 37(4): in recognition of uniqueness of Indian and native culture, heritage and traditions
determination of best interest of Indian or native child shall take into acct the importance of
preserving the child’s cultural identity
 40 warrants, orders and apprehensions
 57 types of orders
 72: Duty to report, sub 5 lists certain ppl: health care professional, teacher/social worker/nurse/youth
and rec worker, religious official/mediator and arbitrator, peace officer and coroner, solicitor and
service provider (gov) and employee of a service provider
 Difference btn neighbour failing in duty and professionals failing in duty:
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While the statute reads that everybody has a duty, it’s considered an offence for professionals not
to comply with duty
Just a moral duty on members of community to report, in a professional relationship it’s a legal
duty subject to sanctions for failure to report
Strobridge v Strobridge (1994 ON) (p 263):
 In context of custody and access a child’s lawyer should assume the role of advocate
B. (R.) v. Children’s Aid Society of Metropolitan Toronto
Facts: parents are Jehovah’s witnesses who do not believe in blood transfusions, medical professional’s
view that surgery was required, parents refused to give consent
Decision: CAS gets temporary wardship order
Ratio: parental autonomy that seriously endangers the life of a child is not in the best interests of the child
and falls outside of a s. 7 analysis
Winnipeg South Child and Family Services Agency v. S. (D.D.) 1990 Man
Facts: agency requesting permanent guardianship had apprehended (unvoluntary) child on a number of
occasions since birth, parents say they are not sure what is best and the only reason the child should stay
is that they’re the biological parents
Decision: permanent order given
Ratio: nothing less than cogent evidence of danger to the child’s life or health is required before the court
will deprive a parent of care and control, which is the right of a natural parent
Rule: physical harm is not necessary, it is sufficient if there be a reasonable apprehension that such things
will happen and the court should interfere before they have happened
Application: neglect is enough
Winnipeg Child and Family Services (Central Area) v. W. (K.L.) 2000 SCC
Facts: child apprehended without a warrant pursuant to s. 21 of CFSA
Ratio: legislative requirement of an ex post facto hearing satisfied the principles of fundamental justice
Rule: threshold for apprehension is at a minimum that of a risk of serious harm to the child, he need for
swift and preventive state action to protect a child’s life dictates a fair and prompt post-apprehension
hearing is the minimum procedural protection
Re Brown 1975 ON
Ratio: society’s interference in the natural family is only justified when the level of care of the children
falls below that which no child in this country is subjected to
Rule: child in need of protection is considered in relation to community standards
Canadian Foundation for Children, Youth and the Law v. Canada 2004 SCC
Ratio: s. 43 of CCC on corporal punishment is not unconstitutional
Note: only certain kinds of physical force acceptable, court is trying to balance responsibilities of parents
and need to prevent criminalization of their actions
Re E.C.D.M. 1980 Sask
Ratio: there must be a significant departure from a standard of childcare that one would generally expect
for a child of the age of the child in question
Rule: secondary standard must be established for parents of the age of the parent in question and for the
type of the community in which the parent resides
Application: even using appropriate community standards, the child’s mother had failed to provide a
sufficient amount of care
49
Family and Children’s Services of London and Middlesex v. G. (D.) 1989 ON
Facts: mother continues to live with abusive man; man has never hurt or abused this child
Ratio: society must simply show reasonable and probable grounds to believe that substantial risk exists
Application: there was substantial risk to the child’s health and safety
Regional Dir. Of Child Welfare v. R. (R.) 1989 Al
Ratio: Alberta’s legislation contemplates emotional injury in the future as a basis for intervention
Bessner: Duty to Report Child Abuse
 Legal system tends to eschew laws that create a positive duty for one person to assist another
 Sole inducement for individuals to assist other in need of protection is a moral rather than a legal duty
 Child abuse often occurs in situations where there are no witnesses, many children don’t comprehend
injustice of acts of abuse, caregivers who abuse have great deal of control over child
 Children can only be protected if concerned individuals recognize the danger and report it to
designated gov’t authorities
 Few lawsuits have prosecuted:
o R. V. Cook: doctor acquitted as criminal charge says reasonable grounds to expect child
is suffering from abuse, does not take past into account
o R. v. Strachula: standard of care applicable to paediatricians with expertise in child abuse
was not the standard of care applicable to family physicians
o R. v. Shubat: physician has the authority to delegate his reporting duty
o Often difficult to establish element of offence beyond a reasonable doubt
 Provision may deter ppl from reporting, fear of reprisals from abuser, concern over breaching
confidential relationship, lack of understanding of laws, belief that governmental intervention will not
enhance position of the child
Accused white supremacist
 case in Manitoba where Mom and stepdad are clear that they have certain opinions about the white
race and others who are not
 dilemma: over how far parents can go to instil beliefs in their children and how far gov’t can go to
protect children from beliefs, Parental Autonomy v. Child Protection
 Children’s Aid Society: could fall within risk of emotional/psychological harm
 children were taken from their home after swastikas were found drawn on arms
Sexual Abuse
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fiduciary relationships have been held to exist btn parents and their children
also btn administration or teachers and children in institutional settings
J.(L.A.) V. J.(H.) 1993 ON
Facts: woman brought civil claim against mother and stepfather after he was convicted of sexually
assaulting her
Decision: for daughter
Ratio: fiduciary duty of a parent is breached when the parent knows of the assaults and does not protect
child from harm
Application: mother breached fiduciary duty by putting her own interests above her daughter’s
K.L.B. v. British Columbia 2003 SCC
Ratio: Crown has fiduciary duty toward children in foster care to protect them from abuse
Spousal Violence
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¼ of all violent crimes reported to police involve family violence with 85 percent of the victims as
women
Violence against women in families may necessitate the balancing of state interests in protecting
vulnerable family members with individuals’ interests in maintaining family autonomy
a lot of people fear that police involvement will be stigmatizing to their children as well
the extent to which restraining orders or peace bonds actually do some good
there are lower sentences on average given out to those found guilty of domestic violence than nondomestic violence
Current Civil Remedies – Family Law act s 46 (1-3)
Order for possession of matrimonial home, order for exclusive possession: criteria
Criminal Law responses to Domestic Violence:
 Pro charging police policies
 Domestic violence courts – current pilot project – combined family/criminal ct
 One judge hearing early stages of both so you avoid the conflicting orders from both cts
 Recognition of battered wife syndrome – Lavallee
 Lots of reform – but many question whether the criminal justice system always serves victims of
spousal violence well
 Certain groups who are more severely impacted by it than others – aboriginal women
 Consider the varied contexts within which domestic violence is experienced
Behrendt v. Behrendt 1990 ON
Facts: W applying for interim order for exclusive possession of matrimonial home under s. 24 of FLA, H
suffering from depression and has nowhere to go
Rule: courts must take into account best interests of the children affected and any violence committed by
one spouse against the other or the children
Application: the nature of the allegations, contradictory view presented by one child and age of children
at home militate against exclusive possession
Note: three months after decision, H murdered W then committed suicide, case demonstrates issues
surrounding evidentiary burden of proving violence
Shaw v Brunelle (2012 ONSC) (p 292):
 Ct ordered 15,000 in aggravated damages in addition to general damages of 50,000 for pain and
suffering due to battering in spousal relationship
 Husband had been acquitted on criminal assault, but in family ct was found guilty on balance of
probabilities
Barron v Bull (1987, AB) (P 328):
 Ct rejected husbands petition for divorce on basis of cruelty bc the alleged conduct of the wife
although displeasing did not cause him to suffer
 “Did not render intolerable their continued cohabitation”
Astor: Weight of Silence
 Enforcing silence is part of the control: further violence or harassment is threatened, direct threats and
warnings, delays created, custody challenged
 Instruction not to tell the mediator about the violence is violence in itself
 Women who have been targets of violence will have become accustomed to anticipating wishes of the
perpetrators and complying with them in the hope this will prevent further violence
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Courts and mediation processes need to take account of the impact of violence in an intimate
relationship
State intervention in relation to violence against women in families has increasingly emphasized that
such violence constitutes criminal behaviour
MacLeod: Police involvement
 Battered women and shelter workers spoke of the fear of retribution many women experience if they
report battering to police
 Cornerstone of criminal justice response to spousal violence is pro-charging police policies
 Accompanying his is policies in favour of prosecution even against the victim’s wishes
Problems with using criminal law:
 Punishment may not be the objective of the abused spouse – often wants abuser to get help
 Abused spouse worries calling in the police will have a stigmatizing effect on children
 Low sensitivity of police to this issue (now improving)
 Data collection not adequate when police are called upon to act
 Traditionally low sentences are given to abusers
Aboriginal Women
 Issues of violence linked to broader community issues and aboriginal conceptions of extended
families
 Individual domestic violence initiatives must be coordinated and integrated into a unified plan
R. v. Lavallee 1990 SCC
Facts: W murdered H without imminent attack, claimed suffering from battered woman syndrome since
she was the victim of abuse
Decision: self-defence
Ratio: expert evidence on BWS is allowed
Note: woman who comes before a judge or jury with the claim she has been battered and suggests that
this may be a relevant factor in evaluating her subsequent actions still faces the prospect of being
condemned by popular mythology about domestic violence
R. v. Malott 1998 SCC
Ratio: need to avoid stereotyping women in BWS cases
R. v. J.V. 1998 ON
Ratio: child abuse syndrome is not a defence to murder
Domestic Violence Protection Act
 It allows for civil intervention orders to be made
 The order can be enforced under criminal code and prosecuted in criminal courts
 An attempt to address the issue of enforcement
 One of the places it can be enforced is in Ontario’s Domestic Violence Courts
 Court is a new creation in an attempt to deal with this problem of enforcement
Elder Abuse
 legislation may reinforce social stereotypes of older persons as frail, vulnerable and less worthy
because of social, legal physical or cognitive incompetence
 includes physical, financial, neglect and mental abuse
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most is caused by a family member but can be abused by health care and social service professionals
majority of perpetrators are males
recommendations of mandatory reporting by professionals but not extended to general public
Tort law responses to domestic violence:
 See cases p 292, where parties injured as a result of domestic violence have been awarded damages in
civil actions (diff burden of proof between civil v criminal cases)
 What are the advantages and disadvantages of joining tort claims to family law matters
Processes of Divorce
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Not all family clients can afford legal services or obtain legal aid
Counselling, negotiation, conciliation, mediation and arbitration are non-adversarial methods of
dispute resolution as well as collaborative law processes
Dissolution of marriage involves property division, spousal support, child support, child custody and
access
Where the divorce is uncontested (both parties want the divorce and main issues are agreed upon) the
laws have been designed to make the divorce a fairly inexpensive exercise to get a divorce
1967: no fault divorce was introduced with period of separation 3-5 years
1985 Divorce Act lowered period to 1 year
ON gov’t in 2006 passed legislation forbidding religious arbitration, need to arbitrate in accordance
with the laws
we’re a society that likes the idea of autonomous contracting, choosing our own outcomes
concerns with private bargaining:
 Family-specific issues that can impact bargaining power
 P. 349: women can end up in worse situations when they enter into agreements, women tend
to be more cooperative, accepts worse deals to protect other things
Unified Family Courts: have jurisdiction to hear all family law matters
Some provincial legislation allows courts to remedy the effect of divorce on children by mandating
parental attendance at parent education programs prior to divorce
69.05.1 Rules of Civ Pro: all parties in divorce actions must attend mandatory info programs within
45 days after commencing proceedings
Argument that skill-based programs that focus on learning new skills and changing parental
behaviours may be more effective than info-based programs
Social Context of Divorce:
 Rate of divorce in Canada is 38%, but there are regional variations
 The average duration of marriages in 2005 was 14.5 years and the average age at divorce for men
was 44 and 41.4 for women, what are the life situations of men and women in this context?
Children, assets, debt
 What are the three crises at separation nd divorce? How ma these crises intersect?
o Emotional
o Economic
o Parenting
 The impact on children: facts or assumptions for different children?
o Continued contact the ideal, but still are individualized situations
Edmonton Journal v. Alberta 1989 SCC
Ratio: courts must respond to applications to preserve privacy in divorce proceedings even though there
is a general principle of openness of court proceedings
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Schulp v. Mackoff 1994 US
Ratio: a court rule mandating parental education programs for all divorcing parents exceeds legislative
provisions as judges are allowed to exercise their discretion if found to be in the best interests of the
children
Lawyers and Divorce
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Role of lawyers in divorce matters may involve tensions btn ideas about divorce as a legal process
and its social meaning for divorcing clients
 Considerable negotiation may have to occur btn lawyer and their own clients
 Lawyers use and communicate their knowledge of the law and their understanding of the legal
process as a resource to educate clients about what is realistic in the legal process and use this
knowledge strategically to move clients towards reasonable and appropriate positions
 Divorce Act s. 9: obligation to discuss with clients the appropriateness of mediation services
 CLRA s. 31(1) and FLA s. 3 expressly authorize court-ordered mediation in some instances
 Advantage of mediation:
o Decision-making process in client’s control
o Avoids trauma of trial process
o Produces settlements that work better for parties
o Assists clients to achieve long-term working relationships
 Disadvantages of mediation:
o Inappropriate where there is evidence of violence or abuse
o Fails to provide legal safeguards for clients
 Issues surrounding legal costs are tangled with mediation as mediation is cheaper than litigation,
critics argue the emphasis should be on negotiation
 ON Arbitration Act allows parties to resolve disputes outside traditional court system, there are
concerns about the Muslim community applying sharia law due to degree of free consent available to
women
 Family law clients typically need legal assistance in reaching settlements, lawyers provide advice,
prepare documents, obtain interim relief, negotiate settlements
 Funding pressures have reduced legal aid causing significant numbers of family law litigants to be
unrepresented, such as in Fowler v. Fowler
 Collaborative law:
o Requires lawyers and clients to work together to achieve efficient comprehensive fair
settlements
o Under no circumstances will the lawyer represent the client if the matter goes to court
o Process involves binding commitments to voluntarily disclose all relevant info, to
proceed respectfully in good faith and to refrain from litigation threats
o Either the four of them must devise a solution or the process ends and someone else will
do the deciding, all that money for nothing
Financial Limitations
 With respect to LAO (legal aid office) there are some pretty significant limitations
o You can get legal aid for many family law related matters but the numbers associated
with qualifying for legal aid create a significant problem.
o Many people won’t qualify for it and will still not be able to afford private counsel.
 People, thus, get into courts unrepresented.
 NB: There is also a growing strand of people who can afford counsel but decide to be selfrepresented nonetheless because they think their money is better off spent somewhere else.
 In either of these two events difficulties stem.
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Consider the fact that only certain courts deal with certain aspects of the family law related
legislation.
Consequence?
 You get people in family courts who really aren’t well equipped to create and bring the
documents they need.
 With respect to accepting LAO certificates:
o Less lawyers willing to accept them
o Lawyers willing to accept them tend to be newly minted lawyers, with more experienced
lawyers not willing to put in the work necessary for such a small payment
o What you end up having is people having a difficult time getting counsel and those who
do manage to secure counsel end up being represented by inexperienced practitioners.
 The difficulties associated with self representation can be reduced to 3 sorts:
o For the litigants
o For opposing parties with counsel
 You’re trying to figure out how to respond to claims and when the claims are
mostly narrative and word vomit this becomes difficult.
o For judges
 Difficult for judges to stay “impartial” when one of the litigants is particularly
out to lunch on account of them being unrepresented.
 In a nutshell, judges may try to judge the person who doesn’t have counsel, and technically this is
not the judges role.
o State motivation for ADR?
 Want to stray from the litigineous dimension because of it being somewhat out of place in the
family law context.
 Moreover, ADR may turn out to be a cheaper option.
New Brunswick v. G.(J.) 1999 SCC
Facts: indigent mother in child-protection proceedings seeking to have state-funded counsel
Ratio: fundamental justice requires the provision of state-funded counsel
Rule: test for providing state-funded counsel:
 Seriousness of the interests at stake
 Complexity of the proceedings
 Capacities of the litigant
Application: state-funded counsel was required due to unusual circumstances of the case
Note: may provide basis for extending the right to legal aid services in family law proceedings
-trial judges should not consider the issue from the starting point that counsel will be necessary to ensure
a fair hearing only in rare cases
Problems of Private Ordering
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Spouses may be required to make their agreements at a time when they are least able to rationalize
their interests and determine future priorities
Neave: Resolving the Dilemma of Difference
 Perceptions about individuals’ bargaining positions may affect entitlements
 Decisions which couples make about marrying, divorcing and dividing labour during marriage are
affected by emotional and social factors that cannot be reduced to simple costs/benefits analysis
 Lawyers and judges are prone to exaggerate influence legal rules have on ppl’s behaviour
 Ppl with greater taste for cooperation will end up worse off as they will be prepared to pay a higher
price to induce the less cooperative party to enter an agreement and abide by its terms
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Women generally had a lower tolerance for conflict and more risk adverse than men
Women see giving in on monetary issues as a means of maintaining a relationship with former
husbands or his family or btn him and his children
Women may enter agreements under which they are worse off financially in order to protect 3rd
parties who can be used as hostages in the bargaining process
Mnookin: Limits on Private Ordering
 Three problems of private ordering: capacity, inequality of bargaining power and 3 party effects
 Advantages:
o Gives expression to human individuality and rights
o Usually more efficient as parties themselves know best what is important to them and
what they are prepared to compromise on
o Less costly for both the individuals involved and society and is less painful
 Spouses’ bargain may affect children in a way that reflects parental preferences but does not
adequately address children’s needs and wishes
 Lawyer-assisted negotiation provides safeguards that may be absent in mediation
 Inequality of bargaining power is a significant problem when abuse is involved
Majury: Unconscionability in an Equality Context
 Courts must pay more attention to the individual characteristics of the parties while also taking into
account of the broader issue of systemic gender inequality
 In order to obtain relief from courts, victim needs to be depicted as helpless, hopeless and as someone
incapable of standing up for herself
 Unconscionability is paternalism, provides relief in only most extreme situations of individualized
inequality
 If courts were willing to recognize systemic inequality of bargaining power:
o Need not portray individual as incompetent or inadequate in order to obtain relief
o Onus would be on the man to prove individualized factors existed wrt specific couple to
offset systemic gender inequality
o Would be presumed to have placed the individuals in unequal bargaining positions in the
absence of evidence to the contrary
 Independent legal advice as a safeguard against unconscionability is inadequate
o Burden on lawyers is too onerous and unrealistic
o Lawyer is limited to info he or she has access to
o Belief on the prt of the lawyer that client understands consequences of agreement does
not address issues in relation to unequal bargaining power
Clayton v. Clayton 1998 ON
Facts: parties separated after 23 years, signed a separation agreement without legal assistance, W
received $80,000 less than entitlement under equalization, W applying to have agreement set aside
Decision: application refused
Ratio: agreements will not be set aside when there is no evidence of duress and party refuses to seek legal
advice even though capable of doing so
Bossenberry v. Bossenberry 1994 ON
Facts: H signed final agreement in depressed and emotional state without legal advice. Final agreement
not significantly different from a draft agreement he had legal advice on
Ratio: agreements will not be set aside if there is no evidence of duress and party has obtained legal
advice
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Bradley v. Bradley 1997 ON
Facts: separation agreement stated that no variation was possible in absence of a catastrophic change for
the worse in either party’s circumstances
Decision: variation allowed
Ratio: separation agreements with future variation provisions can be overruled by court’s jurisdiction
Rule: Divorce Act provisions on variation
Economic Consequences of Divorce
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Our basic economic model of the family should be adapted to take divorce explicitly into account
Women’s family income drops by ½ and men drops by ¼ in first year of separation, due to women
more often having custody of children post-separation
Creation of two households post-divorce generally requires greater financial resources to sustain them
in addition to costs of divorce process itself
Eichler: Limits of Family Law Reform
 Middle class women are only one man away from welfare
 Shift from patriarchal model of the family to individual responsibility model
 Individual responsibility model:
o H and W are seen as responsible for household and personal care of children
o H and W seen as responsible for own support and that of the other
o Society not responsible economically for well-being of family where there is either H or
W present
o Ideologically premised on notion of sex equality
 Prob: Expectation on lone parent family doubles
 Prob: Allows for a decrease in societal contributions to families
 Limitations of IRM:
o Alternative to support payments for poor women and children is social assistance
o Social assistance likely to be cut exactly by amount of support
o Unless support payment is higher than welfare amounts, women and children are not
better off than they were on welfare
 Social Responsibility Model:
o Every adult considered responsible for own economic well-being and where not possible,
shifts to state
o Responsibility of state to pay for adults in need of care
o Cost of raising children shared by mother, father, and state irrespective of marital status
 Allen: mutual consent requirement would mean neither party could leave a marriage without spouse’s
written consent, would restore bargaining power of unwilling party and ensure benefits flow to
couple’s children
 Rhode and Minow: most pressing problems stem from inadequacy of public commitments to equality
btn sexes and quality of life following divorce
Falkiner v. Ontario 2002 ON
Facts: some women who were not entitled to familial support from cohabiting male partners were also
not entitled to receive social assistance as single mothers due to legislative definitions
Ratio: Definitions discriminated against single mothers on ground of sex and marital status as well as
analogous ground of receipt of social assistance
Gosselin v. Quebec (Attorney General) 2002 SCC
Ratio: social assistance is economic and there are no economic rights in the Charter
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Legislative Authority for Divorce
The Divorce Process: Jurisdiction
 Constitutional authority s 91(26) constitution Act – marriage and Divorce
Issue
Federal
Provincial
Divorce
Divorce Act
--Property
---FLA, Pt I and II
(With or without divorce)
Spousal support
D A, sections 15.2,
17 FLA, Pt III
(“Corollary relief”)
(No divorce)
Custody and access
D A, sections 16,
17 CLRA
(“Corollary relief”)
(No divorce)
Child support
D A, sections 15.1, 17 FLA, Pt III; CLRA
(“Corollary relief”)
(No divorce)
Note: Paramountcy rules-Divorce Act trumps FLA
FLA, section 36
CLRA, section 27
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DA S. 2(1) defines spouse as either of a man or woman who are married to each other
Presumably a court challenge to extend provisions of DA to same-sex couples would succeed using
same constitutional arguments that permitted them to marry
Authority for legislating wrt divorce is in s. 91(26) of Constitution
Provincial governments can legislate wrt property as per 92(13)
In the absence of federal action, provincial legislation governs property entitlement at marriage
breakdown
if you were never married, separating and looking for relief, such as custody and spousal support,
you’re making your claim pursuant to provincial legislation
for people who separate but are not looking for a divorce but are looking for support and custody,
claim can be made by married but separated person under provincial legislation if they have not yet
triggered federal legislation
because an order of a divorce court in any province takes effect throughout Canada as per s. 13 DA
doctrine of paramountcy should determine priority btn an order according to federal authority and
any order made according to provincial authority
Corollary Relief:
 Have access to two leg when getting corollary relief
o Divorce act – for custody and access
o Family law act – petition for authority to deal with property law claim
 Also fragmentation for which cts can hear particular matters
o Not getting a divorce or weren’t married and have a support or custody and access claim
you go to PROVINCIAL ct
o Provincial courts deal with issues that are governed by provincial legislation
o Property is under provincial leg, however, the prov cts cant deal with it, hat must go to
the Superior Ct
o Divorce matters only heard by superior ct
o Unified family cts – cts that basically can do all of what the superior cts and provincial
cts can do – have unified those functions, only is specific areas
Divorce residency and jurisdiction:
 In order for a ct to assert jurisdiction over a divorce proceeding, s 3 says that one of the spouses
must reside in area of proceedings for at least a year
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S 8 deals with who get to proceed if two in two diff provinces – its who files first, what happens
if file on same day in different provs?
One complexity that has arisen from civil marriage act, is that some don't stay married forever, so
they may want a divorce, but cant get a divorce in home place bc ct there doesn't recognize that
their marriage is valid (same sex)
Canada fed gov has now brought a bill forward to amend the civil marriage act, will have effect
of adding to ability for ct to assert jurisdiction so these people can get a divorce
o Proposed new subsection will say if there has been a breakdown of marriage and have
lived separate and apart for a year before application, neither spouse reside in canada at
the time the application is made, each of the spouses is residing (and has for a year) in a
state where a divorce cannot be granted bc that state doesn't recognize the validity of the
marriage
o Wont open up the door to corollary relief – JUST divorce
o Bill c32 - passed first reading
Grounds for divorce – s 8
 A ct 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 8(2) established only if:
 Have lived separate and apart for at least ne yar immediately proceeding to determination of the
divorce proceeding and were living separate and apart at the commencement of the proceeding
OR
 The spouse against whom the divorce proceeding is brought has since celebration of marriage
o Committed adultery
o Treated the other spouse with physical or mental cruelty of such a kind as to render
intolerable the continued cohabitation of the spouses
 Definition of separate and apart 8(3)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
 Encourage reconciliation: 8(3)(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
totaling, not more than ninety days with reconciliation as its primary purpose.
