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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

Eichler et al. + Kasirer

Establishing the Bond Between Parent and Child---Filiation by Blood

DF 2143

Silber v. Fenske
Filiation by adoption

DF 1704


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 Pare nts Rights to the Best
Inte rests of the Child =Pare ntal Authority

C.G. v. V-F(T) + DF 2281
Support Obligation

DF 2366

DF 2626

The Role of the State in Family relationships: Bala + Provost


De Facto Relationships

Miron v. Trudel

Eagan v. Canada

Presentation du Projet de Loi # 32…

Marriage—The Legal Validity of Marriage---Rights, Duties and Obligations of Married Spouses


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

Bissett-Johnson et al.

Horvath v. Fraess
DF 841


Custody and Access---Terminology and Selected Issues---Relocation

Special Joint Committee on Child Custody and Access
C (G) v. V-F (T)



DF 2201
Gordon v. Goertz

W (V) v. S(D)
Child Support


Willick v. Willick

Francis v. Baker
DF 2626


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


Pelech v. Pelech + Richardson v. Richardson + Caron v. Caron
Moge v. Moge

Bracklow v. Bracklow

A. The Changing Nature of the Family and the Evolving Role of State Regulation
Recent US case—Tro xel 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 v isitation.

Traditionally, a family = wife/ho memaker + husband/breadwinner + kids. Today, same sex couples, cohabitation,
blended families …which relationships are worthy of legal sanction?

Why the change? Liberal society, individualis m, p luralis m, increased liv ing costs, wo men‘s movement, decreased
religion, d ivorce 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 ―immo rality
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 fo r 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-rid ing 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.

Pro moting change: the law no longer looks for villain and vict im 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 Macdonal d, ― In Search of Law‖

Is the public policy we want to pursue = focus on married couples or = stable adult relat ionships 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 co mmunity = all property = sole ad min by husband [in theory, W entitled to ½ of what in co mmunity]
Exclusion of co mmun ity = no claim to husband‘s property = no admin of immovable p roperty [husband‘s consent
required], all moveable p roperty assumed as husbands unless she could prove her title.

Co mmon law—marital unity=reduce wo man‘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 s eparate from H.

Marriage in history—marriage settlement = different fro m 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 bro ken family a mo re efficient
unit b) protection legislat ion = wo men‘s ownership, but still H ad min. c) egalitarian leg islation = 1872 OT – wo men
sued separate fro m H, property + business separate.

Prior to reforms: similarities of civil + co mmon law reg ime and wo man ‘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
wo men had the same rights as men.

Bradbury et al.

Clio Co llect ive

Constance Backhouse


A. The Constitutional Frame work – Peter Hogg
Most of that relating to the family = provincial jurisdiction. Property + civ il rights 92.13 + 16, solemn isation 92.12

But 91.26 = fed power over marriage and divorce—this gives uniformity across the country but also fed jurisdiction
= makes it mo re difficult.

Juvenile delinquency and criminal charges arise out of family d isputes = fed powers over criminal law 92.2

1968 = fed provided fo r 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, legit imacy, 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]. Div ision
of property = DA s.15 authorises support payments of a spouse or child by lu mp or periodic sums. [in the past,
divorce courts had difficulty transferring ownership of property in lieu of lu mp sum pay ment = 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.

                      Eichler and McCall, ―Clarifying the Legal Di mension 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, b irth cert ificate [knowledge+consent], by marriag e 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 ad min/legal declarat ion = b irth
certificate, adoption, custody order, paternity action 4—by default = where father can‘t fu lfill 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)med ical consent c) acce pt gifts
3—To g ive/withhold consent on issues wrt child

4—To pass on benefits to children a)cit izenship b)family allowance 5 —To be in formed of matters wrt the child

6—Of an indigent parent to be maintained by his/her child 7—To parental leave


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: comp ro mise a child‘s welfare or by divorce p roceeding]
2—have a will overturned 3—have personal informat ion 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 so me point become a father. Co mpeting rights and responsibilities of b iological vs. non -bio father in 3
contexts: a—support of obligation b—custody and access c—right to give/withhold consent for adoption.


A man‘s designation as father is legally and socially med iated through a woman. Fathers may be potential/actual,
bio/non-bio, full or part ial, 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, treat ment of bio and non-bio fathers is contradictory.

Importance of paternity knowledge = med ical history, identity issues, obs owed to child, questions of inheritance

A. Establishing the Bond Between Parent and Child
Section 92.13 civ il rights = father + mother determine the child‘s civ il status and respective rights = obs.

Filiation by Blood
Filiation is the legal relationship between parent and child, and fro m it flows civil status and filial obligations
including alimentary support. In CCQ – filiation div ided 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] d istinguish between legitimate/illegit imate children.
2—co mmon 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 g ives rise to presumption.
Quebec = uninterrupted possession of status [arts 523,524 +530]

DF 2143 [courts looked at facts and dismissed w/o hearing]

FACTS: Part ies 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. A fter separation, the D voluntarily made support payments and in
7/94 was given custody. At the end of that month, it was scientif ically 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
immed iate termination of the action.

