No one definition can capture the true significance of families. As a society we have a difficult time
coming to a clear definition of a family.
The definition of family and how people relate to each other within a family are dependent on
national and even geographic provincial geographies.
The growing egalitarian Canadian attitude
Top 10 trends for Canadian families
1. Fewer couples are getting legally married.
2. More couples are breaking up.
3. Families are getting smaller.
4. Children experience more transitions as parents change their marital status
5. Canadians are generally satisfied with life.
6. Families violence is under-reported.
7. Multiple-earner families are now the norm.
8. Women still do most of the juggling involved in balancing work and home.
9. Inequality is worsening.
10. The future will have more aging families.
Baker “Thinking about families: trends and policies”
Information on marriages, births and deaths need to be collected in order to plan and provide public
services and facilities.
The state monitors childrearing practices and interpersonal relations between family members in
order to protect vulnerable members and to maintain social order.
Throughout the century, the family has been viewed as the basic unit of economic, physical and
As long as these obligations are fulfilled, the state’s direct involvement in family life is minimal.
Traditional family model is no longer dominant.
Some researchers and activists argue that viewing family life as private and outside the realm of
government regulation has encouraged social policies which have disadvantaged women and
Policymakers can no longer assume that what takes place at home is of no relevance to the
community or to governments.
Yet those who applaud new family forms are suspicious of the call for a family policy because they
fear it could represent a conservative agenda opposing greater equality for women, gays and families
of choice. Creating social policies which bring together these two opposing viewpoints and deal
adequately with the multidimensional aspects of family life is indeed a challenge.
While the majority of cohabitating couples in Canada continue to be married to one another,
cohabitation without marriage has become much more common.
Payne and Payne, Canadian Family Law
The term “family” does not have a precise legal definition.
Canadian family law deals primarily with the pathology of family breakdown and its legal
Although some will look back with nostalgia to the traditional nuclear family of the 1950s, with its
breadwinning husband, its homemaking wife, and their two children, that is now a minority group in
terms of contemporary family structures in Canada. Today, Canadian families take a wide variety of
It may be impractical for the law to endorse a monolithic definition of family that applies for all legal
Some of the contemporary policy issues:
To what extent should Canadian law recognize rights and responsibilities between unmarried
cohabitants of the opposite sex or of the same sex?
How should Canadian family law be administered? By traditional courts? By Unified Family
Courts? By administrative tribunals? By governmental or community agencies? By mediation
How should Canadian law respond to aboriginal families with their own cultural identity and
Family Law in Transition: Phenomenal increase in the divorce rate that followed the federal Divorce
Act in 1968
Family law statues are largely premised on the notion that any form of government intervention is an
intrusion upon privacy that can only be justified in the event of a breakdown in the family
relationship, a reasonable apprehension of domestic violence or child abuse and neglect.
Divorce Act in 1968: no fault divorce grounds were introduced in addition to an extended list of
Before 1968, the support of divorcing or divorced spouses was regulated by provincial and territorial
statutes that imposed a unilateral obligation on a guilty husband to maintain his innocent wife in the
event of a breakdown of the marriage ensuing from his commission of adultery, cruelty, or desertion.
During the 1970s and 1980s, many provinces and territories enacted legislation that eliminated the
offence concept as the foundation of spousal support rights and obligations.
A financially dependent spouse of either sex might look to his or her marital partner for financial
support. The governing consideration was no longer sex-based but turned upon the financial needs of
the claimant and the ability of his or her spouse to pay. Each spouse was expected, however, to strive
for financial self-sufficiency. Thus, marriage was no longer legally perceived as creating a presumed
right to lifelong financial support for a dependent spouse in the event of marriage breakdown.
Separated and divorced wives were no longer in the prejudicial position in which Irene Murdoch
found herself in 1973 when the Supreme Court of Canada denied her any interest in a ranch
registered in her husband’s name, because her contributions in the home and in the fields were
perceived as non-financial contributions ordinarily expected of a rancher’s wife.
The inequalities of the Murdoch case triggered provincial and territorial legislation that provided for
property sharing on marriage breakdown that was no longer based on ownership or who purchased
Unmarried cohabitants were accorded property rights on the dissolution of their relationships on the
basis of the constructive trust and the doctrine of unjust enrichment.
Contemporaneously with these judicial developments dealing with property rights, many Canadian
provincial statues provided an extended definition of spouse to establish spousal support rights and
obligations between cohabitating couples of the opposite sex who lived together for a designated
period of time or had a child together.