 Object of act is to promote reconciliation
 9(1) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf
of a spouse in a divorce proceeding
o (a) To draw to the attention of the spouse the provisions of this Act that have as their
object the reconciliation of spouses, and
o (b) To discuss with the spouse the possibility of the reconciliation of the spouses and to
inform the spouse of the marriage counseling or guidance facilities known to him or her
that might be able to assist the spouses to achieve a reconciliation,
 Unless the circumstances of the case are of such a nature that it would clearly not be appropriate
to do so - abuse
 10(1) in a divorce proceeding, it is the duty of the ct bedore considering the evidence, to satisfy
itself that there is no possibility of the reconciliation of the spouses, unless the circumstance of
the case are of such a nature that it would clearly not be appropriate to do so
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o Ct can adjourn the matter if there is some possibility of reconciliation
Living separate and apart cases, possible under the same roof:
Papp v. Papp 1969 ON CA
Ratio: custody provisions of Divorce Act are valid as they have a rational, functional connection with
divorce
Re Adoption Reference 1938 SCC
Ratio: provincial legislation governing spousal and child support, custody and property is valid in so far
as it relates to applications that do not involve divorce
Spiers v. Spiers 1996 BC SC
Facts: H and W divorced, W granted sole custody and guardianship, divorce court referred to both DA
and prov legislation but did not specifically refer under which act the order was made
Ratio: once an order for custody is made under the Divorce Act the Provincial court loses jurisdiction
over the issue of access due to the doctrine of paramountcy
Brooks v. Brooks 1998 ON CA
Facts: custody proceedings pursuant to provincial legislation in ON awarded custody to W, order in
Manitoba court granted interim custody to father pursuant to DA
Ratio: DA proceedings superseded provincial orders
Note: s. 27 of CLRA a proceeding pursuant to provincial legislation is stayed if an application for divorce
is filed
Divorce Act Jurisdiction Provisions
 s. 3(1) spouse must be ordinarily resident in province for at least 1 year preceding commencement of
proceeding
 s. 3(2) court has exclusive jurisdiction to hear any divorce proceeding commenced first
 s. 3(3) Federal court has jurisdiction if spouses apply to two different courts on same day
 s. 4 covers corollary proceedings
 s. 5 covers variation proceedings
 s.6 if a child is most substantially connected to another province, court may transfer divorce
proceedings, corollary relief or variation to the other province
Grounds and Bars to Divorce
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Ziff: existence of such a ground provides parties with bargaining endowments in the negotiation of
corollary issues
Marriage breakdown is the only ground for divorce as per s. 8(1) of DA
S. 8(2)(a) lived separate and apart for 1 year (b) committed adultery or mental/physical cruelty
Divorce on demand: consent of both parties to end marriage after 1 year of separation and with
approval of court
S. 8(3) Only one spouse needs to have the intention to live separate and apart
8(3)(b) spouses that resume cohabitation for not more than 90 days may meet the test
Lawyers tend to focus on legal no-fault divorce but clients are often seeking vindication by blaming
spouses
Lawyers’ unwillingness to engage with client efforts to give mean to the past may result in clients
feeling dissatisfied with their lawyers because of a failure to empathize with them
Separate and Apart
Rushton v. Rushton 1968 BCSC
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Facts: parties began to live separate lives in 1960 even though they continued to reside in same apartment
suite
Ratio: the mere fact that parties are under one roof does not mean they are not living separate and apart
within the meaning of the Act
Rule: separate and apart are disjunctive, must be intent of destroying matrimonial consortium as well as
physical separation
Application: two conditions are met here
Dupere v. Dupere 1974 NB SC
Facts: H and W stayed in same house for the sake of the kids
Ratio: Each case determined on its own circumstances
 Can be physical separation within a single dwelling unit
 Case is not taken out of statute just cus spouse remains in house for economic necessity
 Must be both physical separation and withdrawal from matrimonial obligation
 Cessation of sex is not conclusive but only one factor
 May be an atmosphere of severe incompatibility but remain one household/home
Rule: test for separate and apart under one roof (Cooper v Cooper)
 Separate bedrooms
 Absence of sex
 Little if any communication
 Wife providing no domestic services for H
 Eating meals separately
 No social activities
Application: evidence does not satisfy that parties were living separate and apart
Cooper v Cooper:
 Don't think that intention of parliament was to allow people to opt out of marriage just because
unhappy and staying together for divorce
 Punishment for amicably dissolving family – but other spouse could be blindsided
Calvert v. Calvert 1997 ON CA
Facts: W suffering from Alzheimer’s and represented by litigation guardian, went to visit daughter in
Calgary in 1994 and never returned
Decision: divorce granted
Ratio: if you have intent to separate when you leave, then later lose that intent due to capacity, you don’t
lose the one year, must have intent at when you begin living separate and apart and also when the
proceedings are filed
Rule: three levels of capacity relevant to the action: capacity to separate, capacity to divorce and capacity
to instruct counsel
Application: W possessed all three levels of capacity
Note: s. 8(3)(b)(i) states one year period of living separate and apart will not be interrupted by mental
capacity reasons if it appears to the court that separation would probably have continued if the spouse had
not become incapable
-s. 8(3)(b)(i) stipulates a general capacity, courts will not determine capacity at each relevant point or
period in history
A.A. v. C.D. 2009 BC CA
Facts: H believes W is suffering from delusional disorder that led her to believe he was having an affair
Issue: whether the W had the intention to live separate and apart when she physically left the family home
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Ratio: disordered or delusional thinking which may contribute to an individual’s intention to live separate
and apart does not diminish heat individual’s capacity to form that intention provided it does not reach the
level of incapacity that interferes with ability to manage one’s own affairs
Rule: capacity to intend to live separate and apart is a lower threshold than being able to manage affairs
Application: W can manage affairs, so has capacity to live separate and apart
Note: English courts decided that when a spouse suffers from delusions that govern the decision to leave
the marriage, the delusional spouse does not have the requisite intent to leave the marriage, however
judge here said that courts are to endorse an approach that respects the personal autonomy of the
individual in making decisions about his or her life para.30
Adultery
 Only innocent spouse can apply for divorce on fault grounds
 Traditionally heterosexual intercourse:
P(SE) v P(DD) BC SC
 Wife sought divorce on grounds that husband committed “adultery with another man:
 Para 48: In the modern understanding of marriage, the wrong for which the petitioner seeks
redress is something akin to violation of the marital bond. Viewed from this perspective, the
heterosexual nature of the sexual acts is not determinative. Intimate sexual activity outside of
marriage may represent a violation of the marital bond and be devastating to the spouse and the
marital bond regardless of the specific nature of the sexual act performed.
Thebeau v. Thebeau (2006 NBQB)
 Para 12: The consequence of infidelity, at least in the context of the Divorce Act, should not be
confined to heterosexual spouses. To do so grants license to homosexual spouses to be sexually
unfaithful and to violate vows, untrammeled by the prospect of a fault-based dissolution of their
marriage. That is not equal treatment.
 Para 13: The definition of adultery must be consistent with the governing legislation and the
values enshrined in the Charter.
Burbage v. Burbage 1985 ON
Facts: W developed a relationship with another man before separation, W asserting no sex had taken
place as man was impotent
Ratio: once opportunity and intimacy are established on a balance of probabilities there is a burden on the
alleged adulterers to call evidence in rebuttal sufficient to dislodge the preponderant evidence
Rule: evidence of opportunity and inclination
Application: no evidence called to confirm the back surgery that supposedly caused his impotence
Cruelty – can be mental or physical
Knoll v. Knoll 1970 ON CA
Ratio: the determination of what constitutes cruelty in a given case must depend upon the circumstances
of the particular case having regard to the physical and mental condition of the parties, their character and
their attitude towards the marriage relationship
Rule: can be mental or physical cruelty, test is the effect of conduct complained on the mind of the
affected spouse. Must be conduct o grave and weighty nature – high threshold. But must still be
objectively reasonable.
Chouinard v. Chouinard 1969 NB CA
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Ratio: Behaviour which may constitute cruelty in one case may not constitute cruelty in another as there
are both objective and subjective elements involved in a determination
B.(Y.) v. B.(J.) 1989 Al
Facts: W applying for divorce based on mental cruelty as H is a practising homosexual
Ratio: something in addition to homosexual practices is needed as constituting the grave conduct
necessary to ground a divorce judgment
Note: the fact that the H does not contest W’s petition does not relieve the W from the test
Process Implications of No-Fault Divorce:
 Adversarial system called into question
 Growth of ADR (but not really “A”)
o Most family cases resolve without a final court hearing
 Introduction of parent education within family law regime – emphasis on party responsibility
 Lawyer’s role – what does legal advice need to account for
o Should understand social science literature, that client may be stuck, not understand
certain negotiations,
Traditional Bars
 Condonation, connivance and collusion
 Collusion is an absolute bar but a court may exercise discretion wrt condonation and connivance
 S. 11(1)(a) and (4) collusion
 S. 11(1)(c) connivance and collusion wrt adultery or cruelty
 S. 11(2) any past conduct that has been condoned cannot be revived
 11. (1) In a divorce proceeding, it is the duty of the court
o (a) to satisfy itself that there has been no collusion in relation to the application for a divorce
and to dismiss the application if it finds that there was collusion in presenting it;
 Collusion: make up grounds for divorce to happen, false evidence of adultery – set up
 Mandatory not to grant divorce if they find collusion, if they find condonation or
connivance its not automatic, could be public interest to serve divorce
o (b) to satisfy itself that reasonable arrangements have been made for the support of any
children of the marriage, having regard to the applicable guidelines, and, if such
arrangements have not been made, to stay the granting of the divorce until such arrangements
are made; and
o (c) where a divorce is sought in circumstances described in paragraph 8(2)(b), to satisfy itself
that there has been no condonation or connivance on the part of the spouse bringing the
proceeding, and to dismiss the application for a divorce if that spouse has condoned or
connived at the act or conduct complained of unless, in the opinion of the court, the public
interest would be better served by granting the divorce.
 Connivance: you encourage them to commit adultery in order to have grounds for
divorce
 Condonation: if you knew about adultery and forgave and forgot, you cant then go
back and bring it up as grounds for divorce
Leaderhouse v. Leaderhouse 1971 Sask
Ratio: condonation refers to resumption of cohabitation of a guilty spouse after being forgiven by the
innocent spouse after an act of adultery
Note: s. 11(3) not more than 90 days of resumed cohabitation is not condonation
Range of Dispute Resolution Options:
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Mediation (would it be mandatory): concerns about mandatory – abuse/history of power
imbalances, more of a facilitator than arbitrator, no final resolution imposed. Free mediation
services at ct on day of litigations. Off site mediators at cost.
Collaborative family law: approach where everybody from outset signs an agreement that says
they are committed to resolving without going to ct, all agree that if they cant reach an agreement
everyone needs to get new lawyers. Notion is that agreement provides motivation for both sides
to resolve things. People use a lot of experts.
o Limitations? May need to have an adjudication, could be power imbalance
Arbitration: one person chosen to decide outside of cts, decision is final and imposed by arbitrator
who is judge and jury.
o Note issues around religious arbitrations and resulting Family Law Act amendments
o Cant K out of these requirements
Court
o Unified family courts
o Case conferences: where parties and counsel meet with judge, judge tries to narrow down
points of contention and see what is actually in dispute
o Family law information centers
o Mandatory information centers (see text pg 823)
Reasonable Arrangements for Children
Harper v. Harper 1991 ON
Ratio: some of the things courts need to look at include child support, social assistance, extent to which
party agreements are to be respected, income tax implications, indexing, & availability of medical
coverage
Rule: s. 11(1)(b) of DA stay
Kalsi v. Kalsi 2009 BC SC
Facts: H bringing an action for divorce on basis of adultery after finding out he was not biological father
of two younger children of four, S had been living in basement apartment of matrimonial home
Decision: Application denied
Ratio: regardless of grounds, the court must be satisfied to all aspects of the children’s well-being,
including their residence, their care and their financial arrangements before granting an order for divorce
Rule: s. 11(1)(b) of DA will stay grounds of divorce if reasonable arrangements have not been made for
children
Application: divorce proceedings stayed
Religious Bars
 s. 21.1 of DA allows court to take action where one spouse refuses to remove religious barriers to
the remarriage of the other spouse as part of their divorce negotiations
 s. 21.1(3)(c) and (d): court may dismiss any application filed by recalcitrant spouse and strike out
their pleadings and affidavits
 Family Law Act s. 56(5) provides that a court can set aside a separation agreement if
consideration for it was the removal of a bar to religious divorce
 S. 2(2) of the Family Law Act provides that a spouse must remove barrier’s to other spouse’s remarriage within his/her faith and the court may dismiss the application, strike out a defence with
respect to family property if this is not done
Syrtash: Religion and Culture
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21.1(4) does not infringe the Charter as it allows recalcitrant spouse to file an affidavit indicating
genuine grounds of a religious nature or conscientious nature for refusing to remove barriers to
remarriage
G. v. G. Suggests that recalcitrant spouse must meet a significant test in order to convince the
court that he has genuine grounds
Onus to prove genuine grounds is on the spouse who is refusing to consent to removing
impediments, not on the spouse who requires impediments to be removed
Language of the DA adopted into Jewish get
Reconciliation
 s. 9 and 10 of DA
 S. 9 Duty of legal advisor
 9(1) Lawyer must discuss reconciliation and counselling with a spouse in a divorce proceeding unless
the circumstances are such that it would be inappropriate
 9(2) Lawyer has a duty to discuss negotiation and mediation with a spouse in a divorce
 9(3) Lawyer must present a statement in the divorce petition certifying that he or she has complied
with this section
 S. 10 Duty of Court
o 10(1) Duty on court to satisfy itself that there is no possibility of reconciliation unless
circumstances are such that this is inappropriate
o 10(2) Where it appears to a court during the proceedings that there is a possibility of
reconciliation, the court shall
 a) Adjourn the proceedings to give spouses opportunity to reconcile
 b) With consent of the spouses nominate a counsellor
o 10(3) After 2 weeks from adjournment, the court shall resume proceedings on application of
either or both spouses
Problem
W consulted a lawyer to obtain a divorce. The lawyer offered W a list of marriage counselling agencies
and suggested the possibility of mediation in relation to support and custody issues, but W has clearly
rejected these alternatives. Can the divorce proceed?
Have to canvas with the client, let them know the act has reconciliation as one of the objectives, see s.
10(2), canvas the possibility of ADR, lawyer has to certify that s. 9 has been complied with, unless
circumstances of case demonstrate that ADR is inappropriate
b) What options are available to the judge in this case if he or she considers that W
might be willing to reconcile with H?
On consent of parties, you can nominate a party to help couple with reconciliation
Negotiated Agreements
 At CL, Ks between CL spouses contrary to public policy. Gradual change to point where
settlement between parties is viewed as highly desirable.
Legislated Provisions
 Basically you can contract with respect to anything within the FLA unless there is some
exception carved out within another part of the act.
 Makes the FLA a default regime for those who don’t enter into a negotiated agreement.
o See s. 2(10) of the Family Law Act: A domestic contract dealing with a matter that is also
dealt with in this Act prevails unless this Act provides otherwise.
 Part 4 of the FLA is the part we’re going to walk through as we delve into the notion of domestic
contracts
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Domestic contracts = a marriage contract (a.k.a. a prenup), separation agreement, cohabitation
agreement, paternity agreement or family arbitration agreement.
A Look at the Parameters of a Separation Agreement and a Cohabitation Agreement
 Cohabitation agreements (aka common law prenup)?
 Can be focused on:
o ownership or division of property o support obligations
o the right to direct the education and moral training of a child, but not the right to custody
of or access to their children
o any other matter in the settlement of their affairs.
Separation agreements
 Can negotiate re:
o ownership or division of property
o support obligations
 The right to direct the education and moral training of a child
 The right to custody of or access to their children
o Still subject to reasonability though
 Any other matter in the settlement of their affairs
 The big difference is the fact that separation agreements can focus on “the right to custody of or
access to children”
FLA, Part IV: Domestic Contracts
 S. 52(1): Marriage Ks
 S. 53(1) & (2) Cohabitation agreements - See slides
 There are a number of scenarios in which a court may set aside a domestic K
Setting Aside Domestic Contract
 S. 56(4) A court may, on application, set aside a domestic contract or a provision in it,
(a) If a party failed to disclose to the other significant assets or significant debts or other
liabilities, existing when the domestic contract was made
o (unsuccessful in Dochuk v Dochuk)
(b) If a party did not understand the nature or consequences of the domestic contract;
o (unsuccessful in Rosen)
(c) Otherwise in accordance with the law of K (ex Duress, unconscionability, fraud, etc)
o (unsuccessful in Barton v Sauve)
 NB: s. 33(4) of the Family Law Act dictates that even though parties are allowed to contract
between each other the court can still set aside any clause within the contract that essentially
contracts one of the parties out from providing support or a waiver of the right to support.
 Note, if you are a person who depends on social assistance those who are monitoring claims for
social assistance will want to make sure that there isn’t another resource available to support that
person.
o Relevant consideration when one looks to subsection 33(4)(b)
Unconscionability:
 FLA – setting aside domestic Contract
 33 (4) The court may set aside a provision for support or a waiver of the right to support in a
domestic contract and may determine and order support in an application under subsection (1)
although the contract contains an express provision excluding the application of this section,
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(a) if the provision for support or the waiver of the right to support results in unconscionable
circumstances;
(b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who
qualifies for an allowance for support out of public money; or
(c) if there is default in the payment of support under the contract at the time the application is
made
Scheel v Henkelman 2011 OCA
Facts: parties cohabited for 10 years, wife waived spousal support in cohabitation agreement. Folowing
separation woman’s resources were low
OCA: held that it would be unconscionable to enforce waiver of support in light of:
 woman’s age (65)
 woman’s inability to work
 woman’s monthly pension ($407)
 man’s assets of 2.5 Million
Decision: monthly support of $3500 ordered
LMP v LS 2011 SCC
Facts: 2 children, 14 year marriage wife diagnosed with MS one year after marriage, she received LTD
benefits. Parties entered into consent judgment that provided H would pay child and spousal support – no
termination date and no requirement for wife to seek training or employment. 4 years after divorce wife
sought increased child support, H responded with application to terminate spousal support, arguing wife
hadn’t made effort to look for work.
SCC: held treatment of agreement (consent) different for variation thatn domestic contract (ie Miglin) see
DA s 17. Here no material change in circumstances so no reason for variation. Ct said when you are
looking at an order, even if there was an agreement behind the order you still have an order, and the ct
then needs to look to different test than Miglin:
 Miglin is for situations where the ct is looking at support questions for the first time but parties
have already looked at it
 Here we are looking at a case where parties AND ct have already looked at it – then you are into
a variation and look at s 17 of DA so the test it:
o Has there been a material change in circumstances
Spousal Contracts
Family Law Act Part 4
Definitions
51. In this Part,
“Cohabitation agreement” means an agreement entered into under section 53;
“domestic contract” means a marriage contract, separation agreement, cohabitation agreement,
paternity agreement or family arbitration agreement;
“family arbitration” means an arbitration that,
(a) deals with matters that could be dealt with in a marriage contract, separation agreement,
cohabitation agreement or paternity agreement under this Part, and
(b) is conducted exclusively in accordance with the law of Ontario or of another Canadian
jurisdiction;
“family arbitration agreement” and “family arbitration award” have meanings that correspond to the
meaning of “family arbitration”;
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“marriage contract” means an agreement entered into under section 52; “paternity agreement” means
an agreement entered into under section 59;
“separation agreement” means an agreement entered into under section 54.
Marriage contracts
52. (1) Two persons who are married to each other or intend to marry may enter into an agreement
in which they agree on their respective rights and obligations under the marriage or on separation, on the
annulment or dissolution of the marriage or on death, including,
(a) Ownership in or division of property;
(b) Support obligations;
(c) The right to direct the education and moral training of their children, but not the right to
custody of or access to their children; and
(d) Any other matter in the settlement of their affairs.
Rights re matrimonial home excepted
(2) A provision in a marriage contract purporting to limit a spouse’s rights under Part II
(Matrimonial Home) is unenforceable.
Cohabitation agreements
53. (1) Two persons who are cohabiting or intend to cohabit and who are not married to each other
may enter into an agreement in which they agree on their respective rights and obligations during
cohabitation, or on ceasing to cohabit or on death, including,
(a) Ownership in or division of property;
(b) Support obligations;
(c) The right to direct the education and moral training of their children, but not the right to
custody of or access to their children; and
(d) Any other matter in the settlement of their affairs.
Effect of marriage on agreement
(2) If the parties to a cohabitation agreement marry each other, the agreement shall be deemed to
be a marriage contract.
Separation agreements
54. Two persons who cohabited and are living separate and apart may enter into an agreement in
which they agree on their respective rights and obligations, including,
(a) Ownership in or division of property;
(b) Support obligations;
(c) The right to direct the education and moral training of their children;
(d) The right to custody of and access to their children; and
(e) Any other matter in the settlement of their affairs.
Form and capacity
Form of contract
55. (1) A domestic contract and an agreement to amend or rescind a domestic contract are
unenforceable unless made in writing, signed by the parties and witnessed.
Capacity of minor
(2) A minor has capacity to enter into a domestic contract, subject to the approval of the court,
which may be given before or after the minor enters into the contract.
Guardian of property
(3) If a mentally incapable person has a guardian of property other than his or her own spouse, the
guardian may enter into a domestic contract or give any waiver or consent under this Act on the person’s
behalf, subject to the approval of the court, given in advance.
P.G.T.
(4) In all other cases of mental incapacity, the Public Guardian and Trustee have power to act on
the person’s behalf in accordance with subsection (3).
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Provisions that may be set aside or disregarded
Contracts subject to best interests of child
56. (1) In the determination of a matter respecting the education, moral training or custody of or
access to a child, the court may disregard any provision of a domestic contract pertaining to the matter
where, in the opinion of the court, to do so is in the best interests of the child.
Contracts subject to child support guidelines
(1.1) In the determination of a matter respecting the support of a child, the court may disregard any
provision of a domestic contract pertaining to the matter where the provision is unreasonable having
regard to the child support guidelines, as well as to any other provision relating to support of the child in
the contract.
Clauses requiring chastity
(2) A provision in a domestic contract to take effect on separation whereby any right of a party is
dependent upon remaining chaste is unenforceable, but this subsection shall not be construed to affect a
contingency upon marriage or cohabitation with another.
(3) A provision in a domestic contract made before the 1st day of March, 1986 whereby any right
of a party is dependent upon remaining chaste shall be given effect as a contingency upon marriage or
cohabitation with another.
Setting aside domestic contract
(4) A court may, on application, set aside a domestic contract or a provision in it,
(a) If a party failed to disclose to the other significant assets, or significant debts or other
liabilities, existing when the domestic contract was made;
(b) If a party did not understand the nature or consequences of the domestic contract; or
(c) Otherwise in accordance with the law of contract.
Barriers to remarriage
(5) The court may, on application, set aside all or part of a separation agreement or settlement, if
the court is satisfied that the removal by one spouse of barriers that would prevent the other spouse’s
remarriage within that spouse’s faith was a consideration in the making of the agreement or settlement.
(6) Subsection (5) also applies to consent orders, releases, notices of discontinuance and
abandonment and other written or oral arrangements.
(7) Subsections (4), (5) and (6) apply despite any agreement to the contrary
Balfour v. Balfour 1919 UK CA
Facts: W seeking to enforce an agreement in which H had agreed to provide 30 pounds per week in
maintenance
Ratio: domestic agreements do not result in contracts at all as parties did not intend that they should be
attended by legal consequences
Note: FLA abolished this case
M. V. H. 1999 SCC
Ratio: benefits of FLA extended to same-sex cohabitees as well
Hartshorne v. Hartshorne 2004 SCC
Facts: H & W having their second marriage. Have a detailed contract to divide assets signed on wedding
day, W was not comfortable but signed the agreement anyway. She had independent legal advice. ILA
suggested contract was grossly unfair and may result in being over-turned. W does modify the K and adds
spousal support guidelines.
Decision: contract stands
Ratio: in determining if a contract is fair, must first look to the circumstances of the negotiation to
determine whether one party took advantage of the other’s vulnerability then look to whether the
circumstances of the parties at the time of the separation were within reasonable contemplation of the
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parties at the time the agreement was formed, secondly, apply the agreement then make a determination
wrt factors in legislation as to whether the contract operates unfairly. Cts shouldn't second-guess.
Application: W had independent legal advice telling her the agreement was unfair but she signed it
anyway, a party cannot simply later state that she did not intend to live up to her end of the bargain
Dissent: wants to look at results fairness as opposed to procedural fairness, look at whether the agreement
is substantively fair at the time of application to the court
Note: ON FLA s. 56(4) sets out when a contract can be set aside on a higher standard than BC’s. Unfair
marriage agreements are anticipatory and may not fairly take into account the financial means, needs or
other circumstances of the parties at the time of marriage breakdown
 There were amendments to the BC statute following this case.
o S.93 (5) authorizes the court to set aside an agreement or part of it if it deems it
significantly unfair with an eye to some specific considerations.
Marriage Agreements v Separation Agreements:
 Some commentators take the position that it is more difficult to justify private ordering by prenuptial agreements than by separation agreements. They argue that pre-nuptial agreements are
negotiated at a time when couples have a rosy view of each other and, as such, will not be
realistic about protecting themselves at separation.
Khan v Kahn 2005, ON
 In BC Mahr obligation has been held enforceable as a valid marriage contractual agreement
 In this case the On ct upheld the enforceability of a nika nomma, or valid marriage K in Pakistan
as a domestic K pursuant to ON’s family law act
 Ct upheld the marriage K but concluded that the wife’s waiving of spousal support was
unconscionable, the term of the K within the religious marriage was rejected for its inconsistency
with ON’s family laws, religion was less important than effects of the K
Aziz v Al-Masri (2011, BC) (p 400):
 Ct concluded that the arties to the relig K were the husband and the wife’s uncle, not the wife
itself so declined to enforce the K
Yar v Yar (2011, ON) (p 400):
 Ct accepted evidence of husband that the parties’ Islamic marriage was void bc the husband had
relinquished his Islamic faith prior to th marriage and even if marriage valid, the amount of the
Mahr was out of line and unreasonable (too much $$)
Kaddoura v. Kaddoura 1998 ON
Facts: H refused to pay the Mahr, a traditional payment included in a Muslim marriage agreement
Ratio: courts will not interfere to enforce religious obligations, but see Khan
N.V.M. v. N.S.M. 2004 BC SC
Ratio: the Mahr is enforceable as a valid marriage agreement
Simon v Simon 1999 ON
Ratio: agreements will be set aside due to party’s failure to disclose changes of employment and material
changes in income and assets
Dochuk v. Dochuk 1999 ON
Facts: evidence H had wilfully failed to disclose relevant info
Ratio: failure to disclose must have had an effect on other party’s decision to sign the contract
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Decision: valid contract that is binding
Rule:
 Whether there had been concealment of the asset or material misrepresentation
 Whether there had been duress or unconscionable circumstances
 Whether petitioning party neglected to pursue full legal disclosures
 Whether he/she moved expeditiously to have agreement set aside
 Whether he/she received substantial benefits under agreement
 Whether other party had fulfilled his/her obligation under the agreement
Rosen v. Rosen 1995 SCC
Facts: W acted voluntarily in deciding not to obtain legal advice before signing a separation agreement
Ratio: where parties deliberately decline to seek legal advice, courts will refuse to set aside provisions
Puopolo v. Puopolo 1986 ON
Facts: H threatened W, W agreed to sell apartment building she owned and divide proceeds with H, H
kept matrimonial home, W obtained legal advice before signing agreement
Decision: agreement upheld
Ratio: courts may consider unconscionability, duress, undue influence, fraud, misrepresentation or
mistake
Application: W not under duress, wanted to buy peace with the agreement
Saul v. Himel 1995 ON
Facts: H claiming misrepresentation in relation to provisions for supporting a child of whom he was not
the biological father
Decision: agreement upheld
Ratio: mothers have no duty to disclose facts of paternity to father
Application: H was aware at the time of signing that he may not have been biological father
Barton v Sauve (2010, ON) (p 372):
 Ct rejected all arguments for setting aside a cohabitation agreement, stated that vulnerable
physical and mental state from depression and disability do not lead to an overwhelming
imbalance in the power relationship
 Presence of vulnerability alone will not alone justify the cts intervention
o Did get independent legal advice, understood nature and consequence of the agreement
and signed voluntarily
Salonen v. Salonen 1986 ON
Facts: W received legal advice, agreement required H to assume responsibility for all couple’s debts in
exchange for not a lot of spousal or child support
Decision: agreement upheld
Ratio: s. 33(4) sets out a court’s discretion to set aside agreements, not a must
Rule: s. 33(4) FLA courts may set aside a provision for support or a waiver of support if it results in
unconscionable circumstances or if the result is that a party to the contract thereby qualifies for social
assistance
Note: agreements of this kind should be upheld as a matter of public policy else parties will be less
motivated to seriously bargain and conclude such contracts, clients must be able to rely on these
agreements and know with some degree of assurance that once a separation agreement is executed their
affairs have been settled on a permanent basis
Dal Santo v Dal Santo (1975, BC) (p 374):
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If separation agreements can be varied at will it will become much more difficult to persuade the
parties to enter into such agreements, must be able to rely on these
LeVan v. LeVan 2008 ON
Facts: H seeking to set aside trial judgement where marriage contract was set aside due to failure to
comply with s. 56(4), H’s family had a model marriage contract they used to ensure the family business
stayed within the family, H made changes to contract to exclude assets from equalization and limit
support rights, H did not disclose a lot of info to W’s lawyer at time of agreement, so W did not have
informed legal advice, then H undermined relationship with lawyer and got W a new one that acted for
his lawyer’s divorce proceedings
Decision: appeal dismissed
Ratio: failure to disclose must relate to the other party’s decision to sign the marriage contract, setting
aside the agreement is at the court’s discretion
Rule: Two things required when looking at FLA 56(4):
1. First the court must consider whether the party seeking to set aside the agreement can
demonstrate that one or more of the circumstances set out in 56(4)(a) have been engaged
2. Second the court must consider whether it is appropriate to exercise discretion in favour of setting
aside the agreement
Application: disclosure provided by H was insufficient to enable W to have a clear understanding of what
rights she was giving up by entering into the contract, failure to make full disclosure was a deliberate
attempt to mislead W, marriage contract itself was misleading
Note: circumstances in which a court may order an unequal division of NFP under s. 5(6) do not include a
market-driven decline in property value
Gender, Bargaining Inequality and Legal Advice
 What do you thing about Majury’s suggested gender-based approach to unconscionability?
o Once an applicant has demonstrated an unfair bargain, the finding should result in a
“presumption of inequality of bargaining position”; onus on man to prove individualized
factors existed which offset the systemic gender inequality.