Notes: What constitutes uninterrupted possession of status? A—role in upbringing of ch ild + general development
B—making decisions re: child C—financial role D—giving family name E—treat ment by ext. family + co mmun ity

Presumption of paternity + co-habitation? In QC no [in 525 (3) d ivorce 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 [1995] OT CofJ
 In fants — Illegitimate children — Filiation proceedings — Blood tests, when ordered — Maintenance of children .

  Th is 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 part ies 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 d id 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, Regul ations and Rules Cited: Canadian Charter of Rights and Freedoms, ss. 7, 8. CLRA, c. C.12, s. 10.

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—rep laces original filiat ion with
fiction [biological parents = have no more rights]

Consent: art 548 in writing art 551 of both parents art 549 of ch ild 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 b irth 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 orig inal family—all juridical lin ks with the
biological parents severed by act of law. The A cannot reclaim a d ifferent 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 Femi nist Analysis of Adoption‖ [1994]

Society has treated the adoptive family an imitation and therefore in ferior 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 elig ibility 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 = bio logical—reproductive tech—adoption—int‘l adoption

Suggest reforms—a) sealed record system abolished QCart583—consented information of b irth 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
informat ion 18 years may search + reg ister b) parental screening system = ho me 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.

RACINE v. WOODS [1983] 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 fro m a decision of the Manitoba Court of Appeal allo wing an appeal by the natural mother of a
6-year-old Indian ch ild fro m a trial judg ment 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 allo wed. 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 cus tody, 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 carry ing out difficult process

                                      N.H & D.H. v. H.M. [1999] 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 Brit ish Colu mb ia. A custody actio n
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 Colu mbia 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 o n 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 Brit ish Colu mbia Court of Appeal Rules, parties at the
Court of Appeal level d id 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 Nat ion until an order g ranting 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 co mplain 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.

In Loco Parentis Relationship and De Facto Relationship
Chartier v. Chartier [1998] SCC from MN

 Family law — Maintenance of wives and children — Persons obligated to support children (in loco parentis).

  Th is was an appeal by the mother fro m the decision of the Court of Appeal dismissing the wife's appeal fro m 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 part ies 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 co mmenced 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 spou sal support, reduced the
award to the daughter, awarded costs to the wife and found that the husband had repudiated his relationship with

  HELD: The appeal was allowed. The husband was declared to stand in the place of a parent to Jessica wit h
reasons to follow. DA s. 2(2) parental relat ionship 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 o f marriage: intention, financial
contribution etc. One cannot unilaterally g ive up status of ―in the place of a parent‖ and escape obligation to pay
support. Interim support granted until quantum support calculated.

                                               DF 1369 [1991] 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.

  Th is was an appeal fro m 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-t ime emp loy ment. 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 with in 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.

                                    Kasirer, ―Note--Parental Authority‖ [1997]

 Parental authority is a foundation of civ ilian understanding of civil law. Art 597 every child …owes respect to…
Art 598 a child remains subject to…authority. Gives authoritarian overto nes, 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 + mo ral needs.
PA may be removed if duty not taken seriously art 606. Before 1977, exercise of PA by father, now it is shared.

Custody = co mplex 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

Attribution of custody to third person
                                       C.(G.) v. V.-F.(T.) [1988] 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 ch ild'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 rev iewab le at any time where circu mstances justify — Evidence capable of rebutting presumption in favour
                    of father — No d istinction between "legal" and "physical" custody in civil law.

This was an appeal fro m a judg ment of the Quebec Court of Appeal reversing judg ment of t he 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 applicat ion 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
circu mstances 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 fo llo wed where custody was awarded to a third person. There was a mp le evidence to
support the conclusion rebutting presumption in favour of the father and that it was in the chil dren's best interest
that custody be awarded to the third party [A]. There was no distinction under the Civ il 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 h is 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 d ivested 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 [1989] 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 relig ious beliefs but that she can return home.

Issue: Does the D owe h is daughter an obligation of support?

Holding + Ratio : Allowed. $95/week in food support. Everyone has the right to practice their o wn relig ion 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 ho me without suffering
psychological damage.

                                              DF 2366 [1996] CS
                           Quebec family — Support obligation — Entitlement — Relatives.

   The mother BC sought maintenance fro m her children SB and EB. SB asked that the other children BP, FP and
    TCP, h is half brothers and sisters, be ordered to help support BC. SB offered to have BC live with h im. 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 ho me is adequate.

Statutes, Regulations and Rules Cited: Civil Code, ss. 585, 587, 592.

                                                 DF 2626 [1997] 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 ho me at
14 years old and they did not fulfill their parental obs.

Ratio : Art 585 p rovides for support payments to one‘s parents . This obs is NOT ext inguised as a result of
acrimonious relat ions. 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 t he time]. Fu rther,
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‖ [1998]

At common law, parents could not look to their ch ildren 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 leg islation 1922 = permitted parents to seek financial support fro m 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-treat ment by parents, not amounting to abandonment or abuse, provides no defense. Parental support = economic
remedy = no fau lt

D. The Role of the State in Family relations hips
                           Bala, ―An introduction to chil d protection problems‖ [1991]

There are situations where parental child care provided is so inadequate that the state must intervene to protect the
children fro m their families. Removal fro m ho me 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 = co mpulsory, 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
had a very limited ro le 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. Illegit imacy no longer of great significance [most provinces ceased to
view it as a legal concept]. Acceptance of single mothers=more social+financial aid=mo re 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 civ il trial = need only to prove on a balance of probabilit ies.