It is no mandatory for litigating spouses to file financial and property statements to provide data that
will expedite the adjudication of support and property disputes.
The consolidation of disputed issues in a single court proceeding has been facilitated by statutory
changes and by amendments to provincial rules of court.
Legal system has remained adversarial.
Some Canadian family law practitioners have opted into Collaborative Family Law. This approach
differs from the traditional practice of family law in that its practitioners focus on settlement to the
exclusion of litigation. Written agreements are executed to provide full disclosure and to waive
discovery and recourse to litigation for a stipulated period of time. During this period, negotiations
are undertaken by the clients and their lawyers in an effort to achieve a settlement.
Cultural diversity will attract much greater attention than it has in the past.
But courts themselves face major changes in an age when 20 to 40 per cent of all family litigants,
depending on the issue and the province of residence, seek access to courts without legal
Professor Thompson describes family law in Canada today as largely characterized by rulelessness,
where, at best, the legislation and cases identify factors to be taken into account in the exercise of
discretion. He acknowledges, however, that there are some islands of rules in the areas of family
property and child support.
Thompson „Rules and Rulelessness in family law: recent developments, judicial and legislative”
We find ourselves at an awkward moment in the evolution of family law.
The federal divorce power encompasses corollary relief, including custody and access, child support
and spousal support.
Once federal family law has changed, there are strong practical pressures for the provinces to get into
sync, so as not to confuse those parents and spouses who must live under both laws.
The supreme court used the national impact of the Divorce Act as one of its anchors for national
significance or public importance in giving leave for family law cases.
No field of family law is exempt from Supreme Court review and hence national direction.
Finally, the Charter of Rights is forcing both courts and legislatures to reduce disparities in the
treatment of different family forms. Section 15 is a driving force for national homogenization. Even
section 7 is a homogenizing force.
Decisions like Bracklow, Gordon v. Goertz and H. v. M., Custody and Access, make family law
appear utterly ruleless, undermining its very legitimacy in the eyes of the parties and the public.
It may be time for the Supreme Court to think about the re-introduction of rules or even law, into
Federalism: the distribution of powers over family law
Hogg, Constitutional Law of Canada
In principle, one would expect the bulk of family law to come within provincial power.
While most family law is within provincial jurisdiction, the Constitution Act, 1867, by s. 91(26)
allocated to the federal parliament the power to make laws in relation to marriage and divorce.
(Uniformity, recognition by other provinces)
The Constitution Act, 1867 by s. 92(12) confers on the provincial Legislatures the power to make
laws in relation to the solemnization of marriage in the province.
Most provincial power over family law is derived from that expansive phrase in s. 92(13), “property
and civil rights in the province”, which encompasses property and contract law and other private-law
relations, including for example, matrimonial property, succession, support of spouses and children,
adoption, guardianship, custody, legitimacy, affiliation and names.
Crime and Delinquency: within the realm of federal Parliament under the criminal law power (s.
Marriage: The only federal law ever to come before the courts was one which declared that every
marriage performed in accordance with the laws of the place where it was performed was to be
recognized as a valid marriage everywhere in Canada. “Marriage Reference”
Following the Marriage Reference, it is clear that a province has power to stipulate pre-ceremonial
requirements, such as the issue of a licence or the publication of banns, and to stipulate the
qualifications of the person performing the ceremony. These are matters closely associated with the
performance of the ceremony _ the solemnization. Much less clearly associated with the ceremony is
a requirement of parental consent to the marriage of a minor, but in two cases the SCC has held that a
province may enact that parental consent as a condition of a valid marriage.
Consequences of marriage: In 1968, the federal parliament provided for alimony, maintenance and
custody in the new Divorce Act, but only as corollary relief in divorce proceedings.
Divorce: Before 1968, the law differed from province to province.
The Divorce Act confers jurisdiction on the superior court in each province to grant divorces,
established a procedure by way of application for obtaining decrees of divorce, and stipulates the
grounds upon which decrees may be granted.
Custody and Support of Children: In the Adoption Reference, the SCC held that it was competent to
the province to enact laws providing for the adoption of children and for the maintenance of children
and deserted wives. Duff C.J. held that the welfare and education of children are matters of provincial
responsibility. (under s. 92.13)
Since the Adoption Reference it has never been doubted that adoption, legitimacy, custody,
guardianship, child welfare, affiliation and maintenance of children are within provincial power.