Civil Contracts and Religious Obligations
 Issue most commonly arises in relation to granting of “Get” in Jewish faith
 Problem arises where husband refuses to grant, or wife refuses to receive a “Get”
 If husband refuses to grant, or wife refuses to accept a “Get” the parties are still married under
Jewish law
 Consequences are more harsh for wife:
o Cannot remarry in religious form
o If wife dates or lives with or civilly marries another man, she is guilty of adultery; any
children born of such relationship will be considered “mamzer”
 Responses:
(1) Halaka – Solutions from Jewish Law itself
(2) Relief from Secular Courts – Problem? Concern with separation of
 Church/State – different jurisdictions have taken differing approaches to whether to grant
relief
(3) Legislation
Bruker v Marcovitz SCC, 2007:
 Ct that granted civil divorce ordered parties to comply with consent corollary relig provisions that
provided parties would take steps necessary to obtain a traditional religious get
 Husband delayed participating in process to obtain Get for 15 years
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Wife sought damages stemming from this delay:
o QB superior ct: consent created a valid civil obligation: case justiciable bc did not require
examining Jewish Law at length; 47,500 damage award
o QBCA: consent matters were not valid matters for corollary relief; ct should not get into
religious “thicket”; consent was not a civil obligation, but one of “le devoir morale, le
devoir de conscience”
SCC (Abella): where cases are based on civil obligation, ct is not precluded from adjudicating
disputes that involve obligations having a religious character
o Here, consent had religious elements, but parties intended that their commitments would
have legal consequences
o Civil code (QB) does not preclude transforming moral obligations into legally valid and
binding obligations as long as the object of the K is not prohibited by law or public policy
o Consent aligned Divorce Act provisions
o Ct rejected M’s argument that refusal to grant Get was religiously motivated
o Further, any intrusions into his relig freedom were overshadowed by need to observe
“statutorily articulated commitments to equality, religious freedom and autonomous
choice in marriage and divorce”
o TJ’s damage award was reinstated
Nasin v Nasin (AB, 2008) (p 404):
 Ct held that prenup was not enforceable in AB bc did not comply w the writing requirement in s
38 of the matrimonial property act, the ct indicated that had it met the requirements the relig
elements would not have prevented a finding of Kual validity
Mantella v Mantella (2006, ON) (p 405):
 Lawyer acting for a wife in the negotiation of a separation agreement was later sued by her
client’s former husband in relation to the agreement and the lawyer’s advice
 Ct granted the lawyer’s motion to dismiss on basis that a lawyer has no duty to the opposite party
in a family law dispute
 Judge remarked on the preference to solve family issues early as it uses up both parties finite
resources and conflict doesn't always end with a settlement agreement – dynamic family law,
power imbalances
Provincial Legislation Dealing with Removal of Religious Barriers
 Family Law Act:
o Barriers to remarriage 56
(5) The court may, on application, set aside all or part of
a separation agreement or settlement, if the court is satisfied that the removal by one
spouse of barriers that would prevent the other spouse’s remarriage within that spouse’s
faith was a consideration in the making of the agreement or settlement.
o See also ss 2(4)-2(6).
Federal Legislation Dealing with Removal of Religious Barriers
 Divorce Act - 21. 1(2) Affidavit re removal of barriers to religious remarriage
o In any proceedings under this Act, a spouse (in this section referred to as the "deponent")
may serve on the other spouse and file with the court an affidavit indicating:
(a)
that the other spouse is the spouse of the deponent;
(b)
the date and place of the marriage, and the official character of the person who
solemnized the marriage;
(c)
the nature of any barriers to the remarriage of the deponent within the deponent's religion
the removal of which is within the other spouse's control;
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(d)
where there are any barriers to the remarriage of the other spouse within the other
spouse's religion the removal of which is within the deponent's control, that the deponent
(i)
has removed those barriers, and the date and circumstances of that removal, or
(ii)
has signified a willingness to remove those barriers, and the date and
circumstances of that signification;
(e)
that the deponent has, in writing, requested the other spouse to remove all of the barriers
to the remarriage of the deponent within the deponent's religion the removal of which is within
the other spouse's control;
(f)
the date of the request described in paragraph (e); and
(g)
that the other spouse, despite the request described in paragraph (e), has failed to remove
all of the barriers referred to in that paragraph.
21. 1(3) Powers of court where barriers not removed
o Where a spouse who has been served with an affidavit under subsection (2) does not
(a)
within fifteen days after that affidavit is filed with the court or within such longer period
as the court allows, serve on the deponent and file with the court an affidavit indicating that all of
the barriers referred to in paragraph (2)(e) have been removed, and
(b)
satisfy the court, in any additional manner that the court may require, that all of the
barriers referred to in paragraph (2)(e) have been removed, the court may, subject to any terms
that the court considers appropriate,
(c)
dismiss any application filed by that spouse under this Act, and
(d)
strike out any other pleadings and affidavits filed by that spouse under this Act.
Property
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Current trend: H & W are seen as equal partners in co-operative labour, both making an essential
contribution towards the economic viability of the family unit and hence, toward the accumulation of
matrimonial property
Family property is one aspect of economic readjustment after divorce
Provincial legislative regimes generally provide for a division of property or its value at one point in
time with no possibility of variation thereafter, property decisions are final
Demands for recognition of women’s roles in accumulation of family property in recent decades have
challenged fundamental legal principles of property law
Exclusion of cohabiting couples from provincial legislation eventually resulted in judicial recognition
of claims to family property in appropriate cases using principles of unjust enrichment and
constructive trust
Murdoch v. Murdoch 1973 SCC
Facts: W worked extensively in maintaining large rural properties in AB and acquired a number of
properties due to successful work but all property put in H’s name
Ratio: for the doctrine of resulting trust to apply, the party claiming it must show a financial contribution
to the property and the intent of the other party to share the property
Application: work done on ranch was that of a ranch wife and not a financial contribution
Dissent: Laskin held that there was an unjust enrichment and the facts justified a constructive trust
Note: case provided the catalyst for legal reform, led to FLA
Rathwell v. Rathwell 1978 SCC
Ratio: constructive trust doctrine can be used in divorce context
Rawluk v. Rawluk 1990 SCC
Ratio: married couples in ON were entitled to use trust doctrines in addition to the statutory schemes
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Defining Spouse:
 Ontario Law Reform Commission (1993)
o Supported extension of statutory property regime to opposite sex cohabiting couples
o Rationale: functional similarity of relationships to married couples
o Recommendation: make access to statutory regime the default status, with an opting out
option
Nova Scotia (Attorney General) v. Walsh 2002 SCC
Facts: W cohabiting for 10 years with H claiming her exclusion from provincial statutory regime
constituted an infringement of s. 15 equality guarantee, NS SC agreed (Walsh v. Bona)
Issue: whether the exclusion from NS Matrimonial Property Act of unmarried persons of the opposite sex
is discriminatory
Decision: no
Ratio: provincial property legislation that excludes non-married couples does not deny them access to a
benefit or advantage available to married persons
Rule: Law test for violation of human dignity
 Pre-existing disadvantage, stereotyping, vulnerability of claimant
 Correspondence btn the claim and the actual need or circumstances of the claimant
 Ameliorative purpose or effect of the impugned law on other groups in society
 Nature and scope of interest affected
Application: parties have personal autonomy of their choices, unmarried couples can contract to follow
property regime or can get married or own property jointly, essential human dignity is not violated by the
legislation
Dissent: goal under s. 15(1) is to examine the actual impact of the distinction on members of he targeted
group, married and non-married relationships are functionally equivalent, marital status can lie beyond
the individual’s effective control, to deny them a remedy when the other partner chooses to avoid certain
consequences creates a situation of exploitation
Note: parties settled before reached SCC, so it’s a moot point
MPA Regime:
 MPA creates a shared property regime that is tailored to persons who have taken a mutual and
positive step to invoke it
 MPA excludes people who have not taken such a step “a decision not to marry should be respected bc
it also stems from a conscious choice of the parties…choice must be paramount”
 “Even if freedom to marry is sometimes illusory, it does not warrant setting aside an individuals
freedom of choice, and imposing on her a regime that was designed for persons who have made an
unequivocal commitment encompassing the equal partnership described in the MPA”
 Have choice to enter into marriage – must respect this, looked at evidence that showed people who
cohabit are not ready to marry, just trying it out
 Don't want 3rd party determining rights, couple must make choices themselves and these
determinations must be respected
Dissent: MPA Regime:
 Preamble expresses desire to recognize contribution made by each spouse
 Family leg is remedial – to distribute econ resources on the breakdown of family
 Failing to recognize the contribution made by unmarried hetero cohabitants:
o Fails to accord them respect
o Diminishes their status by suggesting that they are less worthy of respect and consideration
o Assaults their dignity
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Rejects choice as paramount: couples do not think of their relationship in contract terms….the fact
that marriage gives rise to legal obligations does not…signal that the source of those obligations is
some bargained-for exchange or the product of consensus
Marital relationships change over time
Non-marital relationship are rarely the product of choice
o One persons choice not to enter marriage could be the other persons downfall – one may
WANT to marry and other refuses
 Consider the 2012 census:
o Common law couples increasing, married are decreasing
o Does this change in demographic warrant a revised approach to regulating the division of
property under the dissolution of a CL relationship
A v B:
 In QB, women in de facto unions are not entitled to any of these family law protections,
regardless of the length of their relationship, the number of children born into the union, the level
of econ interdependence and the disadvantages and corresponding advantages arising from the
relationship
 Parties were CL spouses for 7 years, and had 3 children, female wanted to marry but male
refused, saying that he didn't believe in the institution of marriage. Female argues that her
exclusion from the CCQ provisions discriminates against her on the basis of marital status
 Note provisions from Withler v Canada (AG)
o [55] This brings us to the critical jurisprudential issue in this appeal. Basing the s. 15(1)
analysis on a comparison between the claimant group and a mirror comparator group has
been criticized on the basis that a comparator group approach to s. 15(1) may substitute a
formal “treat likes alike” analysis for the substantive equality analysis that has from the
beginning been the focus of s. 15(1) jurisprudence. We agree with the concerns.
o [58] A further concern is that allowing a mirror comparator group to determine the
outcome overlooks the fact that a claimant may be impacted by many interwoven
grounds of discrimination. Confining the analysis to a rigid comparison between the
claimant and a group that mirrors it except for one characteristic may fail to account for
more nuanced experiences of discrimination.
 Kierstead thinks - SCC may keep property division provisions the same but hold that spousal
support provisions are discrim
Equalization of Net Family Property
Family Law Act Provisions
4. (1) In this Part,
“Court” means a court as defined in subsection 1 (1), but does not include the Ontario Court of Justice;
“matrimonial home” means a matrimonial home under section 18 and includes property that is a
matrimonial home under that section at the valuation date
“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, including, for greater certainty, any contingent tax
liabilities in respect of the property, 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;
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“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;
“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.
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 subsection 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
Excluded property
(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.
(3) The onus of proving a deduction under the definition of “net family property” or an exclusion
under subsection (2) is on the person claiming it.
(4) When this section requires that a value be calculated as of a given date, it shall be calculated as
of close of business on that date.
(5) If a spouse’s net family property as calculated under subsections (1), (2) and (4) is less than
zero, it shall be deemed to be equal to zero.
5. (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated
and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family
property is the lesser of the two net family properties is entitled to one-half the difference between them.
(2) When a spouse dies, if the net family property of the deceased spouse exceeds the net family
property of the surviving spouse, the surviving spouse is entitled to one-half the difference between
them.
(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.
(4) After the court has made an order for division based on subsection (3), neither spouse may
make a further application under section 7 in respect of their marriage.
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(5) Subsection (4) applies even though the spouses continue to cohabit, unless a domestic contract
between the spouses provides otherwise.
(6) Unequal division provision: Ct can vary the award and decide its not appropriate if – equalizing
the net family properties would be unconscionable having regard to enumerated circumstances
(7) The purpose of this section is to recognize that child care, household management and financial
provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is
equal contribution, whether financial or otherwise, by the spouses to the assumption of these
responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the
equitable considerations set out in subsection (6).
Applying Part I of the FLA:
Step 1: Determine valuation date: s. 4 (1)
1. The date the spouses separate and there is no reasonable prospect that they will resume
cohabitation
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 subsection 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
Step 2: Determine what property was owned by each spouse on V-day: s. 4(1)
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, the imputed value, for family law purposes,
of the spouse’s interest in the plan, as determined in accordance with section 10.1, for the period
beginning with the date of the marriage and ending on the valuation date;
 Only divide things equally on spread sheets if they are joint title holders if home only is husbands
name, entire value goes to his side of asset sheet even for matrimonial home
 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
Step 3: Determine whether any “property” constitutes “excluded property”: s. 4(2) and exclude it from
calculation. Note that this may involve “tracing”: s. 4(2) bullet 5
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 whom 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.
Step 4: Assign values to all remaining property: valuation principles (no statutory guidance)
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 Hard to determine, sometimes see experts in this area
Step 5: Determine whether there are “deductions” (s. 4(1)) for NFP:
“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;
 S18 (1) can have more than one matrimonial home: every property which at time of separation
was ordinarily occupied by the person and his or her spouse as their family residence
Step 6: Calculate NFP for each spouse, based on value of property owned by each.
 Determine one half the difference between the greater and the lesser NFP s 5(1)
Note s. 4(5) re negative value NFP - If a spouse’s net family property as calculated under subsections (1),
(2) and (4) is less than zero, it shall be deemed to be equal to zero.
Determine one-half of the difference between the greater and the lesser NFP (s. 5(1)). This amount
represents a debt owing, not a property entitlement.
Consider entitlement to more or less than one-half the difference: s. 5(6); note that s. 5(7) makes
equalization of values the norm.
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Spouses may contract out of FLA as per s. 2(10)
S. 52(2) any agreement in a marriage contract that limits possessory rights to the matrimonial home is
unenforceable
Special treatment of matrimonial home in relation to deductions and exclusions, s. 18
S. 6: a surviving spouse can elect to take on the Will and Testament legislation or to receive their entitlement
under s. 5 of the FLA
NB: limitations – there are limitation provisions in the act
o
o
o
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S. 7(3): An application based on s. 5(1)/(2) shall not be brought after the earliest of
A) 2 yrs after the day the marriage is terminated by divorce or judgement of nullity
B) 6 yrs after the day the spouses separate and there is no reasonable prospect they will
resume cohabitation
o C) 6 months after the 1st spouse’s death
S. 2(8): court is satisfied that there are apparent grounds – there may be an extension of time to make
a s. 5 application
S. 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
Property Sharing Rationale:
 Presumption that parties are contributing to the marriage and assets that are acquired, assets were
ordinarily used by a spouse or minor child
 A one half share of family assets is presumed
Skrlj v Skrlj (ON)
 Role of discretion - If there is misrep, reckless or bad faith debts, unbalance brought into marriage
and length of marriage (golddiggers)
 Ct accepted wife’s evidence that she had property in the value of 1,000 when entering marriage
 Use of s 5(6)
 P 443: she is prima facie entitled to payment of one half of the monetary different between her and
the husband’s assets
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
Ct exercised discretion: said it will suffice to say both parties took money out of joint account with
permission of the other, husband took 6,000ish more than her, so she gets one half of this amount
Martin v Martin (1992, BC) (p 445):
 BC considered their leg which allows for one half interest in all family assets at time of
separation – in this case there was a 5 year marriage between two 50/60 yr olds
 At trial judge decided not to award wife family assets but gave her a lump sum of $85,000 – said
this was fair bc husband owned more coming into marriage
 BC Ct of appeal rejected husband’s appeal bc they said it was fair, and wife was returned to the
position she was in before the marriage so both family assets and burden of marriage failure may
be distributed equally between spouses
Stone v. Stone 1999 ON
Facts: wealthy husband who knew he was fatally ill transferred more than half of property to children
fully realizing property would be subject to equalization at death
Ratio: ON FLA created a creditor-debtor relationship which takes the form of an open or running account
which becomes a settled account on separation or death
Difficulty with V Date Determination:
 With a gradually deteriorating relationship, when is there no reasonable prospect of resumed
cohabitation?
Oswell v. Oswell 1992 ON CA
Facts: evidence showed marriage deteriorated btn Sept 1987 and March 1988
Ratio: courts can choose a valuation date if the actual date is uncertain
Application: court picked Jan 1988
Caratun v. Caratun 1987 ON
Facts: H left W for another woman just as he obtained dentistry qualifications, W maintained hope he
would return, more advantageous equalization if date later
Issue: whether the date of separation could be the date when one of the spouses although not the other
had decided to leave with no prospect of resuming cohabitation
Ratio: the date of separation is the date when there was no reasonable prospect of resumption of
cohabitation
Application: valuation date is the date when one spouse separates, not necessary for both spouses to hold
this view, wife was unreasonable in her view
Note: professional degree is not property
 Property and future income streams
o Brinkos: income from a trust fund to which the wife had become entitled as a child =
property, but wife could deduct the value at marriage as pre-marriage property
o tosta: husband’s entitlement so share in distribution of estate capital = property
(discounted for possibility that he might die prior to entitlement being triggered)
 Do beneficial interests established by way of constructive trust declaration constitute property?
See dissent in rawluck
Corless v Corless (1987, ON) (p 456):
 Ct held husbands law degree was property within the meaning of s 4, however also decided that
this property has no value for purposes of calculating he wife’s NFP bc it was personal to the
owner
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Ct awarded spousal support to compensate wife, taking into account that she had postponed her
own career plans in order to assist her husband in his legal career
Johnson v Johnson (BC, 1988) (p 461):
 Judges have more discretion in BC, but still held that professional degrees did not equal property
 However a TJ did decide that a commercial fishing licence did constitute property bc it was not
linked to knowledge or ability unique to its holder (Seymour v Seymour)
Linton v Linton (p 460):
 Ct concluded that a limited reading of the meaning of the word property was appropriate given
that the FLA did not create a full econ partnership, but only a form of a partnership in which
equalization payment permitted a narrow and deferred sharing of accretions in value to defined
spousal properties
Russel v. Russell 1999 Sask CA
Ratio: ON FLA has inflexible valuation date and does not permit a court to exercise discretion to change
a valuation date to ensure fairness btn the spouses
Bartoluzzi v. Bartoluzzi 1992 NWT
Ratio: NWT statute allows for court discretion in determining valuation date
Application: valuation of matrimonial home changed to date of trial so both parties could take advantage
of value increase
Rawluk v. Rawluk 1990 SCC
Facts: W actively involved in farm in H’s name, W left matrimonial home in 1984, property value owned
by H increased dramatically, W wants to claim beneficial title (akin to joint title) by way of constructive
trust [which deems a non-owner the capacity to share in the value of property and its increases/decreases].
Ratio: doctrine of constructive trust still applicable under FLA
Rule: proprietary interest is deemed to have arisen at the time when the unjust enrichment first occurred
-two step process to equalization: 1. Find the value of the pile 2. Split the pile
Application: W entitled to constructive trust
Dissent: constructive trust is an equitable remedy, Look for enrichment of one party and corresponding
deprivation to the other. She says we do not have that here.
Note:
 it is not open to the court to alter the valuation date pursuant to s. 4 FLA
 property ownership determinations are made before valuation
 constructive trust is akin to joint title so when property is sold, owners split the amount
 ownership encompasses more than a mere share in the value of property, includes legal rights
elements of control and increased legal responsibilities, psychological benefits
Harrington v. Harrington 2009 ON CA
Facts: H had a joint account with father that father had put 500,000 into, H transferred funds to his own
account to invest aggressively, H claims principal amount not owned by him and is trying to exclude
whole account from NFP
Issue: Is the joint account money to be excluded from NFP?
Decision: principal is excluded from NFP, income included in NFP
Ratio: onus of proving a deduction or exclusion is on the person claiming it s. 4(3)
Rule: rebuttable presumption that an adult child holds funds in a joint account with their parent on a
resulting trust that can be rebutted if the evidence establishes transferor’s intent was to make an outright
gift
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Application: H testified he used some of the income for own purposes and purposes of his family,
presumption rebutted successfully based on income amount
Note:
 reasons that disclose a logical connection btn the evidence and the decision and demonstrate that the
judge grappled with the substance of the live issues at trial are sufficient reasons
 trial judge did not err in determining W has some ability to support herself
Paddock v. Paddock 2009 ON CA
Facts: W seeks to exclude shares from NFP. She inherited business from parents, then transferred assets
to Cerro Stables, and these same assets formed underlying value of shares on date of separation
Decision: W can exclude shares from NFP
Ratio: if the property in question can be traced to an inheritance, it is excluded from NFP
Rule: s. 4(2)(5) tracing
Application: W’s inheritance was just converted to a different form
Exclusions from NFP
 Can deduct: 1) pre-marriage net asset value and 2) debts/liabilities at valuation date
 Can exclude: gifts or inheritance after date of marriage, property other than matrimonial home that
was acquired by gift or inheritance from a 3rd person after date of marraige
 Income from gifts/property can only be excluded if income is expressly said to be excluded by
giver/donor/testator
 Matrimonial home cannot be excluded.
 Ex. Inheritance which is partly used for matrimonial home and partly used to buy shares: TRACING:
first part cannot be excluded but second part can be.
Silverberg v. Silverberg 1990 ON
Facts: jewellery given to W by employer who she left her H for, had told H that it was provided to her in
lieu of a monetary bonus
Ratio: onus is on party seeking to exclude property to prove entitlement to exclude
Application: W did not satisfy burden of proving jewellery was not earned
Note: any doubt is resolved in favour of inclusion for the purposes of calculating equalization
Flatters v. Brown 1999 ON
Ratio: equal possibility does not meet the burden of proof, must be found to be more likely than not to tip
the balance of probability, onus of proving entitlement to exclude rests on spouse making the claim
McNamee 2011 ONCA:
 Was father’s transfer of shares to son a gift? It was done for tax purposes
 Trial judge says transfer of shares not actually a gift, should be included in husband’s NFP.
Declaration of gift existed, but husband didn’t know. Had assumed during marriage that property
was there and that there was no exclusion.
 Court of Appeal says judge should have dealt with wife’s claim that she had beneficial interest in
the shares. They said it was a gift, and unless she can show beneficial interest, intention was for it
to be a gift, so a gift. Motivation had to do with estate freeze. Thus, trial judge should have
assessed wife’s claim of beneficial ownership. Gift cant be in force/effect if wife had interest.
o the Court was satisfied that the shares were transferred by way of gift and thus should not
form part of the appellant's NFP and be subject to an equalization payment
Vanderaa v. Vanderaa 1996 ON
Facts: H received a settlement amount for an accident, spouses settled the action after they had separated
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Issue: whether general damages, disability benefits and wage loss awards can be excluded from NFP
Ratio: post-separation wages are excluded from NFP but pre-separation wages are not
Application: funds related to wage loss accrued prior to separation are included in NFP, funds replacing
wages after separation were excluded
Tracing
 If you get (given) a painting, you sell it, and then you take the money and buy a statue. You can trace
the money to show why it should be excluded.
 Cant do this if money from selling object goes into matrimonial home
 Onus on deductor/excluder to establish why
 Rationale for excluded certain property= property not obtained by joint efforts of partiers. But can’t
exclude gifted, inherited matrimonial home (can exclude MH from equalization by contract.. but
CANT contract out of possessory rights in matrimonial home)
Lefevre v. Lefevre 1992 ON
Facts: funds from inheritance and personal injury settlement received by H were traced to matrimonial
home at date of separation
Ratio: if funds can be traced to the matrimonial home, then they cannot be excluded from NFP
Ho v Ho 1993 ON:
Facts: Gifts from H’s parents to W, H asserted they were actually just for him only went to W for tax
reasons.
Decision: ct said can’t have it both ways. One way for ct and one for Canada revenue. Wife had used
some of the money as a loan to the husband (traceable, can be excluded) and bought car and Canada
savings bond (could also be traced).
Cartier:
Facts: gifted property sold and invested in jointly held properties
Decision: ½ of proceeds that could be traced into investment properties were able to be excluded,
willingly put $ into joint venture so only get back half
Matrimonial Home
DaCosta v. DaCosta 1990 ON
Facts: recreational farm purchased with funds from an inheritance, W didn’t attend to it other than
furnishing it
Ratio: a home that is ordinarily occupied by H and W as their family residence at the time of separation is
the matrimonial home s 18
Application: parties may have intended to occupy as matrimonial home but did not, H entitled to exclude
from NFP
Note: if a spouse chooses to pay off the mortgage on matrimonial home using an inheritance, she may not
exclude that sum from NFP
Valuation Considerations
 Cole and Freedman: principles of fair value rather than fair market value were more than just and
equitable and also consistent with the objectives of the statute
 Fair market value approach to property valuation has been used in matrimonial disputes only because
it is a convenient familiar standard
 FLA provides little direction about valuation principles
 Actuarial assistance is necessary and each spouse engages their own actuary – can lead to battling
experts
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CIA Standard of Practice: deals with economic and demographic assumptions to be used in the
valuation of defined benefit plans on marriage breakdown for the purposes of lump-sum equalization
payments
Current law only allows spouses to divide pension asset through if and when orders and agreements
Oswell v. Oswell 1990 ON
Facts: valuation of jewellery and furs where experts disagreed on value, retail value v. Appraised value
for insurance purposes
Ratio: courts take expert evidence into consideration in order to determine a reasonable valuation, can be
a good amount of discretion
Application: any increase in value of jewellery offset by wear and tear
Montague v. Montague 1997 ON CA
Facts: land owned by H extremely polluted and cost of clean-up exceeded land value
Decision: land worth nothing, must look at particular circumstances for valuation
Ratio: the value of land is the highest price obtainable in an open market btn informed and prudent parties
acting at arm’s length
Deductions
 if home is owned on both date of marriage and valuation date, owner receives no deduction for the
value of the home on the earlier date
 if property once was a matrimonial home but parties no longer ordinarily resident in it at separation,
qualifies for a deduction
 liabilities: The liabilities referred to in clauses a and b of the def of NFP in subsection 1 includes any
applicable contingent tax liabilities in respect of the property
 Matrimonial Home: a home owned by a spouse on marriage, occupied by both spouses during part of
marriage, but subsequently sold and replaced by another residence, will be subject to deduction
Sengmueller v. Sengmueller 1993 ON CA
Ratio: the approach to calculating cost of dispositions wrt equalization is:
a) apply the overriding principle of fairness, costs and benefits shared equally
b) deal with each case on its facts
c) deduct disposition costs before arriving at equalization payment except in situation where it is not
clear when, if ever, there will be a realization of the property
Starkman v Starkman 1990, ON:
 confirmed views in McPherson
 McPherson: OCA reviewed provision of the former family Law Reform Act and concluded that
disposition costs were not deductible in the evidence of a plan for disposition
Menange v Hedges:
Decision: when spouse’s marriage day debts exceed his or her assets a negative deduction becomes an
addition to the spouse’s NFP
Note: during marriage you were able to get rid of debt, so you must account for the amount you benefitted
Unequal Shares of Equalization
Family Law Act
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,
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(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
Sullivan v. Sullivan 1986 ON
Facts: H completed a BA then an MA at York, W worked full time, supported H, provided child care,
paid for H’s tuition, and managed family affairs, W owned corporation that operated a catering business
at time of separation
Decision: patently and grossly unfair for H to get any part of the corporation
Ratio: test for unconscionability is a subjective test and must be applied to all facts involving the three
ingredients contained in s. 5(7) and six factors in s. 5(6)
Application: contribution made to family unit during year was staggeringly uneven in all three major
areas of contribution to family, child care household management and financial position
Note: professional degrees are not property
Waters v. Waters ON
Facts: 30 year marriage. W and H work at factory. W claimed unequal division of family property
because H was alcoholic and was not responsible with money and that she had greater share of household
duties
Ratio: court is authorized to order an unequal division of family property only pursuant to s. 5(6) and
only in those cases where an equal sharing would be unconscionable
Rule: mere differences in capabilities does not amount to unconscionability
Note: departures from equality should be uncommon
Leblanc v. Leblanc 1988 SCC
Facts: 7 children born to H and W. H suffered from alcoholism and W really supported the family. W
bought land and H did some construction on it.