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 treat ment and to take appropriate steps in their protection = significant powers given by
legislation Work with parents and children in their ho mes 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 mo ral 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 legislat ion

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 fro m 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—pers pecti ves histori ques et comparati ves de l a legislation sur la
                                       protection de la jeunesse‖ [1991]


OT law serves as a model to other provinces. 1857 = sought to treat problem o f juvenile delinquency by separate
incarceration fro m 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


Early 1800 = assistance by catholic church and private charitable institutions under her direction. 1869 = leg islature

takes a more active ro le to co mbat juvenile delinquency by adopting la Loi sur les ecoles de reform & la Lo i 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 p roblem.

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, p laced 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 [rein forced by Khan case]
b) legit imacy NOT an issue—all ch ild ren 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 act ion + 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]


A. De Facto Relationships
DeFacto S pouses in Quebec

Why marriage not as popular? Defacto recognition/acceptance + benefits of certain legislation [in QC + OT] single
parents, birth control [child leg itimacy no longer an issue] , declin ing relig ion.

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 [difficu lt to
prove] 3—unjust enrich ment [ho me-making, child rearing, causal lin k with impoverishment *expensive to lit igate*]

Lift ing of prohibit ions: 1—g ifts 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] art 1958: 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 ch ild ren: 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 liv ing in a defacto union, regard less of time liv ing
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.

Presentation du Projet de Loi # 32 [Mai 1999]: Extends to same sex defactos the rights of unions of opposite sex.

                Goubau, ―Le Code Ci vil du Quebec et les concubins: un mari age discret‖ [1995]

The CCQ does not provide a civil status for defacto unions. The refusal to accord or to impose a civ il 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 t wo people share a common life outside the confines of
marriage, they are considered economically self-sufficient. The abolit ion 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 Lo i sur la Divorce allo ws this for married couples only].

Challenges to legislation: M iron, Egan, M + H = all section 15 challenges on distinction based on discrimination in
a substantive sense…enumerated ground = race, nat. or ethnic orig in, colour, religion, sex, age, mental or physical
disability AND analogous grounds = marital status, sexual o rientation = any distinction on personal characteristics.
Only saved by s. 1 = oakes test = 1—pressing importance 2—proportionality

                                       Miron v. Trudel [1995] 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 co mmon law relat ionship. 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 un married couples fro m 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 ess ential dignity and wo rth of indiv idual freedo ms to live with
the mate of one's choice in the manner of one's choice. Co mmon 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 Hu man Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, art 16.

                                          Egan v. Canada [1995] SCC
  Civil rights — Discrimination — Government programs — Old age pensions — Relevant distinctions — Personal
                   characteristics — Sexual orientation — Nondiscriminatory laws — Elements.

  Th is was an appeal fro m 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 belo w a stipulated amount, an allo wance when they reached the age of 60, wh ich
was payable until the spouse reached the age of 65. In 1975 the definit ion of spouse under section 2 of the Act
extended the payment of the allowances to spouses living in a co mmon -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 t he
allo wances 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 co mmitted relat ionship 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 unchangeab le or
changeable only at unacceptable personal costs, sexual orientation was protected fro m discrimination under section
15 as a ground analogous to those specifically enu merated 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 cons iderably more in co mbined 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 relat ionships,
including siblings, friends and homosexual couples. Parliament's intention in limit ing the legislation to married
couples and, after 1975, those living in co mmon-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 gi ven by
Parliament to these relati onshi ps. All o f those relationships excluded fro m benefits under the Act were not
capable of meeting these fundamental social objectives, including homosexua l relat ionships. 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 relat ionship had nothing to do with the social obje ctives 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. [1999] 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 A G-Ont on CA's decision to uphold a declaration that the opposite-sex definit ion of spouse in s. 29FLA
violated the Canadian Charter of Rights and Freedoms and to read in certain words to section 29. Two wo men, M
and H, cohabited together in a same-sex relationship fro m 1982 until 1992. Du ring 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 defin ition
of spouse in s.29 FLA , which included a married person and either a man and wo man who were not married and had
cohabited, was invalid = v iolated 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. A G appealed to SCC.

 HELD: Appeal dis missed. 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 vio lated the Charter and was not saved by section 1. The FLA formally d istinguished
between M and others on the basis of sexual orientation by specifically accord ing rights to unmarried cohabiting
opposite-sex couples, which it did not accord cohabiting same-sex couples. Sect ion 29 was drafted to allow a man
or wo man 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
meet ing the FLA's temporal requirements. The FLA drew a d istinction 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 fro m the FLA 's spousal support regime was not rationally connected to the pressing and
substantial objectives of protecting children and wo men, addressing sexual inequality, provid ing equitable resolution
to economic disputes, and reducing the burden on the public purse to provide support. M's rights were not minimal ly
impaired as she had limited alternative remed ies 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 i n 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 +wo man, 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 enrich ment] arts427 -430

Rights and Duties of Married S pouses CCQ 391-400 = equal for both spouses 391—imperat ive

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 b inding 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 tit le but gives
rights and value.


