I. THE FAMILY AND FAMILY LAW The Changing Nature of the Family and the Evolving Role of State Regulation Vanier Institute + Rosalie Abella + Rod MacDonald Historical Perspectives: Bradbury et al. Clio Collective Constance Backhouse II. THE LEGAL FRAMEWORK: The Constitutional Framework = Hogg III. THE PARENT-CHILD RELATIONSHIP Eichler et al. + Kasirer Establishing the Bond Between Parent and Child---Filiation by Blood DF 2143 Silber v. Fenske Filiation by adoption DF 1704 Dowd Racine v. Woods N.H. & D.H. v. H.M., M.H. et al In Loco Parentis Relationship and De Facto Relationship: Chartier + DF 1369 Rights and Obligations of Parents and Children—From Parents Rights to the Best Interests of the Child =Parental Authority Kasirer C.G. v. V-F(T) + DF 2281 Support Obligation DF 2366 DF 2626 Lang The Role of the State in Family relationships: Bala + Provost 1 SPOUSAL RELATIONSHIPS De Facto Relationships Miron v. Trudel Eagan v. Canada Goubau Presentation du Projet de Loi # 32… Marriage—The Legal Validity of Marriage---Rights, Duties and Obligations of Married Spouses Kasirer Hahlo DF 2254 S. (A) v. S.(A) Castelli et al. Contrat du mariage anterieur au mariage (simple) + Contrat du mariage anterieur au mariage (elaboree) + Contrat du mariage posterieur au mariage BREAKDOWN OF THE SPOUSAL RELATIONSHIP Bissett-Johnson et al. Horvath v. Fraess DF 841 CONSEQUENCE OF FAMILY BREAKDOWN ON CHILDREN Custody and Access---Terminology and Selected Issues---Relocation Special Joint Committee on Child Custody and Access C (G) v. V-F (T) Allen Bala DF 2201 Gordon v. Goertz W (V) v. S(D) 2 Child Support Davies Willick v. Willick Francis v. Baker DF 2626 PROPERTY DIVISION The Division of Property Between De Facto Spouses Sorochan v. Sorochan Peter v. Beblow Rawluk v. Rawluk DF 359 Baigneault v. Richard The Division of Property between Married Spouse---The Family Patrimony and Family Property---Compensatory allowance and Compensatory Support---The Family Residence Bosch v. Bosch Futia v. Futia DF 1636 DF 2071 LaCroix v. Valois M.E.M. v. P.L. P (S.) v. R. (M) Hovius et al. + Kasirer Hill v. Hill SPOUSAL SUPPORT Pelech v. Pelech + Richardson v. Richardson + Caron v. Caron Moge v. Moge Bracklow v. Bracklow 3 I. THE FAMILY AND FAMILY LAW A. The Changing Nature of the Family and the Evolving Role of State Regulation Recent US case—Troxel v. Wynn—how can the state dictate to parent who can see their children? Here, the grandparents are seeking visitation rights to their grandchildren. In CCQ, art 611 = no interference between the children and grandparents. In OT, s.21 FLA parent of child or other person may apply for visitation. Traditionally, a family = wife/homemaker + husband/breadwinner + kids. Today, same sex couples, cohabitation, blended families…which relationships are worthy of legal sanction? Why the change? Liberal society, individualism, pluralism, increased living costs, women‘s movement, decreased religion, divorce with ease, change in values etc. Vanier Institute Rosalie Abella, ―Opening address‖ Primary purpose of the law was to keep the family and marriage together. Economic sanctions acted as ―immorality prophylactics‖ by attempting to prevent the occasional sinful lapse, which threatened structure and integrity of the family. [pervasive influence of family on society, or the other way around?] Second function = to provide a system for the distribution of assets and children in the event of marriage break Law should NOT make distinction between the faultor and faultee in marriage = not its business. The state does have an interest in the family = operation and outgrowth of society = vested interest in each other‘s welfare. Present function of the family is no longer to maintain marriage but preserve families. Recognize that saving a marriage may be destroying the members of a family. Under new laws, contributions to marriage are considered equal – performed in or out of home. Redistribution of assets according to extent by which the individual‘s economic situation was negatively affected. Child custody = only test that should apply is the best interest of the child. The status of the child should depend on the relationship between the parents AND develop processes that enhance continuance of parenting. Notes: before 1) law designed to keep marriages together = over-riding good [sanctions against the home-wrecker] 2) consequences of breakdown =children go first to father, then non-adulterous mothers, mother ―tender years doctrine, fathers if mother caused separation. 3) property—his is his—she gets nothing. Promoting change: the law no longer looks for villain and victim and gives independence to the family. The goal is to promote rights of family members. Spousal support is indefinite and child support = standard before break-up. No gender bias in custody—look at best interest of child—more shared parenting. Abolish custody as term = evokes a win-lose scenario so change to residential time. Increase use of experts and legislators should keep up with societal change and use of judiciary to spark it when they do not keep up. Roderick Macdonald, ―In Search of Law‖ Is the public policy we want to pursue = focus on married couples or = stable adult relationships that lead to longer and happier lives? The concept of marriage is both under and over exclusive. It excludes many stable adult relations and includes some de jure marriages which have no de facto content worthy of legal defense. B. Historical Perspectives Notes: 1820-1840—Quebec inherited french law—matrimonial K before marriage only [by notary] if not, automatic Marriage in community = all property = sole admin by husband [in theory, W entitled to ½ of what in community] 4 Exclusion of community = no claim to husband‘s property = no admin of immovable property [husband‘s consent required], all moveable property assumed as husbands unless she could prove her title. Common law—marital unity=reduce woman‘s identity = 1--all property vested with husband 2—kept ownership of immovables but no rent? 3—couldn‘t K, sue or be sued 4--consent of H needed to assume business separate from H. Marriage in history—marriage settlement = different from marriage K, very expensive [rich only!], trusts created. 1837—no courts of chancery [equity] in Canada [like in UK] BUT… Women‘s property law reform a) marriage breakdown legislation 1851 NB—make broken family a more efficient unit b) protection legislation = women‘s ownership, but still H admin. c) egalitarian legislation = 1872 OT – women sued separate from H, property + business separate. Prior to reforms: similarities of civil + common law regime and woman‘s rights—not able to K, sue, carry on a separate profession, engage in commerce without H consent. These only avoided with $$ and in theory, unmarried women had the same rights as men. Bradbury et al. Clio Collective Constance Backhouse II. THE LEGAL FRAMEWORK A. The Constitutional Framework – Peter Hogg Most of that relating to the family = provincial jurisdiction. Property + civil rights 92.13 + 16, solemnisation 92.12 But 91.26 = fed power over marriage and divorce—this gives uniformity across the country but also fed jurisdiction = makes it more difficult. Juvenile delinquency and criminal charges arise out of family disputes = fed powers over criminal law 92.2 1968 = fed provided for alimony, maintenance and custody in the new Divorce Act but only as corollary relief in divorce proceedings. Before = variation between provinces. 1938 = adoption reference SCC = provinces can enact laws re: adoption, legitimacy, custody, guardianship, child welfare, affiliation and maintenance of children. [though, sometimes provided for as part of Divorce Act] Support of children = language of divorce act extends to fix quantum after the divorce is granted. Also power to vary support orders after the divorce is valid. Support of spouse = alimony payments made to a separated spouse Maintenance = payments made after dissolution of marriage [after DA 1968—support = both payments]. Division of property = DA s.15 authorises support payments of a spouse or child by lump or periodic sums. [in the past, divorce courts had difficulty transferring ownership of property in lieu of lump sum payment = provincial jurisdiction. Now, changing values, seen as ancillary to divorce proceedings and courts are willing. Federal paramountcy = when an order is made under DA, it renders the competing order inoperative. Notes: custody + spousal support in DA [fed] = must be resident in province for one year, marriage is dissolved and no-fault divorce based on one full year of living separate and apart. In provincial legislation [separation] = still married, can live separate, matrimonial regime dissolved, automatically separate as to property, also for unmarried same-sex couples. 5 III. THE PARENT—CHILD RELATIONSHIP Eichler and McCall, ―Clarifying the Legal Dimension of Fatherhood‖ Motherhood = defined by biological factors. Fatherhood = by his relationship with the mother 4 ways to become a father: 1--association with the mother =serious relationship, marriage, birth certificate [knowledge+consent], by marriage to mother of a dependent child 2—behavior in a parental manner = standing in loco parentis, voluntary acknowlegement, awarded custody, [foster parent—limited rights+obs] 3--via admin/legal declaration = birth certificate, adoption, custody order, paternity action 4—by default = where father can‘t fulfill parental function [generally, can‘t go after grand-parents] Rights associated with parenthood 1--Over children 2—To act on behalf of children a)litigation for damagessupport b)medical consent c) accept gifts 3—To give/withhold consent on issues wrt child 4—To pass on benefits to children a)citizenship b)family allowance 5—To be informed of matters wrt the child 6—Of an indigent parent to be maintained by his/her child 7—To parental leave Obligations 1—maintaining + supporting children 2—provide care + supervision 3—register the birth 4—attend youth court proceedings 5—notify change of residence [of other parent] 6—make educational decisions 7—health decisions Liabilities associated with parenthood 1—loss of some or all associated rights [arts 606-610 eg: compromise a child‘s welfare or by divorce proceeding] 2—have a will overturned 3—have personal information released 4—have monies garnished for failure to support children [in CCQ] 5—damages caused by a child [arts 1459+1460] Possible fatherhood is activated when a man obtains a right/privilege or incurs an obligation or liability because he may at some point become a father. Competing rights and responsibilities of biological vs. non-bio father in 3 contexts: a—support of obligation b—custody and access c—right to give/withhold consent for adoption. Conclusions A man‘s designation as father is legally and socially mediated through a woman. Fathers may be potential/actual, bio/non-bio, full or partial, exclusive/non-exclusive, terminated/re-instated. Interjurisdictional as well as interlegal contradictions in the way the law treats fathers. Large aspect of non-intentionality in the type of father a man becomes. In the case of non-exclusive fathers, treatment of bio and non-bio fathers is contradictory. Importance of paternity knowledge = medical history, identity issues, obs owed to child, questions of inheritance 6 A. Establishing the Bond Between Parent and Child Section 92.13 civil rights = father + mother determine the child‘s civil status and respective rights = obs. Filiation by Blood Filiation is the legal relationship between parent and child, and from it flows civil status and filial obligations including alimentary support. In CCQ – filiation divided into filiation by blood [arts 522-542] and by adoption [arts 543-584]. In OT—f by blood parts I + II CLRA and f by adoption [part III CLRA]. Similarities: 1--neither QC [art 522] or OT [1.4 +1.1 CLRA] distinguish between legitimate/illegitimate children. 2—common perception of paternity a) married to mother [525ccq + 8(1) para 1 clra] b) 300 days within dissolution or annulment of marriage c) QC =voluntary acknowledgement [art 526-529 and 12(1) clra] Differences: QC art 523—birth certificate proves filiation OT s.8(1) birth certificate gives rise to presumption. Quebec = uninterrupted possession of status [arts 523,524 +530] DF 2143 [courts looked at facts and dismissed w/o hearing] FACTS: Parties dated since 10/85 and began to live together in 3/86. D told P she was pregnant in 1/86. Girl was born in 7/86. They lived together until 1989. After separation, the D voluntarily made support payments and in 7/94 was given custody. At the end of that month, it was scientifically established that he was not the father. ISSUE: Can the father legally change his status so that he is not reconised as the father anymore? RATIO: Took into consideration the possible trauma this procedure could affect the child of 8 years. Ordered immediate termination of the action. Notes: What constitutes uninterrupted possession of status? A—role in upbringing of child + general development B—making decisions re: child C—financial role D—giving family name E—treatment by ext. family + community Presumption of paternity + co-habitation? In QC no [in 525 (3) divorce provision], in OT there is—section 8(1) para 4 but no 300 days rule. If presumptions in conflict = neither is presumed to be father eg: section 8(1)2 + 8(1)5 Arts 533-34 = questions of proof + any kind allowed for contestation proceedings eg: even family photographs have been considered as commencement of proof = a family document. Silber v. Fenske  OT CofJ Infants — Illegitimate children — Filiation proceedings — Blood tests, when ordered — Maintenance of children . This was a motion for an order to pay interim child support and an order under section 10 of the Children's Law Reform Act to require the parties and child to submit to blood tests to determine the child's paternity. The defendant argued this would breach his rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms. His position was that his paternity was involuntary and that his having sex with the mother was induced under false pretences. The parties had been intimate between 1991 and 1993. The defendant had certified under the Vital Statistics Act in 1994 that he was the child's father. The applicant earned $42,000 annually, the defendant $300,000. He had a net worth of $2 million. HELD: The motion was granted. An order under section 10 was not an unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms. Nor did it breach the defendant's right to security of the person. The defendant was ordered to pay interim support of $2,250 monthly. [could use art 10 to order test in QC] Statutes, Regulations and Rules Cited: Canadian Charter of Rights and Freedoms, ss. 7, 8. CLRA, c. C.12, s. 10. 