Ratio: 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, then there are circumstances relating to the acquisition, maintenance and
improvement of property that entitle a court to exercise its discretion
Application: unequal distribution
Merklinger v. Merklinger 1992 ON
Facts: H & W married for 18 years, H sold assets contrary to preservation order, allowed mortgage on
cottage in W’s name to go into default, sold cottage for less than mortgage, W registered a mortgage on
matrimonial home in her name to pay debts
Ratio: unconscionability is the threshold
Application: outrageous behaviour can result in no equalization payment and contempt of court
Fillipponi v. Fillipponi 1992 ON
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Ratio: a reckless depletion of assets by one party which shocks the court can lead to unequal equalization
distribution
Abaza v. Abaza 2000 ON
Facts: H created significant debts in relation to use of escort services
Ratio: depletion of assets recklessly means no equalization
Application: H not entitled to exclude debt from NFP
Hines v. Hines 1988 ON
Facts: 2nd marriage for both H and W, in their 60s, W brought house into marriage, H brought debt
Ratio: FLA must be read as a whole to result in an orderly and equitable settlement of their affairs upon
marriage breakdown
Application: lump sum support entitlement for W offsets some of H’s equalization, H given judgment for
10,000 but W gets 10 years to pay it off
Note: don’t use this as a strong precedent according to Kierstead
MacNeill v. Pope 1999 ON CA
Ratio: cohabitation in s. 5(6)(e) includes pre-marital as well as marital cohabitation
Futia v. Futia 1990 ON
Facts: parties married less than 2 years, W alleging physical and mental cruelty in divorce petition, H
owned matrimonial home
Decision: equalization at 40% instead of 50
Ratio: it would indeed be unconscionable for W to receive an equal division when she had contributed
virtually nothing to the acquisition of matrimonial home whose value increased substantially btn date of
purchase and date of separation
Application: unequal share is appropriate under 5(6)(e)
Note: matrimonial misconduct per se is not relevant to proceedings for distribution of matrimonial
property
Serra v. Serra 2009 ON CA
Facts: H owns a large business in textile industry. The property is worth over 10 million dollars at
valuation date but the industry has suffered huge decline due to market forces and recession hits.
Dramatic change not due to any fault on part of H, also there was a court order forbidding him to sell
company in the interim
Issue: whether a market-driven post-valuation date change in the value of a spouse’s assets may be taken
into account in determining whether an equalization of NFP is unconscionable under s. 5(6)
Ratio: market-driven decline in value of a spouse’s assets may be considered as a factor in determining
whether an equalization of NFP is unconscionable
Rule: concluding that market-driven decline is a factor does not lead to a finding on the facts that an
equalization order is unconscionable
Application: court’s conscience would be shocked if equalization allowed
Note:
 if find equalization to be unconscionable, the court should then exercise its discretion to create an
order that is fair, just and equitable in the circumstances
 a formal admission of fact, as distinct from an admission of law, cannot be withdrawn except by leave
of the court or on consent, whereas an admission relating solely to a question of law can be
withdrawn at any time
 no constructive trust as there was no deprivation suffered by W
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do not substitute valuation date for trial date: judge took amount at trial date and added a little more in
case bis picks ups again
Kean v Clausi:
Facts:In 2005, parties refinanced matrimonial home and increased mortgage, H wanted to use funds to
invest in high risk investments using equity in MH. Approximately 200,000 of re-financing was invested
in investment account in Wife’s name alone (Wife said this was a credit-proofing strategy). H made all
decisions relating to account. At date of separation account value was 228,168. At time of application
value was 145,158 and at time of trial it was 157,000. Parties agree that post-separation decline was
entirely market driven
Issue: What impact on equalization in light of Serra?
Decision: Serra gives ct authority to take into account this particular situation. Husband says Serra is
distinguishable and facts don't rise to same unconscionability level. Ct disagrees, shouldn't be limited to
extreme cases involving only very wealthy. Say that decrease in value in account hat was created by
husband shouldn't only impact wife.
Matrimonial Home
Family Law Act
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.
(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).
(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.
19. (1) Both spouses have an equal right to possession of a matrimonial home.
(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.
20. (1) One or both spouses may designate property owned by one or both of them as a matrimonial
home, in the form prescribed by the regulations made under this Act.
24. (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19
(spouse’s right of 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,
(i) remain in the home for the use of the spouse given possession, or
(ii) 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;
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(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; and
(g) where a false statement is made under subsection 21 (3), direct,
(i) the person who made the false statement, or
(ii) a person who knew at the time he or she acquired an interest in the property that the statement
was false and afterwards conveyed the interest,
to substitute other real property for the matrimonial home, or direct the person to set aside money or
security to stand in place of it, subject to any conditions that the court considers appropriate.
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children.
(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.
OLRC Report on Family Property Law
 matrimonial home is more than a valuable asset, spouses develop emotional attachment to it
 right to occupy matrimonial home satisfies one of the basic needs of individuals in society, need for
accommodation
 equal division of property frequently results in forced sale of couple’s family residence
 legislature should introduce a more limited amendment to ensure al changes in capital value of home
are included in NFP of owner
 recognizes special contribution to preservation and maintenance of a shared family residence made by
many non-titled spouses
 recommended eliminating matrimonial home for purpose of deduction and exclusion
Rosenthal v. Rosenthal 1986 ON
Facts: three sons living in matrimonial home, W applying for exclusive possession, 2 sons unemployed
but have income, third is a resident and H is paying support for him
Ratio: party applying for order must establish on balance of probabilities that they fall within the
provisions of s. 24(3)
Rule: s. 24(3)
Application: there are insufficient funds to continue the occupation of the matrimonial home, has failed
to satisfy legislation adult kids are not a compelling reason for H to have to maintain 2 households
Pifer v. Pifer 1986 ON
Facts: W alleges increased drinking by H has lead to arguments affecting and frightening children
Ratio: s. 24(4) not restricted to disruptive effects of the move or child’s preferences but may include other
factors such as psychological stress and strains to a child arising out of daily friction btn parents, husband
was a risk
Rule: best interests of the children
Application: W to have custody of the children and exclusive possession of matrimonial home
Hill v. Hill 1987 ON
Facts: H on a letter campaign to intimidate W into settling for less
Decision: interim order for exclusive possession
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Ratio: s. 24(3)(f) must surely include in the meaning of violence that violence causing injury to spouse
which can be achieved by words and deeds and is not restricted to the violence which can be achieved
solely by physical abuse
Rule: 24(3)
Application: W can least afford to move, violence has been done to emotional equilibrium, continuation
of joint cohabitation in matrimonial home is impractical, H has other accommodation options
Note: H also did not have proper disclosure of financial assets and fund transfers
Behrendt v. Behrendt 1990 ON
Facts: W applying for interim order for exclusive possession of matrimonial home under s. 24 of FLA, H
suffering from depression and has nowhere to go
Rule: courts must take into account best interests of the children affected and any violence committed by
one spouse against the other or the children
Application: the nature of the allegations, contradictory view presented by one child and age of children
at home militate against exclusive possession
Note: three months after decision, H murdered W then committed suicide
-case demonstrates issues surrounding evidentiary burden of proving violence
Wilson v. Wilson 1989 ON
Facts: H has serious drinking problem, committed acts of violence against W resulting in criminal
charges, spouses operating separate households within matrimonial home
Ratio: in family violence situations with few financial resources, courts can grant exclusive possession of
matrimonial home even though winning party will have to accommodate needs beyond the other’s ability
to pay
Rule: 24(3)
Application: best interests of the child, violence, economic circumstances and lack of alternatives
militate toward finding of exclusive possession
Paul v. Paul 1986 SCC
Ratio: BC legislation cannot be used to grant occupancy rights in a matrimonial home located on a
reserve to the W
Wynn v. Wynn 1989 ON
Ratio: courts cannot make an order for exclusive possession of a matrimonial home on a reserve but can
make an in personam order restraining other party from interfering with spouse’s possession of
matrimonial home
Pensions
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Settlement Options –
Key Issue
Trade of Cash or
Other Assets
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“If and When”
Arrangements
Lump Sum Transfer
of Share of Member’s
Interest in Plan
Proposed Legislation aims to reduce “dueling actuaries” defined benefit pensions
Non-member spouse to be paid at the time of separation the present value of his or her share of the
plan on the valuation date
Amount will usually to be placed in a locked-in RSP
Details to be worked out through Regulations; pensions to be valued by pension plan administrators
in accordance with regulations
Contributions after separation not considered by the courts
Defined as property under s. 4 of FLA
Two main types of plans:
Defined contribution plans, easiest from division point of view
o Plan where you get your benefit determined based on accumulated contributions that
the employee and employer have made. Benefit is a return on investment. What is the
aggregate accumulated during marraige
o You have to figure out their value at valuation date!
 Aggregate contributions through marriage
 Return on investment at valuation date
Defined benefit plan
o Benefit is not directly linked to contribution
o Years of service based on last 5 years (your best years)
o Present value: amount that would have been invested as at valuation date in order for
the original investment and accumulated earnings to be enough to fund monthly
benefits when pension comes into play, figured out by an actuary
o Figure out what the state of your fund would be that would have been paid out at
retirement
o Point of note: because it is not linked directly to your contributions, because it’s
formula based, formula separate from contributions, it leads to many uncertainties in
way you calculate present value
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Now what happens is that pension plan administrator will go through simplified valuation process to
determine the imputed value of the pension and that process is delineated through s.10.1(1) of FLA
and Pension Benefits Act.
Double dipping issue: what happens if pension is valued as part of NFP and spouse is faced with
spousal support claim after retirement?
Best v. Best SCC
Notes:
 If pension already in place at date of marriage, need to deduct pre-marriage amount from NFP
 Do this by the pro rata approach: V-date value multiplied by quotient obtained when the # of years of
pensionable service during the marriage is divided by the total # of years of pensionable service as of
separation
 Retirement method (assumes employee will continue until specified retirement age) might be
appropriate in some circumstances
Boston v. Boston 2001 SCC
Facts: H’s pension determined in equalization calculation at time of divorce, also obliged to pay spousal
support, when he retired, he began to receive pension payments, seeking to discontinue support on basis
of double dipping
Ratio: when a pension is dealt with by lump-sum method, the payee spouse must use the assets received
on equalization to create a pension plan to provide for future support
Rule: payee spouse should attempt to generate self-sufficiency
Application: payee spouse cannot save the assets she receives on equalization and choose instead to live
on liquidation of payor spouse’s pension when he retires
McTaggert:
 Disability pension included in NFP
Bremner:
 sick leave included in NFP
Leckie:
 If received after separation, severance not included in NFP (even though based on period of
service during marital cohabitation)
Personal Injury Damages:
 Personal injury damages- any portion relating to compensation for wages- included in NFP (but
recall other portions excluded under s.4 (2))
Cohabiting Couples Property Division
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Cannot use FLA to divide property-Nova Scotia v. Walsh
Murdoch v. Murdoch-could not prove resulting trust but dissent held she could have proven
constructive trust
Rathwell v. Rathwell: constructive trust doctrine can be used for married couples as well as FLA
Pettkus v. Becker 1980 SCC
Facts: W contributed through her labour and earnings substantially to the good fortune of the common
enterprise of the successful beekeeping business and property in H’s name, never married, trial judge
awarded 40 beehives and some money
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Ratio: test for unjust enrichment: an enrichment, a corresponding deprivation and absence of any juristic
reason for the enrichment, must in addition be evident that the retention of the benefit would be unjust in
the circumstances
Rule: for the unjust enrichment principle to apply it is obvious that some connection must be shown btn
the acquisition of property and corresponding deprivation, extent of the interest must be proportionate to
the contribution, direct or indirect, of the claimant
Application: Constructive trust resulting in tenancy in common with property
Notes:
 Principle of unjust enrichment lies at the heart of the constructive trust as an equitable principle
 Where one person in a relationship tantamount to spousal prejudices herself in the reasonable
expectation of receiving an interest in property and the other person freely accepts benefits conferred
by the first person in circumstances where he knows or ought to have known of that reasonable
expectation, it would be unjust to allow the recipient of the benefit to retain it
 H sold property for significantly less than its worth, B committed suicide as the rest of the settlement
went to lawyers’ fees
 Concurring opinion determined a resulting trust applied as B had made a financial contribution and
there was a common intention that it be used for the benefit of both parties
 Throughout years resulting trust has faded away
Sorochan v. Sorochan 1986 SCC
Facts: cohabiting relationship of over 40 years, had 6 kids, W seeking interest in land, H owned almost
all the property at the time when they began to cohabit, contribution of labour directed only to the
maintenance but not the acquisition of property, trial judge awarded ¼ money provided she give it to her
kids
Ratio: link need not always take the form of a contribution to the actual acquisition of the property, a
contribution relating to the preservation, maintenance or improvement of property may also suffice
Rule: an enrichment, a corresponding deprivation, absence of any juristic reason for the benefit, nexus btn
deprivation and property in question
Application: monetary judgment for interest in property appropriate, doesn't always have to be for
acquisition of property, constructive trust remedy must be flexible, can be more maintenance,
preservation or improvement. SCC deletes requirement that she needs to reconvey the property to her kids
Verson v. Rich 1988 Sask CA
Ratio: no sufficient nexus between the work and the property claimed means no constructive trust
Nexus:
 What is necessary to demonstrate this nexus between work and property claim?
 No unjust enrichment if the party supplying the service is sufficiently compensated in return
Stanish v. Parasz 1989 Man
Facts: S remained at home to perform household duties and care for a child, P paid all expenses, claimed
a monetary sum rather than interest in home, on welfare after separation
Ratio: the enrichment must be unjust to warrant court order for constructive trust
Rule: enrichment, corresponding deprivation, absence of juristic reason for enrichment
Application: enrichment was not unjust, parties entered into a relationship that was mutually beneficial
Note: providing service in itself is not enough for a claim of constructive trust although S awarded
spousal support and child support
Remedy for Unjust Enrichment:
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Monetary award on a quantum meruit (what one has earned) basis or by way of equitable
compensation
Georg v. Hassanali 1989 ON
Facts: P and D lived together for 15 years, D proposed marriage repeatedly even though he was married,
P spent 10 years caring for apartment building in Scarborough that D owned as well as household labour
for D, when D’s wife died he quickly married a Muslim woman, P now on welfare but still living in
apartment
Ratio: finding of unjust enrichment does not automatically lead to a constructive trust declaration,
constructive trusts are only to be imposed of a monetary award is insufficient
Application: award of 725,000 was fair and realistic amount to redress her deprivation
Note: court also held she could continue to occupy apartment without payment and held a proprietary
interest in the building until 725,000 paid
Kutt v Sam:
Decision: wife entitled to 25% of interest in matrimonial home where she had worked outside home and
provided household services for many years
Peter v. Beblow 1993 SCC
Facts: cohabiting relationship for 12 years, P cared for children and looked after home, prior to this B
paid a housekeeper to do these things, B paid off mortgage, owned a car and boat at end of relationship, P
seeking constructive trust in home
Decision: P to receive entire interest in home-100%
Issue: whether the law should recognize the services which P provided as being capable of founding an
action for unjust enrichment
Ratio: there is no reason to distinguish domestic services from other contributions, these services are of
great value to the family and the other spouse
Rule:
 enrichment, corresponding deprivation, no juristic reason, must be unjust
 determine whether monetary award is insufficient and whether the nexus btn the contribution and the
property is present
Application: concern that a monetary amount would not be paid, evidence is capable of supporting the
conclusion that the house reflects a fair approximation of the value of P’s efforts as reflected in the family
assets
Note:
 a common law spouse generally owes no duty at common law in equity or by statute to perform work
or services for her partner
 value received approach: to be used for a monetary award, what is the value on the market for the
services received by B
 value survived approach: used for constructive trust, what is the value added to the property as a
result of the services or contribution done by P
 Dissent: when a monetary award is more appropriate than constructive trust: small entitlement v.
Property size, B’s ability to satisfy claim without sale, special attachment to property, hardship to B
Matta v. Smith 2002 ON
Facts: cohabiting relationship for 28 years, W contributed fewer benefits than H
Ratio: in determining whether a monetary award is sufficient, the other spouse’s contributions are a factor
Rule: enrichment, corresponding deprivation, absence of juristic reason
Application: unjust enrichment but monetary award is sufficient
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Unjust Enrichment and Quasi Spousal Relationships:
Nowell v. Town Estate 1997 ON CA
Facts: N had relationship with T for 24 years even though he was married, they never cohabited, T
bought a farm at year 13 for them, N made contributions to it, T gave N some of his paintings
Decision: 300,000 to N
Ratio: if the relationship is quasi-spousal, a party can claim constructive trust
Rule: enrichment, corresponding deprivation, absence of juristic reason
Application: constructive trust made out, monetary award appropriate
Pelechaty v. Martyniuk Estate 1999 Sask
Facts: 17 year relationship, deceased had purchased home for P to live in, P cooked cleaned and
maintained the house, will left property to nephews and nieces
Decision: awarded the home to P which represents 20% interest in estate
Ratio: unjust enrichment and constructive trusts are available to couples who are not cohabiting but are
spousal-like
Application: unjust enrichment, constructive trust and monetary award insufficient
Same Sex:
Forrest v. Price 1992 BC SC
Ratio: constructive trust doctrine applies to same-sex couples too
Buist v. Greaves 1997 ON
Facts: lesbian couple, B contributed financially and with labour as did G
Rule: enrichment, corresponding deprivation, absence of jurisitic reason
Application: no increase in value to property due to B’s contributions, no enrichment to G
Anderson v Luoma:
Decision: shorter relationship, unjust enrichment, monetary award – usually just monetary when
relationship is shorter
Caregiving/Illness:
Knoll v. Knoll Estate 2001 Sask
Facts: W signed pre-nup stating she would not make a claim against the state, seeking constructive trust
due to extra care-giving when H fell ill
Ratio: can contract out of making a constructive trust claim
Application: W performed services not for reward but out of love and affection
McLean v. Danicic 2009 ON
Facts: D denies relationship claiming M was mere tenant, D had given M engagement ring, lived together
renovating house, bought a lot and built a cottage on it together, properties in D’s name, M had to go on
disability due to injury, D upset by her inability to work as before, M had three separate claims, one in
tort, one in spousal support, one for unjust enrichment, D could not participate in this trial due to a court
order
Decision: quantum meruit on value received approach to monetary award
Ratio: Courts can take third party creditors into consideration when determining appropriateness of
monetary award
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Rule: 1. enrichment, corresponding deprivation, absence of juristic reason 2. Causal link to property,
monetary insufficient
Application: unjust enrichment made out, D has depreciated value of assets, creditors would be
prejudiced for collecting if constructive trust awarded
Note: awarded full recovery costs for bad faith of D, case made out for harassment and spousal support
ordered, made a vesting order to ensure M gets monetary compensation
Joint Family Ventures:
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Comes into play when we look at remedies, monetary award is still the preferred option, the
proprietary award still applies if money inappropriate or insufficient.
o Still need causal link between properties and benefit
o In peter v beblow, ct was dealing mostly with constructive trust, didn't deal with monetary
awards
Ct says for monetary remedy it is difficult to come up with itemized list of what has been done over
period of time
Ct says there are actually sometimes when it might be k to use a value survived approach to quantify
the monetary relief
Couples are involved in a common venture and hard to divide their contributions, so if you have a
joint family venture that results in or can be linked to an accumulation of wealth, it would be
unjust to leave one party with a disproportionate value of assets of asset value
o Must be flexible in the way that they craft remedies, need to have link between contributions
and accumulation of wealth, doesn't necessarily mean equal sharing – if it was always 50/50
it would look just like a presumed equal contribution by parties which SCC wants to avoid
What counts a JFV: No presumption that its there, must prove it on evidence
o Has there been mutual effort – working together towards common goals
o Economic integration: more integrated, more likely cts will find they have a JFV
o Actual Intent: did the parties actually make a choice to have autonomy and not intertwine
lives? Or did they intend for their lives to be interdependent and interwoven
 Evidenced by conduct: did they hold out to public as married or married like, length
of relationship, letters/what they say, priority of the family (detrimental reliance for
sake of family ie housewife) ie Vanesse move to Halifax, wife left job
In Kerr v Baranow, Vanesse v Seguin the SCC clarified certain aspects of the unjust enrichment
doctrine as applied at the end of a cohabiting relationship
Kerr v Baranow, BCSC 2007:
Facts: couple in 60s separated after more than 25 years of cohabiting> both had worked and contributed
to mutual well-being. K claimed a share of property held in B;s name on basis of resulting trust and unjust
enrichment. B counterclaimed in relation to his housekeeping and caretaking for K after she suffered a
stroke
TJ: awarded K 1/3 value in home of B
BCCA: K had made no financial contribution relating to the acquisition or improvement of the property
and dismissed her claims, ordered a new trial for counterclaim
SCC: Cromwell identified a number of problems and omission with the evidence at trial and ordered new
trials
Vanasse v Seguin, 2009, ONCA:
Facts: 12 year relationship, first 4 each ahd own careers, but when moved to Halifax for job V took leave
from work and had two children she cared for. Eventually moved back and bought house in joint name.
TJ: no unjust enrichment except during period in Halifax
OCA: directed new valuation
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SCC: restored order of TJ and set out issues to resolve relating to these cases:
1. Role of common intention resulting trust in claims by domestic partners:
a. Common intention has no further role to play, doctrinally unsound
2. Nature of the money remedy for a successful unjust enrichment claim:
a. Where both parties have worked together for the common good, with each making extensive,
but different, contributions to the welfare of the other and, as a result, have accumulated
assets, the money remedy for unjust enrichment should reflect that reality. The money
remedy in those circumstances should not be based on a minute totting up of the give and
take but rather should treat the claimant as a co-venturer not as hired help
b. What do we need for UE: contribution, from D to P, can be a positive benefit to save expense,
must be corresponding deprivation looking at econ approach then must be no juristic reason 3
steps (contribution, corresponding deprivation then no juristic reason)
3. Mutual Benefit conferral:
a. This issue should be addressed at the defence and remedy stage
4. What role the parties reasonable or legitimate expectation play in the unjust enrichment analysis:
a. Limited role, must be considered in relation to whether there is a juristic reason for the
enrichment
b. Here Cromwell looks at 2 step approach to juristic reason:
i. Step 1: p has onus of proof to show there is no juristic reason for titleholder to retain
benefit. Will look at typical categories that typically give rise to juristic reason –
donative intent, contract
ii. Step 2: once step 1 is met, there is a prima facie case and there is a rebuttable
presumption where the D can show why the enrichment should be retained by him or
her.
1. They may show this by showing reasonable or legitimate expectation of
parties, public policy considerations, mutual benefits (can be looked at in a
limited way, but only to extent that it illustrates some sort of agreement
between parties)
iii. If there is JFV and that is linked to acquisition of assets we might best calculate the
monetary award by doing a value survived approach and doing a portion of the
accumulated wealth
Spousal Support
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S. 92(13) constitution allows for provinces to enact spousal support statutes
S. 91(26) federal government allowed to legislate anything related to divorce
Caratun v. Caratun: professional degrees are not property but W awarded lump sum spousal support,
so she received compensation for contribution to marriage
Spousal support may often be varied at a later date having regard to changes, either positive or
negative in the economic circumstances of the former spouses
Spousal support may appear to be based on more discretionary decision making than determinations
about property
Connections btn decisions about property sharing and spousal support need to be examined in the
context of economic circumstances of families at separation
S. 15.3 DA when determining applications for spousal and child support, courts must give priority to
child support
Bracklow v. Bracklow: preferable for needy former spouse to receive support from former H
recognizing the potential injustice of foisting helpless former partners onto the public assistance role
Principles of spousal support under s. 15.2 apply only to married couples who have applied for
divorce
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Entitlement to support generally extended under provincial legislation to same-sex couples, M. v. H.
1999 SCC p. 519
three models:
1. Means and needs: if one spouse has needs and the other has the means to support, then support is
given
2. Economic Advantages and Disadvantages of Marriage, Compensatory Rationale
a. Look at what happened during marriage and how it’s played out in terms of parties’
current positions
3. Self-Sufficiency
a. Related to clean break idea
b. Linked to value of certainty and finality, predictability
c. Spousal support should be awarded to extent the spouse can become self-sufficient
d. How long will it take? Time-limited award
Divorce Act Provisions
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order
requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump
sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
(2) Where an application is made under subsection (1), the court may, on application by either or both
spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum
or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of
the other spouse, pending the determination of the application under subsection (1).
(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a
definite or indefinite period or until a specified event occurs, and may impose terms, conditions or
restrictions in connection with the order as it thinks fit and just.
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take
into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not
take into consideration any misconduct of a spouse in relation to the marriage.
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the
support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage
or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child
of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a
reasonable period of time.
15.3 (1) Where a court is considering an application for a child support order and an application for a
spousal support order, the court shall give priority to child support in determining the applications.
Family Law Act Provisions
30. Every spouse has an obligation to provide support for himself or herself and for the other
spouse, in accordance with need, to the extent that he or she is capable of doing so
33. (1) A court may, on application, order a person to provide support for his or her dependants
and determine the amount of support.
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(2) An application for an order for the support of a dependant may be made by the dependant or the
dependant’s parent.
(2.1) The Limitations Act, 2002 applies to an application made by the dependant’s parent or by an
agency referred to in subsection (3) as if it were made by the dependant himself or herself.
(3) An application for an order for the support of a dependant who is the respondent’s spouse or
child may also be made by one of the following agencies,
(a) The Ministry of Community and Social Services in the name of the Minister;
(b) A municipality, excluding a lower-tier municipality in a regional municipality;
(c) A district social services administration board under the District Social Services
Administration Boards Act;
(d) Repealed: 2006, c. 19, Sched. B, s. 9.
(e) A delivery agent under the Ontario Works Act, 1997,
If the agency is providing or has provided a benefit under the Family Benefits Act, assistance under
the General Welfare Assistance Act or the Ontario Works Act, 1997 or income support under the
Ontario Disability Support Program Act, 1997 in respect of the dependant’s support, or if an
application for such a benefit or assistance has been made to the agency by or on behalf of the
dependant.
(4) The court may set aside a provision for support or a waiver of the right to support in a domestic
contract and may determine and order support in an application under subsection (1) although the
contract contains an express provision excluding the application of this section,
(a) If the provision for support or the waiver of the right to support results in unconscionable
circumstances;
(b) If the provision for support is in favour of or the waiver is by or on behalf of a dependant who
qualifies for an allowance for support out of public money; or
(c) If there is default in the payment of support under the contract at the time the application is
made.
(5) In an application the court may, on a respondent’s motion, add as a party another person who
may have an obligation to provide support to the same dependant.
(6) In an action in the Superior Court of Justice, the defendant may add as a third party another
person who may have an obligation to provide support to the same dependant.
(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).
(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;
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(j) a contribution by the dependant to the realization of the respondent’s career potential;
(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.
Conduct
(10) The obligation to provide support for a spouse exists without regard to the conduct of either
spouse, but the court may in determining the amount of support have regard to a course of conduct
that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.