Not as many today = difficult to prove, divorces easier to get [no mo re 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, failu re to conform to formalities,
non-age of consent [under 16 = absolute], impotence [relat ive], lack of consent [relative]

Legislat ion: 1938 (1) CCQ on spouse of a lessee. Liv ing together for 6 months in conjugal relationship or sibling or
parent….a necessary definition because marriage is less popular, less religion etc.

                            Hahl o, ―Legal Requirements for a Vali d Marriage‖ [1979]

Ecclesiastical courts of Mid-ages first developed principles governing the nullity o the marriage. No church
recognition of divorce. Nu llity results fro m 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 civ il law, the maxim ‗en mariage pas de nullite
sans text‘ applies. Civ il law d istinguishes between absolute and relative nullity. Absolute nullity arises from
bigamy and marriage within the prohibited ran ks. Relat ive nullity arises from impotence or defects of consent and
may only be raised by the parties concerned.

Grounds of nullity at co mmon law: a—sexual identity b—prior existing marriage c—relat ionship within the
prohibited ranks d—failure to comp ly with the prescribed formalit ies 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 wo man have cohabited for such a length of time and in such circu mstances
as to have acquired the reputation of being man and wife.

                                                  DF 2254 [1995] CS

Facts: The P was born in Algeria and was 30 yrs when he married the D [fro m 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 liv ing 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 t ime 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) [1988] 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 d isobeying 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?

Ratio : Applicat ion for decree of annulment granted. The mere fact that the parties go through a form of marriage
for a ‗limited‘ or ‗ext raneous‘ 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. Oppres sion
may v itiate 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 matri moni al regime

a)   by marriage contract [takes effect the day of ceremony = solemn ized and not retroactive b) by operation of law

What can‘t you put in a marriage K? polygamy, child custody, no derogation fro m 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 + inco me before art 467— may accept or
   renounce partition of the other spouse‘s acquests art 471—concealment, bad ad min, 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 Dall ard, ―Les regime matri moni aux‖ [1993]

Art 431: Any kind of stipulation may be made in a marriage K, subject to the provision of law and public order.
Art438: Du ring marriage, spouses may change their mat rimon ial 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 s tipulated 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 reg ime is no longer regulated by CCQ

The default regime is regulated by arts 448—484. It was elaborated to permit conciliat ion 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 no rmally possessed before the union
or acquired by inheritance or donation.

Private property: spouses=complete+exclusive ownership and right of ad ministration = never shared at end marriage

Acquests: shared at dissolution of marriage—both can benefit fro m any enrich ment to the other during the marriage-
whether contributed directly or indirectly. Ad min istration of acquests = arts 461-464. Po wers are limited to prevent
one spouse from cheating the other.

Div ision of property at dissolution: takes effect at the date of the action, unless the case requires the intervention of

the tribunal [divorce, separation, nullity-- in wh ich the effects of dissolution are retroactive to day of application].
However, in so me 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, enjoy ment entire o wnership of the property they acquire. The
spouse, except where limitat ions imposed by the primary reg ime, has no power or right on the property of the other,
even those acquired during the marriage. At dissolution, each spouse has full o wnership over property they acquired.

The Co mmunity 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 th eirs after separation.
All other fall into the community of goods —which are co mmon property and are to be shared. Exempt ions
indicated by law = the property acquired for personal work done by the wife = left to her ad min. ―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 wh ich 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 (simp le et elaboree), K du mariage posterieur au mariage pp.558-572.

NOTES a) by death or b) by divorce [resident in province for 1 year, grounds and eligib ility under DA]

                 Bissett-Johnson and Day, ―The New Di vorce Law‖ [1986] + class notes added in

Divorce orig inally regarded by Ch ristian church as unlawful = annulment only [for adultery + abuse only]
Canada= 1750 adultery 1758 desertion in NS 1930 legislat ion in OT fo r 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
probabilit ies 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 d isputes or problems w/ ch ild 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 d ivorce 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.

Possible to live separate and apart under one roof---econo mic 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 lit igated.

Living apart for one year: in order to facilitate reconciliation, spouses are allowed to resu me 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 mo re than one reconciliat ion attempt represents the only departure form existing law. Possibility of
negotiation or mediat ion s.9(2) Defenses: once conduct has been condoned it cannot be revived.

                                       Horvath v. Fraess [1997] QB S K
  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.

  Th is was a divorce action in which the issues were grounds for divorce, spousal maintenance and valuation of
matrimon ial property. The parties were married in December, 1993 when the respondent wife was 30 years
old. The relat ionship was stormy. W ithin weeks of the marriage, in January, 1994, the couple separa ted 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 d ifferent
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 t ravel industry company that was no t 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 fro m January to December, 1988, at wh ich 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 t ime 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 fro m the marriage and its
breakdown. Financial assistance from the parties' parents was characterized as gifts. In neither case was there a
clear expectation of repay ment of the sums, nor any agreement to that effect. These amounts were not debt to be
allocated upon the division of matrimonial p roperty. The petitioner's RRSPs were valuated and were to be divided
equally. The petit ioner's automobile was wo rth $2,600.00 more than the respondent's, and the petitioner was to pay
an equalizat ion 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).