7 Filiation by adoption Authority of provincial courts arts 823-825 and 543-584 and in OT part 7 CLRA a—not techincally related by blood b—need legal act = adoption judgement c—replaces original filiation with fiction [biological parents = have no more rights] Consent: art 548 in writing art 551 of both parents art 549 of child over 10 years art 557 withdrawl w/n 30 days Special consent = family adoption General Consent = blank form given to social services + they do placement Consent: 137(2) written [and not before 7 days after birth] 137(6) of child over 7 [with counselling + legal advice] 137(8) withdrawl within 21days 139(1) and anytime where it is in the child‘s best interest DF 1704 Facts: The birth certificate declares that the appellant is the daughter of the intervenor + respondent. They were no married and were separated soon after her birth in 1973. In 1975, the intervenor began procedure to adopt A with consent of R. The birth certificate was modified to remove the R‘s name as father of A. A never had any contact with R and is now asking for a re-instation of civil status. Trial judge rejected the action stating that the adoption subsitutted her original filiation. Ratio: Moissan J—the adopted child is no longer a part of here original family—all juridical links with the biological parents severed by act of law. The A cannot reclaim a different status conferred by the adoption order. Tyndale J [dissent]—here, the mother adopted her own child = a new filiation was not created and the child did not cease to be a part of her original family. The A is not reclaming a filiation contrary to her act of birth. She can have an adopted mother and a biological father. Nancy Dowd, ―A Feminist Analysis of Adoption‖  Society has treated the adoptive family an imitation and therefore inferior to the biological family. Society views adoption as a ―debased form of parenting‖ and treats adopted children as ―inherently inferior‖. The present system‘s screening purposes are to determine eligibility to adopt and rank parents for matching with prospective children. Process tainted with biological bias and blatant discrimination of race, religion, disability etc. Justification of the traditional adoption was the moral condemnation of unwed motherhood. Moral fault justified state control and denial of any role of the birthparents in the relationship with and placement of children. Notes: continuum of preferred means to create a family = biological—reproductive tech—adoption—int‘l adoption Suggest reforms—a) sealed record system abolished QCart583—consented information of birth parents art 582— exception of medical necessity OT s150(2) confidential records s160(1) birth parents = no access s168—medical ss161-171—confidentiality of records = registrar of adoption information disclosure identifying v. non-id information 18 years may search + register b) parental screening system = home study+pass test [but are we penalizing inability to conceive?] Reproductive tech = counselling c) no imposition of racial matching in adoption. Best interests of child vetoes racial considerations. Addressed in s.136 clra. 8 RACINE v. WOODS  SCC from MN Adoption — Custody — Inter-racial adoption — Best interests of child — Indian child made temporary ward of children's aid society for period of 18 months — Child placed with appellants as foster parents — Returned to mother at expiration of period of wardship, child voluntarily handed over by her to appellants a few weeks later — No further contact between mother and child for almost four years — Child securely bonded to appellants — Significance of cultural background and heritage as opposed to bonding abating with passage of time — Adoption by appellants in child's best interests — Child Welfare Act, S.M. 1974, c. 30/C80, ss. 103(1), 103(2). This was an appeal from a decision of the Manitoba Court of Appeal allowing an appeal by the natural mother of a 6-year-old Indian child from a trial judgment dismissing the mother's application for custody and allowing the foster parents application to adopt the child. The Court of Appeal set aside the adoption decree, made the child a ward of the Court and granted custody to the foster parents. (For the facts of the case and the decision of the Manitoba Court of Appeal see (83) DRS P21-996.) The foster parents (appellants) sought to have the trial judgment restored. The mother cross-appealed on the ground that the Manitoba CA erred in not giving her legal custody of her child. HELD: The appeal was allowed. The adoption order was reinstated, The cross-appeal was dismissed. On the issue of abandonment of the child by the mother the majority of the Court of Appeal put an entirely different interpretation on the evidence from that of the trial judge. It was not the function of an appellate court to reinterpret the evidence. Even if a finding of abandonment was a prerequisite for an adoption order under s. 103 of the Child Welfare Act, the Court was of the view that there was evidence to support the finding of the trial judge. In the opinion of the Court, however, a finding of abandonment was not necessary: subsection 103(2) dispensed with parental consent in the case of a de facto adoption. There was no merit in the submission of counsel for the wife that the word "custody" as used in section 103 of the Act meant legal custody, which had never been obtained by the appellants: the section provided for the adoption application by a person having de facto custody of a child for the prescribed period of time. The crucial issue on the appeal was whether the trial judge erred in holding that the child's best interests lay with the appellants. In the opinion of the Court, the significance of cultural background and heritage as opposed to bonding abated with the passage of time. The closer the bond that developed with the prospective adoptive parents, the less important the racial element became. The trial judge recognized that reality, considered all the factors which were relevant to the determination of the child's best interests, including the fact that she was Indian, and weighed them in the balance. Court could not find that she erred in carrying out difficult process N.H & D.H. v. H.M.  SCC from BC Practice — Appeals — Supreme Court of Canada — Rehearing — Rehearing, when available — Rehearing, application for, jurisdiction — Requirement of service of notice and application for leave to appeal Motion by HM for a rehearing of an appeal by the Supreme Court of Canada. MH was an Aboriginal who was given up for adoption by her father HM when she was four years old. HM lived on the Sagkeeng First Nation Reserve. NH and DH, who were not Aboriginal and lived in the United States, adopted MH. MH became pregnant with I and resided with NH and DH after his birth. MH subsequently took I to British Columbia. A custody action took place between NH and DH as petitioners and MH as respondent. The trial judge awarded custody of I to NH and DH. HM successfully appealed to the British Columbia Court of Appeal. The Court of Appeal decision was overturned by the Supreme Court of Canada. HM sought a rehearing on the ground that NH and DH failed to serve a copy of the application for leave to appeal and the notice of appeal on the Sagkeeng First Nation as required by the Rules of the Supreme Court of Canada, which required service on the parties in the courts below. The Sagkeeng First Nation did not participate at the trial level but was granted limited intervener status by the Court of Appeal. HELD: Motion dismissed. Pursuant to Rule 4(1) of the British Columbia Court of Appeal Rules, parties at the Court of Appeal level did not acquire the rights of a party in the Supreme Court of Canada unless they filed a notice of appearance. Under the Supreme Court Act, the respondents were not required to service the notice of appeal on the Sagkeeng First Nation until an order granting intervention status was made by a judge of the Supreme Court of Canada. These procedural requirements were not met. As well, it was not fair for HM to complain of the absence of service when he could have provided notification on his own. A rehearing was not required as this was not an exceptional case where there was a potential failure of justice at the original hearing. 9 In Loco Parentis Relationship and De Facto Relationship Chartier v. Chartier  SCC from MN Family law — Maintenance of wives and children — Persons obligated to support children (in loco parentis). This was an appeal by the mother from the decision of the Court of Appeal dismissing the wife's appeal from an award of spousal and child support and dismissing the husband's cross-appeal. The parties began a relationship in 1989. The wife had a child Jessica at the time. The parties had a child in 1990 and married in 1991. They separated in 1994. The husband initially acknowledged that he was the father of both the children (on birth certificates). He agreed to pay maintenance for the parties' daughter but did not specifically agree to pay support to the wife and Jessica. The wife commenced divorce proceedings in 1995. She sought a declaration that the husband was in loco parentis to Jessica. The husband was ordered to pay interim monthly support to the wife and both children. The father indicated his desire to sever his relationship with Jessica. Trial judge ordered spousal support, reduced the award to the daughter, awarded costs to the wife and found that the husband had repudiated his relationship with Jessica. HELD: The appeal was allowed. The husband was declared to stand in the place of a parent to Jessica with reasons to follow. DA s. 2(2) parental relationship base on time the family functioned as a unit. The test takes perspective of the child, but only one factor. Other factors to show a child of marriage: intention, financial contribution etc. One cannot unilaterally give up status of ―in the place of a parent‖ and escape obligation to pay support. Interim support granted until quantum support calculated. DF 1369  CA QC Family law — Maintenance of children — Obs of spouse to support other spouse's children — Husband terminating relationship with wife's son after separation — Husband in loco parentis — Subsequent relationship of spouse. This was an appeal from a decision refusing to order child support on the ground that the husband had terminated his status as a parent of the wife's son and refusing to order spousal support on the ground that the wife was living with another man and had not sought full-time employment. The parties lived together and later married. During their eight years together, the husband had been in loco parentis to the child but unilaterally terminated this status when he left the wife. HELD: The appeal was allowed with respect to the child support order only. Considering the length of the parent/child relationship, the needs of the child and the wife's financial means, the husband was ordered to pay $50 per week for child support. Husband could not avoid his obligations by terminating his status as a parent. The child was a child of the marriage within the meaning of the Divorce Act. There was no evidence that the judge of first instance wrongly exercised his discretion with respect to the wife's maintenance. Divorce Act, R.S.C. 1985 (2nd Supp.) c. 3, ss. 2(1), 2(2), 15. B. RIGHTS AND OBLIGATIONS OF PARENTS AND CHILDREN Kasirer, ―Note--Parental Authority‖  Parental authority is a foundation of civilian understanding of civil law. Art 597 every child…owes respect to… Art 598 a child remains subject to…authority. Gives authoritarian overtones, but other articles underline parental duty rather than rights…overtaken by art 33 best interest of the child. Parental authority incl. ― rights and duties of custody, supervision and education‖ art 599 = material + moral needs. PA may be removed if duty not taken seriously art 606. Before 1977, exercise of PA by father, now it is shared. Custody = complex decision. [re: separation arts 493 et seq] Issues of best interest = economic, stability, contact with minority culture etc. Parental decisions vs. view of ‗reasonable‘ in society. Q‘s of rights of parents, child +state 10 Attribution of custody to third person C.(G.) v. V.-F.(T.)  SCC from QC Custody and access — Considerations governing award — Non-parents seeking custody must rebut presumption in favour of parent and establish ability to meet child's needs — Award of custody to non-parents in child's best interest not necessarily deprivation of parental authority — Res judicata not applicable as decisions concerning children reviewable at any time where circumstances justify — Evidence capable of rebutting presumption in favour of father — No distinction between "legal" and "physical" custody in civil law. This was an appeal from a judgment of the Quebec Court of Appeal reversing judgment of the Superior Court which had awarded custody of two children to their aunt and uncle. The children's mother had previously obtained interim custody pending divorce and had entrusted care of the children to her sister and brother-in-law before her death. The father successfully applied for habeas corpus during which proceedings a motion for "physical" custody by the aunt and uncle was respected. The children were returned to the father but they ran away on several occasions to the aunt and uncle. On an application to the Superior Court, an award of "physical" custody to the aunt and uncle was made. The father's appeal to CA upheld on the basis that the earlier ruling on the habeas corpus proceedings had the authority of res judicata. The appellants asked for a restoration of the trial judgment and award of both "legal" and "physical" custody. HELD: Appeal allowed. Decisions related to children were subject to review at any time where justified by the circumstances and res judicata was therefore not needed. An award of custody does not necessarily amount to a deprivation of parental authority under art. 654 of the cclc [Art 605+606 CCQ ]and the CA was therefore wrong in holding that it necessarily followed where custody was awarded to a third person. There was ample evidence to support the conclusion rebutting presumption in favour of the father and that it was in the children's best interest that custody be awarded to the third party [A]. There was no distinction under the Civil Code between "legal" and "physical custody" as the civil law concept of custody included the presence of the child. DF 2281 Facts: The respondent father had abandoned his son, stating that he was none of his concern at birth and having no contract with him in his 14 yrs of existence. The trial judge held that abandonment was not a sufficient motive to divest the respondent of parental authority. Issue: Can the father be divested of his parental authority? Holding + Ratio: Appeal allowed. The child suffers psychologically by having a family name to which he cannot relate and a lack of identity with his real family. The respondent has always ignored the child and taken no interest whatsoever in his son‘s life, not even coming to court for the hearings in question. Art 654 cclc C. Support Obligation DF 39  CS Facts: P attained majority on 23.09.1982 and left her parents house the next day. She claims it is impossible to live with her parents, but she has no financial resources and wants a food allowance of 107/week. The D refuses, saying that P living with a man is against his religious beliefs but that she can return home. Issue: Does the D owe his daughter an obligation of support? Holding + Ratio: Allowed. $95/week in food support. Everyone has the right to practice their own religion but cannot impose it on 3rd parties as to curtail their own rights. The D cannot refuse the food to his own daughter whilst professing deep devotion to Catholic faith. It would be impossible for P to return home without suffering psychological damage. 11 DF 2366  CS Quebec family — Support obligation — Entitlement — Relatives. The mother BC sought maintenance from her children SB and EB. SB asked that the other children BP, FP and TCP, his half brothers and sisters, be ordered to help support BC. SB offered to have BC live with him. BC asserted that she wished to be independent. She had been helped by her children until May 1990 when they no longer could help her. SB and EB both worked and earned over $40,000 a year but their family obligations took most of that. BP offered to pay $100 to $125 per month. FP and TCP were students. BC was on social assistance. HELD: SB was ordered to house and feed BC and the other children were ordered to pay various monthly amounts to support BC. Son is good to her and respectful. Her privacy in the home is adequate. Statutes, Regulations and Rules Cited: Civil Code, ss. 585, 587, 592. DF 2626  CS Facts: The P seeking support payments from their daughter who won 2.1 million in the lottery. They live in miserable conditions and have worked their whole lives. The D refuses, arguing that the P made her leave home at 14 years old and they did not fulfill their parental obs. Ratio: Art 585 provides for support payments to one‘s parents. This obs is NOT extinguised as a result of acrimonious relations. The P were not inadequate parents and provided for their children as best as they could— even forcing her out of the house [harsh but done with best of intentions given her behaviour at the time]. Further, the P signed for a $4000 loan that the D husband had contracted. Art 597 CCQ provides that all children must respect their parents. The D ordered to pay $1000 to her parents until pension begins. The sisters cannot be forced to pay as they haven‘t the means to do so. Lang, ―Parental Support in Canada: Honour thy father and thy mother‖  At common law, parents could not look to their children for financial support. However, England‘s Poor Relief Act (Elizabethean era) provided that an individual must be supported by his family before public funds expended. Canadian legislation 1922 = permitted parents to seek financial support from adult children. Dependence = ―where…by reason of age, disease or infirmity, he is unable to sustain himself‖. 