Quick Reference Table
Jurisdiction
Federal:
Divorce Act, 1985, s. 15
Provincial:
Family Law Act, Part III
Divorce:
Divorce Act
s. 15.2(1):
Order for support (reasonable sum)
s. 15.2(3):
Terms and conditions
s. 15.2(4):
Factors for consideration (note
agreements)
s. 15.2(5):
Spousal misconduct (irrelevant) (?)
s. 15.2(6):
Objectives of spousal support orders
s. 15.3(1):
Priority for child support
s. 17:
Variation
Separation:
FLA, Part III
s. 29:
s. 30:
s. 33:
s. 33(3)
s. 33(4)
s. 33(8)
Definition of spouse
Obligation of spousal support
Orders for support
Applications by MCSS, etc.
Setting aside domestic contracts re unconscionability,
eligibility for social assistance, or default in payment of
support
Purposes of order for spousal support
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s. 33(9)
s. 37:
To determine amount and duration
of spousal support, factors to be considered
Variation of spousal support orders
Definition of Spouse
Family Law Act
29. In this Part,
“Dependant” means a person to whom another has an obligation to provide support under this Part;
“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons
who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.
Divorce Act s. 2(1)
“spouse” means either of two persons who are married to each other
 Can also mean a former spouse, divorce does not preclude spousal support application
Molodowich v. Penttinen 1980 ON
Ratio: seven component test for cohabitation determination
Rule:
 Shelter – do they live under same roof, did another person share the accommodation?
 Sexual and personal behaviour – did they eat together, help each other when sick etc.
 Services – what was the conduct of the parties regarding domestic services
 Social – did they participate together in neighbourhood and community activities such that others in
their families would view them as being in a spousal relationship
 Societal-attitude and conduct of community towards couple
 Economic Support – what arrangements did the parties have for support of each other
 Children – what was attitude and conduct of parties regarding children
Sullivan v. Letnik 1994 ON
Facts: parties that live on the restaurant boat, she works for him, becomes a commercial enterprise, she
begins to live on the boat with him, when relationship ends she’s looking for spousal support, he’s
claiming not a spousal relationship
Decision: spousal support for S
Ratio: temporary separations do not preclude a finding that the parties have cohabited continuously
Rule: whether couples are separated is a question of intent, not geography; at least one of the parties must
intend to permanently sever the relationship
Application: frequent on and off periods of living together does not mean parties were separated, no
intent to separate until the end, appeared to be together in newspaper, cards he wrote and to secretary
Stoikiewicz v. Filas 1978 ON
Facts: W on social assistance, shared an apartment with H whom she had intimate relations with,
contributed to rent
Decision: no spousal support
Ratio: unmarried persons cannot be found to be cohabiting within the meaning of s. 29 unless it can be
determined that their relationship is such that they have each assumed an obligation to support and
provide for the other in the same manner that married spouses do
Brunette v. Quebec 2000 Que
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Facts: 64 year old disabled W, 54 year old mentally disable H, shared accommodation and expenses but
no sex, welfare ceased paying benefits
Decision: not spousal
Ratio: Relationships must have an element of sex to be considered spousal
Brebic v. Niksic 2002 ON CA
Facts: W cohabited with H for 18 months, bought a home together, H killed in a collision and W wanted
to sue driver but only could if she were a spouse
Decision: not a spouse
Ratio: s. 29 definitions do not infringe s. 15 of Charter as any deleterious effects of the definition of
spouse are outweighed by advantages of having an objective standard by which individuals and the courts
can determine when state-imposed support obligations and rights arise
Rule: s. 29 FLA, cohabit for three years or have a child
Application: she did not do these things, 3 year requirement not a Charter infringement: cohabitated with
a man killed in accident, right to sue other driver dependent on being a spouse and did not meet criteria (3
years and/or child), three year requirement not unconstitutional
De Souza v. De Souza 1999 ON
Facts: married, two children, then divorced, subsequently reconciled for 6 months then separated
permanently, W seeking spousal
Ratio: it is not relevant whether children were born before the period of cohabitation if there are children
of the relationship
Rule: s. 29 FLA, cohabit for three years or have a child
Application: definition satisfied
Mahoney v. King 1998 ON
Facts: W had relationship with married man for 6 years, lived in separate residences, seeking interim
spousal support
Decision: no interim award
Ratio: it is possible for a person to be a spouse even though they live in separate residences and one of
them is married
Variation Orders
Divorce Act
17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending,
prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses; or
(b) a custody order or any provision thereof on application by either or both former spouses or by
any other person.
(2) A person, other than a former spouse, may not make an application under paragraph (1)(b) without
leave of the court.
(3) The court may include in a variation order any provision that under this Act could have been included
in the order in respect of which the variation order is sought.
(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy
itself that a change in the condition, means, needs or other circumstances of either former spouse has
occurred since the making of the spousal support order or the last variation order made in respect of that
order, and, in making the variation order, the court shall take that change into consideration.
(6) In making a variation order, the court shall not take into consideration any conduct that under this Act
could not have been considered in making the order in respect of which the variation order is sought.
(7) A variation order varying a spousal support order should
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(a) recognize any economic advantages or disadvantages to the former spouses arising from the
marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any
child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the
marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a
reasonable period of time.
(10) Notwithstanding subsection (1), where a spousal support order provides for support for a definite
period or until a specified event occurs, a court may not, on an application instituted after the expiration
of that period or the occurrence of the event, make a variation order for the purpose of resuming that
support unless the court is satisfied that
(a) a variation order is necessary to relieve economic hardship arising from a change described in
subsection (4.1) that is related to the marriage; and
(b) the changed circumstances, had they existed at the time of the making of the spousal support
order or the last variation order made in respect of that order, as the case may be, would likely
have resulted in a different order.
Family Law Act
Application for variation
37. (1) An application to the court for variation of an order made or confirmed under this Part may
be made by,
(a) A dependant or respondent named in the order;
(b) A parent of a dependant referred to in clause (a);
(c) the personal representative of a respondent referred to in clause (a); or
(d) an agency referred to in subsection 33 (3).
Powers of court: spouse and parent support
(2) In the case of an order for support of a spouse or parent, if the court is satisfied that there has
been a material change in the dependant’s or respondent’s circumstances or that evidence not
available on the previous hearing has become available, the court may,
(a) Discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) Relieve the respondent from the payment of part or all of the arrears or any interest due on
them; and
(c) Make any other order under section 34 that the court considers appropriate in the
circumstances referred to in section 33.
Messier v. Delage 1983 SCC
Facts: three kids, 12 year marriage, W gets spousal support, goes back to school as translator but cannot
find job, H seeking to end spousal
Decision: spousal support should continue
Ratio: needs and means rationale for spousal support
Dissent: becomes majority in Pelech trilogy
 Rationale: if you have credentials and cannot get a job, the ability of someone to assist you is
irrelevant just because you married them
 Responsibility in these matters should fall on the state, not spouse
Pelech trilogy: Pelech, Richardson, Caron – emphasize clean break
Facts: parties attempting to get court to look beyond agreement limiting duration of spousal support and
put forth a spousal variation order
Ratio: absent some radical change in circumstances from time you enter agreement to time seeking
additional support, there will be no change to spousal agreements
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Rule: change in circumstances must be causally linked to marriage
Note: was decided under the 1968 DA, the 1985 DA articulated more clear objectives and factors to be
considered on support applications than the 1968 act had see 15.2(4) and 15.2(6) above
Davis v Crawford, 2011, ONCA
Facts: cohabiting spousal support where relationship ended after 23 years
TJ: ordered lump sum for woman
OCA: rejected man’s appeal, and submission that Mannerino had narrowly restricted the cts authority to
order lump sum support to situations where there was a risk that support would not be paid or unusual
circumstances.
Rule: Must assess the advantages and disadvantages of a lump sum award in the circumstances of each
case, here man was attempting to shelter his assets so there was a risk or payment and clean break was
desirable
Moge v. Moge 1992 SCC
Facts: H and W immigrated to Canada in 60s with 3 children, H was breadwinner, W was domestic,
divorced in 1980, H remarried in 1984, W laid off in 1987, W applying for a variation in support
Issue: Can support be varied following a support order at the time of divorce?
Ratio: s. 17(7) self-sufficiency is not the dominant consideration under the statute and it is to be made a
goal only insofar as is practicable
Rule: judges must base their decisions on a number of factors: compensation, child-care, post-separation
need, and the goal of promoting self-sufficiency
Application: spousal support is to be increased as the goals are met by W
Note:
 Did not apply Pelech trilogy as this is not a case of final settlement agreement but a support order
 Also, Pelech trilogy decided under pre-1985 DA, this case deals with current one
 Feminization of poverty arguments brought forth wrt social science evidence on consequences of
different labour force participation and responsibility for child care
 As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer
the economic union, the greater will be the presumptive claim to equal standards of living upon its
dissolution
 Court has the overriding discretion in determining spousal support
 Primary burden of spousal support should fall on family members and not the state
Sheppard: Lessons from Moge
 Approach based on assessment of marriage-generated disadvantages and advantages contains the
same uncertainty and risk of biased application as the trilogy’s test
 Moge risks reinforcing the tradition of privatization as the norm of familial economic well-being
rather than moving us toward a more public and collective approach to individual economic security
 Does not address social factors beyond marriage that help to account for W’s current economic needs
eg immigration laws/policies
Rogerson: Spousal Support After Moge
 Radical message wrt value of women’s work in the home and their entitlement to compensation from
their H has been diluted
 Message of the obligation of the family members to provide for each other’s economic needs and care
for each other
 Women can expect judicial recognition of long-term economic consequences after marriage
breakdown due to them remaining out of the labour force for significant periods of time during
marriage
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Concern wrt judicial discretion, cts look more at poverty than compensation
More put trilogy into question but SCC still hasn't fully overrule bc it was based on a support
agreement, not support order like Moge, lower cts all over the map, but pendulum swinging towards
fairness analysis
G. (L.) v. B. (G.) 1995 SCC
Concurrent View: Pelech trilogy should not continue to be applied
Wilkinson v. Wilkinson 1998 Al
Facts: W failed to obtain full-time employment as teacher due to education cutbacks, agreement limited
to 4 years of spousal
Ratio: separation agreements are to be respected where there is no material change in circumstances
warranting a variation, applied Pelech
Bailey v. Plaxton 2000 ON
Facts: H and W married, three children, separated in 1985, agreement stated spousal support not to be
varied under any circumstances, separation agreement not incorporated in divorce decree
Decision: spousal support given to W
Ratio: agreements should be given substantial weight but must also be situated in terms of the other
factors articulated in s. 15.2(4) and assessed in terms of their ability to promote ideas of need,
compensation and independence as listed in s. 15.2(6)
Application: since no original order had been made by courts, this was not a variation proceeding but a
first application for spousal support
Note: refused to apply Pelech trilogy
Hough v. Hough 1996 ON
Facts: 2nd marriage for both parties, H’s retirement income was 81,000 while W continued to work
earning 500,000+, H arguing economic hardship if forced to live on his income alone
Decision: time-limited spousal support
Ratio: Other circumstances is broad enough to encompass former lifestyle, looking at economic
advantage of marriage as a factor
Rule: s. 15.2(4) states needs, means and other circumstances
Nock v. Nock 1998 ON
Facts: 28 year marriage, H lost fulltime job after separation, learning disabilities rendered it difficult to
retrain him,
Decision: 400 per month spousal support to H
Ratio: court must be ultimately satisfied that, but for the breakdown of the marriage, the ensuing
consequence faced by claimant spouse would not have occurred
Rule: needs and means objective
Application: H suffered economic hardship which flows directly from breakdown of the marriage
Julien Payne: Spousal Support
 16 factors judges must ask wrt determining spousal support obligation
 Uses the four factors then look to H and W for each
 Also look at pre and post marriage breakdown
Keast v. Keast 1986 ON
Facts: W worked as a nurse, supported H in med school, maintained family home and took care of two
children, W became unemployed at separation due to breakdown in physical and mental health
104
Ratio: compensatory approach to professional degrees, economic advantage/disadvantage objective as
well as needs and means
Application: compensatory support sum awarded for contributions to H’s potential at 1000 per month for
10 years
Bracklow v. Bracklow 1999 SCC – non compensatory support
Facts: H and W married in 1989, 1991 W experienced psychiatric problems and it’s unlikely she will ever
work again, separated in 1992, H remarried and wants to stop paying support
Issue: whether a spouse has an obligation to support a former spouse over and above compensation for
loss incurred as a result of the marriage and its breakdown
Decision: remand to trial court for amount, trial judge awarded 400 per month for 4 more years
Ratio: Non-compensatory mutual obligation theory to spousal support entitlement accepted by courts
Rule: three grounds for entitlement to support: compensatory, contractual and non-compensatory
(suggests mutual obligation)
Application: hardship due to breakdown, palpable need, financial ability to pay, cohabitation period,
contributions
Note: mutual obligation theory of marriage and divorce posits marriage as a union that creates
interdependencies that cannot easily be unravelled, interdependencies in turn create expectations and
obligations that the law recognizes and enforces
 Rogerson: there is no one model or philosophy of spousal support and there are no fixed rules or
guidelines for determining spousal support
Need and Self-Sufficiency:
Shields v Shields, 2008, AB CA
Facts: Wife had few skills at marriage; stayed at home after 2 children born; working full time by 2006 (7
years after separation)
Decision: In 2000, wife received lump sum award; in 2002 motions judge awarded $1,000 monthly for
indefinite duration Alberta CA held support between 2001 and 2006 sufficient (in addition to lump sum).
Application: 8 years support after 15 year marriage ought to provide mother with realistic time frame to
return to work force
Rioux v Rioux 2009 ONCA
Facts: 21 year marriage; wife earned $26,000 annually; husband earned $103,000, Husband in contempt
of several orders.
TJ: lump sum awarded
OCA: awarded 1500 monthly from 2007-2012 with review available to either party in 2012. This
effectively means that if ct made award and one party found unsatisfactory, to vary you need to reach a
certain threshold to establish change in circumstances, if you allow for a review – you are bypassing
threshold for change in circumstances
Hickey v Hickey (1999, SCC) (p 671):
 SCC indicated that appellate cts should generally defer to TJ in the absence of a significant error
Spousal Support Advisory Guidelines (SSAG)
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
Assumes entitlement has been determined (moge, Bracklow)
stated objectives: reduce conflict and encourage settlement, create consistency and fairness, reduce
costs, improve efficiency, provide structure for further judicial elaboration, bring more certainty and
predictability to the determination of spousal support
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can apply to both DA proceedings and provincial legislation, instead of length of marriage, look at
length of cohabitation
Model is based on income sharing than budget-based, SSAG does not override agreements
SSAG deals minimally with review and variation orders – mostly concerned with intial determination
Child Support Guidelines are mandatory whereas these are advisory only
do not deal with entitlement, just amount and duration
entitlement determination also to be used to determine location within formula ranges or to justify
departure from ranges
ceiling: gross annual income of payor at 350,000
floor: gross annual income of payor at 20,000
Two Formulas:
Without Child Support Formula
Amount:
 1.5-2% of the difference btn the spouses’ gross incomes for each year of marriage (or more precisely,
years of cohabitation) up to a max of 50%.
 Max range is fixed for marriages that are 25 years or longer at 37.5-50% of income difference
 Net income cap: upper end of max range capped at the amount that would result in equalization of
incomes
 Should be one calculation for 1.5% and one for 2%
Duration:
 .5 to 1 year for each year of marriage, one calculation for each
 Support is indefinite if marriage is 20 years or longer or if:
 Rule of 65:
o years of marriage plus age of support recipient added together totals 65 or more
o marriage must be at least 5 years long for this rule to apply
o support will be indefinite
Factors that can impact amount or duration:
 Strong compensatory claim
 Recipient’s needs
 Property division
 Need and ability to pay
 Self sufficiency incentives
With Child Support Formula for Amount
1. Determine the individual net disposable income (INDI) of each spouse
a. Guidelines income minus child support minus taxes and deductions = Payor’s INDI
b. Guidelines income minus notional child support minus taxes and deductions Plus
government benefits and credits = Recipient’s INDI
2. Add together the INDIs. Then determine the range of spousal support that would be required to
leave the lower income recipient spouse with btn 40 and 46% of combined INDI
With Child Support Formula for Duration
Two tests for duration, whichever produces the longer duration is to be used
1. Length-of marriage test:
a. .5 to 1 year for each year of marriage
b. Indefinite for 20+ years
106
c. Indefinite for Rule of 65
d. Typically will apply to marriages of more than 10 years
2. Age-of-Children test:
a. Lower end: until youngest child starts full time school
b. Higher end: until youngest child finishes high school
c. Typically will apply to marriages of less than 10 years
Restructuring
Allows the amount and duration under the formulas to be traded off against each other so long as overall
value remains with guidelines
1. Front-end load awards: increasing amount, shortening duration
2. Extended duration: lowering monthly amount
3. Lump-sum: combining amount and duration
Exceptions
 Case by case basis
 Compelling financial circumstances during interim period
 Debt payments
 Prior support obligations
 Illness or disability of recipient spouse
 Compensatory exception for shorter marriages under with child support formula
 Reapportionment of property (BC only)
 Basic needs/hardship under without child support formula
 Non-taxable payor income
 Non-primary parent to fulfil parenting role
 Special needs of a child
 S. 15.3 for small amounts and inadequate compensation under the with child support formula
Fisher v. Fisher 2008 ON CA
Facts: parties were married for 19 years, no children, in last 5 years of marriage and post-separation H
earned increasingly more money, bought a new house and W going to quit job to move when H left, H
remarried in 2005, new spouse from US chose to stay at home rather than be retrained in Canada, trial
judge found to have made factual errors wrt W’s employment status and overemphasis on H’s new family
Decision: Oct 1, 2004-March 1, 2008=3000/month, April 1 2008-Sept 1 2011=1500/month
Ratio: SSAG are only advisory but the global range they generate can be compared to the award as a
litmus test of reasonableness
Rule: s. 15.2(4) and 15.2(6) objectives and goals
Application:
 trial judge’s decision fell way below guidelines but appellate judge’s decision fell within guidelines
 15.2(6) c and d apply: economic hardship and achieve self-sufficiency with 7 years
Note:
 Determination of self-sufficiency includes: parties’ present and potential incomes, standard of living
during marriage, efficacy of any suggested steps to increase a party’s means, parties’ likely postseparation circumstances (including equalization), duration of cohabitation and others
 Review orders are applicable only when there is genuine and material uncertainty at the time of the
original trial
 Retroactive support is available when: recipient establishes a greater entitlement of interim support,
other party had ability to pay and imposition of retroactive support would not create undue hardship
for payor
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a payor cannot avoid support obligations by assuming new liabilities or relying on new obligations to
a second family
lowered standard of living post-separation can factor into calculation
 OCA said: When counsel fully addresses the guidelines in argument and a trial judge decides to
award a quantum of support outside the suggested range, appellate review will be assisted by the
inclusion of reasons explaining why the Guidelines do not provide an appropriate result. This is
no different than a trial court distinguishing a significant authority relied upon by a party.
Chutter v. Chutter 2008 BC CA
Facts: 28 year marriage, W cared for child, H obtained high end assets in a water-slide company through
marriage, W helped in operations, cared for home and worked as dental hygienist, their only child had left
by separation,
Issues: whether trial judge erred in concluding W not entitled to support and if she does whether
guidelines should be applied
Decision: trial judge erred, 2800 per month awarded
Ratio:
1. SSAG are advisory and there are exceptions that allow courts to determine amount and
duration at amounts greater and lower than the guidelines
2. Economic hardship is a relative concept to the parties’ standard of living
Rule: three grounds for entitlement to spousal support: compensatory, contractual and non-compensatory
under s. 15.2(4) and (6)
Application:
 W entitled to compensatory spousal support on the basis that she has been economically
disadvantaged and H advantaged by the marriage and its breakdown
 W entitled on non-compensatory basis due to medical problems preventing her from working a
greater number of hours/days
 Found two factors that militate toward awarding below Guidelines amount: appreciation of RRSPs
and her house is likely to exceed her needs as she approaches retirement
Notes:
 self-sufficiency not a freestanding concept, must be seen in context of standard of living previously
enjoyed by the parties
 even in the context of high assets cases, entitlement to spousal support is not precluded
 indefinite does not mean permanent, can always come back to court for variation order
 if you have an adult child that is not a dependent, you flip to without child formula in Guidelines
Private Spousal Agreements
Miglin v. Miglin 2003 SCC
Facts: H and W married for 14 years, had a matrimonial home and lodge, Agreement: W to get home, H
to get lodge, W waives spousal support, W gets consulting agreement of 15,000 from lodge for 5 years
renewable on consent of parties
Issue: what is the proper weight to be given to any type of spousal support agreement that one of the
parties subsequently wishes to have modified through an initial application in court for such support?
Ratio: court should set aside the wishes of the parties as expressed in an agreement only where the
applicant shows the agreement fails to be in substantial compliance with the overall objectives of the Act,
which includes s. 15.2 and certainty, finality and autonomy
Rule: Two stage test, ct should interfere with pre-existing agreement only if
1. Two parts – process and substance
o Process: we think about when the agreement was executed, were there any circumstances
that might give the ct doubt about it being an actual autonomous exercise
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Presence of vulnerabilities will not in and of itself justify judicial intervention,
need persuasive evidence that one side took advantage
 check for circumstances of oppression, pressure, duration, independent legal
advice, & other vulnerabilities
o Substance: only a significant departure from the general objectives of the Act will
warrant the courts intervention
 Assessment of an agreement’s substantial compliance with the entire Act not
only narrowly against support order provisions
 A determination that an agreement fails to comply substantially with the Act does
not necessarily mean that the entire agreement must be set aside
2. Does enforcement of agreement still reflect the original intention of the parties? Is it still in
substantial compliance with the objective of the Act?
o necessary to show new circumstances were not reasonably anticipated by the parties
o both the intervention and degree of intervention by the courts must be warranted
o There is a list of foreseeable circumstances
 Job market might change
 Parenting responsibilities might be somewhat more onerous than imagined
 Transition into workplace might be challenging
 Health cannot be guaranteed
 Relative values of assets in property division may not remain the same
 Business may take downturn or become more profitable
 Someone may remarry, decide not to work
o NOT foreseeable:
 Illness of a child
 If both stages passed the ct is convinced to interfere
Application: global separation agreement to be given substantial weight, no evidence of vulnerabilities
regarding circumstances surrounding negotiation and execution, nothing that demonstrates significant
departure from DA
Dissent: appropriate threshold for overriding a support agreement in an application for corollary relief
under s. 15.2 is whether the agreement is objectively fair at the time of the application, separation
agreements are unique, gender based inequities may be present within the separation agreements
Notes:
 Pelech trilogy does not apply anymore as it dealt with different legislation,
 it’s clean-break self-sufficiency approach is incompatible with the new act
 on an initial application, change in circumstances has no relevance except when there may have been
a pre-existing order or agreement
 p. 594 lists changes that are normal, job market, parental responsibility, health, housing prices,
business fluctuations, remarriage, etc. High threshold?
 Pelech: people should be encouraged to take responsibility for their own lives and decisions if relied
on legal advice. As long as not unconscionable
 Miglin: must balance parliaments objective of equitable sharing of the consequences of marriage and
its breakdown with the parties freedom to arrange their affairs as they see fit. Accordingly a ct should
be loathe to interfere with a pre-existing agreement unless it is convinces that the agreement does not
comply substantially with the overall objectives of the DA
Ward v Ward 2011 ONCA
Facts: Parties signed memorandum of agreement (MOA) which stated in preamble that it was subject to
their counsel drafting a separation agreement. Wife later started family law proceedings, H argued that the
MOA constituted a binding domestic K
TJ: MOA was merely outline of issues to be decided
109
OCA: held parties conduct was consistent with fact that they had reached binding settlement
Rick v. Brandsema 2009 SCC
Facts: married 29 years, 5 children, dairy farm and other property, negotiated a separation agreement, W
seeking to have it set aside on grounds of unconscionability, H wrote himself a cheque from their joint
account and advanced money to W’s brother (friend of H) who gave it back to H later to hide assets
Decision: agreement set aside, damages awarded
Ratio: a duty to make full and honest disclosure of all relevant info is required to protect the integrity of
the result of negotiations undertaken in vulnerable circumstances
Rule: if one party’s exploitation of vulnerabilities during the negotiation process resulted in a separation
agreement that deviated substantially from the legislation, the agreement need not be enforced. Failure to
make full and honest disclosure of all relevant financial info may render agreement vulnerable to judicial
interpretation
Application: information asymmetry compromises a spouse’s ability to contractual autonomy, H
knowingly misled
Note: wife’s mental instability left her unable to make use of independent legal advice
Conduct
Divorce Act-Spousal Support
15.2(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.
Family Law Act-Spousal Support
33(10) The obligation to provide support for a spouse exists without regard to the conduct of either
spouse, but the court may in determining the amount of support have regard to a course of conduct that is
so unconscionable as to constitute an obvious and gross repudiation of the relationship.
 Conduct may come into play when determining amount, not just adultery must be severe, conduct that
could reasonably be expected to destroy the marriage with blamelessness of other spouse
 If you try to bring claim without bona fide basis you may have costs against you
Ungerer v. Ungerer 1998 BC CA
Facts: married for 23 years, court order for 1200 per month spousal support with generous access to H for
youngest child living with W, W refused to permit access so H did not see child for 5 years, H applying to
have spousal support terminated due to this conduct
Ratio: conduct which has the effect of frustrating a court order can be sufficient to deprive a former
spouse of her right to continue to receive support
Rule: whether that misconduct is of such a morally repugnant nature as would cause right-thinking
persons to say that the spouse is no longer entitled to the support of former H or to assistance of court
compelling H to pay
Application: conduct is sufficiently egregious to disentitle her to continued support
Morey v Morey 1979 ON
Facts: Ct considered FLA s 33(10) found necessary to demonstrate by affirmative evidence that:
 The conduct must be exceptionally bad
 The conduct must be such as could reasonably be expected to destroy the marriage
 Conduct must have persisted in the face of innocence and virtual blamelessness on the part of the
other spouse
 Commission of a so called matrimonial offence is not necessarily sufficient
 Party raising the issue of relevant conduct should be prepared to undertake that there is a bona
fide belief that the test can be satisfied, and
110

The pleadings should set out a summary of the conduct relied on to meet the test
Smith v. Smith 2002 ON
Facts: married for 16 years plus 7 years cohabitation, evidence of physical abuse, sexual infidelities,
abuse of alcohol on part of W, locked herself in basement
Ratio: subsection 33(10) should only be applied in extreme cases
Rule: conduct must be:
 Exceptionally bad
 Such as could reasonably expected to destroy the marriage
 Persistent in the face of innocence and virtual blamelessness on the part of the other spouse
 Party raising the issue of relevant conduct should be prepared to undertake that there is a bona fide
belief that the test can be satisfied
 The pleadings should set out a summary of the conduct relied on to meet the test
Application: W’s conduct comes close
Stewart v. Stewart 2000 NS SC
Ratio: courts can look at post-separation misconduct
Application: H’s bad behaviour post-separation disentitled him to support
B. (S.) v. B. (L.) 1999 ON
Ratio: if both parties engage in behaviour that constitutes a repudiation of the marriage relationship, the
test in 33(10) is not met
Belleville v. White 2002 ON
Facts: W failed to improve education, seek employment and thwarted court orders
Ratio: if conduct of a party is so unconscionable, then spousal support can be denied
A. (T.) v. A. (J.) 2000 ON
Facts: W had extramarital relationships and sexual promiscuity, H had hardship
Ratio: s. 33(10) can also be used to reduce spousal support entitlement
Mills v. Mills 1992 ON
Facts: W had formed a new relationship and credibility impugned
Ratio: economic implications of new relationships and bad credibility can be factors under s. 33(10)
Krigstin v. Krigstin 1992 ON
Facts: parties separated after 26 years, 3 children, W and H moved out of matrimonial home and W
rented it to male friend, friend refused to provide info about economic nature of their relationship and
admitted to seeing W socially
Ratio: refusal to provide information to the court can lead to a reduction in spousal support under s.