DF 841 [1990] 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] p resently lives there pursuant to a judgement + $150 alimentary support.
The H assets [rrsp, car, house etc] = $185 000 and enjoys job security and employ ment benefits. The D sp ent her life
as a housewife and has assets = $1500.

D is contesting divorce so that she can benefit fro m the new matrimon ial regime of Bill 146 once it co mes 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 ces sation 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 co urs 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 furn iture in the house and an additional $10 000.
Prestation Co mpensatoire—the D must show that the $ earned during her PT work contributed directly to the P
enrich ment, wh ich has not been done.

Somme Globale —Retirement security is a factor to consider when determining the global su m. 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 fro m poor health = awarded 300/ month.


A. Custody and Access
a)living arrangements b) custody

Special Joi nt Committee on Chil d Custody and Access

Continuing relat ionships 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 co mes to child support payments. Current language in child
custody statutes is problematic = connotations of ownership of children. Custody is formal word fo r 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].

Reco mmends that the common law ‗tender years‘ doctrine be rejected as a guide to decision making about
parenting. Parenting education = important = how marital conflicts affect ch ildren.

Lack of p resumption of joint custody – mothers would often not participate in med iation, 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 impo rtant relationships to maintain.

Access-Illinois model reco mmended: ―Every person who is in vio lation 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 v isitation interference‖.

C (G) v. V-F (T) see page

Robert Allen, ― A survey of chil d 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. psycholo gical 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 co mmon sense and NOT legal p resumption. 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 harmfu l to the child. Blood relat ions—biological parent
claims not lightly considered but can be overlooked if child protection warrants it.

 Past conduct has NO p lace 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: Recommendati ons for Reform‖

Gordon v. Goertz [1996] SCC from S K

 Family law — Divorce — Corollary relief, custody and access orders — Variation — Residence of children

  Th is was an appeal fro m a decision of the Court of Appeal dis missing the appeal of the appellant father fro m 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 in itial order. The trial judge allo wed 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 circu mstances 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 circu mstances 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) o f 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 maximu m
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 allo wed 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. [1996] SCC from QC
                Quebec family — Custody and access — Right to custody — International conventions.

  Appeal by the father fro m the dismissal of his appeal fro m the refusal of his application for custody. An American
court in Maryland awarded sole custody of the parties' 13-year-o ld 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 dis missed 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 Civ il Aspects of International Child Abduction.

  HELD: Appeal dis missed. 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 fro m the U.S was not wrongful because the father had custody of her within the
mean ing 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 ju risdiction 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).

B. Child Support
―Paras rule‖ = apportion ment of financial support between parents [according to means] = 1—determine needs
2—div ide 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, lit mus test for reasonableness = 20% and 32% gross
income for 1 o r 2 kids respectively. Parents can‘t go below subsistence level [$ 9000 fo r 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 liv ing 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—h idden c—opportunity d—access         How? 1—cost of raising child 2—reasonableness
3—apportioned between parents [also consider hidden costs] 4—inco me tax implications *kids come first v.
substinence first…this led to…

                     Davies, ―The Emergence of Judici al Chil d Support Gui delines‖ [1995]

Reco mmendations 1—should be a statutory formula = p redictability, uniformity 2—incorporation into legislat ion
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 pay ment and above 150000—judge doesn‘t
have to stick to the tables. Overall, keep order individual case specific = criticism of arb itrary formu la..

Gu idelines adopted = obligatory, non-discretionary. Provincial guidelines [for property + civil matters] in Q C apply
[unless there is a spouse living outside of QC, then apply federal guide]

s. 3 of federal act = p resumptive ru le + 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 fro m the outset. Francis v. Baker = jurisprudence on application of federal guidelines.

                                      Willick v. Willick [1994] SCC from S K

     Family law — Maintenance of wives and children — Maintenance of children — Variation of — Separation
                                     agreements — Increase in income.

   Appeal by the wife fro m a judg ment 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 orig inal = 40000, forseen = 80000, actual = 153000

  HELD: Appeal allowed. Fo r a support order to be varied under section 17(4) of the Divorce Act, there must be a
material change in circu mstances. The trial judge found that there was a material change in circu mstances 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

                                          Francis v. Baker [1998] CA OT

  Family law — Maintenance of wives and children — Maintenance of wives — Awards — Lump sum payments —
  Separation agreements — Effect o f agreement — Maintenance of children — Considerations, support tables —
                                When payor spouse earns more than $150,000.

  Th is was an appeal by the father fro m 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
lu mp sum spousal support and child support of $10,034 pursuant to the Table amounts for the father's level of
income under the Federal Ch ild Support Gu idelines. Section 4 of the Gu idelines applies to incomes over $150,000.
The father argued that the judge should have utilized section 4(b), which allowed the court to diverge fro m the Table
amounts where such an award was inappropriate.