1972 = provisions of the Parents Maintenance Act were incorporated into the Family Relations Act. It‘s successor = s.17 FLRA = s. 32 FLA ―Every child…has an obligation to provide support…to extent capable‖ Ill-treatment by parents, not amounting to abandonment or abuse, provides no defense. Parental support = economic remedy = no fault D. The Role of the State in Family relationships Bala, ―An introduction to child protection problems‖  There are situations where parental child care provided is so inadequate that the state must intervene to protect the children from their families. Removal from home is not legally justified where there is a better opportunity, but where the present parental care poses a significant risk to the child. History of child protection in Canada: 19th century = social reform in the US, GB and Canada = compulsory, publicly funded schooling as well as special juvenile courts established. Also private children aid societies formed--Children’s Protection Act (1893 OT) gave aid societies broad powers incl. removal of the neglected/abused from their homes and assume legal guardianship. Early 20th century = child protection agencies and legislation dealing with adoption and adolescent abuse. Courts 12 had a very limited role and judges largely untrained in family matters. No notion of children‘s rights. Last 30 years = enormous changes identification of battered child syndrome in the early 60‘s. Child abuse registers established and increased # of cases reported. Illegitimacy no longer of great significance [most provinces ceased to view it as a legal concept]. Acceptance of single mothers=more social+financial aid=more mothers keeping children. Young Offender’s Act enacted in 1984 = youth protection agencies ceased to have direct resp for deliquent youth. Legal Context and the Protection of Children Criminal law = important tool to protect children form abuse eg: use of excessive force, failure to provide necessities Although, rule of evidence is more relaxed in a civil trial = need only to prove on a balance of probabilities. Role of the Protection Agency Two basic functions: child protection and child care responsibilities. A legal responsibility to investigate reports that a child may be in need of treatment and to take appropriate steps in their protection = significant powers given by legislation Work with parents and children in their homes and also arrange for temporary placement of children as well as adoptions[private agencies may also be involved]. The law and the child protection process Agencies are charged with legal and moral obs to promote welfare of children—by authority of provincial legislation. However, the law places the burden on the agency to establish the need for intervention [infringes right to parent as one sees fit]. If the child is removed, the goal is to return the child asap and if not, placement in a long- term stable family setting. Child protection legislation If court finds a need for protection = 3 possible orders: 1—supervision—child to stay in home under parental care subject to supervisory visits by agency and any other conditions imposed by the court. 2—temporary wards—in care of agency, usually in a group or foster home and usually includes parental right to visitation. 3—permanent wards—expectation to be under protection agency‘s care until adulthood, but may be placed for adoption with parental consent or could eventually be returned to parental care. Child protection in a social context National Council of Welfare observed that clients of child welfare system are ―overwhelmingly drawn from the ranks of Canada‘s poor‖. Those who work in the cpsystem must be sensitive to problems of proverty as well as cultural and racial differences. Aboriginals are over-rep. in the system [taken into custody 3x more than others] Provost, ―Le mauvais traitement de l’enfant—perspectives historiques et comparatives de la legislation sur la protection de la jeunesse‖  Ontario OT law serves as a model to other provinces. 1857 = sought to treat problem of juvenile delinquency by separate incarceration from other criminals [Act Respecting Prisons for Young Offenders & Act Respecting the Trial and Punishment of Juvenile Offenders]. 1860 = state intervention for protection of neglected children. 1884 = Industrial Schools Act, giving municipal school boards to delegate to any philanthropic ass‘n the responsibility to found and direct industrial schools for children under 14 yrs. 1891: first Children‘s Aid Society, but no power to intervene in a family w/o parental cooperation. 1893 = adoption of the Act for the Prevention of Cruelty to and Better Protection of Children. Quebec Early 1800 = assistance by catholic church and private charitable institutions under her direction. 1869 = legislature 13 takes a more active role to combat juvenile delinquency by adopting la Loi sur les ecoles de reform & la Loi sur les ecoles d‘industrie. No specific legislation for the protection of children for other mistreatment. A longer period of refusal of the state and religious institutions to intervene in the family = public ignorance of a real problem. Notes: Youth Protection In all provinces = permanent planning—director of youth protection. Aim to keep children with families [removal only where there is great danger], when removed, placed in foster care with parental visitation or if danger is too great—permanent placement = adoption esp. in case of a young child. Changes: a)battered child syndrome—changes in criminal code, prosecution of offenders [reinforced by Khan case] b) legitimacy NOT an issue—all children protected under the law c) focus on rights of parents + children alike— fairness in decision-making d) greater use of sexual abuse allegations [beware – can be used to gain upper hand] Recourses available to protect children 1—criminal law = beyond a reasonable doubt 2—civil action + damages [on balance of probabilities] 3—youth protection, voluntary + non-voluntary measures [supervision order, temporary or permanent wardship and can be changed when circumstances change] IV. SPOUSAL RELATIONSHIPS A. De Facto Relationships DeFacto Spouses in Quebec Why marriage not as popular? Defacto recognition/acceptance + benefits of certain legislation [in QC + OT] single parents, birth control [child legitimacy no longer an issue] , declining religion. Cannot claim: spousal support, property rights in family patrimony or property rights in matrimonial regime Remedies: 1—preventative measures [keep assets separate, cohabitation agreement] 2—tacit partnership [difficult to prove] 3—unjust enrichment [home-making, child rearing, causal link with impoverishment *expensive to litigate*] Lifting of prohibitions: 1—gifts 2—1056 ccbc: defacto spouses could not sue on behalf of dead spouse Rights extended: [though, no there is no direct mention in the ccq] art 857: living in immovable with deceased. art 15: a person who ―shows special nterest‖ [they come last in the hierarchy] art 1938 must live together 6 month art 1938(2) in the event of death of lessee [no need for 6 month period] art1958: mentions concubinary, but no defn. art 555: adoption to defacto couples with 3 yrs cohabitation [still need consent of both biological parents] Rights and Obligations wrt children: arts 522 + 540 arts 401- 413, esp 410 = no mention of defacto spouses art 525: no presumption of paternity in defacto couples [but there is in OT—s.8.4(4) clra How to protect yourself? *cohabitation agreement in writing = easier enforcement = can cover assets, power of attorney, gifts, support, children [but not custody arrangements] *also need specific designation in a will Defacto relationships in Quebec are less advantageous than those in OT The legislator has decided not to assign a legal status to couples living in a defacto union, regardless of time living together. A co-habitation K can cover any aspect of daily life, establish terms and conditions relating to children and family residence etc, and cannot unilaterally be amended by either spouse. The family residence: a defacto couple is not entitled to protection offered to married couples by CCQ. One may not register a declaration of family residence; consequently, one common law spouse may sell or rent the residence of which he/she is sole owner w/o telling the other spouse. Joint ownership is the best protection available. In the event of death, the law doesn‘t recognise the surviving spouse in a defacto union as legal heir. Thus, defacto spouses that wish to leave property to each other, must do so by a will. 14 Presentation du Projet de Loi # 32 [Mai 1999]: Extends to same sex defactos the rights of unions of opposite sex. Goubau, ―Le Code Civil du Quebec et les concubins: un mariage discret‖  The CCQ does not provide a civil status for defacto unions. The refusal to accord or to impose a civil status, like those of married couples is based on the legislator‘s intention to respect the decision made by adults who would prefer not to be submitted to the effects of marriage. The Quebec jurisprudence has long established that while two people share a common life outside the confines of marriage, they are considered economically self-sufficient. The abolition of art 1056 cclc permits direct recourse in the event of the death of a defacto spouse. Also applicable in consent to medical care and the right to preferential allocation of the residence of the deceased to the resident heir. The only areas where concubines are notably cited by the CCQ is in lodging and adoption. It is expressly provided that in the matter of lodgement locatif, the concubine of the owner has the right, in case of separation, a maintenance of the premises [but the concubinage must have been stable]. In marriage, the family residence is protected by a number of public order provisions that do NOT apply to de facto unions. It is possible for a mother or a father to give to his/her concubine special consent to the adoption of his/her child [before, needed approval of director of youth protection]. The CCQ does not recognise the status of in loco parentis in non-married families. The parent guardian cannot claim alimentary support from a defacto spouse that acted as ―psychological parent‖ [the Loi sur la Divorce allows this for married couples only]. Challenges to legislation: Miron, Egan, M + H = all section 15 challenges on distinction based on discrimination in a substantive sense…enumerated ground = race, nat. or ethnic origin, colour, religion, sex, age, mental or physical disability AND analogous grounds = marital status, sexual orientation = any distinction on personal characteristics. Only saved by s. 1 = oakes test = 1—pressing importance 2—proportionality Miron v. Trudel  SCC from OT Insurance — Automobile insurance — Uninsured or underinsured motorist coverage — Insured defined — Spouse, meaning of — Exclusion of common law spouses — Civil rights — Discrimination — Marital status. The appellant lived in a common law relationship. He was unable to work after a motor vehicle accident. He was denied spousal benefits under his common law wife's insurance policy because he was not legally married and therefore not a spouse. The appellant argued that limitation of benefits to married persons violated section 15(1) of the Canadian Charter of Rights and Freedoms. HELD: Appeal allowed. The exclusion of unmarried couples from insurance benefits available to married couples was discriminatory. Marital status was an analogous ground of discrimination under section 15. Discrimination based on marital status touched the essential dignity and worth of individual freedoms to live with the mate of one's choice in the manner of one's choice. Common law spouses constituted an historically disadvantaged group and individuals were not always free to choose to marry or not to marry. The breach of section 15(1) was not justified by section 1 of the Charter. Canadian Charter of Rights and Freedoms, 1982, ss. 1, 3, 15, 15(1), 24(1), Constitution Act, 1982, s. 52. . Family Law Act, R.S.O. 1990, c. F.3, ss. 30, 53, Family Law Reform Act, S.O. 1978, c. 2, s. 14. Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, art 16. 15 Egan v. Canada  SCC Civil rights — Discrimination — Government programs — Old age pensions — Relevant distinctions — Personal characteristics — Sexual orientation — Nondiscriminatory laws — Elements. This was an appeal from a holding that sections 2 and 19(1) of the Old Age Security Act did not violate section 15 of the Canadian Charter of Rights and Freedoms. Section 19(1) of the OAS Act accorded to spouses of pensioners under the Act whose income fell below a stipulated amount, an allowance when they reached the age of 60, which was payable until the spouse reached the age of 65. In 1975 the definition of spouse under section 2 of the Act extended the payment of the allowances to spouses living in a common-law relationship as well as those in a legal marriage. The appellant asserted that these provisions offended section 15 in that their effect was to restrict the allowances to spouses in a heterosexual relationship and excluded those persons, such as the appellants, who lived in a homosexual relationship. The appellant males E and N had lived together in a committed relationship since 1948. Upon attaining the age of 60, N applied for the allowance available under section 19(1). His application was rejected as his relationship with E did not fall within the Act. HELD: The appeal was dismissed. As a deeply personal characteristic that was either unchangeable or changeable only at unacceptable personal costs, sexual orientation was protected from discrimination under section 15 as a ground analogous to those specifically enumerated in the section. There was clearly a distinction made by the legislation and the distinction resulted in the disadvantage of the appellant not receiving a benefit that was granted to others. In considering whether the appellant suffered prejudice under the imputed legislation, it was irrelevant that the appellants had received considerably more in combined federal and provincial benefits than if they had they been treated as spouses, as there was no evidence that such a benefit was accorded to homosexual couples in general. The imputed provision excluded all couples living together in non-spousal relationships, including siblings, friends and homosexual couples. Parliament's intention in limiting the legislation to married couples and, after 1975, those living in common-law relationships, was to recognize the fundamental importance of marriage as a social institution. Parliament clearly decided to support the increasing numbers of persons who chose not to enter into legal marriages by extending the definition of spouse under the Act to these common law relationships. It was the capacity to have and care for children that warranted the support given by Parliament to these relationships. All of those relationships excluded from benefits under the Act were not capable of meeting these fundamental social objectives, including homosexual relationships. Thus, neither in its purpose or effect, did the legislation constitute an infringement of the fundamental values sought to be protected by the Charter. The sexual aspect of a homosexual relationship had nothing to do with the social objectives for which Parliament afforded the measure of support it had under the Old Age Security Act. Even if the sections were held to infringe section 15 of the Charter, they would have been upheld under section 1. M. v. H.  