33(10)
Walsh v Walsh (2007, OCA) (p 672):
 Former wife had become obsessed with former husbands infidelity and had been engaged in
litigation on ongoing basis
 TJ said she had chosen to to try t seek employment, so not met goal of being self-sufficient within
reasonable period
 S 15.2(5) of Divorce Act which precludes a ct from taking into account any misconduct of a
spouse in relation to the marriage
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Leskun v. Leskun 2006 SCC
Facts: W lives with daughter and granddaughter, helped pay for H to go to school by cashing in RRSPs,
W had to have back surgery, position at bank eliminated, trial judge held she was disadvantaged by
marriage, H looking to end support obligation
Decision: support is to continue
Ratio: conduct is irrelevant to the analysis of spousal support but courts can look to the consequences of
conduct when weighing the factors in s. 15.2 of DA
Application: W’s medical problems exacerbated by marriage breakdown
Note:
 review orders: courts can order a review option that does not hold up to the higher standard when one
spouse is applying for a variation
 post-marriage acquired assets: spouse receiving support should not be able to get support from the
property half that stayed with the paying spouse
Social Assistance and Property Considerations
Rhode and Minow:
 orders for spousal support do not employ equality principles but define relevant factors and take
account of legislative goals for awards
 if an asset has been included for the purposes of property sharing, some payor spouses have argued
that income from the asset should not be available to provide spousal support
Mossman and MacLean: Family Law and Social Assistance
 result of a decision denying spousal support is that dependant spouse and children become applicants
for social assistance
 except where a spouse is already receiving welfare, state is neither part of the process of negotiation
btn parties nor represented in court
 disentitlement to spousal support contributes to economic insecurity and poverty for women and
children after divorce
 post divorce resources are diminished
Gosselin v. Quebec (Attorney General) 2002 SCC
Facts: class action for under-30 recipients of welfare receiving a different amount than over 30
Ratio: responsibility for adults under 30 rests with the family as most are still living at home
Rule: s. 7 and 15 infringement
Application: no infringement as this is a property right
Falkiner v. Ontario 2002 ON
Facts: single mother on welfare
Ratio: new relationships for an initial period of time do not disentitle claim to welfare
Child’s Support for Parents
 It has been suggested that reforms such as SSAG “do not fundamentally confront the underlying
problems that create this dependency” (Rhode and Minow)
Family Law Act
32. Every child who is not a minor has an obligation to provide support, in accordance with need,
for his or her parent who has cared for or provided support for the child, to the
Extent that the child is capable of doing so.
Ontario (Dir. Of Family Support Plan) v. Burgess 1994 ON
Facts: former H seeking to have now-grown son contribute to former W’s support
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Ratio: only the person who needs support can apply for it
Dragulin v. Dragulin 1999 ON
Facts: lottery winner’s dad is in bad financial circumstances, dad seeking support, daughter arguing dad
was verbally abusive, had a bad childhood, dad was primary source of financial support for many years
Decision: daughter to pay dad 400 per month
Ratio: three issues to determine in applying s. 32: need of the parent, whether the parent provided support
or care for the child, capacity of the child to support the parent
Rule: parent does not need to show both care and support as the terms are disjunctive, must look only at
needs and not wants
Application: parent demonstrated support, has need, but daughter doesn't need to raise fathers standard of
living or pay for new partner
Note: BC leg has removed a provision similar to s 32
Skrzypacz v. Skrzypacz 1996 ON
Facts: mom seeking interim support from son who sponsored her to come to Canada
Ratio: care or support for child must be demonstrated by parent
Application: son filed evidence supporting claim mom was not primary caregiver and never provided
support
Introduction to Children’s Issues

There is a great deal of debate about many issues in relation to children and family dissolution
o Adult rights and responsibilities for care of children after separation
o Current accepted characterization of post separation family
o Impact of separation on children – narrative of harm at play
o How do children’s voices get heard
o Impact of different processes on children’s experiences of separation and divorce
History:
 Early 19th century: children were like chattels, belonged to the father, paternal right to custody
and guardianship after a breakup
 Early 20th century: tender years doctrine, still paternal rights but mothers are quite important to
children under the age of 7, Lord Talfourd’s Act
 1980s: Charter considerations with increased women in workforce
 Now: post-separation sharing of responsibilities and rights
 Note thread of “good mother” ideology in cases and rights in Father’s Rights movement
 Necessary to examine children’s own experiences rather than making research assumptions about
outcomes and harms
 Not appropriate to assume all children are alike or want the same things
 More flexible approach that takes into account individuality of each child in a family might
embrace more elements of citizenship, while also attending rather more to the well-being of each
child
 Issues about children of divorce need to take account of both private family relationships as well
as public policies that provide (or fail to provide) support for families and children when adult
relationships break down
 Roles as parents and obligations to support and cooperate in parenting their children remain in
place post-separation
 Custody and access determinations must be guided by best interests of the child
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Boyd: ideology of motherhood reproduced in custody and access law relies on notion that
mothers will assume responsibility for children, put aside their own interests and participation in
public sphere and be paid nothing for labour of love
o Enhanced judicial discretion for moving
o Indeterminacy of best interests test
Gordon: Multiple Meanings of Equality
 Implicit in court decisions was a concept of equality which sustains the status quo
 Implicit concepts of equality operated to make contributions and work invisible at the same time
as overriding male spouse
 Superficial notion of time spent parenting: reduced to time spent with children
 All dimensions of responsibility for children should be considered if the issue of access to
children’s time is to be one of true equality
 Work of parenting has been presented in a way which downplays or hides the amount of work
and nurturing women contribute to raising children
Smart, Neale & Wade: Changing Experiences of Childhood
 Children themselves might shape their own childhoods in the face of family change and what this
might mean for the way they practised their family lives
 Growth in divorce rate dramatically changed children’s experiences of childhood
 Children need to acquire new skills both practical and emotional to navigate new moral terrain
Emery: Renegotiating Family Relationships
 Each parent projects his/her own feelings onto the children
 Couple’s disparity in experience of grief can lead to fights about variety of issues including
children
 Couples’ conflicting experience and projection of grief means custody disputes often involve
conflicts about the children reflecting more than the children
 Even impartial mental health professionals have a difficulty discerning how children feel and
what they want following parents’ marital separation
Other Perspectives
 Whitehead: contrary to popular belief, many children do not bounce back after divorce or
remarriage, difficulties that are associated with family breakup often persist into adulthood
 Glossop: it is possible that it is not divorce per se, but rather the economic consequences of
family breakdown that create problems for children
 Freeman: support for creation of post-divorce plans, circumstances that require different
approaches: abuse, parental alienation, high conflict
 Smart, Neale and Wade: children may want to be heard within their own families rather than in
legal proceedings, flexibility, degree of autonomy and control, maintaining relationships,
resolving differences, no loss of love or affection
 Children may require independent legal representation that may require special skill and
knowledge
 Rollie Thompson:
o Problems with how reasonable and responsible custodial parent will beinterpreted
 Bala and Wheeler
o Study of relocation between 2001-2011
 Number of decisions increased each year
 Success rate is 50%
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o
Authorise propose relocation guidelines
Custody and Access
 Legal Custody: the right to make decisions about matters that affect a child, such as hir or her
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religion, school and medical treatment
Physical custody: focus on where child lives
Three main types of legal custody, sole custody, joint custody and parallel parenting
Sole Legal Custody:
o One parent is given responsibility and authority to make decisions for the child about
health, education and welface (usually including choice of religion)
o Both may see the child and both may have input but final decisions with custodial parent
Joint Legal Custody:
o Both parents participate in decision making, not appropriate where someone has been
assaulted, ordered for parents who get along, doesn't mean time is split 50-50
o Has been controversy about whether this should be ordered if one parent disagrees
Parallel Parenting see p 846:
o Generally, decision-making is split between the two, based on the topic, may be ordered
if parents are having difficulty getting along but both should continue to have active role
in child’s life
o Critique: does it take into account the impact of conflict on children and the realities of
high conflict families
o TJM v PGM: joint custody can be appropriate where parents are hostile as long as
arrangement is parallel parenting and not cooperative parenting
Access: a parent who doesn't provide the primary residence will almost always have the right to
spend time with them. Doesn't have legal custody of child, still has right to get medical and
educational info about the child. Supervised access can also be ordered.
Parenting Plan: focus on precise arrangements for physical care of children post-family
dissolution, and may include detailed arrangements for sharing time with a child, holiday
arrangements, communication and connections with extended families of each parents.
o Proposed plan must be presented when applying for custody/access
o UK and AUS have adopted this model, abolished formal orders for custody and access
Baker v Baker, 1979, ON:
Ratio: OCA indicated that a realistic and practical approach was required in the resolution of custody
litigation and that joint custody should be ordered only in exceptional circumstances which are rarely, if
ever, present in cases of disputed custody
Kruger v Kruger, 1979, ON:
Ratio: a majority ct confirmed the approach in Baker, but there was a strong dissent by Wilson
Biamonte v Biamonte, 1998, ON:
Issue: mothers claim for custody and fathers request for joint custody or sole custody?
Decision: because parties are not in agreement as to joint custody it is obvious we must dismiss the claim
for joint custody “couple wouldn't survive”
Mudie v Post, 1998, ON:
Decision: joint custody was awarded where mother was seeking sole custody but ct awarded joint. Said it
was in best interests of child if joint was awarded. M would block access if she had sole custody so
neither should be in absolute control.
115
Kaplanis v Kapnlanis, 2005, OCA:
Decision: ct allowed an appeal by M from a TJ’s decision ordering joint legal custody, appeal ct granted
sole custody to M and ordered a new trial to define the F’s access.
 Parties couldn't communicate without screaming at each other – this does not in and of itself
mean JC cannot be considered there must be some evidence that parties are able to communicate
effectively
 TJ ordered JC and ongoing counselling for parents; counsellor was authorised to make decisions
for parents when they could not agree
 Overturned – ct says no evidence parties will agree so not appropriate order to make
 Post Kaplanis: problem with having joint legal custody but sharing time 50/50 if parents aren’t
communicating
o Shaffer – problematic behaviour is often characterised as problematic communication,
tired of joint physical care when no joint legal custody is questionable
Ladisa v Ladisa, 2005, ON:
Decision: OCa dismissed the mothers appeal in relation to an order for JC, Ct noted that the order for JC
was based on express wishes of children and supported by a professional assessment
Lawson v Lawson, 2006, OCA:
Decision: OCA reiterated its position that JC was not appropriate if the parties were unable to co-operate
or communicate effectively
Warcop v Warcop, 2009, ON:
Facts: ct considered W’s application for sole custody, been married 4 years and had a son who thrived
with both parents. Wife argued that as child’s primary caregiver se was entitled to sole custody. Ct
considered tender years doctrine, significance of primary caregiver and principles of SC and JC.
Decision: tender years doctrine discredited, any preference for a primary caregiver must be based on
evidence not presumptions. Ct decided that the parties had been able to cooperate and agree in several
instances so JC was in best interests of child.
Mol v Mol, 1997, ON:
Decision: ct reviewed the law on JC, and held that M’s unwillingness to consider a JC arrangement, did
not preclude ordering JC with a parallel parenting arrangement bc was in best interests of child
Dagg v Pereira, 2000, ON:
Decision: intense conflicts between parents including assaults, judge outlined detailed arrangements for a
parallel parenting arrangement relying on dissent in Kaplanis
Ursic v. Ursic 2006 ON CA
Facts: J is 4 ½, both parents are seeking sole custody, each put forward a different parenting plan, parallel
parenting was ordered at trial, parents in high conflict over parenting decision-making but they have left J
unexposed to it
Decision: continue joint custody arrangement
Ratio: courts can order parallel parenting plans with joint custody in situations where it is in the best
interests of the child to do so
Rule: best interests
Application: both parents are stable, biological, more than competent, J will benefit from both parents in
his upbringing
Note:
116


an assessment was done and the couple followed the assessor’s recommendations, which is why court
adopted them
only differences btn the couple: F makes more money and M took maternity leave, primary caregiver
presumption would have given custody to M even though parenting is equal
Moyer v Douglas, 2006, ON:
Facts: TJ relied on Ursic, ordered a parallel parenting plan, based on assessment undertaken by a social
worker pursuant to s 30 of CLRA, but designed plan dif than one suggested by assessor
Quick Reference Table
Divorce Act, 1985
General authority
Joint custody (discretion)
Maximum contact (friendly parent)
Terms and conditions
Change of residence
Factors (BIC: no details)
Conduct
Variation
Children's Law Reform Act
General
Equality of parents
Custodial rights and duties
Joint rights and duties
Assumed custodial rights
Access
Contracting out
s. 16(1)
s. 16(4)
s. 16(10)
s. 16(6)
s. 16(8)
s. 16(8)
s. 16(9)
s. 17
s. 20(1)
s. 20(2)
s. 20(3)
s. 20(4)
s. 20(5)
s. 20(7)
Applications and Jurisdiction
Application for custody or access
s. 21 (Parent or "other person")
Jurisdiction of courts to make orders of
Custody and access:
s. 22-23
(See also Convention on Child Abduction (Schedule))
Factors
Factors (BIC; see list)
s. 24 (1) and (2)
See also Convention on Rights of the Child (p. 654)
Conduct
s. 24(3)-(5)
Processes for Decision-Making
Assessments of child or parent
Mediation
Supervised access or custody
s. 30
s. 31
s. 35
(See also, re Office of the Children’s
Lawyer: Courts of Justice Act, s. 89 and s. 112)
Divorce Act
 Less detailed in cover of custody
117
9/10. Provide encouragement for mediation or other processes of reconciliation and settlement
Order for custody
16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other
person, make an order respecting the custody of or the access to, or the custody of and access to, any
or all children of the marriage.
(2) Where an application is made under subsection (1), the court may, on application by either or
both spouses or by any other person, make an interim order respecting the custody of or the access to,
or the custody of and access to, any or all children of the marriage pending determination of the
application under subsection (1).
(3) A person, other than a spouse, may not make an application under subsection (1) or (2) without
leave of the court.
(4) The court may make an order under this section granting custody of, or access to, any or all
children of the marriage to any one or more persons.
(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has
the right to make inquiries, and to be given information, as to the health, education and welfare of the
child.
(6) The court may make an order under this section for a definite or indefinite period or until the
happening of a specified event and may impose such other terms, conditions or restrictions in
connection therewith as it thinks fit and just.
(7) Without limiting the generality of subsection (6), the court may include in an order under this
section a term requiring any person who has custody of a child of the marriage and who intends to
change the place of residence of that child to notify, at least thirty days before the change or within
such other period before the change as the court may specify, any person who is granted access to that
child of the change, the time at which the change will be made and the new place of residence of the
child.
(8) In making an order under this section, the court shall take into consideration only the best
interests of the child of the marriage as determined by reference to the condition, means, needs and
other circumstances of the child.
(9) In making an order under this section, the court shall not take into consideration the past conduct
of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
(10) In making an order under this section, the court shall give effect to the principle that a child of
the marriage should have as much contact with each spouse as is consistent with the best interests of
the child and, for that purpose, shall take into consideration the willingness of the person for whom
custody is sought to facilitate such contact.
Children’s Law Reform Act
1(1) a person is the child of his or her natural or adoptive parents
4 permits an application for a declaration that a person is the father or the mother of a child
5 permits an application for a declaration of paternity where no presumption is applicable
8 There is a presumption of paternity unless the contrary is proven on a balance of probabilities
20. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally
entitled to custody of the child.
(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect
of the person of the child and must exercise those rights and responsibilities in the best interests of
the child.
(3) Where more than one person is entitled to custody of a child, any one of them may exercise the
rights and accept the responsibilities of a parent on behalf of them in respect of the child.
(4) Where the parents of a child live separate and apart and the child lives with one of them with
the consent, implied consent or acquiescence of the other of them, the right of the other to exercise
the entitlement of custody and the incidents of custody, but not the entitlement to access, is
suspended until a separation agreement or order otherwise provides.
118
(5) The entitlement to access to a child includes the right to visit with and be visited by the child
and the same right as a parent to make inquiries and to be given information as to the health,
education and welfare of the child.
(6) The entitlement to custody of or access to a child terminates on the marriage of the child.
(7) Any entitlement to custody or access or incidents of custody under this section is subject to
alteration by an order of the court or by separation agreement.
21. 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 or determining any aspect of the incidents of custody of the child
(2) An Application under subsection (1) for custody of or access to a child shall be accompanied
by an affidavit, in fhte form prescribed for the purpose by the rules of the ct, of the person applying
for custody or access containing.
(a) the person’s proposed plan for the child’s care and upbringing;
(b) information respecting the person’s current or previous involvement in any family proceedings,
including proceedings under Part III of the Child and Family Services Act (child protection), or in
any criminal proceedings; and
(c) any other information known to the person that is relevant to the factors to be considered by the
court under subsections 24 (2), (3) and (4) in determining the best interests of the child.
22. (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a
child where,
(a) The child is habitually resident in Ontario at the commencement of the application for the
order;
(b) although the child is not habitually resident in Ontario, the court is satisfied,
(i) that the child is physically present in Ontario at the commencement of the application
for the order,
(ii) that substantial evidence concerning the best interests of the child is available in
Ontario,
(iii) that no application for custody of or access to the child is pending before an extraprovincial tribunal in another place where the child is habitually resident,
(iv) That no extra-provincial order in respect of custody of or access to the child has been
recognized by a court in Ontario,
(v) that the child has a real and substantial connection with Ontario, and
(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in
Ontario.
(2) A child is habitually resident in the place where he or she resided,
(a) With both parents;
(b) Where the parents are living separate and apart, with one parent under a separation agreement
or with the consent, implied consent or acquiescence of the other or under a court order; or
(c) With a person other than a parent on a permanent basis for a significant period of time,
Whichever last occurred.
(3) The removal or withholding of a child without the consent of the person having custody of the
child does not alter the habitual residence of the child unless there has been acquiescence or undue
delay in commencing due process by the person from whom the child is removed or withheld.
23. Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in
respect of the custody of or access to a child where,
(a) The child is physically present in Ontario; and
(b) The court is satisfied that the child would, on the balance of probabilities, suffer serious harm
if,
(i) The child remains in the custody of the person legally entitled to custody of the child,
(ii) The child is returned to the custody of the person legally entitled to custody of the
child, or
(iii) The child is removed from Ontario.
119
24. (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, in accordance with subsections
(2), (3) and (4).
(2) The court shall consider all the child’s needs and circumstances, including,
(a) The love, affection and emotional ties between the child and,
(i) Each person entitled to or claiming custody of or access to the child,
(ii) Other members of the child’s family who reside with the child, and
(iii) Persons involved in the child’s care and upbringing;
(b) The child’s views and preferences, if they can reasonably be ascertained;
(c) The length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the
child with guidance and education, the necessaries of life and any special needs of the child;
(e) any plans proposed for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will
live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who
is a party to the application.
(3) A person’s past conduct shall be considered only,
(a) In accordance with subsection (4); or
(b) If the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a
parent.
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has
at any time committed violence or abuse against,
(a) His or her spouse;
(b) A parent of the child to whom the application relates;
(c) A member of the person’s household; or
(d) Any child.
(5) For the purposes of subsection (4), anything done in self-defense or to protect another person
shall not be considered violence or abuse.
30 provides for the appointment of a person with technical or professional skill to provide an
assessment wrt the needs of the child and the ability and willingness of the parties to satisfy those
needs. Parties are required to pay for assessment unless it would cause serious financial hardship to
a party.
31 specifically mandates a ct, at the parties request to appoint a mediator who is required to confer
with the parties and attempt to obtain an agreement. The section also provides protections for
admissions made in mediation sessions in the even that a matter cannot be settles and the litigation
resumes
Note: when judges use the DA they will tend to also pay heed to the more detailed legislation
Office of the Children’s Lawyer
 Government appointed lawyer to represent child
 Not available in all cases, up to their discretion
 Courts of Justice Act s 89(3.1) permits a ct to request the OCL to provide legal rep for a child
who is not a party to the proceeding – MAY provide
o Bhajan v Bhajan – TJ ordered the OCL to become involved used parens patriae – BUT
lower cts only have jurisdiction they can use statutorily so cant use this
o So OCA said it wasn't appropriate, superior ct does have this power but says lower ct
should have respected OCL role and their scarcity of resources so TJ didn't succeed
120
1. Appoint social worker to do an investigation and report looking at what the children’s needs are
and how parents able to respond to those needs, make recommendations, speak to the children
depending on their ages, s. 112(1)
2. Appoint a lawyer who becomes the child’s representative, debate about the role the lawyer should
take on, Office has adopted position of telling court what child’s position is and what the lawyer
views as the child’s best interests, runs contrary to some of the jurisprudence as to their role, s. 89
a. Some cts have tended to limit such requests (basinet v Bazinet/Reynolds v Reynolds)
UN Convention of the Rights of the Child
 Ratified by Canada
 Article 3: best interests of the child shall be a primary consideration in all actions concerning
children
 Ongoing obligation to report to UN committee on its compliance with the convention
 Degree to which best interests of the child must be considered varies
 A child shall not be separated from his or her parents unless it is necessary for the best interests of
the child-Article 9
 Difficulty in apply best interests of the child principle due to its indeterminacy
 Convention does not offer solutions to problems, only vaguely worded principles subject to
widely varying interpretations
Best Interests Principle

In modern context, statutorily, conduct was only considered relevant in relation to one’s ability to
parent (CLRA)
Carton v. Watts 1998 Al
Facts: D looking for custody of T, alleging M’s drinking problems, difficulty with older child. Mother
wants sole decision making powers due to father controlling nature. Judge heavily weighed evidence of
previous sons social worker who supported mother
Ratio: must look at the best interests of the child in determining custody and access
Rule: credibility is a subjective test when parties have different stories of events, judge thought father was
rigid and controlling in custody
Application: best interests of the child for M to have sole custody as she will ensure and facilitate access,
M has credibility, D does not, No evidence that it was mothers fault her relationship fell apart with
previous son, seems to be warm and loving and drinking too much on occasion is not enough to grant
father sole custody. It is not in the childs best interests to be raised by the controlling and rigid father so
sole custody goes to mother, it is more likely she will arrange access for father willingly
Note: predictability is important but so is the customization of a result to the individual, unique facts of a
case
Haider v Malach (1999, Sask) (p 759):
 Principle often adopted by appellate cts: they will not intervene in relation to custody and access
decisions unless there is an error in principle or a clear factual error in a matter of significance
Geremia v Harb (2008, ON) (p 759):
 Spouses married in 99, had a daughter in 00 and separated in 01. Court awarded custody to
mother in 02 and aldo made a temp order for access for father pending mediation
 Between 01 and 08 8 diff judges made at least 25 orders and ct record consisted of more than
2000 pages
121

The ct eventually gave a revised access order to father but denied costs to both and ordered that
neither part shall be permitted to commence or continue an proceedings directly or indirectly
regarding the child without leave of the ct
Baker v Minister of Citizenship and Immigration (SCC, 99) (p 761):
 Some members of SCC concluded that the principles in the CRC might be used as interpretive
guides in litigation focused on federal or provincial legislation
Alienation:
 Often associated with high conflict divorce
 Involves children holding unwarranted extremely negative attitudes towards one parent key
contribute to attitude is the manipulative behaviour of the other parent
 While small in number, these cases take up a significant legal and mental health resources
De la Sabloniere v Catagner (2012, ON) (p 815):
 Ct found the father had intentionally and methodically interfered with the children’s relationship
with their mother and that he had alienated them from her. The ct ordered the father pay the
mother 4,000 in contempt
A v C (2011, ON) (P 815):
 The mother had successfully alienated her son from father and ct wished to sanction her behavior
 Nonetheless bc alienation had continued for 7 years so child was a stranger to the father, the ct
held reluctantly that any further ct proceedings or penalties against the mother were not in the
child’s best interests
SGB v SJL, 2010, ON
Facts: spouses separated in 98, when sons were 8 and 4, moved from M to F and then rejected M.
Spouses engaged mediators, parents coordinators, lawyers and mental health professionals but still sons
rejected M.
Arbitrator: found father had deliberately alienated M from children and ordered sole custody to M and
denied access to F
Appeal Judge: said arbitrator was too extreme, but said she didn't have sufficient info to determine what
was in best interest of son (older one was 18)
New Trial: after further custody and access assessment still use best interest principle even though son
was mature minor at age 16. Ct found letting son decide wasn't in his best interests bc all agree it is in his
best interest to have relationship with M. Psychiatrists agreed that in cases of severe irrational alienation
the alienated child must be removed form the favoured child for a time.