   HELD: Appeal dis missed. The purpose of the Guidelines was to enhance the child's post-separation standard of
liv ing to approximate, as far as possible, what that standard would have been had the parents continued liv ing
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 exp ressly preserved her right to support
under the separation agreement as the $2,500 was clearly co mb ined 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 lu mp su m award. The wife was clearly econo mically disadvantage by having custody of the
children. According to s.1—judge can use table 2—order table for first 150000 p lus amount based on children‘s
needs and parents ability to pay. Appellant says no and wants Paras rule should be applied. s.4(b) allo ws deviation.

Notes: Quebec tables reserve 9000 fo r 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 fro m tables = discretion of judge
where salaries exceed 150000[feds] 200000[QC] 2—establish income 3—amount of t ime 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 ho me at
14 years old and they did not fulfill their parental obs.

Ratio : Art 585 p rovides for support payments to one‘s parents. This obs is NOT ext inguised as a result of
acrimonious relat ions. 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]. Fu rther,
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.

VII. PROPERTY DIVISION [arts 1493—1496]

A. The Division of Prope rty Between De Facto Spouses

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 wh ich he had owned jointly with h is brother
prior to the co mmencement 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 fo r the farm chores. Following separation, A claimed an interest in the R's farm a nd other relief on the
basis of a constructive trust. The trial judge held that princip le 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 $2 0,000 to be
reduced to $15,000 if paid within six months. The CA, hold ing that the unjust enrichment principle d id not apply as
no link between the acquisition of the property in question and the appellant's labour, reversed the trial judg ment.

HELD: Appeal allowed. The decision of the CA reversed and the trial judg ment 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 find ing of unjust enrichment had been satisfied. It was clear that R derived a benefit fro m the A's
many years of unremunerated labour in the ho me and on the farm, and that the appellant suffered a corresponding
deprivation. There was no juristic reason for the enrich ment, since the appellant was under no obligation to perform
the work and services in the home or on the land. Fu rther, the evidence indicated that she had a reasonable
expectation of receiv ing some benefit in return fo r her do mestic and farm services. The constru ctive trust constituted
one important judicial means of remedying unjust enrichment: another remedy was the award of monetary damages.
The equitable princip le on wh ich 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' relat ionship. 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 reme dy.

                                        Peter v. Bebl ow [1993] SCC from B C

Property rights during + after common law marriage or relation --Family home — Resulting or constructive trusts.

  Appeal by the wife fro m a judg ment reversing the trial judgment awarding the wife the family ho me. The spouses
lived in a co mmon law relationship for 12 years. During the relat ionship 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 allo wed. Do mestic services such as homema king 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 lin k between the contribution and the property claimed. The v alue 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 appro ximation of the value of the appellant's contribution.

                                   RAWLUK v. RAWLUK [1990] 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 Rawlu ks 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 ro le 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 Rawlu ks held a nu mber of p roperties, all but one of wh ich were registered in the name of
the H. The FLA 1986 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 t rial 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 co mplained of.

HELD: (three dissenting.) The appeal should be dismissed. Far fro m 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 fro m 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 remed ial constructive trust
therefore should be included in the list of equitable princip les or remed ies 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 equalizat ion is more than an exercise in judicial formalis m. It involves conceptual and
practical d ifferences for ownership encompasses far more than a mere share in the value of prop erty. 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
property, the spouse who does not hold legal tit le 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 calcu lated. 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 FLA 1986 reinforces the Act's emphasis on the importance of
individual o wnership, even within a reg ime of deferred sharing. A spouse can to apply to a court to determine a
question of ownership or possession prior to equalizat ion, and thus to assert some degree of control over
matrimon ial 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 co mbination 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 un modified 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 fro m utilizing the doctrine of remed ial constructive trust which is available to unmarried persons.

NOTES Why superimpose a constructive trust? Justificat ions—1] not depart fro m legislation 2] preamb le
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 [1990] CA
  Trusts — Constructive trust — Unjust enrichment — Woman devoting her life to man who later threw her out —
                                Salary not commensurate with work performed.

  Appeal fro m 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 child ren a nd house, for wh ich she was paid
a small salary. She also worked at his business for 15 years at a very lo w 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 p laintiff 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 t here was
enrich ment, impoverishment, correlation between the two and absence of justification. There was no equilibriu m
between the services rendered and the remuneration.

In Quebec for unjust enrich ment you must have: 1—enrich ment 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.

                 B EAUDOIN-DAIGNEAULT v. RICHARD ET AL [1984] 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 fro m a dec ision 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

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 sa le d id 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 judg ment 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
lin ked to divorce s. 91.26. But they haven‘t – remains provincial do main 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 do mestic K, you can contract [if exp licit] out of
these equalisation calculations. s.4(2) property wh ich is excluded fro m tally other than matrimonial ho me inherited
or gifted after marriage + inco me derived fro m it--5(7)equalizat ion payment [s5.1=basic provision = avoid inequity]

BUT judge considers [fro m 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 fo r family support 7—written agreement which is not a domestic contract
8—any other circu mstances where property was improved. [in QC art icle 422 similar provision]

QC—family patrimony 414-430, co mpensatory allowance 427-430, [d ifferent matrimonial regimes 431-492]

NOTES Distribution of property in death, di vorce, separati on or annul ment

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 ho me treated differently. OT—doesn‘t matter when it was purchased [value still divided] Q C—only
added value is divided.