SCC from OT Family law — Common law or same-sex relationships — Spouse, meaning of — Cohabit, meaning of — Civil rights — Discrimination — Sexual orientation — Homosexuals (incl. same-sex couples) — Equality and protection of the law — Scope of law — Particular cases — Spousal support legislation — Canadian Charter of Rights and Freedoms — Denial of rights — Remedies, severance of portion of statute or section. Appeal by AG-Ont on CA's decision to uphold a declaration that the opposite-sex definition of spouse in s. 29FLA violated the Canadian Charter of Rights and Freedoms and to read in certain words to section 29. Two women, M and H, cohabited together in a same-sex relationship from 1982 until 1992. During that time, they lived in H's home, started a successful advertising business, and jointly purchased business property and a vacation property. M performed many of the household duties and H was more involved in business. In 1992, they separated and M left the common home. She applied for support under the FLA and sought a declaration that the opposite-sex definition of spouse in s.29 FLA, which included a married person and either a man and woman who were not married and had cohabited, was invalid = violated section 15(1) of the Charter. The judge read out the words "man and woman" and read in the words "two persons" into the definition. Both H and the AG-Ont appealed. CA upheld the decision, but suspended the declaration's implementation for 1 year to give Ont. time to amend the FLA. AG appealed to SCC. 16 HELD: Appeal dismissed. However, the remedy was modified. Severing s.29 FLA was the most appropriate remedy as reading in created other problems. Section 29 was declared of no force or effect; but, this was suspended for six months. Section 29 violated the Charter and was not saved by section 1. The FLA formally distinguished between M and others on the basis of sexual orientation by specifically according rights to unmarried cohabiting opposite-sex couples, which it did not accord cohabiting same-sex couples. Section 29 was drafted to allow a man or woman to apply for support, which recognized that financial dependence arose in intimate relationships in a context unrelated to child rearing or other gender-based discrimination existing in society. The support obligation was extended to include opposite-sex relationships that had a degree of permanence and were conjugal. Gay and lesbian people were capable of being involved in conjugal relationships, and their relationships were capable of meeting the FLA's temporal requirements. The FLA drew a distinction that prevented persons in same-sex relationships from gaining access to the court-enforced and protected support system. The FLA failed to consider M's actual situation. Being in a same-sex relationship did not mean that it was not permanent or non-conjugal. This exclusion perpetuated the pre-existing disadvantage and vulnerability experienced by same-sex couples. Excluding same-sex couples from the FLA's spousal support regime was not rationally connected to the pressing and substantial objectives of protecting children and women, addressing sexual inequality, providing equitable resolution to economic disputes, and reducing the burden on the public purse to provide support. M's rights were not minimally impaired as she had limited alternative remedies available to address her economic needs. Exclusion undermined the FLA's objectives and its deleterious effects outweighed the promotion of any legislative goals. No group would be disadvantaged by granting same-sex couples access to the FLA's spousal support scheme. B. Marriage—Legal Validity of Marriage---Rights, Duties, Obligations of Married Spouses NOTES 1—marriage—ceremony between 2 of opposite sex + age of majority or consent 2—defacto—live together + function as an economic unit---conjugal nature + a degree of permanence =not identical to married wrt rights + obs = hetero, same sex couples , consenting adults Marriage in Quebec arts 392 et seq. Marriage =union= merging of assets = creation of a new patrimony = contract to assume rights+obs provided by law Who can marry—arts 365 + 373—man +woman, 16 yrs or consent, no bigamy [art 577…subject to impediments] Preconditions for valid marriage—art 368+ 369 Who can officiate—art 366 Proof of marriage—art 378+379 Effects of marriage—arts 391-495 A—rights+duties—arts 391-400 B—rights in family residence—arts 401-413 C—family patrimonty—arts 414-426 D—right to compensatory allowance [unjust enrichment] arts427-430 Rights and Duties of Married Spouses CCQ 391-400 = equal for both spouses 391—imperative art392—Respect = recourse for breach? Fidelity = recourse is divorce Succor [no $ support] =recourse? Assistance=bound to live together. Art 393—retention of each spouses‘ name art 31—names for children art 394: identical rights and obligations echoed art 396: contribution to marriage according to means art397:presumption of binding the spouse art 399: used to contest divorce cases = expect house appreciation, children involved, right of habitation, maybe claiming interest Family Residence = arts 401-413 = art 401-412 alienation of immovable property art 403--sublet art 409—lease awarded to spouse art 410—use of right of habitation in custody arguments Family Patrimony = art 415 what assets form the family patrimony [you can decide what goes in and what doesn‘t] Regardless where you were married—if you live in QC, it falls into place. Doesn‘t give ownership or title but gives rights and value. 17 Nullity Not as many today = difficult to prove, divorces easier to get [no more stigma attached], less marriages in general Arises at a defect on the day of marriage, there never was a marriage cf divorce = presupposes a marriage French code: en mariage, pas de nullite sans texte. CCQ: absolute nullity =1418 anyone can bring it forward relative nullity= 1420 raised by an aggrieved party art 380—public order concerns Grounds: sex identity, prior existing marriage, relationship w/n prohibited degrees, failure to conform to formalities, non-age of consent [under 16 = absolute], impotence [relative], lack of consent [relative] Legislation: 1938 (1) CCQ on spouse of a lessee. Living together for 6 months in conjugal relationship or sibling or parent….a necessary definition because marriage is less popular, less religion etc. Hahlo, ―Legal Requirements for a Valid Marriage‖  Ecclesiastical courts of Mid-ages first developed principles governing the nullity o the marriage. No church recognition of divorce. Nullity results from a defect or disability existing at time of marriage ceremony. Divorce which assumes a valid marriage. In English law, parties may treat a void marriage as non-existent even though it has not been formally annulled by the court, whereas a voidable marriage stands until it is annulled. In civil law, the maxim ‗en mariage pas de nullite sans text‘ applies. Civil law distinguishes between absolute and relative nullity. Absolute nullity arises from bigamy and marriage within the prohibited ranks. Relative nullity arises from impotence or defects of consent and may only be raised by the parties concerned. Grounds of nullity at common law: a—sexual identity b—prior existing marriage c—relationship within the prohibited ranks d—failure to comply with the prescribed formalities e—non-age f—lack of consent g— insanity at time of marriage h—impotence There is a presumption in favour of the validity of marriage which applies even if there is no evidence of a marriage having taken place, provided a man and woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife. DF 2254  CS Facts: The P was born in Algeria and was 30 yrs when he married the D [from Maroc] when she was 22 yrs. No children. P seeks annulment, accusing D of bad faith throughout duration of marriage. She proposed marriage to him so that she could convert her tourist visa into an immigrant one, being sponsored by P. The D was living with another man at the time and never had sexual relations with the P either before or after the marriage. The K claims they cohabited for a certain time for economic reasons and that the lack of sexual relations was due to impotency. Ratio: Action rejected, marriage not annulled. The testimony of both parties bears no resemblance, the P often confused his facts and provided poor proof of being duped by the D. Consent was found to be free and enlightened to be valid and P knew the consequences of his actions. S. (A) v. S.(A)  OT Family Court Facts: The A went through a form of marriage with the R who had recently arrived in Canada at 16 yrs. Her mother had given consent [by s.5(2) Marriage Act] and pressured her daughter into the marriage. The A‘s parents were to receive $500 for the marriage and the A was afraid of disobeying as her step-father sexually abused her. She never had sexual relations with the R, who left Canada soon after the ceremony. Issue: Does the fact that the R entered into the ceremony so as to facilitate residence in Canada affect the validity of the marriage? 18 Ratio: Application for decree of annulment granted. The mere fact that the parties go through a form of marriage for a ‗limited‘ or ‗extraneous‘ purpose will not, of itself, render the marriage invalid. Nothing in the OT legislation of 1980 made parental consent a condition precedent to the validity of a marriage. The A‘s position that the marriage should be annulled because the consent given was invalid cannot be upheld as a matter of law. Oppression may vitiate consent and if there is no consent there is no valid marriage. Where duress is alleged, the onus of proof is upon the party seeking annulment. If not a decree of annullment, P would have been granted a divorce pursuant to 8(2)a DA 1985 on the ground that the parties had lived separate and apart for one year before divorce proceedings NOTES on the matrimonial regime a) by marriage contract [takes effect the day of ceremony = solemnized and not retroactive b) by operation of law What can‘t you put in a marriage K? polygamy, child custody, no derogation from the family patrimony Choice of matrimonial regimes [pg562] = arts 485-487 = separation as to property [choice of inventory or not] AND partnership of bequests [must have inventory beforehand and is difficult to contest a) by marriage contract---sharing of expenses art 391—effects of marriage art 396 expenses according to means Gifts may be included [in mortus causa – in case of death] art520: court discretion to lapse of intervivos clause Elaborate form of K [pg 562] can you gift furnishings to a spouse? NO = part of family patrimony art 414 et seq b) by operation of law [partnership of acquests] art 450—assets + income before art 467— may accept or renounce partition of the other spouse‘s acquests art 471—concealment, bad admin, bad faith art 481—net value, debt, compensation Ontario FLA page 1137 s.52—on marriage K s.55—written, signed, witnessed [no notary necessary, though often done by lawyers] section 52(2)--unenforceable limits of rights ALSO includes support obligations [non-child] and education for kids Castelli and Dallard, ―Les regime matrimoniaux‖  Art 431: Any kind of stipulation may be made in a marriage K, subject to the provision of law and public order. Art438: During marriage, spouses may change their matrimonial regime and any stipulation in marriage K, provided the change itself is made by the marriage K. Gifts made in marriage contracts, including gifts mortis causa, may be changed even if they are stipulated as irrevocable, provided that the consent of all interested persons is obtained. La Societe d‘acquets The community of movables and acquests the was the legal regime is no longer regulated by CCQ The default regime is regulated by arts 448—484. It was elaborated to permit conciliation between the sharing of property acquired during the common life of the spouses and the independence of each on the things they acquire. The property acquired during the regime = acquests by opposition to property normally possessed before the union or acquired by inheritance or donation. Private property: spouses=complete+exclusive ownership and right of administration = never shared at end marriage Acquests: shared at dissolution of marriage—both can benefit from any enrichment to the other during the marriage- whether contributed directly or indirectly. Administration of acquests = arts 461-464. Powers are limited to prevent one spouse from cheating the other. Division of property at dissolution: takes effect at the date of the action, unless the case requires the intervention of 19 the tribunal [divorce, separation, nullity-- in which the effects of dissolution are retroactive to day of application]. However, in some cases the date of separation is used 464 CCQ. Art 469: at end of union, each party has option to take or refuse the share of acquests of the other [by notarial act]. The souse that accepts the sharing of acquests, also accepts the debts unpaid by the other spouse = art 481: net value of acquests used [debts subtracted]. Separate as to Property Arts 485-487. Each spouse has administration, enjoyment entire ownership of the property they acquire. The spouse, except where limitations imposed by the primary regime, has no power or right on the property of the other, even those acquired during the marriage. At dissolution, each spouse has full ownership over property they acquired. The Community of movables and acquests The old regime = 1268-1425 cclc Now = 492 CCQ: if marriage under the former regime, it is possibile to invoke rules of dissolution and liquidation of the regime of partnership of acquests where they are not inconsistent with their matrimonial regime. Immovable property: those which belonged to the spouse before marriage or inherited remain theirs after separation. All other fall into the community of goods—which are common property and are to be shared. Exemptions indicated by law = the property acquired for personal work done by the wife = left to her admin. ―biens reserves‖. However, it is the husband that has admin of the common property and the wife has the right of option—to share the community of goods, in which case she must share the debts, or renounce and be liberated of all debts [where she would be allowed to keep her reserved property]. K du mariage anterieur au mariage (simple et elaboree), K du mariage posterieur au mariage pp.558-572. V. BREAKDOWN OF THE SPOUSAL RELATIONSHIP NOTES a) by death or b) by divorce [resident in province for 1 year, grounds and eligibility under DA] Bissett-Johnson and Day, ―The New Divorce Law‖  + class notes added in Divorce originally regarded by Christian church as unlawful = annulment only [for adultery + abuse only] Canada= 1750 adultery 1758 desertion in NS 1930 legislation in OT for english divorce law…none in QC until… 1968: The Divorce Act = uniform set of rules = fault based grounds + marital breakdown Section 3 set out eight grounds all based on fault: adultery (revised 1985), unnatural offences+ bigamy( not in 1985), intolerable physical/mental cruelty(revised 1985 = easy to establish in uncontested divorce ). Mere balance of probabilities did not automatically entitle a petitioner to a divorce. The court needed satisfaction based on s.9(1) that certain defenses did not exist and appropriate proof had been adduced at trial. Marital breakdown 3 yrs at time of applicaton, 5 years [for deserting spouse] s. 9(3)b = 90 day reconciliation period The consent, admissions or default of the parties were an insufficient basis for the court to grant a decree unless these matters were proved at trial. Court looks for no collusion = agreement to fabricate or suppress evidence or to deceive the court [did not include arms-length bargains aimed at solving financial disputes or problems w/ child care Condonation [forgiving spouse of an offence] and connivance [refusal to prevent continuance of adultery occurring] = 2 discretionary defenses that prevented the awarding of a decree of divorce unless the court was of the opinion that the public interest would be better served by granting the decree. Court was under the duty to refuse the decree if granting the divorce would be unduly harsh or unjust to either spouse or prejudicially affect the making of reasonable support arrangements. Prove desertion: intent, fact of living apart for the required period, lack of consent or no just cause for separation. 