Decision: ct gave M custody, she was more likely to foster relationship between son and F and would put
his best interests first even though brother with F. The ct did grant the son’s motion to intervene pursuant
to rule 13.01(1) of the rules of civil procedure
 Should judge make order to force kid to go to interventionist therapy program
Bruni v Bruni 2010 ON:
Facts: Wife alienated daughter from father, on her spousal support claim cr held post separation conduct
and conduct in relation to co-parenting could be considered under s 33(10)
Decision: ct applied 33(10) to reduce support to 1$ a month
Talsky v. Talsky 1976 SCC
Ratio: the tender years doctrine if simply one of the more important factors which must be considered
with all the circumstances
122
Application: trial judge weighted the factor too greatly
Note: tender years doctrine:
 Bell v. Bell: “no father, no matter how well-intentioned or how solicitous for the welfare of such
a child can take the full place of the mother”
 CA: “rule that children of tender years belong with their mother is a rule of human sense rather
than a rule of law”
R. v. R. 1983 Al CA
Facts: trial court awarded custody of 4 ½ year-old daughter to father, mother appealing, F owns a farm
where his mother lives and plans to remarry, M moved to another town to work
Decision: appeal dismissed
Ratio: tender years principle no longer applies, no law saying custody should go to mother for a young
child, judges must decide each case on its own merits, with due regard to the capacities and attitudes of
each parent
Rule: best interests approach
Application: both parents are fit but F has better home situation for child
Dissent: more weight should have been given to tender years doctrine
Klachefsky v. Brown 1988 Man CA
Facts: M transferred by work to Vancouver, parents had joint custody, F had remarried, trial judge gave
custody to F during school term and M during holidays
Decision: appeal allowed
Ratio: whether an alternate caregiver is paid or unpaid cannot be decisive of what is the best interests of
the children
Rule: best interests principle
Application: trial judge committed palpable error in attributing too much weight to M having to pay for
child care rather than F’s second wife taking care of the children for free, as btn the two parents, M is
preferable due to stable care environment
S.(B.A.) v. S.(M.S.) 1991 ON CA
Facts: parties separated 5 months after child born, M took care of child in interim, expert evidence
suggested she was overprotective but this did not pose a risk, trial judge held child in danger if stays with
M
Decision: new trial ordered
Ratio: trial judge did not pay attention to tender years doctrine,
Application: error of magnitude due to incorrect conclusion from expert evidence
Note: SCC already determined tender years doctrine is out in Talsky
Tyabji v. Sandana 1994 BC SC
Facts: M, politician, left F for another politician, M seeking custody of three children
Ratio: best interests of the child
Application: court expressed concern children’s needs would be side-tracked by M’s aggressive careeroriented lifestyle, F lived in rural setting
Note: this case suggests a different standard for father politicians than mothers as Trudeau won custody of
his sons while in political office
Fishback v. Fishback 1985 ON
Facts: M abandoned marriage bc bored by F,
Ratio: court’s concern in deciding who should have custody is confined entirely to the best interests of
the children
123
Rule: importance each parent attaches to best interests of the children in determining their own future
conduct is a factor courts will look at
Application: M’s lifestyle is not stable, not sure if new partner going to stick, F’s new partner is stable
and cares for children
Note: appears to be a battle of the new partners, see s. 16(9) DA for conduct related to parenting
Violence
 Recent amendments of s 24(4-5) of the CLRA require consideration of violence or abuse towards
a spouse, any child, or anyone in the house hold in assessing the person’s ability to parent, there
is no similar express provision in the DA
Renaud v. Renaud 1989 ON
Facts: F had been abusive, uncooperative and mean-spirited
Ratio: violent conduct is a relevant factor in a custody dispute
Rule: best interests principle
Application: remain with M who had been primary caregiver
Li Santi v. Li Santi 1990 ON
Facts: M left matrimonial home with children and went to transition home, disputes about evidence and
exhibits
Decision: interim custody to F in matrimonial home
Ratio: if one of the parties takes the dispute into their own hands and unilaterally deprives the other party
of the children, this factor will weigh against that party
Rule: best interests principle
Application: nothing in affidavit material that satisfies court either M or F is unable to look after children
in acceptable, loving and caring manner, no undisputed and cogent evidence of a more substantial bond
with either parent
Howard v. Howard 1999 ON
Facts: M left matrimonial home taking the children
Ratio: if children witness abuse against one of the party’s, this will weigh against the abuser
Rule: best interests
Application: interim custody awarded to M as well as interim exclusive possession of matrimonial home
Note: see s. 24(4) of CLRA for violence provision
Same Sex Issues
Re Barkley and Barkley 1980 ON
Facts: claim to custody by lesbian M
Ratio: homosexuality can be a factor and it depended mostly on the manner in which it was handled but
does give way to a “best interests of the child” analysis
Rule: best interests
Application: M not militant, does not flaunt homosexuality, not biased about daughter’s orientation, no
overt sexual contact in daughter’s presence, sexual partner has a good relationship with daughter
Bezaire v. Bezaire 1980 ON
Facts: M and F married for four years, F was physically and sexually abusive, M came out as a lesbian 5
years post-separation, custody to M at trial
Decision: overturned by CA
Ratio: homosexuality is not in itself a ground alone for refusing custody, question is and must always be
what effect upon the welfare of the children that aspect of the parent’s make-up and life-style has, and it
124
will therefore be a question of evidence in that very case as to whether what has been shown to exist has
or may tend to have effects adverse to the welfare of the children
Dissent: homosexuality is a neutral and not a negative factor as far as parenting skills are concerned
Notes: M took children to US and discovered 5 years later, given absolute discharge for abduction, 3 year
sentence for harbouring, 3 years probation, 300 hours of community work and counselling
Saunders v. Saunders 1989 BC
Facts: gay F seeking custody of son
Ratio: homosexuality is no a factor for older children but it is for children of tender years, depending on
amount of restraint in minimizing sexual choice of that parent
Rule: best interests
Application: the prudent parent does not voluntarily and deliberately expose a child to any environmental
influence which might affect normal development
Note:
 These three cases are now bad law and would not be held up in court
 Arnup argues: child of a lesbian might well be the object of abuse and ridicule by neighbourhood
children if the mother’s lesbianism were discovered or suspected
Meyer: Lesbian Parenting Research
 Children of homosexual mothers evinced more tolerance for diversity
 Stability of the home seems to be a more important indicator of adjustment than the sexual
orientation of the mother
 Lesbian women and heterosexual women found to be more similar than dissimilar
 Children test comparably on scales for psychological and social attributes
 Parenting styles of two group members are comparable
 Lesbian mothers attempt to strengthen child’s relationship with fathers, trend not found in
heterosexual counterparts
Blood Ties
 Cts not consistent with this
K.K. v. G.L. and B.J.L. 1984 SCC
Facts: M consented to adoption then changed her mind, trial court awarded custody to adoptive parents
Decision: appeal dismissed
Ratio: best interests of the child is the paramount consideration when the court addresses a custody
decision
Rule: welfare of the child must be decided on a consideration of relevant factors including general,
psychological, spiritual and emotional welfare of the child as well as economic circumstances
Application: best interests mandates custody for adoptive parents
Crocker v. Sipus 1992 ON
Facts: biological father v. Sister and brother-in law of deceased biological mother
Ratio: if the natural parent is able to care for the child he should be entitled to custody
White v. White 1994 NB
Ratio: keeping siblings together is important
Race and Religion
Van de Perre v. Edwards 2001 SCC
Facts: M is Caucasian Canadian, F is African-American pro basketball player, F married with kids based
in North Carolina, trial judge awarded sole custody to M and access to F
125
Decision: trial decision restored
BCCA: said TJ didn't take racial identity of child into account, brought F’s new wife into ct
Ratio: race can be a factor in determining the best interests of the child as it is connected to the culture,
identity and emotional well-being of the child but it is not determinative
Rule: question is which parent will best be able to contribute to a healthy racial socialization and overall
healthy development of the child weighted against other relevant factors in best interests of the child
Application: overarching need for the child to be in a stable and loving environment and biracial children
should be encouraged to positively identify with both racial heritages
Note:
 Tender years doctrine: stereotypical gender types have no place in custody determinations
 Interveners in this case were pushing for greater weight attribution for race
 Intervenors argues race is always crucial aspect, SCC said race can be a factor, but only one part
Ffrench v. Ffrench 1994 NS SC
Facts: Caucasian M, African-Canadian F
Decision: custody to M
Ratio: parent who fosters awareness of other race will get custody
Rule: best interests
Application: M ‘s awareness of children’s need for continuing contact with their African-Canadian
heritage
Camba v. Sparks 1993 NS
Facts: African-Canadian M, French Canadian F, M more attentive to F’s background than vice versa
Ratio: attentiveness to other culture weighs in favour of custody
Kassel v Louie (2000, BCSC) (p 775):
 Custody awarded to a Chinese Canadian father rather than Caucasian mother in part bc the judge
concluded that the children resembled the father in his looks in spite of the fact that the child had
lived mainly with his mother
 Judge appeared to place emphasis on the fact that, as the only male heir in the family, the boy was
important to the life of the father’s extended family
S. v. S. 1997 SCC
Facts: M is 7th day Adventist, trial judge gave her custody but not allowed to bring child to preachings
and prohibited her from indoctrinating child
Decision: removal of religious restrictions
Ratio: religious belief can be a factor if the child is compromised by the practices of the custodial parent
Application: M is entitled to perform religious activities with or in the presence of her child
S v G (2002, AB) (p 789):
 It is possible for an access parent to share their religion with the child as well, not contrary to best
interests of child to spend Christmas with moter who was access parent even though father was
pagan and thus ddid not wish his child to take part in these holiday festivities
Libbus v Libbus (2008, On) (p 776):
 Custody litigation between a father who had been raised catholic and mother who was Jewish,
spouses married in a jewfish ceremony and when their two children were born the parents agreed
that they would be raised in the Jewish religion
 Father fully supported jewish faith and participated in its ritual, also celebrated Christian holidays
with the father’s mother
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After family moved the wife began to feel isolated, they divorced and mother wished for children
to attend school in Thornhill to maintain jewish heritage, father wanted them to remain in the
same school where they had French immersion, expert evidence supported mother
Ct said what needs to be determined is whether despite father’s efforts, their jewish identity can
be better fostered in present school or in Thornhill, this is not just form family but also peers and
community
Found mother’s plan would suit the best interests of the children, fathers is good but not the best
plan bc children would struggle to maintain their jewish identity
Fruitman v. Fruitman 1998 ON
Facts: M and F are orthodox Jews, F has a new partner who is not Jewish
Ratio: courts are not going to apply restrictions to religious practices of the parents
Ackie v Ackie/Stubbert v Ferrare:
 Cts may determine that parents religious practices are not consistent with a child’s best interests
Young v. Young 1994 SCC
Facts: access F is Jehovah’s Witness, wanted to take kids with him while performing religious duties,
mom wanted to restrict contact
Ratio: As long as kids are not being harmed, courts will respect parent’s religious views
Rule: s. 16(10) presumption that access is to be unrestricted, need to show harm to displace presumption
Application: no harm demonstrated by M
Dissent: should be deference to custodial parent for religious decisions
Access
Craig v. Antone 1987 ON - ACCESS IS THE RIGHT OF THE CHILD NOT THE PARENT
Facts: F had no relationship with child, disreputable conduct, little attempt at rehabilitation
Ratio: there is no presumptive right of access for the parent, right to access is for the child
Rule: if upon consideration of the evidence as a whole the granting of access could not be said to be in
the child’s best interests, it should not be granted even though there be no evidence of apprehended
danger
Application: for F to impose sudden presence on child in any form would be completely contrary to her
best interests
Lidkea v Jarrell (1999, ONCA) (p 785):
 Ct dismissed an appeal by father from a decision suspending access to his daughter, ct said there
was ample evidence to support the view that suspension of access was in the child’s best interests
Gorgichuk v Gorgichuk (1999, Sask) (p 786):
 Sask CA confirmed an order denying a father’s access to his son where there was evidence that
the son did not wish to have contact with his father after the father acted improperly
S. v. S. 1998 BC CA
Facts: F fathered two children with his daughter, went to jail for incest
Decision: F prohibited from bringing further suits to compel access
Ratio: parents can be banned from court if best interests of the child demands it so
D.(G.) v. M.(G.) 1999 NWT
Facts: stepmom applying for access after relationship with child’s F ended
Ratio: step-parents can make claims for access if in best interests of the child
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T. v. P. 1999 Al CA
Facts: grandparents seeking access, used the media for 5 years to pursue claim
Ratio: using the media as a weapon to get access is not in the child’s best interests
Arnink v. Arnink 1999 BC
Facts: grandparents had been primary caregivers for grandchildren, F opposes application
Ratio: grandparents can be appropriate parties for purposes of custody and access claims in divorce
proceedings of their children but it does not follow from the mere existence of doting grandparents that
their participation is necessary to ensure full and effectual adjudication
Rule: onus for showing application for leave is frivolous or vexatious lies with the party opposing the
application
Application: F failed to relieve burden
Chapman v Chapman (2001, ONCA) (p 787):
 Ct denied grandmother application for access when the children’s parents (still together) had
decided to restrict it
 In absence of evidence that parents are not acting in children’s best interests, their decisions
should be respected
 Note: new requirements for non-parents whoa re applying for custody or aces under CLRA s 21
(see above) also a police check and CAS record check (for custody applications)
F v S (1999, BCCA) ( p 788):
 Grandmothers request for access denied, objected to by childs mother
Hayes v Moyer (2011, ONCA) (p 788):
 Ct denied application for access by grandparents
D (G) v M(G) (1999, NWTSC) (p 788):
 Ct upheld an access claim by a stepmother after her relationship with the child’s father had ended,
concluding that such access was in the child’s best interests
Bacher v Lehmann-Bacher (2001, ABCA) (p 788):
 Custodial parents authority is clear: has long been recognized that he custodial parent has the sole
and primary responsibility to oversee all aspects of the child’s day to day life and long term well
being, not subject to approval of non-custodial parent
Mobility
Carter v. Brooks 1990 ON CA
Facts: parties separated shortly after birth, child stayed with M, M wanted to move to BC with new
partner, F applying for joint custody
Decision: M restrained from moving
Ratio: custodial parents do not have an inherent right to move
Rule: sole matter to be considered was the best interests of the child, each parent bore an evidential
burden to demonstrate to the court what was in the child’s best interests
Application: M had not demonstrated child’s best interests were better served by move
MacGyver v. Richards 1995 ON CA
Facts: M wanted to move to Washington State while new fiancé served time in army, F applying for joint
custody as he opposes move
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Decision: sole custody for M and can move
Ratio: courts must have deference to the custodial parent’s decision to move in all but the most
exceptional cases
Rule: so long as parent acting responsibly the reason for the move should not be further questioned
Note: departed from Carter decision
Gordon v. Goertz 1996 SCC
Facts: M wants to relocate to Australia to pursue educational goals, F is access parent who wants to
remain in Canada
Decision: access by F to be exercised in both Australia and Canada with sole custody to M
Ratio: a parent who applies to the court to change a custody or access order must first establish a material
change in circumstances affecting the child, then the focus of the inquiry must be on the child’s best
interests and not those of the parents involved
Test:
1. Applicant must establish a material change in circumstances ie cant be just a one hr move
2. Fresh inquiry by court into best interests
a. No presumption in favor of custodial parent
b. Custodial parent’s views: great respect
c. Both parents bear evidentiary burden
d. Maximum contact principle (s16(10) and 17(9)): but not absolute
Rule: 7 factor examination for moving
 Existing custody relationship and relationship btn child and custodial parent
 Existing access arrangement and relationship btn child and access parent
 Desirability of maximizing contact btn the child and both parents
 Views of the child
 Custodial parent’s reason for moving only in the exceptional case where it is relevant to that parent’s
ability to meet the child’s needs
 Disruption to the child of a change in custody
 Disruption to the child consequent on removal from family, schools and community
Application: move to Australia was a material change, move would breach previous court order, continue
custody with M despite move, most consistent with carter v brooks rational
Dissent: non-custodial parent should bear the onus of showing that the proposed change of residence is
not in the child’s best interests and that the custody should be varied or that the child should remain in his
or her current jurisdiction
Note: Boyd
 In approx. 60% of cases since this one, the move is permitted
 Moving parent often required to pick up a proportion of the increased costs of access expenses
 Moves are more likely to be denied in cases involving shared custody
 Harder question arises when lack of available resources will inhibit frequent contact with a noncustodial parent
Woodhouse v. Woodhouse 1996 ON CA
Facts: M has new H in Scotland
Decision: M cannot relocate with children
Ratio: parenting schemes wrt moves need to provide for reasonable frequent access that is not at a great
expense to the other party
Rule: 7-factor test from Gordon v. Goertz
Application: move would be too disruptive, would lose access to F, compliance issues with M
Luckhurst v. Luckhurst 1996 ON CA
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Facts: M and F share joint custody but children’s primary residence is with M, M has new relationship
with new child and wants to move with partner to Cobourg from London ON, M is willing to drive to a
halfway point to ensure continued access
Decision: custody to M with no restriction on move
Ratio: if access parent is still able to see child regularly under reasonable arrangements, then moves will
be allowed
Rule: 7-factor test from Gordon v. Goertz
Application: children still able to see F even though there is an inconvenience
Note: argument about distance, only moving different cities within province, not different countries
Bailey and Giroux: Relocation of Custodial Parents
 Conflicts arise btn goal of maintaining frequent and continuing contact with both parents and that
of maintaining stability in child’s relationship with custodial parent
 Relocation disputes are governed by best interests of the child
 Careful attention should be given to potential negative effect on the child should the custodial
parent by restricted from relocating
 Weight given to wishes of the child should increase with maturity of child
 Continuing contact with each parent is only one factor associated with positive outcomes for
children
 Canada’s law should be amended to require custodial parents to give notice of a proposed move
to the other parent or court and be required to propose new arrangements for access
 Reasons behind the move should be considered as they affect the best interests of the child
Lickfold v. Robichaud 2008 ON
Facts: M wants to move to NB or NS, F seeking an order restraining M from moving with child, both
filled in as caregiver while the other at work during marriage, when M served with court proceedings,
took son to NB without telling F, police had to be involved with emergency order to return son to ON
Decision: if M moves, then F gets sole custody, joint custody until then
Ratio: court must first decide what parenting arrangement is in the best interests of the child, then deal
with the issue of mobility
Rule: 7-factor test from Gordon v. Goertz
Application: son happy in both homes, close emotional ties with both extended families, wants both
parents to be close by, wants to stay in ON, fears being taken away by M, inability of both parent to
control conflict in his presence, F’s plan is to continue joint custody, M’s plan uncertain
Note:
 parallel parenting in high conflict situations: M given decision-making about religion and education,
F given decision-making about social activities and care-giving arrangements, but must both notify
the other of changes and try to come to agreements
 used Child Support Guidelines to determine support amount
 F has another child by a different person he’s already paying for plus already covering son’s
extraordinary expenses 100%, so no means left for spousal support
 Note: 50% success rate for relocation between 2001-2011
 Note: virtual access is starting to emerge, how does this affect mobility questions?
 SCC doesn't seem to want to look at this idea any more, has denied leave to appeal
FJN v JLN (2004, ON) (p 803):
 Ct permitted custodial parent to move to Cali but in addition to visits from father there was also
unlimited telephone email webcam and postal communication and mother had to supply
equipment to father
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Hague Convention on Abduction
 Provides a systemic procedure for dealing with children when parents separate and one parent
removes them from their ordinary jurisdiction of residence and commences proceedings in another
jurisdiction
Thomson v. Thomson 1994 SCC
Facts: M took child to Scotland, F had sole custody order in Manitoba before child’s removal
Ratio: M had to return child as per Hague Convention
Kinnersley-Turner v. Kinnersley-Turner 1997 ON CA
Facts: M granted custody in England, F given access, M allowed to move to Canada but had to return the
child to England if called upon, worked for a few years but then F applied for sole custody on basis that
M is unfit, M returned to Canada with child
Decision: return child to England
Ratio: Hague Convention can be used to return a child to their home country
Abuse Allegations
M.(B.P.) v. M.(B.L.D.E.) 1992 ON CA
Facts: M has alleged sexual abuse by F to child, F harassing M
Decision: F loses access
Ratio: the biological relationship btn parent and child should not be allowed to override the child’s
welfare
Rule: material change in circumstances required to change an order
Application: in the absence of any benefit to the child from continued contact with F and based on
number of years of harassment by F, judge made no error terminating access, material change in
circumstances shown
Note: M could not prove allegations of abuse
Dinelle v. Sametz 1994 ON
Ratio: courts can order supervised access for abuser on condition of maintaining psychiatric treatment
Fullarton v. Fullarton 1994 NB
Facts: M terminated access in contempt of an order, children had witnessed F assault M
Ratio: parties can breach court orders in the name of protecting children
Armstrong v. Kahn 1998 ON
Facts: M and F had joint custody of son, son lives with M and unsupervised access for F, M applying for
sole custody and no access to F alleging abuse
Decision: sole custody and no access to F granted
Ratio: if there is evidence of a child being abuse, there will be an order for no access to abuser
Application: M had met evidentiary burden of proving abuse, looked at child’s behaviour and
deterioration
Smith v. Smith 1987 Sask
Facts: M applying for sole custody alleging F abused and controlled children, F seeking full disclosure of
clinical notes from M’s and children’s professionals
Decision: disclosure of M’s professionals with limits
Ratio: if disclosure of children’s meetings with professionals is not in the best interests of the children, it
will not be ordered
Assessments and Lawyers
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A 30.1 CLRA – the ct before which an application is brought in respected of custody of or access to a
child, by order, may appoint a person who has technical or professional skills to assess and report to
the ct on the needs of the child and the ability and willingness of the parties or any of them to satisfy
the needs of the child
o Very expensive, cost born by parties see Marko for when ct should orer
Levine v. Levine 1993 ON
Ratio: assessments would not be ordered in every case and even if one is ordered, it remains the
responsibility of the court to decide what is in the child’s best interests
Linton v Clarke 1994 ON:
Ratio: ct disapproved of a practice of routine orders for assessments, holding a need for a decision on a
clinical issue to justify appointment of an assessor
Deslile v Deslile, 1998 ON:
Ratio: the ct reviewed the role of an assessor, holding that it was beyond the scope of the assessor’s role
to attempt to mediate disputes between the parties
Marko-Laschowski v. Laschowski 1999 Al
Facts: both M and F allege that they are the better parent and the other is abusive
Ratio: in relation to an assessment order courts can only order them where:
 It is materially helpful
 Some evidence to base the exercise of the discretion
 Court must determine what is in the best interests of the child
 Custody/assessment is a factor to be considered together with all of the evidence
 Applicant has onus of justifying a request
Application: home study is required to determine the needs of the child and info as to which parent is
best able to meet the needs
Child’s Wishes:
Stefureak v Chambers, 2004, ON:
Facts: Ct reviewed 4 different ways by which a child’s views nd preferences could be submitted to a ct
1. Through an assessor or another mental health professional who had been in contact with the child
2. Through the parties and their witnesses, who could provide hearsay evidence
3. By means of judge’s interview with a child outside courtroom
4. Having child provide direct evidence to ct as part of proceeding – never with child under 12
H v H 1999, NFLD:
Ratio: ct invoked its parens patriae jurisdiction to appoint a friend of the ct to protect a child’s interest
Bazinet v. Bazinet 1998 ON
Facts: H applying for order to appoint Office of the Children’s Lawyer to act for infant children
Decision: no lawyer
Ratio: courts must determine what the best interests of the child are wrt appointing a lawyer for them
Application: untold harm to impressionable children would be done in this case
Note: amicus curiae appointed in H. v. H. to comment on child matters
Access Enforcement
L.B. v. R.D. 1998 ON
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Facts: M failed to abide by arrangements for court-ordered access
Decision: 9 day jail sentence on appeal
Ratio: parties can be found in contempt of court for failing to abide by terms of access orders
McMillan v. McMillan 1999 ON
Facts: M interfering with F’s actions, previously breached a court order
Decision: 5 days in jail and costs
Ratio: a court order breached in delicate time frame post-separation can attract the compassion of the
court but one wilfully, deliberately and repeatedly breached many years later will allow the court to find
the party in contempt
A.G.L. v. K.B.D. 2009 ON
Facts: F alleges M continues to alienate children from him, have three children, M incredibly
overprotective as she was abused as a child, F never allowed alone time with children, M unable to
differentiate herself from children, M in breach of 5 orders and found to be in contempt of court, F found
out about third child’s birth from first child’s teacher
Decision: F to have sole custody with access to M after a few months of separation and counselling for
children
Ratio: a determination that parental alienation is occurring can lead to a sole custody determination for
the other party
Rule: best interests of the child, but if the court finds there has been parental alienation then the child’s
views cannot be seen as their own
Application: M to misuse authority if she still has custody, F more likely to foster children’s relationship
with her than she is with him, M offered no valid reasons for alienation of F, anxiety and stress this is
causing is not in BIC, M offered no parenting plan, predictions of expert wrt alienation has been realized,
M had police involved for no reason, views and preferences of children formed solely from M’s
perspective
Note:
 Critics argue disrupting a child that ahs bonded to an alienating parent is not a good thing as it is
pulling them away from whatever sense of security they have
 Significant infringement on children’s rights to force them into a treatment program
 But, relapses are a major risk as the alienating parents are toxic people
Custody Theories
1. Joint Custody: came into effect in the 1980s with the advent of the DA, although it did not create a
presumption in favour of joint custody, some judges increasingly regard it as appropriate unless there
were very good reasons for not awarding it, although there is some evidence that Ms have continued to
have primary responsibility for day-to-day care
2. Primary Caregiver Presumption: some US states have adopted this theory, courts are required to
determine which parent had primary responsibility for care-giving in the intact family, then give a custody
order for the care-giving parent, however no presumption is to arise if parenting tasks are shared equally,
some critics argue that this devalues men’s work and is gender-based
Custody and Access Reform
For the Sake of the Children Report
 Recommend that children be heard in relation to parenting decisions affecting them
 Parenting plans shift parents’ focus away from labels to the schedule, activities and real needs of the
child
 All shared parenting orders should take the form of parenting plans
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Plans can also provide for much-needed review as the child develops and his or her needs and
interests change
Must require the sharing btn parents of health, educational and other info related to the child’s
development and social activities
Benefits of ADR: reducing rather than escalating tension and conflict, reducing expenses, capacity to
include children
Criticism of ADR: abusive partners would use mediation as a forum in which to harass or overpower
the other partner
Frequently the legal problem cannot be handled properly until the human problem is dealt with
Children whose parents are separating often feel isolated and powerless
Many are unaware of the potential helpfulness of counsellors experienced in the dynamics of parental
separation and its impact on children
Recommends relationships of grandparents, siblings and other extended family members with
children be recognized as significant and that provisions for maintaining and fostering such
relationships where they are in the best interests of the child be included in parenting plans
Maccoby and Mnookin: Dividing the Child
 Co-operative parenting and not conflict should be the goal
 Gender roles of divorced parents remain substantially differentiated
 California divorce law explicitly authorizes joint custody and encourages frequent and continuing
contact with both parents
 Unless family law can modify the pre-divorce roles, then it is doubtful that it can have a much greater
impact on the post-divorce division of parental responsibilities
 Most divorcing couples would still typically end up allocating all primary child rearing responsibility
to mothers
 Doubt changing divorce custody standards alone is likely to have significant effects on the way most
parents allocate basic responsibility for day-to-day care either before or after separation
Rhoades: shared parenting laws
 Legal changes have not always succeeded
 Intended results of the reforms have largely failed to materialize
 Separation process is not conducive to co-operation btn former spouses, particularly among those
who use the legal system to resolve disputes
 Shared parenting concept is totally at odds with the types of parents who litigate
 Shared parenting treats all children alike and collaboration btn children’s parents may not be
uppermost in their list of needs
Katelynn’s handover
 Judge too focused on finding absent dad
 With mom’s consent a friend of mom’s applied for custody of Katelynn
 Friend killed her
 Friends had a criminal record for drugs, prostitution and violence but judge did not ask about it
 Court needed to move on quickly from dad issue as Katelynn’s situation deteriorating at school
 This case has led to discussions about reform as it relates to people applying who are not the
parents
 Led to required parenting plans and background checks being done on applicants
Determining Who is a Parent
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Legal obligations of child support reinforce family’s responsibility for the well-being of children
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Critical element in a larger shift from H-W relationship to parent-child ties as the defining
element of family obligation
All parents should support their children
Guidelines: intended to provide greater certainty wrt child-support obligations, but judicial
discretion has also been required to interpret their application in individual circumstances
Judicial interpretation of the definition of parent has been expansive and inclusive
A child may have a social parent as well as biological parents all of whom may have support
obligations
Criticism surrounding the fact that separated or divorced parents may have obligations to support
adult children to pursue educational programs by contrast with the absence of any legal
obligations to do so for intact families
Divorce Act Definition
“child of the marriage” means a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other
cause, to withdraw from their charge or to obtain the necessaries of life
(2) For the purposes of the definition “child of the marriage” in subsection (1), a child of two spouses or
former spouses includes
(a) any child for whom they both stand in the place of parents; and
(b) any child of whom one is the parent and for whom the other stands in the place of a parent.
Family Law Act
1(1) “child” includes a person whom a parent has demonstrated a settled intention to treat as a child of his
or her family, except under an arrangement where the child is placed for valuable consideration in a foster
home by a person having lawful custody;
Obligation of parent to support child
31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or
is enrolled in a full time program of education, to the extent that the parent is capable of doing so.
(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and
has withdrawn from parental control.
Children’s Law Reform Act
 See s. 8 for presumption of paternity
 S. 4 and 5 for applying for declarations
 S. 1 and 2 outline purposes of the Act
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.
(2) The court may impose conditions, as it thinks proper, on an order under subsection (1).
(3) The Health Care Consent Act, 1996 applies to the blood test or DNA test as if it were treatment
under that Act
(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.