Support of Children:
The Divorce Act’s provisions authorizing the court to order payments of support in respect of the
children of the marriage are as valid as those concerning custody, and for the same reason, namely,
their close connection with the divorce.
In Zacks v. Zacks, the Supreme Court of Canada did not have to decide and expressly left open, the
question whether a divorce court could entertain an application for support which had been made for
the first time after the decree absolute had been granted.
Support of Spouse:
It is clear that the provinces have the power to provide for support payments by one spouse to the
other. This was one of the points decided in the Adoption Reference.
The federal Divorce Act includes, as part of the corollary relief available in divorce proceedings,
provisions … for the support of a spouse. There is no doubt as to the validity of those provisions. In
Zacks v. Zacks, Martland J. for the Court spoke of alimony, maintenance and the custody of children
as subjects which were all inseparatable from Parliament’s jurisdiction to pass laws governing the
change of status resolution from a dissolution of marriage.”
Division of Property:
The Divorce Act, by s. 15 [now s. 15(2)], authorizes the payment of maintenance for the support of a
spouse or children by lump sum as well as by periodic sums.
It has been suggested that an order for the transfer of specific property would in any case be outside
the constitutional power of the federal parliament, because it would be within property and civil
rights in the province.
The federal parliament has the power to provide for support and custody as corollary relief in divorce
proceeding because of the rational, functional connection between laws which provide for the
dissolution of a marriage and laws which provide for these forms of corollary relief. It could surely
be argued that a similar connection exists between the dissolution of a marriage and the disposition of
the matrimonial property. While the federal parliament probably could not enact a comprehensive
regime of family property, the cases so far decided under the Divorce Act suggest that there would be
no constitutional impediment to the expansion of the Divorce Act’s corollary relief provisions to
permit the court, on the making of a decree for divorce, to order transfers of specific property from
one spouse to the other.
Conflict between orders made under federal and provincial law:
Possibility of conflict between orders made under provincial law and orders made under the Divorce
Courts have often disregarded the doctrine of paramountcy and have produced a remarkably
inconsistent patchwork of decisions.
In McKee v. McKee, their lordships pointed out that under Ontario law the welfare of the infant was
the paramount consideration in questions of custody, and this consideration would prevail over all
others, including the existence of a foreign order.
Surely, any order for corollary relief under the Divorce Act must render inoperative any inconsistent
order under provincial law by virtue of the doctrine of paramountcy.
The express contradiction test of inconsistency has not been accepted by the SCC.
Variation under provincial law of orders under Divorce Act
Emerson v. Emerson, the Supreme Court of Ontario noted that the welfare of the child was the
primary consideration and that he was free to order maintenance under the provincial law even in the
fact of an inconsistent order under the federal Divorce Act. (Decision to grant relief in Ontario where
the wife and child lived)
The Divorce Act of 1968 was deficient in only allowing order to be varied in the province where the
divorce was granted. (The current Act, enacted in 1986, permits variation by a court in a province
where either former spouse is ordinarily resident, whether or not that court granted the divorce and
originally order corollary relief.)
In Emerson, Wright J should have declined jurisdiction on the basis of doctrine of paramountcy.
The authority of Emerson v. Emerson, has been limited and perhaps destroyed by the subsequent
provincial courts of appeal decisions in Ramsay v. Ramsay and Re Hall and Hall.
The validity of the corollary relief provisions of the Divorce Act depends upon rational, functional
connection with divorce. It is arguable that an order for corollary relief is inherently temporary,
expiring naturally as the divorce retreats into the past and its impact on the circumstances of the
Orders under provincial law where no order under Divorce Act
Express contradiction triggers the paramountcy doctrine.
On the basis of the express contradiction test, as long as no order has in fact been made under the
Divorce Act, an order made under provincial law would not be deemed inconsistent with the Divorce
Act and would therefore by legally effective.
Jurisdiction of Family Courts
There is now a strong movement to unite the various jurisdictions in a new unified family courts.
Section 101 of the Constitution Act, 1867 limits federally established courts to the adjudication of
issues governed by federal law. Since much substantive family law is outside federal legislative
competence, no federal court could in any event be given an extensive family jurisdiction. Any court
exercising comprehensive family jurisdiction would have to be a provincial court.