20 Possible to live separate and apart under one roof---economic reasons, best interest of child, spouse refuses to leave To establish-separate bedroom, no sex, financial break, little social contact, no shared household duties, see DF 841 1975 report: the only basis for dissolution of marriage should be the failure of the personal relationship b/w H + W DA 1985—provided that a divorce would be provided upon an application by both or either spouses on the ground that there has been a breakdown of their marriage = no fault. Breakdown = a—spouses have lived separate and apart for one year before application [s. 8(2) –you can apply the day you separate] b—marital fault s. 8(2) spouse against which the divorce is brought has committed adultery or treated the spouse with physical or mental cruelty [rare, weighty, intentional or not, proof on a balance of probabilities]. Grounds for divorce usually not litigated. Living apart for one year: in order to facilitate reconciliation, spouses are allowed to resume cohabitation for a period or periods totalling not more than 90 days so long as reconciliation is the primary purpose s. 11(3). Statutory authorization or more than one reconciliation attempt represents the only departure form existing law. Possibility of negotiation or mediation s.9(2) Defenses: once conduct has been condoned it cannot be revived. Horvath v. Fraess  QB SK Divorce — Grounds, adultery — Evidence, subsequent to petition — Corollary relief, maintenance and awards — Awards, considerations, leaving labour market for family resp. — Marital or matrimonial property, valuation. This was a divorce action in which the issues were grounds for divorce, spousal maintenance and valuation of matrimonial property. The parties were married in December, 1993 when the respondent wife was 30 years old. The relationship was stormy. Within weeks of the marriage, in January, 1994, the couple separated for about six weeks. They reconciled, separated then reconciled again. The final separation occurred in January, 1997. The parties had not yet lived separate and apart for one year. The wife alleged cruelty as a ground for divorce. The petitioner husband alleged adultery. The respondent admitted the adultery but pointed out that it had occurred after the parties' separation and had not led to the breakdown of the marriage. The parties had a child who was born in April, 1995 and they owned a house. Before the marriage, the wife worked for eleven to twelve years for different wholesale tour companies. This type of work was not available in Saskatchewan and after the marriage she worked as a hotel clerk and for a travel industry company that was not a tour company. She had not worked outside the home since the birth of the parties' daughter, and wished to stay home with the daughter until she went to school. The petitioner earned about $36,229.00 per year. HELD: The divorce was granted. The husband was ordered to pay the wife spousal support of $800.00 per month to the end of 1997, and $1,000.00 per month from January to December, 1988, at which time spousal support would cease. Adultery was established as a ground for divorce. The fact that the parties were already living separate and apart did not preclude adultery as a ground for divorce. It was not necessary to decide the issue of cruelty. It was necessary to continue spousal support for some period of time to enable the respondent to find work, to make economic adjustments to working, and to make arrangements for the care of the child. It would endanger the welfare of the respondent and the child to remove spousal support abruptly. Spousal support for a limited period would be reasonable compensation for the economic disadvantages and hardships arising from the marriage and its breakdown. Financial assistance from the parties' parents was characterized as gifts. In neither case was there a clear expectation of repayment of the sums, nor any agreement to that effect. These amounts were not debt to be allocated upon the division of matrimonial property. The petitioner's RRSPs were valuated and were to be divided equally. The petitioner's automobile was worth $2,600.00 more than the respondent's, and the petitioner was to pay an equalization payment of $1,300.00 to the respondent in relation to this item. **Judge looks at s.15(7) = a key provision of spousal support = economic advantages/disadvantages, economic hardship and self-sufficiency Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 8(2)(b)(i), 8(2)(b)(ii), 15(5)(a), 15(5)(b), 15(5)(c), 15(7)(a), 15(7) (b), 15(7)(c), 15(7)(d). 21 DF 841  CS Facts: Parties married 33 yrs ago and have 2 children. H bought house when it was partially constructed and completed it over the years. The D [wife] presently lives there pursuant to a judgement + $150 alimentary support. The H assets [rrsp, car, house etc] = $185 000 and enjoys job security and employment benefits. The D spent her life as a housewife and has assets = $1500. D is contesting divorce so that she can benefit from the new matrimonial regime of Bill 146 once it comes into effect. The P lived in the basement of the house and claims that this qualifies as living separated and apart for the purposes of divorce. However, D continued to cook and clean for him. Issue: Did the parties live separate and apart for the required period? Ratio: Divorce—the D argues that there is a separation only when there is a real cessation of all marital life, publicly and privately. The court believes that criteria is not public image but intention of at least one of the spouses. Art 8: ―Les epoux sont reputes avoir vecu separement pendant toute periode de vie separee au cours de laquelle l‘un d‘eux avait effectivement l‘intention de vivre ainsi‖. P clearly intended for marriage to end = divorce granted. Marriage Contract—separation of goods. D has right to all the furniture in the house and an additional $10 000. Prestation Compensatoire—the D must show that the $ earned during her PT work contributed directly to the P enrichment, which has not been done. Somme Globale—Retirement security is a factor to consider when determining the global sum. If the P where to die before the D, then all alimentary support would cease. Loi sur la divorce,art 15(2) prevoit la possibilite d‘une ordonnance conjoignant a un epoux de verser la prestation de capital a l‘autre, a condition qu‘on extime raisonnable pour les aliments. Awarded $35 000 = ½ of assets. Pension Alimentaire—D has no regular job or marketability and suffers from poor health = awarded 300/month. VI. CONSEQUENCE OF FAMILY BREAKDOWN ON CHILDREN A. Custody and Access a)living arrangements b) custody Special Joint Committee on Child Custody and Access Continuing relationships with both parents, including step-parents, following separation or divorce is the right of a child except when s/he is physically, psychologically or sexually at risk. Courts still use ―mother knows best‖ attitude when it comes to child support payments. Current language in child custody statutes is problematic = connotations of ownership of children. Custody is formal word for imprisonment and access is prisoner‘s privilege to see lawyer [also winner-loser connotations]. Replacements: parental resp [Aus], joint parental resp. [UK], shared parental resp. [Florida], residential placement and parental functions [Winsconsin]. Recommends that the common law ‗tender years‘ doctrine be rejected as a guide to decision making about parenting. Parenting education = important = how marital conflicts affect children. Lack of presumption of joint custody – mothers would often not participate in mediation, and the perceived gender bias in the courts would perpetuate the predominance of mothers as custodial parents. Also, consider relationships with g-parents, siblings and other extended family member as important relationships to maintain. Access-Illinois model recommended: ―Every person who is in violation of visitation provisions of a court order relating to child custody or detains or conceals a child with the intent to deprive another person of his/her rights to visitation shall be guilty of unlawful visitation interference‖. 22 C (G) v. V-F (T) see page Robert Allen, ―A survey of child custody in Ontario‖ [1992-1993] Criteria to be taken into account when determining the child‘s best interest [CBI] = children of tender years, views and preferences of the children, plans for their future, biological vs. psychological parent, parent‘s conduct [adultery, abuse, addictions] Child custody disputes in OT = Children‘s Law Reform Act and Divorce Act [best interest provisions] s. 20(1) both parents equally entitled to child custody and s.24 CLR + s.16(8) DA = best interest provisions Tender years doctrine = applied as a matter of common sense and NOT legal presumption. Wishes of the child are not conclusive, but if the child is older, the court will consider the child‘s decision more seriously [but children are then thrust into the dispute and asked to choose = trauma for parent and child] . Parent‘s religious freedom is conditional to CBI and custody will be denied if considered harmful to the child. Blood relations—biological parent claims not lightly considered but can be overlooked if child protection warrants it. Past conduct has NO place in determining parental fitness unless direct impact on child welfare. Adultery=not sufficient to disentitle spouse, homosexuality=used to be a threat, not any more [but some judges view it as an illness and examine whether parent will abuse child], abuse=precludes parent from being awarded custody, alcohol and drug addiction=looked upon with disdain. Mobility of custodial parent: CBI used. If motive to move is to frustrate access then the court will grant injunction. Must be based on a legitimate reason. Joint custody should only be rendered infeasible if one of the parties is not a suitable parents in keeping with CBI. DF 2201 Bala, ―Spousal Violence in Custody and Access Disputes: Recommendations for Reform‖ 23 Gordon v. Goertz  SCC from SK Family law — Divorce — Corollary relief, custody and access orders — Variation — Residence of children This was an appeal from a decision of the Court of Appeal dismissing the appeal of the appellant father from a decision allowing the mother to move to Australia. Pursuant to a divorce order, the mother was granted custody of the parties' child and the father was granted generous access. The appellant learned that the mother intended to move to Australia and applied to vary the initial order. The trial judge allowed the mother to move and the father was granted liberal access to be exercised in Australia only. The judge relied on the judgment of first instance that the mother was the proper person to have custody. HELD: The appeal was allowed in part. The custody order was upheld. The access order was varied to permit the father to exercise access in Canada. On an application to vary custody or access orders, the required threshold was a material change in the circumstances of the child. The party seeking the change bore the initial burden of demonstrating a material change. The court was required to assume that the correctness of the initial decision. The test was whether the previous order might have been different had the circumstances now existing prevailed earlier. The change was required to be one that the original judge could not have reasonably foreseen. If the threshold was met, a fresh inquiry was required. Pursuant to section 17(5) of the Divorce Act, the only relevant issue was the best interests of the child. Where the custodial parent was seeking to move, the reasons for moving would usually not be relevant to the custodial parent's parenting ability and thus would not enter into the inquiry. A judge was to bear in mind that Parliament, through sections 16(10) and 17(9) of the Act, indicated that maximum contact with both parents was generally in the best interests of the child. There was no presumption in favour of the custodial parent where the proposed move passed the threshold of material change. The Divorce Act mandated consideration of this issue on a case by case basis. The threshold of material change was met in this case by the intended move to Australia and the consequent reduction of the father's contact with the child. There was no reason to restrict the father's access to Australia as access in Canada rendered the child's contact with her father more natural and allowed her to maintain contact with friends and extended family. Divorce Act, R.S.C. 1985, c. 3, ss. 16, 16(9), 16(10), 17, 17(5), 17(6), 17(9).. V.W. v. D.S.  SCC from QC Quebec family — Custody and access — Right to custody — International conventions. Appeal by the father from the dismissal of his appeal from the refusal of his application for custody. An American court in Maryland awarded sole custody of the parties' 13-year-old daughter to the father. The mother was given supervised access. The mother applied for an increase in access after the father moved to Michigan in 1989. An order was made on February 1, 1990 in accordance with the parties' agreement on a schedule of access for the mother. On February 13, 1990 the father moved to Quebec without consulting or informing the mother. A Maryland judge granted her application for custody ex parte. In 1991 the Quebec Superior Court dismissed the father's application for custody and ordered the child returned to the U.S. After the Quebec Court of Appeal dismissed the father's appeal, the child returned to Maryland with her mother. The father appealed to the Supreme Court of Canada. In issue was the applicability of the Act respecting the civil aspects of international and interprov. child abduction which gave effect to the Convention on the Civil Aspects of International Child Abduction. HELD: Appeal dismissed. The Act did not apply. The mandatory return procedure provided for in the Convention was only set in motion when a child was removed or retained in breach of custody rights as opposed to access rights. The child's removal from the U.S was not wrongful because the father had custody of her within the meaning of the Act at the time. The ex parte order did not render the child's retention in Quebec wrongful. However, the Superior Court had jurisdiction to determine that it was in the child's best interests that she be returned to her mother. The trial judge had the power to order the child's return to the U.S and the court gave deference to his findings. Civil Code of Québec, S.Q. 1991, c. 64, arts. 33, 75, 76, 80, 514, 599, 602, 604, 605, 3142. Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), ss. 16(8), 17(1), 17(5). 24 B. Child Support ―Paras rule‖ = apportionment of financial support between parents [according to means] = 1—determine needs 2—divide pro rata 3—order parent who doesn‘t have custody to pay sum determined by court. Purpose = children should be entitled to same standard of living after breakdown. Calculations wrt lifestyle comparisons, hidden/soft costs, litmus test for reasonableness = 20% and 32% gross income for 1 or 2 kids respectively. Parents can‘t go below subsistence level [$ 9000 for each parent in QC, although the court doesn‘t take this into consideration at the outset, only once calculations made] Why the change? Diminished standard of living of children, child support orders too low, inconsistency, custodial parent had to seek support, non-financial costs eg: custodial parent = less time for career, lost opportunity costs Costs = a—direct b—hidden c—opportunity d—access How? 1—cost of raising child 2—reasonableness 3—apportioned between parents [also consider hidden costs] 4—income tax implications *kids come first v. substinence first…this led to… Davies, ―The Emergence of Judicial Child Support Guidelines‖  Recommendations 1—should be a statutory formula = predictability, uniformity 2—incorporation into legislation 3—a rebuttable presumption basis 4—premise = everyone spends equal part of earnings on children 5—guidelines apply to everyone 6—ability of non-custodial parent to pay [if non-custodial parent has a lower standard of living than the children after payment = amount adjusted = below 6744--no payment and above 150000—judge doesn‘t have to stick to the tables. Overall, keep order individual case specific = criticism of arbitrary formula.. Guidelines adopted = obligatory, non-discretionary. Provincial guidelines [for property + civil matters] in QC apply [unless there is a spouse living outside of QC, then apply federal guide] s. 3 of federal act = presumptive rule + art 587 = burden of proof of parent to rebut/prove deviation from tables s.10—undue hardship guidelines s.15.1(5+6) = parties can agree to a different amount as long as judge is satisfied that child is taken care of. s.3.3 = apply which guideline? Province where paying spouse lives [problem: living costs higher where kids are] s.7 = special or extraordinary expenses = shared pro-rata [shared custody = 50-50%] list of a—f is an exhaustive list In QC everything is pro-rata from the outset. Francis v. Baker = jurisprudence on application of federal guidelines. Willick v. Willick  SCC from SK Family law — Maintenance of wives and children — Maintenance of children — Variation of — Separation agreements — Increase in income. Appeal by the wife from a judgment setting aside an order increasing child support. The parties had entered into a separation agreement which provided for spousal and child support. The agreement was incorporated into the divorce judgment. Subsequently, the husband's income increased dramatically and the wife applied for an increase in child support. H original = 40000, forseen = 80000, actual = 153000 HELD: Appeal allowed. For a support order to be varied under section 17(4) of the Divorce Act, there must be a material change in circumstances. The trial judge found that there was a material change in circumstances due to the increase in the husband's income and he was justified, under section 17(4), to order an increase in child support. Divorce Act, R.S.C. 1970, c. D-8, s. 11(2). Divorce Act, R.S.C. 1985, c. 3 (2nd. Supp.), ss. 11(1)(b), 15, 17, 17(4), 21(5). Original support 450/child/month increased to 850/child/month 25 Francis v. Baker  CA OT Family law — Maintenance of wives and children — Maintenance of wives — Awards — Lump sum payments — Separation agreements — Effect of agreement — Maintenance of children — Considerations, support tables — When payor spouse earns