Sullivan v. Sullivan 1999 ON
Facts: 22 year old woman with illness attending school part-time applying for child support form F
Decision: interim child support awarded
Ratio: onus is on a person claiming child support to prove that an adult child is entitled to support
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Rule: a child’s participation in an educational program must be meaningful and of such a nature and
quality as to be consistent with the program’s purposes and objectives
Application: part-time education can apply as well
Note: parents cannot contract out of their support for children
Hyde v. Lange 1996 ON
Facts: following separation, parties agreed that M would support child financially and emotionally with
no access to F and neither of them will attempt a relationship btn F and child, child now applying for
support in first year of college
Ratio: the child’s right to support should not be affected by the fact that the parent did not exercise access
or from any arrangement by the parents that compromised the right to support
Rule: s. 31 of FLA
Application: child entitled to support as attending full-time college
Parsons v. Parsons 1996 ON
Facts: 24 years old med student child,
Decision: F ordered to pay M 400 per month
Ratio: no ongoing relationship with parent does not preclude entitlement
Application: daughter entitled to support as child of the marriage who had not disentitled herself
Note: F could apply for review in a year if no parent-child relationship established
Louis v. Lastman 2002 ON
Facts: two sons of Mel Lastman, F, had been raised by M and her H until separation, M signed an
agreement executing a release of claims against F for 25,000 in 1974, M on social assistance and sons
claimed they lived in poverty
Ratio: it is not open to parties to come forward and make a support claim decades after they are no longer
dependant, no retroactive child support
S. (L.) v. P. (E.) 1999 BC CA
Facts: M became pregnant by F three times and aborted, 4th time she kept, necessary for her to identify F
to have child baptized, F married and denied paternity, F declared father by courts but M did not seek
child support until later
Decision: award child support going forward
Ratio: the obligation to support a child falls on both parents but no retroactive support will be awarded
Low v. Low 1994 ON NEEDED?
Facts: married couple, artificial insemination of W by anonymous donor, H certified child as father under
Vital Statistics Act, H left home 10 days after birth, H seeking declaration he is F, W seeking declaration
he is not F
Decision: custody to W with liberal access to H
Ratio: nowhere in s. 5 is there any suggestion that the relationship of father and child must have a
biological or genetic character
Rule: the law surrounding artificial insemination deals with the creation of the family unit and more
particularly with the creation of parent-child relationships
Application: s. 5 declaration that F is the father
Note: compare to AA v. BB and CC, lesbian partner not entitled to declaration of parentage
Re Rhan and Pinsonneault 1979 ON
Facts: M brought child support claim as she is on welfare and is required to do so, F did not know she
had a child, M does not want F to have visits with child
Ratio: blood tests will not be enforced on the casual fornicator who denies having sex
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Rule: criteria for determining if blood test should be granted:
 Were M and F married at the time children were born?
 Cohabit for some duration?
 Did F admit sexual intercourse around time of conception, now denies and alleges another F is?
 Did F admit to sexual intercourse occurring from time to time?
 Was M able to establish a prima facie case of putative fatherhood notwithstanding denial of F as
to fatherhood and/or ever having sex with M?
Application: one-time brief sexual encounter denied by F, wont infringe rights by ordering blood test
S.(E.A.) v. B.(K.M.) 1989 ON
Facts: F applying for blood test request, had sex with M, M married at time but divorcing H and
subsequently married a new guy while also having sex with another (4 baby daddies)
Decision: F is the father
Ratio: when a party refuses a blood test and admits to having sex, the court can draw an inference of
fatherhood
P.(K.) v. N.(P.) 1988 ON
Facts: F alleging breach of s. 7 of Charter when courts infer fatherhood under s. 10 of CLRA
Ratio: if there is no compulsion or coercion in an order, then the provision does not violate s. 7
Rule: the drawing of an inference against a party who does not provide relevant evidence in a court
proceeding, when that evidence is within the exclusive control of that party, does not constitute
compulsion or coercion
Application: it is an evidentiary matter here to be considered in the context of a civil proceeding in which
paternity is an issue, no compulsion or coercion
S.(C.) v. L.(V.) 1992 ON
Ratio: when blood tests are conclusive, the court has the jurisdiction to order DNA tests to determine
paternity
Chartier v. Chartier 1999 SCC
Facts: parties married for 1 year and had 1 child, W had a child from previous relationship that H had
stood in place of parent for, W applying for child support for both children from H
Decision: H is the F
Ratio: a person cannot unilaterally withdraw from a relationship in which he or she stands in the place of
a parent and the court must look to the nature of the relationship to determine if a person in fact does
stand in the place of a parent to a child
Rule: “The relevant factors in defining a parental relationship include”
 Whether child participates in the extended family in the same way as would a biological
child
 Whether person disciplines child as a parent
 Whether person financially contributes to the child
 Whether person represent to the child/world they are the parent either implicitly or
explicitly
 The nature or existence of the child’s relationship with the absent biological parent
Application: step-parents are standing in place of a parent
Note:
 Step-parents also acquires rights of custody and access
 Once someone has made at least a permanent or indefinite unconditional commitment to stand in
the place of a parent, the jurisdiction of the courts to award support is triggered, intention not only
expressed formally
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Gardiner v Gardiner, 2001 NSSC:
Facts: ct considered a father application for a declaration that his wife stood in loco parentis to his two
sons from previous relationship. Children remained in contact with bio M, and had a nanny and father
who provided most of care, W had not expended money to support children nor had she provided primary
care to sons.
Decision: wife should not be held to be in loco parentis the 5 year relationship didn't establish the
foundation for the long-term implications attached to a finding of in loco parentis
Monkman v Beulieu, 2003 MBCA:
Facts: parties cohabited for 4 years, , had one child together but M had 4 children one of whom was one
month old when relationship began and called respondent Dad.
Decision: held Chartier principles apply to cohabiting couples, relationship between child and adult is
crucial
Cheng v Cheng, 1996 ONCA:
Facts: M brought motion to amend her statement of claim to proceed against her father in law and mother
in law to claim support for herself and child, claim for child support was aid to be based on the provisions
of the FLA, particularly asserting that the grandparents had demonstrated a settled intention to treat the
children as children of their family
Decision: OCA held the Act did not exclude grandparents as persons who might be responsible for the
support of children, assuming that they had been significantly involved with them
Do Carmo v Etxkorn, 1995, ON:
 Ct held that the existence of an ongoing relationship but without cohabitation did not crate a
settled intention parent
W.P.N. v. B.J.N. 2005 BC CA
Facts: parties married for 27 years, two children, one child accepted to med school at time of application,
trial judge ordered table amount plus extraordinary expenses of 50% of child’s educational and residential
expenses
Decision: child is a child of the marriage, upheld trial judge’s order
Ratio: no general principle that a child seeking a second degree does not qualify for child support
Rule: test for s. 2(1)(b) DA:
 Whether the child is in fact enrolled in a full or part-time course of studies
 Whether the child has applied for or is eligible for student loans/financial assistance
 Career plans of the child
 Ability of the child to contribute to own support through employment
 Age of the child
 Child’s past academic performance
 Plans parents made for their children during cohabitation
 Whether child has unilaterally terminated a relationship from the parent from whom support is
sought
Application: not necessary for child to exhaust every source of funding,
Note: pursuit of education necessary to equip a child with a career qualifies as “other cause” for
continuing dependence of a child but mere attendance is not sufficient
Child Support
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¼ of young Canadians under 25 live in poverty
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Paras v. Paras: child support should be set at a level that would maintain the child at the predivorce standard of living and that the costs of achieving that standard be apportioned btn the
parents in proportion to their respective incomes
But, there’s a need to support two households post-separation and not just one
Need to identify financial support, post-separation as a joint responsibility of the parents
Need for the legal system to take account of the comprehensive financial circumstances of the
parents
Need to define ability to pay as a primary responsibility not a matter of availability of residual
income
Guidelines are mandatory
Sun v Guilfoile, 2011 – ON ct declined to hear an application where Japanese ct had made an
earlier order for child support
Divorce Act Provisions
2.1
child of marriage includes two groups – children under age of majority who have not
withdrawn from parental charge and children who have reached age of majority or older but
are unable by reason of illness, disability or other cause to withdraw from their charge
2.2
included in definition of child of the marriage is a child of two spouses of former spouses if a)
they both stand in the place of parents and b) if one if a parent and the other stands in the place
of a parent
15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an
order requiring a spouse to pay for the support of any or all children of the marriage.
(2) Where an application is made under subsection (1), the court may, on application by either or
both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the
marriage, pending the determination of the application under subsection (1).
(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so
in accordance with the applicable guidelines.
(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a
definite or indefinite period or until a specified event occurs, and may impose terms, conditions or
restrictions in connection with the order or interim order as it thinks fit and just.
(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount
that would be determined in accordance with the applicable guidelines if the court is satisfied
(a) that special provisions in an order, a judgment or a written agreement respecting the financial
obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a
child, or that special provisions have otherwise been made for the benefit of a child; and
(b) that the application of the applicable guidelines would result in an amount of child support that is
inequitable given those special provisions.
(6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount
that would be determined in accordance with the applicable guidelines, the court shall record its reasons
for having done so.
(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount
that would be determined in accordance with the applicable guidelines on the consent of both spouses if it
is satisfied that reasonable arrangements have been made for the support of the child to whom the order
relates.
(8) For the purposes of subsection (7), in determining whether reasonable arrangements have been
made for the support of a child, the court shall have regard to the applicable guidelines. However, the
court shall not consider the arrangements to be unreasonable solely because the amount of support agreed
to is not the same as the amount that would otherwise have been determined in accordance with the
applicable guidelines
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Family Law Act
1(1) a parent includes a person who has demonstrated a settled intion to treat a child sas a child oof his or
her family
(7) An order for the support of a child should,
(a) Recognize that each parent has an obligation to provide support for the child;
(b) apportion the obligation according to the child support guidelines.
(11) A court making an order for the support of a child shall do so in accordance with the child
support guidelines.
(12) Despite subsection (11), a court may award an amount that is different from the amount that
would be determined in accordance with the child support guidelines if the court is satisfied,
(a) That special provisions in an order or a written agreement respecting the financial obligations
of the parents, or the division or transfer of their property, directly or indirectly benefit a
child, or that special provisions have otherwise been made for the benefit of a child; and
(b) That the application of the child support guidelines would result in an amount of child support
that is inequitable given those special provisions.
(13) Where the court awards, under subsection (12), an amount that is different from the amount
that would be determined in accordance with the child support guidelines, the court shall record its
reasons for doing so.
(14) Despite subsection (11), a court may award an amount that is different from the amount that
would be determined in accordance with the child support guidelines on the consent of both parents if the
court is satisfied that,
(a) Reasonable arrangements have been made for the support of the child to whom the order
relates; and
(b) Where support for the child is payable out of public money, the arrangements do not provide
for an amount less than the amount that would be determined in accordance with the child
support guidelines.
(15) For the purposes of clause (14) (a), in determining whether reasonable arrangements have
been made for the support of a child,
(a) The court shall have regard to the child support guidelines; and
(b) The court shall not consider the arrangements to be unreasonable solely because the amount of
support agreed to is not the same as the amount that would otherwise have been determined
in accordance with the child support guidelines
31 creates obligation of parent to provide support for an unmarried child who is a minor, or who
is enrolled in a full-time program of education, to the extent that the parents is capable of
doing so.
31(2) eliminates a parental obligation to support a child who is 16 or older if the child has
withdrawn from parental control
S 33(7): an order for the support of a child should, a) recognize that each parent has an obligation
to provide support for the child b) apportion the obligation according to the child support
guidelines
S 33(11): a ct making an order for the support of a child shall do so in accordance with the child
support guidelines
Child Support Guidelines
 S. 1 objective
o A) to establish fair standard of support
o B) to reduce conflict
o C) to improve the efficiency of the legal process
o D) to ensure consistent treatment of parents
 S. 3 pay according to tables
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o A) amounts et out in table
o B) any amount if any determined under s 7
S 3.2 child over the age of majority
o A) can calculate amount by applying these guidelines as if child were under age of
majority
o B) the ct considers that approch to be inappropriate, the amount that it considers
appropriate, having regard to the condition, means, need and other circumstances of the
child and the financial ability of each parent or spouse to contribute to the support of the
child
S. 4: income exceeds 150,000
S. 5: sharing of child expenses by biological and other parents
S 7 Expenses CT can provide for an amount to cover all of any portion of necessity expenses
taking into account reasonableness, child best interests and spending pattern during cohabitation
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 parents or spouses in proportion to their respective incomes
after deducting from the expense, the contribution, if any, from the child.
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Ie if chld has ballet 100$ per month, father makes 60,000 per year mom makes 40,000
per year, the father will pay an additional 60 for the ballet
S. 8: split custody
S. 9: shared custody
S. 10: undue hardship
S. 16: sources of income are T1 General Form from Canada Revenue, may look at s 17/18
S. 17: fluctuations due to pattern of income– can use avg
S. 18: shareholder, director or officer and amount not reflecting all available income, ct can take
all or part of pre-tax income of corp into account
S. 19: imputed income permits judicial discretion or where underemployed where circumstances
are:
o A) the parent of spouse is intentionally under-employed or unemployed, other than where
the under employment or unemployment is required by the needs of any child or by the
reasonable education or health needs of the parent or spouse
o B) the aren’t or spouse is exempt from paying fed or prov tax
o C) the parent of spouse lives in a country where rates of income tac are significantly
lower than those in Canada
o D) it appears income has been diverted which would affect the level of child support to
be determined under these guidelines
Step 1: Using tables of annual gross income, determine table amount (s.3)
Note provisions for calculation of income: Sections 15-19
Step 2: Adjustments for special expenses (s. 7):
 Childcare
 Medical and dental insurance premiums
 Health-related expenses
 “Extraordinary expenses” to meet educational needs post-secondary education
 “Extraordinary expenses” for extracurricular activities.
Step 3: Departures (judicial discretion) in cases of “undue hardship” (s. 10)
(Note that the spouse claiming hardship must show a lower standard of living than the other).
Child Support Guidelines, Detailed
1. The objectives of these guidelines are,
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(a) To establish a fair standard of support for children that ensures that they benefit from the
financial means of their parents and, in the case of divorce, from the financial means of both
spouses after separation;
(b) To reduce conflict and tension between parents or spouses by making the calculation of child
support more objective;
(c) to improve the efficiency of the legal process by giving courts, and parents and spouses,
guidance in setting the levels of child support and encouraging settlement; and
(d) to ensure consistent treatment of parents or spouses and their children who are in similar
circumstances
3. (1) unless otherwise provided under these guidelines, the amount of an order for the support of
a child 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 parent or spouse against whom
the order is sought; and
(b) the amount, if any, determined under section 7.
3(2) permits ct to use same guidelines for a child over the age of majority that would apply to a
child under this age, if ct finds this inappropriate, the ct may order an amount it considers appropriate
having regard to the condition means needs and other circumstances of the child and the financial ability
of each parent to contribute
4: for payors whose income exceeds 150,000
5. Where the spouse against whom an order for the support of a child is sought stands in the place of a
parent for a child or the parent is not a natural or adoptive parent of the child, the amount of the order is,
in respect of that parent or spouse, such amount as the court considers appropriate, having regard to these
guidelines and any other parent’s legal duty to support the child. – loco parentis
7 (1): applicant can request an additional amt to cover some of the expenses related to some of the items
listed and the court will take into account the necessity and reasonableness of the add-on
 A) child care expenses as a result of the custodial parent’s employment, illness, disability or
education or training for employment
 B) medical and dental insurance premiums attributable to the child
 C) health-related expenses that exceed insurance reimbursement by at least $100 annually per illness
or event (including orthodontics, professional counselling, occupational therapy, speech therapy,
prescription drugs, hearing aids, glasses and contact lenses)
 D) extraordinary expenses for primary or secondary school education or for any educational programs
that meet the child’s particular needs
 E) expenses for post-secondary education; and
 F) extraordinary expenses for extracurricular activities
S. 7(2): the expense is shared b/w the spouses after taking into acct the spouse’s income (deducting
contribution from child)
8. Where each parent or spouse has custody of one or more children, the amount of an order for
the support of a child is the difference between the amount that each parent or spouse would otherwise
pay if such an order were sought against each of the parents or spouses. What would each parent pay for
the child in the other’s care, whoever owes more must pay that difference.
9. Where a parent or spouse exercises a right of access to, or has physical custody of, a child for
not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a
child must be determined by taking into account,
(a) the amounts set out in the applicable tables for each of the parents or spouses;
(b) the increased costs of shared custody arrangements; and
(c) the condition, means, needs and other circumstances of each parent or spouse and of any child
for whom support is sought.
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WONT NEED TO KNOW Calculations but DO need to know what 40% threshold is and then
know that ct will take into account a, b and c those items require parties to submit budgets
that actually show what the increase costs os shared custody are for them, the ct will take into
account those budget figures as long as guidelines table amount and overall assessment of
each party, means, to best fulfill the child’s financial requirements in a shared custody
circumstances
10. (1) On the application of either spouse or an applicant under section 33 of the Act, 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 parent or spouse making the request, or a child in respect of whom the
request is made, would otherwise suffer undue hardship
 Denied if household claiming under hardship would have a higher standard of living than
the other household
19. (1) The court may impute such amount of income to a parent or spouse as it considers
appropriate in the circumstances, which circumstances include,
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the
under-employment or unemployment is required by the needs of any child or by the
reasonable educational or health needs of the parent or spouse;
(b) the parent or spouse is exempt from paying federal or provincial income tax;
(c) the parent or spouse lives in a country that has effective rates of income tax that are
significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be
determined under these guidelines;
(e) the parent’s or spouse’s property is not reasonably utilized to generate income;
(f) the parent or spouse has failed to provide income information when under a legal obligation to
do so;
(g) the parent or spouse unreasonably deducts expenses from income;
(h) the parent or spouse derives a significant portion of income from dividends, capital gains or
other sources that are taxed at a lower rate than employment or business income or that are
exempt from tax; and
(i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other
benefits from the trust.
Thibaudeau v Canada, 1995, SCC:
Decision: majority of SCC concluded that the inclusion/deduction provisions did not infringe the equality
rights guaranteed by s 15(1) of the Charter. This provision said payor could deduct the amount of his
child support payments from income while payee had to include them in the calculation of their income.
 This was abolished with new Child Support Guidelines
Francis v. Baker 1999 SCC
Facts: M requesting child support for two children as per the guidelines, H makes almost 1 mill per year,
trial judge awarded amount based on table and payor’s income
Decision: appeal dismissed
Ratio: the assertion that child support awards can never be reduced under s. 4 is incorrect
Rule: objectives of predictability, consistency and efficiency are to be balanced with those of fairness,
flexibility and recognition of the actual condition, means, needs and circumstances of the children
Application: H failed to demonstrate trial judge erred in failing to exercise her discretion
Note: case has few implications for modest earners
R. v. R. 2002 ON CA
Facts: payor’s income at 1.4 mill, but made 4 mill year after separation
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Ratio: appellate courts can assess the amount of child support rather than ordering a new trial for
reassessment
Application: trial judge erred in not taking increased amount into consideration
Pakka v. Nyguard 2002 ON
Facts: payor has 7 children by 4 different women, provides 3,000 monthly to each Canadian child and
3,000 American to each US child,
Ratio: fair and equal subjective test rejected by courts, objective table is the law
Application: payor had not provided clear and compelling evidence that the table amount was
inappropriate or unsuitable
Froom v. Froom 2004 ON
Facts: F seeking for variation of child support for 2 children based on amount of time they actually spend
with him, currently paying 651 + 230 per month
Decision: child support down to $31.50 per month
Ratio: onus is on the payor to satisfy criteria of s. 9
Rule:
 change in circumstances that warrant a variation
 s. 9 of the guidelines
Application:
 M’s income almost double now sufficient change in circumstances
 F has met burden of satisfying s. 9 as he has children more than 40% of time, both parties in new
relationships with employed partners, no evidence of increased cost to child care
Note: M appealed to CA on method of determining the 40%, held there is no universally accepted method
for determining it and the trial judge did not err in the approach taken
Drygala v Pauli, 2002, ON:
Decision: ct reviewed two lines of cases that had interpreted the intention requirement in s 19(1)(a)
1. One required evidence of a bad faith intention to undermine or avoid a child support obligation
2. Other held that there was no need to find a specific intent to evade b
OCA concluded that the father had failed to recognize his child support obligation and it was appropriate
to impute income to him based on half-time employment
Riel v Holland, 2003, ON
Decision: payor chose to cease working as independent contractor and take a salaried position, his income
was significantly reduced the appeal ct confirmed the TJ’s determination to impute the previous higher
income to him for purposes of determining his child support
A v A:
Decision: Payor won 1 mill in lottery and ceased to work, AB ct imputed bot employment and investment
income to him
Odendahl v Burle, 1999, ON
Decision: payor ceased working overtime at separation, an ON ct imputed shiftwork income to him in
determining the table amount
Baldini v Baldini, 1999, BC
Decision: payor was dismissed from employment with cause, a BC ct imputed his employment income to
him
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Bak v Dobell, 2007, OCA
Decision: OCA held that payments made by a father to his disabled son did not constitute income for
purposes of determining the son’s child support obligations to his children
Bak v. Dobell 2007 ON CA
Facts: M applying for variation of child support through s. 19 imputed income, F lives with his family
and is disabled, his father gives him money to live on, trial judge held no imputed income
Ratio: people supporting family members should not indirectly be required to pay support for an
obligation that is not their responsibility to pay
Rule: s. 19(1), gifts and lifestyle are not included in a payor’s presumptive income as neither is eligible
for taxation although the list in the provision are not exhaustive and are examples
Application: father’s contribution to F are gifts, so no imputed income, capital is not considered to be
income as it is not taxed as income, F cannot sell them to make income as they belong to father
Note: if the income of a new spouse is not a relevant consideration, then neither should the gratuitous
discretionary basic support provided by a parent to a disabled adult child be a relevant consideration
D.B.S. v. S.R.G. 2006 SCC
Facts: 4 appeals wrt retroactive child support
Ratio: the court may order a retroactive award so long as the applicable statutory regime permits it
Rule:
 Reason for the recipient payor’s delay in seeking child support
 Conduct of the payor
 Past and present circumstances of the child
 Child’s needs at the time support should have been paid
 Whether retroactive award might entail hardship
 Whether payor parent engaged in blameworthy conduct
Application:
 DBS: no retroactive, household incomes roughly equal and retroactive would be inappropriate and
inequitable with no benefit for children
 TAR: no retroactive, no blameworthy conduct, F had acted fairly
 Henry: retroactive, F acted in blameworthy manner
 Hiemtra: retroactive, F has substantial income and is not blameless
Dissent: presumptive starting point for the child’s entitlement is when the change occurred, not when it
was disclosed or discovered
Older Children:
Lewi v Lewi, 2006, ON:
Issue: to what extent are adult children required to use their own funds to pay for post-secondary
education expenses?
Facts: spouses married in 83 and separated in 96, sons were 20 and 18. Father paid 1500 a year for his
older sons university costs. Mother brought motion to increase the father’s contribution pursuant to s
7(1)(e), father resisted saying both sons had substantial funds of their own accumulated as a result of gifts
from grandfather (40,000 each ish)
Motion Judge: decided that each of the boys should contribute on a graduated scale with parents paying
remaining costs, 77% father and 23% mother.
Decision: On appeal, ct decided issue was s 7 with older son and s 3(2)(b) for younger son. However, the
difference in provisions didn't change case for either, and said that the means of the children should be
considered along with means of parents in both cases. This ct concluded they must each pay a portion of
their school fees but they would have money left over after.
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Cassidy v McNeil, 2010, ON:
Decision: OCA upheld a wife’s contributions to educational expenses that were paid directly to her two
sons who were attending university and living with father
Wright v Zaver, 2002, ON:
Facts: W and Z were unmarried parents of a son and Z paid a lump sum of 4,000 child support without
further obligation and denying him access. W married and had a child, new H treated previous son as own
and when they separated he was ordered to pay child support for both. In context of financial hardship, W
filed an application for child support against Z who was well off. He resisted arguing that there should be
apportionment of chid support payable for his son in accordance with s 5.
TJ: neither natural nor an adoptive parent can rely on s 5. Obligation for support is independent of access,
wouldn't be a hardship for Z to provide and no rule against mother double dipping to provide more for
child. OCA confirmed this
Decision: biological and adoptive parents may not rely on s 5 to reduce their child support obligations,
even though there is a social parent as a result of repartnering
Note: this case also followed views expressed in Bates and decided that the enactment of the Guidelines
created such a right to variation (automatic change of circumstances with new guidelines)
Cornelio v Cornelio, 2008, ON:
Facts: former husband brought a motion to terminate child support for 16 year old twins and for
repayment after DNA testing revealed he was not biological father. Said the 2002 consent order for JC
and support was obtained by fraud and misrep bc wife hadn’t disclosed extramarital affair. He said
without this info he could not have stood in place of parent.
Decision: accepted reasoning in Chartier of best interests of child and fathers actions have been like a
father whether he wanted it or not. But social parents support obligation might be reduced from the table
amount. The right to support is the CHILD’s right even if the father figure or mother agree earlier they
wont pay child support.
Meloche v Kales, 1997, ON:
Decision: the calculation of time proceeds form the assumption that the custodial time is initially 100% of
the child’s time (including school time) and that the non custodial parent’s access of physical custody of
the child must amount to at least 40% of that time over a year.
Rosati v Dellapenta/Dennett v Dennett
Decision: cases that have suggested a preference for considering the nature and quality of the time spent
by each parent with the child
Sirdevan v Sirdevan, 2009, ON:
Decision: 5 chldren were in father care when they were in care of a nanny employed by father. Ct applied
principles of leonelli-Contino and ordered a monthly payment of 17500$ as child support
Leonelli-Contino v Contino, 2005, SCC:
Facts: parents of child agreed at separation to JC arrangement, resided with M on day to day basis with
generous access to F and D agreed to pay 563$ per month. When M enrolled in night class she asked F to
care for child one more night a week. F agreed but then applied to vary his support obligation bc the ngiht
meant the child was with father 50% of the time.
Lower ct Decision: OCA reviewed the formulaic treatment of motions judge and found it predictable but
failed to take into action s 9(c) and divisional court lacked predictability. OCA concluded that it was
appropriate to use an approach of structed discretion. Then ordered father to pay 399.61 per month.
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SCC: mothers appeal allowed, SCC concluded discretionary approach was appropriate and ordered father
to pay 500 per month. Ct emphasized need to consider all factors listed in s 9 before reaching a result.
Step by step method for quantum:
1. Determine the simple set-off amount of each parent’s table amount
2. Review the child expense budgets, actual spending patterns
3. Consider the ability of each parent to bear the increased costs of shared custody and the standard
of living for the children in each household
4. Distinguish between initial orders or agreements and variations. Bc a recipient parent may have
validly incurred expenses based on legit expectations about how much child support would be
provided.
Schmid v Smith, 1999, ON:
Facts: under s 10 of guidelines, counsel for H asks the ct to award an amount of child support different
form amount determined under s 4 bc he would otherwise suffer undue hardship for 3 reasons; unusually
high expenses to access children bc travels between UK and Canada to see children, says Alison is not
child of marriage and says cost of living is higher in UK
Decision: Alison is child of marriage, didn't provide enough evidence to show cost of living was undue
hardship but the travel costs were undue BUT husband had higher standard of living than wife so his
application was dismissed
Dickie v Dickie, 2007, SCC
Facts: SCC considered a case concerning a husband who had been ordered topay about 9,000 monthly in
child and spousal support but her moved to the Bahamas and lived a luxurious lifestyle. By the time the
case reached the SCC he owed around 700,000
OCA: exercised discretion to hear appeal from Mr D order requiring him ti post security for arrears of
child and spousal support in spite of the contempt order Ms D appeal this decision to OCA
SCC: confirmed dissent of OCA, and allowed Ms Ds appeal with costs. SCC confirmed that cts can
exercise discretion to reguse to hear an appeal from a party who has not complied with outstanding family
law orders
Note: bc he lived in Bahamas money may never get to ex wife/child
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