In OT—equalization pay ment 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 onl y co mpensatory allowance 427—430 [essentially, unjust enrich ment 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 clai m . 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.


                                           Bosch v. Bosch [1991] 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 judg ment including the matrimonial ho me 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 marr iage or afterwards would remain the property of the respective
spouses. The husband owned the matrimonial ho me 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' right s in the event of a marriage breakdown.

  HELD: Appeal dis missed. In order for a domestic contract to oust a spouse's right to equalization, it must deal
explicit ly or by necessary implication with a matter akin to the equalization provisions of the A ct. 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 fro m sharing in the
value of the home. [can‘t get out of FLA = stretch definition of do mestic K]

QC, even if ho me was purchased before becoming matrimon ial home, only ADDED VA LUE is up for equalisation.

                                         Futia v. Futia [1990] SC OT
       Marital /matrimonial property — Divison of assets — Matrimonial home — Short duration of marriage.

  Determination in action fo r divorce whether the wife should be allo wed to share equally in the value of the
matrimon ial home. The marriage lasted only two years. The husband had bought the home prior to the marriage but
in contemplat ion of marriage. The downpay ment was made entirely by the husband and all fu rther payments were
also made fro m h is inco me. 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 ho me. [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 [1993] 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 fro m 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 part ition of the matrimonial ho me without deducting
the value of his interest in a home wh ich 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 div ision of the pension earnings would result in an injustice. No reason to interfere with
the trial judge's decision regarding occupation of the marital ho me as well as with respect to its joint ownership.
Statutes, Regul ations and Rules Cited: Civil Code, ss. 396, 449, 462.

                                                 DF 2071 [1994] CS

Facts: Parties married in 1987. P=22yrs D=36y rs. 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 wh ich $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

                                      COMPENSATORY ALLOWANCES

                                    Lacroix v. Val ois [1990] 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 d ivorce 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 lu mp sum o f $55,000 plus $250 weekly. At the hearing the wife waived alimentary pension asking only for
allo wance 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 lu mp sum indemn ity. Th is was set aside on appeal. The R argued that
the court did not have jurisdiction on appeal. [CA said enrich ment had to occur at time of divorce —SCC overturned]

  HELD: Appeal allowed. Order g ranting leave was within t ime. The court could obtain jurisdiction fro m both
sections 18 of the Divorce Act and 41 of the Supreme Court Act, where they did not conflict. It was possible that an
enrich ment, necessary for a co mpensatory allowance, could have existed despite the intervening bankruptcy of the
husband. The bankruptcy was not conclusive proof an enrich ment did not occur. There was no waiver o f a
compensatory allowance. Court wanted to restore a patrimonial equilibriu m between the pa rties.

UNJUST ENRICHM ENT spouse must prove 1—contribution 2—enrich ment 3—impoverishment 4—causal link
5—proportion of contribution to the enrich ment 6—absence of justificat ion

Courts flexib le and generous wrt evidence in family actions to draw causal link—who keeps meticulous records?
Overall assessment made—not peicemeal, d iscretionary and may be paid in part during marriage.

In bankruptcy—you cannot wipe out support payments —compensatory claim AT TIM E of d ivorce [at this time the
spouse in Lacroix had a flourishing business]

Courts look at: lifestyle of part ies during marriage, arrangements made by parties, who was earning money outside
the home? Who made capital pay ments, who stayed @ home, d id someone quit a career?

How has family patrimony affected this? Art 414: tit le irrelevant and home split 50-50. Art 415 family patrimony
[this can be fought with art 422 or ask for co mpensatory allowance-even use against property outside family pat!

                                M.E.M. v. P.L. [1992] 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 fro m a judg ment granting the husband a compen satory allowance. The part ies were married in
Quebec under the separation of property regime. The wife's father gave her a loan fro m which the wife purchased
the parties' matrimon ial ho me in her name. She worked only part-t ime 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 co mpensatory 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 cont ributions to the patrimony. There was
sufficient evidence before the trial judge to justify a denial of the husband's claim fo r a co mpensatory
allo wance. The respondent benefited fro m the loan in that he could live in a house at a very moderate cost. The
wife's inco me 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. [1996] SCC from QC
   Separation as to property — Divorce — Financial settlements — Compensatory allowances, power of court —
               Evidence — Appeals — Scope of appeal — Support obligations — Considerations.

  Th is was an appeal fro m a decision of the Quebec Court of Appeal allowing an appeal fro m a decision of the
Superior Court awarding the appellant wife a co mpensatory and alimentary allowance. The part ies 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 19 88. She
was awarded a co mpensatory allowance of $150,000 and an alimentary allo wance of $2,625 per month to be
reduced to $1,500 after the $150,000 was paid. The husband's claim for a co mpensatory allowance for h is
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 pro perty 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 $1 00,000 with
respect to the Montreal property.

  HELD: The appeal was allowed and the trial judgment restored. The determination of entit lement to a
compensatory allowance was to be approached n an overall, flexib le and generous manner. Such determination was
not to be made in a p iecemeal 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
allo wance. 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

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 co mpensatory 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, Regul ations and Rules Cited: ccq 427, 428, 430

                      Houviss & Youdan, ―The Law of Family Property‖ [1991]
Family Law Act requires the calculation of the net famil y property of each property so that the amount of the
equalisati on 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 matrimon ial ho me. No exp licit guidance as to onus of proof with respect to property valuation.