more than $150,000. This was an appeal by the father from awards of child and spousal support. The parties married in 1979 and had children in 1983 and 1985. The father left five days after the birth of the second child. The parties divorced in 1987. Pursuant to a separation agreement, the mother received $2,500 per month in support. She had struggled financially ever since. She brought an action to set aside the agreement. At the time of the trial, the father was earning $945,538 per year and had a net worth of $78 million. The trial judge awarded the mother $500,000 as lump sum spousal support and child support of $10,034 pursuant to the Table amounts for the father's level of income under the Federal Child Support Guidelines. Section 4 of the Guidelines applies to incomes over $150,000. The father argued that the judge should have utilized section 4(b), which allowed the court to diverge from the Table amounts where such an award was inappropriate. HELD: Appeal dismissed. The purpose of the Guidelines was to enhance the child's post-separation standard of living to approximate, as far as possible, what that standard would have been had the parents continued living together. The Table amounts could only be reduced where the child had attained the age of majority, where the paying spouse was not the child's parent, where there was split custody and where there was undue hardship. Otherwise, presumptive Table amounts could only be added to. The word inappropriate in section 4(b) could only mean inadequate. The father was exceptionally wealthy and could not show undue hardship. Even if a judge had discretion to reduce the Table amount without undue hardship, the trial judge was entitled to conclude on the facts of this case that the Table amount was appropriate. The mother expressly preserved her right to support under the separation agreement as the $2,500 was clearly combined spousal and child support. The wife was entitled to the award based on the 12-year gap between the separation and the date the award was made during which she would have been entitled to at least $5,000 per month in spousal support. There was no evidence of prejudice as a result of imposing a lump sum award. The wife was clearly economically disadvantage by having custody of the children. According to s.1—judge can use table 2—order table for first 150000 plus amount based on children‘s needs and parents ability to pay. Appellant says no and wants Paras rule should be applied. s.4(b) allows deviation. Notes: Quebec tables reserve 9000 for each parent. In loco parentis applied federally, not provincially. Court isn‘t bound by shared custody federally. Why is child support litigated? 1—to deviate from tables = discretion of judge where salaries exceed 150000[feds] 200000[QC] 2—establish income 3—amount of time spent with children by each parent [affects amount of support 4—special expenses [private school etc.] DF 2626 Facts: The P seeking support payments from their daughter who won 2.1 million in the lottery. They live in miserable conditions and have worked their whole lives. The D refuses, arguing that the P made her leave home at 14 years old and they did not fulfill their parental obs. Ratio: Art 585 provides for support payments to one‘s parents. This obs is NOT extinguised as a result of acrimonious relations. The P were not inadequate parents and provided for their children as best as they could— even forcing her out of the house [harsh but done with best of intentions given her behaviour at the time]. Further, the P signed for a $4000 loan that the D husband had contracted. Art 597 CCQ provides that all children must respect their parents. The D ordered to pay $1000 to her parents until pension begins. The sisters cannot be forced to pay as they haven‘t the means to do so. 26 VII. PROPERTY DIVISION [arts 1493—1496] A. The Division of Property Between De Facto Spouses SOROCHAN v. SOROCHAN  SCC from AB Common-law spouses — Property rights — Constructive trusts — Parties living together without marrying for 42 years — Appellant raising children, managing household and working long hours on farm acquired by defendant prior to commencement of cohabitation — Three pre-conditions for unjust enrichment satisfied — Equitable principle on which constructive trust remedy resting broad and general — Remedy not confined to cases involving property acquisition — Proprietary relief appropriate where plaintiff contributing to preservation and maintenance of property, plaintiff's services having a clear proprietary relationship, plaintiff having a reasonable expectation of obtaining an interest in the property and defendant aware of that expectation, and where relationship between parties one of long duration — Plaintiff's appeal allowed — Trial judgment awarding her interest in defendant's farm property and monetary relief restored. The A left the R in 1982 after living with him for 42 years on a farm which he had owned jointly with his brother prior to the commencement of cohabitation. The farm was divided between the brothers in 1951, the respondent becoming the registered owner of three quarter sections. The A assumed all of the responsibilities related to household management and care of 6 kids. The A worked long hours on farm plus household management. During two separate periods totalling 17 years when the R worked as travelling salesperson the A assumed sole responsibility for the farm chores. Following separation, A claimed an interest in the R's farm and other relief on the basis of a constructive trust. The trial judge held that principle of constructive trust applied, ordered the R to transfer a quarter section of land to A on her undertaking to transfer title forthwith to her children, also sum of $20,000 to be reduced to $15,000 if paid within six months. The CA, holding that the unjust enrichment principle did not apply as no link between the acquisition of the property in question and the appellant's labour, reversed the trial judgment. HELD: Appeal allowed. The decision of the CA reversed and the trial judgment reinstated, save that the obligation imposed on the A to transfer title to the land awarded to her to her children was deleted. The three pre-conditions necessary for a finding of unjust enrichment had been satisfied. It was clear that R derived a benefit from the A's many years of unremunerated labour in the home and on the farm, and that the appellant suffered a corresponding deprivation. There was no juristic reason for the enrichment, since the appellant was under no obligation to perform the work and services in the home or on the land. Further, the evidence indicated that she had a reasonable expectation of receiving some benefit in return for her domestic and farm services. The constructive trust constituted one important judicial means of remedying unjust enrichment: another remedy was the award of monetary damages. The equitable principle on which the remedy of constructive trust rested was broad and general. The remedy ought not to be confined to cases involving property acquisition. While it was necessary to establish a connection between the claimant's deprivation and the property in question, a contribution relating to the preservation, maintenance or improvement of property might also suffice. Proprietary relief was appropriate where the services rendered had a clear proprietary relationship. In the instant case it was appropriate for the trial judge to provide relief, in part, by way of constructive trust because there was a clear link between the appellant's contributions and the disputed assets; because she did have a reasonable expectation of obtaining an interest in the land and the respondent was aware of that expectation; and because of the long duration of the parties' relationship. The trial judge erred in only one respect -- by making the appellant's entitlement to the land contingent on her transfer of title to her children. It was she who had suffered the deprivation and she, not the children, who was entitled to the remedy. 27 Peter v. Beblow  SCC from BC Property rights during + after common law marriage or relation --Family home — Resulting or constructive trusts. Appeal by the wife from a judgment reversing the trial judgment awarding the wife the family home. The spouses lived in a common law relationship for 12 years. During the relationship the parties lived in the home purchased by the respondent. The wife worked occasionally outside the home, she performed all housework and cared for the respondent's children. When the spouses separated, the family home was left vacant. The trial judge held that the respondent had been unjustly enriched and awarded the appellant the home. HELD (dissent in part): Appeal allowed. Domestic services such as homemaking and childcare services may give rise to a remedy based on unjust enrichment. In order for a constructive trust to arise, monetary compensation must be inadequate and there must be a direct link between the contribution and the property claimed. The value of the constructive trust was the portion of the value of the property claimed and attributable to the claimant's services. In the present case the appellant contributed considerably to the family enterprise and the house reflected a fair approximation of the value of the appellant's contribution. RAWLUK v. RAWLUK  SCC from OT Property — Constructive trust — Wife contributing to accumulation of assets held in husband's name — Act providing for equal division of value of family assets as determined on valuation day — Assets appreciating significantly after evaluation day — Whether or not the constructive trust applicable where the Family Law Act provides a remedy for unjust enrichment — Family Law Act, S.O. 1986, c. 4, ss. 4(1), 5(6), 10(1), 14, 64(1), (2), (3). Trust and trustees — Constructive trust — Family assets — Family Law Act providing for equal division of value of family assets as determined on valuation day — Assets appreciating significantly after valuation day — Whether or not the constructive trust applicable where the Family Law Act provides a remedy for unjust enrichment. The Rawluks were married in 1955 and lived and worked together for twenty-nine years. They had a farm and an equipment sales and services business. In the early years of their marriage, the W cared for their children and looked after farm chores. By the early 1960s, W assumed a major role in its operation and maintained her involvement in all aspects of the farming operation. She contributed to the assets the parties acquired during the marriage. At the time of separation in 1984, the Rawluks held a number of properties, all but one of which were registered in the name of the H. The FLA1986 provided that family assets valued and divided equally. The evaluation date = date separation. Between separation and the trial of the action, the value of these properties increased dramatically. The trial judge and the CA held that the property in question was impressed with a constructive trust which gave the wife a beneficial half interest in the property at the time of separation and therefore entitled her to participate as owner in the value of the property after separation. At issue here is whether or not the constructive trust finds application where the Family Act, 1986 already provides a remedy for the unjust enrichment complained of. HELD: (three dissenting.) The appeal should be dismissed. Far from abolishing the constructive trust doctrine, the FLA 1986 incorporates the constructive trust remedy as an integral part of the process of ownership determination and equalization established by that Act. As a general rule a legislature is presumed not to depart from prevailing law without expressing its intentions to do so with irresistible clearness. But even aside from this presumption, the FLA1986 intended to both recognize and accommodate the remedial constructive trust. Before property can be equalized under s. 5 of the FLA,1986, a court is required by s. 4 to determine the "net family property" of each spouse on the valuation date. "Property" is defined as "any interest, present or future, vested or contingent, in real or personal property" and accordingly includes not only legal but beneficial ownership. The remedial constructive trust therefore should be included in the list of equitable principles or remedies that may be used to calculate the beneficial ownership of net family property. It can be recognized as having come into existence from the time when the unjust enrichment first arose, even though it is judicially declared at a later date. The distinction between ownership and a share on equalization is more than an exercise in judicial formalism. It involves conceptual and practical differences for ownership encompasses far more than a mere share in the value of property. Where the property at issue one to which only one spouse has contributed, it is appropriate that the other spouse receive only an equalizing transfer of money. But where both spouses have contributed to the acquisition or maintenance of the 28 property, the spouse who does not hold legal title should be able to claim an interest in that property by way of a constructive trust and realize the benefits that ownership may provide. The imposition of a constructive trust recognizes that the titled spouse is holding property that has been acquired, at least in part, through the money or effort of another. Under the Act a court is, as a first step, required to determine the ownership interests of the spouses. It is at that stage that the court must deal with and determine the constructive trust claims. The second step requires that the equalization be calculated. The third step requires that the court assess whether equalization is unconscionable, pursuant to s. 5(6). This step in the process must be kept distinct from the preliminary determination of ownership. Section 10 of The FLA1986 reinforces the Act's emphasis on the importance of individual ownership, even within a regime of deferred sharing. A spouse can to apply to a court to determine a question of ownership or possession prior to equalization, and thus to assert some degree of control over matrimonial property during cohabitation. It would be inconsistent to deny a spouse the same remedy when it sought after a separation. Section 14 specifically refers to the doctrine of resulting trust. It is not intended to specifically preserve that trust, and by implication abolish all other non-express trusts, but rather is intended to modify the resulting trust doctrine as it applies in the context of the FLA, 1986. The combination of these modifying provisions and the legislature's silence on the subject of remedial constructive trust indicate that the constructive trust is maintained in an unmodified form. The constructive trust remedy can be utilized by unmarried cohabitants. It would not only be inequitable but would also contravene the provisions of s. 64(2) if married persons were precluded by The FLA1986 from utilizing the doctrine of remedial constructive trust which is available to unmarried persons. NOTES Why superimpose a constructive trust? Justifications—1] not depart from legislation 2] preamble recognises marriage as a form of partnership 3] other provisions to justify s.4(1) = wide enough to include beneficial ownership. S.5(6)h = judge‘s discretion 4] art. 430 5] s. 64(2) FLA Constructive trusts = remedy for unjust enrichment = not a property right. And unnecessary where FLA applies. DF 359  CA Trusts — Constructive trust — Unjust enrichment — Woman devoting her life to man who later threw her out — Salary not commensurate with work performed. Appeal from a judgment awarding $100,000 to the plaintiff who had devoted her life to the defendant. When she was 20, she commenced working for the defendant by taking care of his children and house, for which she was paid a small salary. She also worked at his business for 15 years at a very low salary. Shortly after they met, she became his mistress. She became pregnant twice, had one abortion and put another child up for adoption at the defendant's insistence. After 24 years of cohabitation, the defendant threw her out claiming that she had a drinking problem. She was then on social assistance. The trial judge found that the case for unjust enrichment had been made out and awarded $4,000 per year for the entire 24 year period. HELD: Appeal allowed and amount reduced in part. The plaintiff was not entitled to be compensated for the period of time after she stopped working for the defendant's business. For the period prior to that there was enrichment, impoverishment, correlation