Provincial courts invested by province
Section 92(14) of the Constitution Act, 1867 confers on the provincial Legislatures the power to
make laws in relation to the administration of justice in the province, including the constitution,
maintenance, and organization of provincial courts. Provincial courts established under this provision
are not confined to issues governed by provincial law; they may be given jurisdiction to administer
federal as well as provincial law.
In Re B.C. family Relations Act, the SCC held that since a province could confer on an inferior court
jurisdiction over adoption, it could also confer jurisdiction over guardianship and custody, which
were lesser rungs on the ladder of family relationships. These two decisions of the SCC establish that
most family law can be administered by inferior courts.
In Re B.C. Family Relations Act, the Court struck down an attempt to confer on the inferior court
jurisdiction over occupancy of and access to the family residence. That jurisdiction could be
conferred on a s. 96 court.
The federal Parliament has in fact chosen to confer divorce jurisdiction on the superior court in each
Kunkel v. Kunkel, stands for the proposition that as long as there has been a change in circumstances,
the provincial order will supersede the divorce order.
The mother remarried and her new husband adopted the child. A majority of the Alberta Court of
Appeal held that the father’s obligation to pay child support ended when the adoption occurred even
though there had been no variation of the order.
“It is an implied term of every order for corollary relief under the Divorce Act that it is not final, and
that if circumstances change, it may be superseded by an order of any court having jurisdiction,
whether under the Divorce Act, a provincial statute or the parens patriae jurisdiction of the court.
The Charter became part of the Constitution of Canada in 1982. by virtue of s. 52(1) of the
Constitution Act, 1982 any law that is inconsistent with the Charter is to the extent of the
inconsistency of no force or effect.
Sections 7 and 15 predictability have been the most commonly used Charter provisions in a family
Section 7 specifies: “everyone has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental justice”. It could be
argued that this section constitutionally guarantees the right to enjoy family life as an aspect of the
liberty and security of the person and that any limits on that right must accord with the principles of
Section 15(1) provides that every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and in particular without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical
The test is set out in Law v. Canada. Three issues:
(i) whether it imposes differential treatment
(ii) Whether that treatment is based on a personal characteristic listed in s. 15(1) or an
(iii) Whether the purpose or effect of the challenged law is discriminatory.
Section 1 of the Charter: “reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.”
(i) Is the objective underlying the law pressing and substantial
(ii) If so are the means chosen to achieve this objective reasonable in the sense that they are
a. Means rationally connected to the objective
b. Is the impairment of right or freedom necessary to achieve the objective
c. Does the objective outweigh the deleterious impact and do the benefits outweigh the
BALA, “The Charter of Rights and Family Law in Canada: A New Era”
Until recently, decisions from the higher courts dismissed arguments that spousal, parental or other
familial relationships were entitled to constitutional recognition and protection.
The 1999 SCC decisions in M. v. H. and NB v. G. mark a dramatic change in judicial approach. The
Supreme Court has recognized that familial relationships are of fundamental importance and worthy
of constitutional recognition and protection.
In M. v. H., the Court recognized that denying same-sex partners the statutory rights afforded to
unmarried heterosexual partners at the end of a relationship is unjustified discrimination on the basis
of sexual orientation.
Supreme Court of Canada held in Walsh v. Bona, that some differential treatment between married
couples and unmarried ones is not discriminatory. In particular, the court concluded that a province’s
matrimonial property regime can be limited to married couples.
The courts are only willing to use the Charter in the family law cases to promote human dignity or
social justice or to promote the interests of children.
Most jurisdictions require the applicant to give the relevant attorney General or Minister of Justice
notice of any case raising a constitutional question. (when they want to raise a charter challenge) It
adds to the complexity and expense and also the case receives publicity as a result of it.
In NB v. G., the Court accepted that child protection proceedings affect vitally important aspects of
security of the person.
Canada is now going through a process of constitutionalizing family law. The impact of the Charter
is likely to be greatest in the child protection and adoption fields.
Perhaps the most revolutionary change initiated by Charter litigation involves the recognition of
Because s. 96 of the Constitution Act, 1867 implicitly prevents a province from conferring upon a
provincially appointed judge a jurisdiction analogous to that exercised by a superior, district or
county court in 1867, any Unified Family Court must be presided over by a federally appointed
judge. Therefore, federal and provincial governments must co-operate in order to create a Unified
In Ontario, a Unified Family Court was established in 1977. To deal with the problems created by s.
96 of the Constitution Act, 1867, judges of the Unified Family Court were appointed by concurrent
action of the provincial and federal governments.