Valuation date = important criterion = date of separation w/o possibility of reconciliat ion, 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 d iscretion.

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, capitalizat ion of earn ings, 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‖ fro m his skill and personal effort is NOT property.


Exclusive possession of the matrimonial ho me

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 exp resses the same

s.24 FLA: powers to give one spouse the matrimon ial home or possessions within or to divvy them up. Court can
give exclusive rights to home even if registered as matrimonial ho me 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 int erests of children in
mind [art 33] then why can‘t we value a matrimonial ho me for a defacto family????

Kasirer, ―Note—The family residence‖ [1997]

There is little doubt that the spouse who has economic control of the place in wh ich the family lives, wheth er 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 = compro mising at dissolution. Arts 401 -413 on the family residence
designed to prevent the family residence[and contents] fro m use as a tool of exp loitaiton. 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?].

                                        Hill v. Hill [1987] OT District Court

Facts: The parties were married in 1947 housewife + businessman = co mfortable 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 : Vio lence must be such that it makes continuation of joint cohabitation in the matrimonial d wel ling
impractical. Vio lence includes psych assault on the sensibilit ies 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 eat ing 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.

The Trilogy: Pelech, Richardson and Caron
                                    PELECH v. PELECH [1987] SCC from B C

Variation of maintenance orders — Agreement for lump su m 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 wh ich
provided for a total pay ment 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 fu ll 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) o f the Divorce Act for variation of the maintenance order. Psychological problems fro m
which she had been suffering at the time of the divorce had increased, and were co mpounded by physical problems.
Her cap ital 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 emp loyment 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 allo wed 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 Co lu mbia 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 fro m the order allowing the former
wife's variat ion 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 fro m the provincial appellate
court's decision. Although the A's present state evidenced a "gross change in circumstances", there was no evidence
lin king that change in circu mstances 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 ch anged circumstances and the marriage,
the courts ought not to intervene to override the settlement of their financial affairs made by the parties themselves.

                             RICHARDSON v. RICHARDSON [1987] SCC from OT

  Maintenance as corollary relief — Effect o f 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 lat er — 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 Re form Act had been settled by minutes of settlement which,
inter alia, provided for pay ment of periodic maintenance to the wife for a period of one year. She had been steadily
emp loyed fro m the time of the marriage in 1967 until 1974. Apart fro m two jobs of short duration in 1974 and 1976,
the wife did not work again p rior 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 dis missed. 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) o f the Act to vary a settlement agreement incorporated in the decree nisi. Those princip les
were that a settlement agreement should be varied only where a radical change in the circu mstances of a former
spouse and that change was the result of a pattern of economic dependency generated by the marriage relat ionship.
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 fo rmer 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 employ ment skills or impaired their marketability. The fact that
she had become a public charge d id 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 emp loyment within one year.

                                     CARON v. CARON [1987] 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 fro m the dis missal of an appeal fro m 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 wh ich provided, inter alia, for
termination of maintenance should she cohabit with another person as man and wife for mo re than 90 consecutive
days. The wife cohabited briefly. The H ceased maintenance payments. No other circu mstances changed.

HELD: The appeal was dis missed. The provision was valid, enforceable and properly invo ked. 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 circu mstance sufficient to permit a variation either
pursuant to the agreement on variation or the Divorce Act.

                                        Moge v. Moge [1993] SCC from MN

 Trilogy applied— Corollary relief — Maintenance of wife — Variation — Termination of support — Obligation to
  achieve financial independence — Degree of sel f-su fficiency — Traditional marriage — Long term marriage —
                        Economic disadvantages — Loss of earning capacity or potential.

  Appeal by the husband from a judg ment requiring him to continue to pay spousal support to his wife for an
indefinite period. The parties were married for t wenty years during which time the wife cared for the children and
the household and, except for a brief period, d id 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 dis missed. 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. Econo mic 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 wh ich disadvantaged one spouse and bene fitted the other upon breakdown of
marriage. In the present case, the wife sustained a substantial economic d isadvantage from the marriage and fro m
her responsibility for the children's upbringing after the divorce. Her ability to earn inco me was dimin ish ed 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 [1999] 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 o f wife's ability to work + illness — Duration of marriage.

  Appeal by the wife fro m the dis missal of her appeal fro m 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 fro m 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 d isability
benefits. The wife obtained interim monthly spousal support of $275, wh ich increased to $400 in May 1994. The
wife was awarded no spousal support as the judge found that she experienced no economic hardship fro m 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 imp lied 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 elig ible for spousal support. The early years of the parties' relat ionship
suggested a fairly independent partnership; however, by the end, the parties had establis hed 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 follo wed that the divorce rendered the wife in a state of economic hardship within the
mean ing of section 15.2(6)(c) of the Divorce Act. Given the statutory objectives of support and the relevant factors,
the wife was eligib le 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 wo rk 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 t imes, it would be unjust to find that she was ineligib le for support.

   Divorce Act, 1985, s. 15.2(1), 15.2(4), 15.2(6), 15.2(6)(c).


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