between the two and absence of justification. There was no equilibrium between the services rendered and the remuneration. In Quebec for unjust enrichment you must have: 1—enrichment 2—deprivation 3—correlation between 1 + 2 4—absence of justification. All were present in this case [love isn‘t enough justification!] In the 1961-1977 period [re: post break-up renumeration] is the issue – there was 1, but not 2—4 so award reduced. BEAUDOIN-DAIGNEAULT v. RICHARD ET AL  SCC from QC Partnerships — Concubinaries — Role of appellate court — Findings of fact — Trial judge finding that partnership existing between concubinaries with respect to acquisition and operation of farm — Appeal from a decision reversing a judgement wherein it was held that a partnership existed between the parties with the respect to the acquisition and operation of a farm. The parties were concubinaries and cohabited for a total of 7 years--they acquired the farm 5 years before breakup. A signed the offer to purchase but was not a signatory to the actual K of sale. At trial, she gave evidence, arguing she did not sign because she believed that it was not necessary for her to do so in order to acquire equal ownership in the property. A contributed both work and money 29 to the operation of the farm during the period of cohabitation. After separated, she brought a pro socio action and was held to be a partner with the respondent. The trial judge found failure to sign the K of sale did not indicate an intention not to be a party to the purchase. Also found that there existed a tacit partnership agreement. The CA disagreed with the trial judge's findings of fact wrt intention of the parties, and held that no partnership existed. HELD: Appeal allowed + trial judgment restored. An appellate court should not interfere with a trial judge's findings of fact unless it was satisfied that those findings were based on error. Here, there was evidence to support the trial judge's conclusions. Findings not unreasonable and not based on any error. CA erred in substituting its opinion and the 2nd appellate court is justified in interfering with CA's findings and restoring the trial judgment. Proof of partnership = 1—contributions to common fund of work, financing or property [need to show one of three] 2—careful of concubine relations—must show contributions above+beyond conjugal duty [best to show partnership] B. The Division of Property between Married Spouse---The Family Patrimony and Family Property---Compensatory allowance and Compensatory Support---The Family Residence Notes: In theory, feds have power to legislate on property division wrt spousal relationships because inextricably linked to divorce s. 91.26. But they haven‘t – remains provincial domain due to s.92.13. Ontario—FLA part I ss.4-16 and s.2(10) s.4(1) – interest in real or personal property future or present. Deduct debts + liabilites+ value of property other than the home that you brought to the marriage [value in past] By a domestic K, you can contract [if explicit] out of these equalisation calculations. s.4(2) property which is excluded from tally other than matrimonial home inherited or gifted after marriage + income derived from it--5(7)equalization payment [s5.1=basic provision = avoid inequity] BUT judge considers [from FLA] 1—failure to discole debts or liabilities 2—debts occurred recklessly or in bad faith 3—property gifted by the other 4—depletion of spouses‘ assets 5—amount disproprotionately large for duration of marriage 6—debt accumulated for family support 7—written agreement which is not a domestic contract 8—any other circumstances where property was improved. [in QC article 422 similar provision] QC—family patrimony 414-430, compensatory allowance 427-430, [different matrimonial regimes 431-492] NOTES Distribution of property in death, divorce, separation or annulment Similarities Pool of assets—neither creates property rights—both allow for deductions for property purchased with before the marriage—both include added-value of assets—both exlude property inherited $ or purchased to replace] seeking party must prove deduction/exculsion of equal split—Judge has jurisdiction to award more or less than equal split. Differences Can‘t K out of rules of family patrimony. OT, you can opt out of domestic K if clear and specific. Matrimonial home treated differently. OT—doesn‘t matter when it was purchased [value still divided] Q C—only added value is divided. In OT—equalization payment s. 5(5) In QC—money or in kind. In OT—family property includes everything -- evaluation date=day divorce was awarded In QC—family patrimony includes only 7 items [listed in the code] – evaluation date=day proceedings initiated. In Quebec only compensatory allowance 427—430 [essentially, unjust enrichment claim] *Married couples only! Art 427: if spouse is getting a large share of assets, it may not be awarded. *take matrimonial regime into consideration* Art 428: cooperative spouse may adduce any evidence to support claim . Art 429: if parties can‘t agree on amount---the courts will [by $, installments or right in property] OT = constructive trust to remedy unjust enrichment. S.10 FLA compensatory allowance during marriage possible. 30 THE FAMILY RESIDENCE Bosch v. Bosch  CA OT Marital property, distribution orders, K-ing out — Enforceable agreements — Matrimonial home — Failure to specify property rights of spouses upon marriage breakup — Whether home included in spouse's net family property Appeal by the husband from a judgment including the matrimonial home in the determination of the husband's net family property. Prior to their marriage, the parties signed a domestic K [in Holland] which provided that all property owned by each spouse at the time of the marriage or afterwards would remain the property of the respective spouses. The husband owned the matrimonial home at the time of the marriage. The trial judge did not give effect to the agreement, held that the agreement did not deal with the parties' rights in the event of a marriage breakdown. HELD: Appeal dismissed. In order for a domestic contract to oust a spouse's right to equalization, it must deal explicitly or by necessary implication with a matter akin to the equalization provisions of the Act. The contract must address the rights of the parties upon the dissolution of the marriage. The marriage contract of the parties did not specifically deal with the spouses' rights upon the dissolution of the marriage or with the matrimonial home. The evidence indicated that the parties entered into the agreement to ensure that the husband retained ownership of the home, but there was no indication that the parties intended to preclude the wife from sharing in the value of the home. [can‘t get out of FLA = stretch definition of domestic K] QC, even if home was purchased before becoming matrimonial home, only ADDED VALUE is up for equalisation. Futia v. Futia  SC OT Marital /matrimonial property — Divison of assets — Matrimonial home — Short duration of marriage. Determination in action for divorce whether the wife should be allowed to share equally in the value of the matrimonial home. The marriage lasted only two years. The husband had bought the home prior to the marriage but in contemplation of marriage. The downpayment was made entirely by the husband and all further payments were also made from his income. The value of the house had increased substantially between the date of purchase and the date of separation. The wife claimed husband treated her with cruelty = should be seen as mitigating factor for allotting her an equal share of value of the matrimonial home. [s.5(6)e court discretion form marriage under 5 years] HELD: the wife's share was reduced to 40% due to short period of cohabitation. Allegation of cruelty irrelevant. Family Law Act, 1986, S.O. 1986, c. 4, ss. 5(5)(e), 5(6) DF 1636  CA QC Matrimonial regimes — Distribution of property — Marital home, right to possession of, by wife Appeal by W from parts of the judgment excluding paintings acquired during the marriage from marital property, ordering partition of the pension rights of the parties and refusing her a right of occupation of the former mat. home. The H argued that the trial judge erred in ordering equal partition of the matrimonial home without deducting the value of his interest in a home which he owned at the time of the marriage. Both parties= good incomes and substantial assets. The H's pension rights had vested whereas the W's had not. The marriage had lasted eight years. HELD: Appeal was allowed with respect to the paintings which were marital assets. Their value was to be shared equally. An equal division of the pension earnings would result in an injustice. No reason to interfere with the trial judge's decision regarding occupation of the marital home as well as with respect to its joint ownership. Statutes, Regulations and Rules Cited: Civil Code, ss. 396, 449, 462. 31 DF 2071  CS Facts: Parties married in 1987. P=22yrs D=36yrs. They lived together 5 years prior. First lived in condo owned by the D. In 1991, they moved to a house bought by the D for $95 000 of which $50 000 has been paid. D was responsible for all related costs. They separated 11 months later Ratio: Short duration of the marriage is an important factor. Art 422 refers to bad faith of the parties = subjective examination. P had falsely accused the D of sexually molesting their daughter, causing substantial harm to all parties involved. P in bad faith = D spent all savings in litigation and an unequal sharing of the family patrimony IS justified. COMPENSATORY ALLOWANCES Lacroix v. Valois  SSC from QC Family law — Compensatory allowance — Bankruptcy — Divorce — Practice — Whether wife waived claim for alimentary pension — Whether appeal may be taken out of time and be based on both section 41 of Supreme Court Act and section 18(1) of Divorce Act — Whether bankruptcy following cohabitation conclusive proof of lack of enrichment — Effect of husband's discharge from bankruptcy prior to claim for compensatory allowance. Appeal by wife in divorce proceedings. Husband and wife had been in business together. The wife had significant capital and finances several deals that failed. On separation, the wife was destitute. Her petition asked for a lump sum of $55,000 plus $250 weekly. At the hearing the wife waived alimentary pension asking only for allowance of $55,000. The husband was ordered to pay $40,000 when the decree absolute was granted. The sum was both a compensatory allowance and a lump sum indemnity. This was set aside on appeal. The R argued that the court did not have jurisdiction on appeal. [CA said enrichment had to occur at time of divorce—SCC overturned] HELD: Appeal allowed. Order granting leave was within time. The court could obtain jurisdiction from both sections 18 of the Divorce Act and 41 of the Supreme Court Act, where they did not conflict. It was possible that an enrichment, necessary for a compensatory allowance, could have existed despite the intervening bankruptcy of the husband. The bankruptcy was not conclusive proof an enrichment did not occur. There was no waiver of a compensatory allowance. Court wanted to restore a patrimonial equilibrium between the parties. UNJUST ENRICHMENT spouse must prove 1—contribution 2—enrichment 3—impoverishment 4—causal link 5—proportion of contribution to the enrichment 6—absence of justification Courts flexible and generous wrt evidence in family actions to draw causal link—who keeps meticulous records? Overall assessment made—not peicemeal, discretionary and may be paid in part during marriage. In bankruptcy—you cannot wipe out support payments—compensatory claim AT TIME of divorce [at this time the spouse in Lacroix had a flourishing business] Courts look at: lifestyle of parties during marriage, arrangements made by parties, who was earning money outside the home? Who made capital payments, who stayed @ home, did someone quit a career? How has family patrimony affected this? Art 414: title irrelevant and home split 50-50. Art 415 family patrimony [this can be fought with art 422 or ask for compensatory allowance-even use against property outside family pat! 32 M.E.M. v. P.L.  SCC from QC [DF 594] Separation of property regime — Compensatory allowance — Entitlement by husband — Criteria — Contributions by spouse — Enrichment of other spouse's patrimony — Judicial discretion — Scope of discretion. Appeal by the wife from a judgment granting the husband a compensatory allowance. The parties were married in Quebec under the separation of property regime. The wife's father gave her a loan from which the wife purchased the parties' matrimonial home in her name. She worked only part-time and the husband paid the interest and capital on the loan and paid the property taxes. Upon her father's death, the mother forgave the daughter the remainder of the outstanding capital. The house value had increased substantially at the time of the divorce and the husband claimed a compensatory allowance. The trial judge dismissed his claim on the ground that the contributions of the parties during the marriage had been equal. The trial judge held that the husband's payments towards the loan could be regarded as equivalent to the payment of rent. The renovations done by the husband were part of the duties regularly performed by a spouse. On appeal, the trial decision was reversed and the husband was awarded $40,000 as compensatory allowance. HELD: Appeal allowed. The husband was not entitled to a compensatory allowance. In determining whether a spouse was entitled to a compensatory allowance, the court must look at all contributions of the spouses without making any distinction between contributions to the marriage and contributions to the patrimony. There was sufficient evidence before the trial judge to justify a denial of the husband's claim for a compensatory allowance. The respondent benefited from the loan in that he could live in a house at a very moderate cost. The wife's income helped the husband make the payments to repay the loan and these payments did not impoverish him. In family patrimony, the burden would shift to her as equal division is presumed unless proved otherwise by art 422. Pre-family patrimony = agreement between spouses wrt property can‘t be changed when marriage turns sour = no justification. Also, intention of why things are gifted to the other spouse [was it to escape creditors? etc] Civil Code of Quebec, arts. 462.14, 462.17, 559. S.P. v. M.R.  SCC from QC Separation as to property — Divorce — Financial settlements — Compensatory allowances, power of court — Evidence — Appeals — Scope of appeal — Support obligations — Considerations. This was an appeal from a decision of the Quebec Court of Appeal allowing an appeal from a decision of the Superior Court awarding the appellant wife a compensatory and alimentary allowance. The parties were married in 1969 under the separation of property regime and entered into a marriage contract. The appellant wife worked for the respondent's businesses in Montreal and Antigua without remuneration. Residences in both places were registered in the wife's name. The wife brought these proceedings for separation from bed and board in 1988. She was awarded a compensatory allowance of $150,000 and an alimentary allowance of $2,625 per month to be reduced to $1,500 after the $150,000 was paid. The husband's claim for a compensatory allowance for his contribution to the Montreal residence was dismissed. After the judgment, the husband's claim, brought in Antigua, for ownership of the Antigua residence, was dismissed. He appealed the Quebec judgment. The Court of Appeal held that the determination of the wife's ownership of the Antigua property constituted new evidence justifying the Court's intervention. The majority held that the determination of ownership of the property constituted payment of the compensatory allowance and that the husband was entitled to a compensatory allowance of $100,000 with respect to the Montreal property. HELD: The appeal was allowed and the trial judgment restored. The determination of entitlement to a compensatory allowance was to be approached n an overall, flexible and generous manner. Such determination was not to be made in a piecemeal fashion such as the method undertaken by the Court of Appeal. The husband was not entitled to the compensatory allowance for the Montreal property as it was clear that the intention of the parties in transferring the title of the Montreal property to the wife was for her benefit. The Court of Appeal erred in considering that the Antigua judgment constituted significant new evidence and payment of the compensatory allowance. The award to the wife was based on the judge's conclusion that the wife obtained ownership of the property as compensation for her contribution to the husband's business. The evidence supported that 33 conclusion. There was sufficient evidence before the judge as to the value of the property so as to determine the compensatory allowance of $150,000. The Court of appeal should not have interfered with the decision of the trial judge with regard to the proper compensatory allowance absent an error of law or an egregious error of fact. It also erred in interfering with part of the award and not determining the effect of the correction with regard to the other aspects of the corollary relief ordered by the trial judge. Statutes, Regulations and Rules Cited: ccq 427, 428, 430 Houviss & Youdan, ―The Law of Family Property‖  Family Law Act requires the calculation of the net family property of each property so that the amount of the equalisation payments to be made by one party to the other may be determined. Net Family Property—s 4(1) value of the property at valuation date after deducing debts and those in s.4(2) other than the matrimonial home. No explicit guidance as to onus of proof with respect to property valuation. Valuation date = important criterion = date of separation w/o possibility of reconciliation, date divorce granted, date of marriage nullity, date of one spouse‘s death, date of commencement of an application. Purpose of valuation is to determine the amount of spouse‘s net family property; to determine the economic product of the marriage. Yet, there should NOT be unalleviated rigidity, nor should there be unpredictable exercise of individual discretion. Usually use of fair market values but problems where 1—asset does not have a market value [eg: law degree] or 2— value is an inappropriate measure for the purpose of the act [life estate]. Interests in business = different approaches = capitalized flow approach to value, capitalization of earnings, liquidation approach. Interests in a professional practice = value determined on basis of price where vendor + purchasor are willing. A person‘s expectation of receiving ―income stream‖ from his skill and personal effort is NOT property. THE FAMILY RESIDENCE Exclusive possession of the matrimonial home Provincial powers: OT—s.17 to 28 QC—arts 401to 413 ==both require registration s.21 FLA: consent of other spouse required for its sale art 404 expresses the same s.24 FLA: powers to give one spouse the matrimonial home or possessions within or to divvy them up. Court can give exclusive rights to home even if registered as matrimonial home s.24(3) sets out conditions considered by courts to determine exclusive possession [not an exhaustive list] Art 410 sets out the same provision but no rights for defacto spouses….but if we have best interests of children in mind [art 33] then why can‘t we value a matrimonial home for a defacto family???? Kasirer, ―Note—The family residence‖  There is little doubt that the spouse who has economic control of the place in which the family lives, whether this be owned or rented premises, has an immense power over the well-being of the family. The non-owner spouse [or not on lease] may find this economic dependency = compromising at dissolution. Arts 401-413 on the family residence designed to prevent the family residence[and contents] from use as a tool of exploitaiton. Family residence protection = public order conception of marriage as an equal partnership. Expenses of the marriage = art 396 = obligation for contribution in proportion to means [problem, who keeps track when things are good?]. 34 Hill v. Hill  OT District Court Facts: The parties were married in 1947 housewife + businessman = comfortable lifestyle. W asked for separation. H wrote threatening notes [son was an accomplice] and interfered with friends and delayed court proceedings. Detrimental effect on W‘s psychological state. He spends most of his time at the ―country residence‖ Ratio: Violence must be such that it makes continuation of joint cohabitation in the matrimonial dwelling impractical. Violence includes psych assault on the sensibilities of the other spouse to a degree which renders continued sharing of dwelling impractical. Mr. Hill has less emotional attachment to the home and lesser continuous use = less inconvenienced to find other accomodations + better resources. He should continue to pay so that she can continue her lifestyle of eating out, travel, use of the car and health plan. She used s.24 for exclusive use and 24f on violence by spouse [in words or deeds] = cohabitation intolerable. VII. SPOUSAL SUPPORT The Trilogy: Pelech, Richardson and Caron PELECH v. PELECH  SCC from BC Variation of maintenance orders — Agreement for lump sum maintenance incorporated into court order following divorce — Wife=health deteriorating + capital exhausted, becoming dependent on welfare — Wife's radical change in circumstances not flowing from economic dependency engendered by marriage — Circumstances not justifying court's intervention to override maintenance agreement — Appeal by former wife from reversal by CA of Supreme Court decision varying maintenance order dismissed — Divorce Act, R.S.C. 1970, c. D-8, ss. 11(2), 17(2), 18(1). At the time of the parties' divorce in 1969 maintenance for the wife was referred to the Registrar for recommendations. With the advice of counsel, the parties then entered into a maintenance agreement which provided for a total payment of $28,760 over a period of 13 months. The agreement was approved by the Registrar and incorporated into an order of the court. The wife agreed to accept the payment in full satisfaction of all present and future claims for maintenance. The agreed maintenance was duly paid. In December 1982 the former wife applied under s. 11(2) of the Divorce Act for variation of the maintenance order. Psychological problems from which she had been suffering at the time of the divorce had increased, and were compounded by physical problems. Her capital was depleted and she had had to apply for social assistance in April 1982. The judge hearing her application concluded that the 53-year-old former wife would be unlikely to obtain employment in the future. The former husband's net worth had increased from $128,000 at the time of the divorce to $1,800,000. The application was allowed by the trial judge who ordered the former husband to pay $2,000 per month for the applicant's maintenance. The trial judgment was reversed by the British Columbia Court of Appeal and the applicant appealed to the Supreme Court of Canada. (See 85 DRS P22-960 and 23-085). HELD: Appeal dismissed. The BC CA = jurisdiction to entertain the R's appeal from the order allowing the former wife's variation application since that appeal involved a question of law. For the same reason, the Court had jurisdiction under s. 18(1) of the Divorce Act to entertain the former wife's appeal from the provincial appellate court's decision. Although the A's present state evidenced a "gross change in circumstances", there was no evidence linking that change in circumstances to her marriage to the respondent. The A's psychological problems were not caused by the marriage: they pre-dated it and contributed to its failure. The maintenance agreement was neither improvident nor unconscionable. In absence of causal connection b/n the changed circumstances and the marriage, the courts ought not to intervene to override the settlement of their financial affairs made by the parties themselves. 35 RICHARDSON v. RICHARDSON  SCC from OT Maintenance as corollary relief — Effect of settlement agreement — Proceedings under Family Law Reform Act terminated by minutes of settlement providing for periodic maintenance for wife for period of one year — Wife seeking maintenance for herself in divorce proceedings commenced more than one year later — No change in circumstances between time of agreement and time of divorce hearing — Wife's economic situation not attributable to pattern of economic dependency developed during marriage — Dependence on public assistance not in itself justifying interference with agreement — No evidence of common expectation that wife would be employed within one year — Wife not entitled to award of periodic maintenance — Divorce Act, R.S.C. 1970, c. D-8, s. 11(1). Proceedings between the parties under the Family Law Reform Act had been settled by minutes of settlement which, inter alia, provided for payment of periodic maintenance to the wife for a period of one year. She had been steadily employed from the time of the marriage in 1967 until 1974. Apart from two jobs of short duration in 1974 and 1976, the wife did not work again prior to the separation in 1979. In divorce proceedings commenced after her entitlement to maintenance under the settlement agreement had ended, the wife sought periodic maintenance for herself. She was still unemployed and in receipt of social assistance at the time of hearing. The trial judge awarded her periodic maintenance because of her "present handicaps". The award reversed by the Ontario CA, the wife appealed. HELD : Appeal dismissed. The principles enunciated by the Court in Pelech v. Pelech (87 DRS P21-883) applied as well to the variation of a settlement agreement in an application under s. 11(1) of the Divorce Act as to an application under s. 11(2) of the Act to vary a settlement agreement incorporated in the decree nisi. Those principles were that a settlement agreement should be varied only where a radical change in the circumstances of a former spouse and that change was the result of a pattern of economic dependency generated by the marriage relationship. In this case = no change in the circumstances of either party between the signing of the minutes of settlement and the hearing of the divorce proceedings: the wife was unemployed at the time of the former event and remained unemployed. Regarding the fact that she had been employed for more than half of the duration of the marriage, it could not be said that the marriage had atrophied her employment skills or impaired their marketability. The fact that she had become a public charge did not by itself justify variation of the settlement agreement. Nor was there any evidence of a common expectation of the parties that the wife would have found employment within one year. CARON v. CARON  SCC from YK Divorce — Separation agreement — Dum sola clause — Separation agreement providing that wife entitled to maintenance until she remarried or cohabited with another person as man and wife for over 90 consecutive days and for variation in the quantum of maintenance in changed circumstances — Both provisions being incorporated into the divorce decree — Wife cohabiting — Husband ceasing maintenance — Wife ceasing to cohabit and applying for a variation of decree nisi to provide for a resumption of terminated maintenance Appeal from the dismissal of an appeal from the dismissal of an application for variation of a decree nisi to provide for the resumption of support. The applicant W entered into a separation agreement which provided, inter alia, for termination of maintenance should she cohabit with another person as man and wife for more than 90 consecutive days. The wife cohabited briefly. The H ceased maintenance payments. No other circumstances changed. HELD: The appeal was dismissed. The provision was valid, enforceable and properly invoked. The Court should not reinstate maintenance under the Divorce Act where the effect would be to ignore a valid separation agreement entered into by the spouses freely and on the advice of independent legal counsel. Further, there was, by the invocation of the dum sola provision alone, no change in circumstance sufficient to permit a variation either pursuant to the agreement on variation or the Divorce Act. 36 Moge v. Moge  SCC from MN Trilogy applied— Corollary relief — Maintenance of wife — Variation — Termination of support — Obligation to achieve financial independence — Degree of self-sufficiency — Traditional marriage — Long term marriage — Economic disadvantages — Loss of earning capacity or potential. Appeal by the husband from a judgment requiring him to continue to pay spousal support to his wife for an indefinite period. The parties were married for twenty years during which time the wife cared for the children and the household and, except for a brief period, did not work outside the home. After the divorce, the wife was awarded custody of the children and worked cleaning offices. The husband argued that since they had been separated for 16 years, his wife had sufficient time to become economically self-sufficient. HELD: Appeal dismissed. In determining a spouse's entitlement to support, the court must consider all objectives defined in sections 15(7) and 17(7) of the Divorce Act. Economic self-sufficiency was not to be given priority over the other objectives. The Divorce Act intended to deal with the economic consequences of divorce for both parties. In exercising its discretion in ordering support, the court must consider a variety of factors and decisions made during the marriage which disadvantaged one spouse and benefitted the other upon breakdown of marriage. In the present case, the wife sustained a substantial economic disadvantage from the marriage and from her responsibility for the children's upbringing after the divorce. Her ability to earn income was diminished and she continued to suffer economic hardship as a result. The W had not become economically self-sufficient. Divorce Act, 1985, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15, 15(2), 15(4), 15(5), 15(6), 15(7), 15(7)(a), 15(7)(c), 17, 17(1), 17(3), 17(6), 17(7), 17(7)(a), 17(7)(c), 17(8), 17(10), 17(4), 17(7), 21(1), 21(5). Bracklow v. Bracklow  SCC from BC Divorce — Corollary relief, maintenance and awards — Awards, to wife, considerations — Awards, ability to pay (incl. potential to earn income) — Extent of ob — Effect of wife's ability to work + illness — Duration of marriage. Appeal by the wife from the dismissal of her appeal from a trial judge's decision not to award her spousal support. The husband and wife cohabited for four years before they married in 1989. During the first two years of their relationship, the wife paid for most of the household expenses as she earned more than the husband and her two children from a previous marriage living with them. They then shared expenses and chores equally. When the wife was unemployed, the husband supported the family. In 1991, the wife was hospitalized for psychiatric problems and did not work again. The parties separated in 1992 and divorced in 1995. The husband earned $3,764 per month and had expenses of $2,284 per month. The wife was ill with no means of support other than $787 in monthly disability benefits. The wife obtained interim monthly spousal support of $275, which increased to $400 in May 1994. The wife was awarded no spousal support as the judge found that she experienced no economic hardship from the marriage or its breakdown and that her health problems were not due to the marriage. He also found that there was no express or implied agreement between the parties that they would support each other. At the husband's suggestion, the trial judge ordered that spousal support continue to September 1, 1996. The Court of Appeal upheld the trial decision. HELD: Appeal allowed. The matter was ordered remitted to the trial judge for assessment of the amount and duration of support. The wife was legally eligible for spousal support. The early years of the parties' relationship suggested a fairly independent partnership; however, by the end, the parties had established an interdependent relationship. They had adjusted their expenses equally and the husband had covered the wife's needs in the early stages of her illness. Thus, it followed that the divorce rendered the wife in a state of economic hardship within the meaning of section 15.2(6)(c) of the Divorce Act. Given the statutory objectives of support and the relevant factors, the wife was eligible for support given the length of the cohabitation, the hardship marriage breakdown imposed on her, her palpable need, and the husband's financial ability to pay. The wife as unlikely to work again. While the combined cohabitation and marriage of seven years were not long, neither were they very short. As the wife did contribute financially to the family at times, it would be unjust to find that she was ineligible for support. Divorce Act, 1985, s. 15.2(1), 15.2(4), 15.2(6), 15.2(6)(c). 37 38
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