In 1944 the Ontario Legislature amended the Courts of Justice Act to create a branch of the Ontario
Court known as the Family Court. The Unified Family Court was amalgamated with and continued
as part of the Family Court.
As a branch of the Superior Court of Justice, the Family Court is a s. 96 court with federally
appointed and federally paid judges.
The utility of the judicial process, featuring the traditional adversarial approach as a mechanism for
dealing with family breakdown is itself being question.
PAYNE, “FAMILY CONFLICT RESOLUTION: DEALING WITH THE CONSEQUENCES
OF MARRIAGE BREAKDOWN THROUGH COUNSELING, NEGOTIATION,
MEDIATION AND ARBITRATION”
Sections 9 and 10 of the Divorce Act pay lip service to the benefits of counselling, negotiation and
mediation as processes for resolving family disputes but do nothing to foster the use of the process.
For most families, marriage breakdown provokes three crisis: an emotional crisis; an economic crisis;
and a parenting crisis. Both of the spouses and their children suffer severe emotional upheaval when
the unity of the family disintegrates.
Bonding between children and their absent parent is inevitably threatened by marriage breakdown.
Working through the spousal emotional divorce rarely takes less than 2 years.
A cooling-off period would be desirable because of the risk of premature settlements negotiated at a
time when one or both of the spouses are undergoing the emotional trauma of marriage breakdown.
Spouses, lawyers and mediators should assess the potential for temporary agreements being only the
first stage in the resolution of the economic and parenting consequences of the marriage breakdown.
Community agencies may provide counselling services free of charge or assess a fee based on sliding
scale to reflect the ability to pay.
In previous generations, focus in counselling was on reconciliation.
Today, reconciliation is regarded as only one option. Marriage and family counselling is increasingly
directed towards helping families understand how they will be affected by separation or divorce and
how they can deal with the emotional, economic and parenting consequences of marriage breakdown.
Less than 4 percent of divorces involve a trial of contested issues in open court. Divorcing spouses
normally settle their disputes by negotiation, often will the benefit of legal representation.
The object of any negotiation is to reach a reasonable settlement that both spouses can live with and
that reflects the interests of any children.
Negotiation is the most effective way of resolving disputes. It leaves the decision-making authority
with the disputant. It is also cost-efficient and time-saving.
There are three basic approaches to negotiation: (i) hard bargaining; (ii) soft bargaining; and (iii)
Soft bargainers make too many concessions without demanding a fair return.
Principled negotiators strive to avoid positional bargaining. They have the following characteristics:
i) separate the people from the problem
ii) focus on interests, not positions
iii) generate options that will be advantageous to both parties
iv) insist that the result be based on objective standard
v) know the best alternative to a negotiated settlement (BATNA).
The use of objective standards to evaluate possible solutions promote reasonable settlements.
The essence of mediation is that the family members are themselves responsible for determining the
consequences of their divorce. Self-determination with the aid of an impartial third party is the
cornerstone of mediation.
Mediators deal with the consequences, not the cause of marriage breakdown.
The goal of consensual resolution is constant.
There are a few psychiatrists and lawyers who practise mediation.
Mediation may belong to the parties but a successful outcome is dependent on the expertise of the
The most common response to conflict are fight or flight. Mediation provides an alternative when
spouses or former spouses cannot negotiate directly with each other but wish to avoid the adversarial
postures of the legal process.
Inequalities of bargaining power between the spouses may render mediation inappropriate.
What’s required is an attitude of give and take and compromise.
Many mediators content that mediation is inappropriate when either of the parties is physically
violent, addicted to alcohol or drugs or cannot face the reality of the death of the marriage.
Mediators must preserve a neutral stance.
Mediators must prevent an abuse of power by either disputant.
There is a public need for broadly based and ongoing sources of information.
The legal system is not undermined by mediation.
At present, divorce mediation is Canada is largely confined to parenting disputes.
Crisis of marriage breakdown is multi-faceted.
The use of binding arbitration instead of litigation to resolve spousal disputes respecting property
division, spousal and child support and child custody and access on marriage breakdown or divorce is
rare in Canada.
Advantages of arbitration:
i) the parties are directly involved in the appointment of the arbitrator.
ii) Litigants are often intimidated by the formality and adversarial atmosphere of the court.
iii) It’s procedurally less complex and much speedier.
iv) Conducted in private.
v) Cheaper than litigation.
vi) Costs of arbitration are more predictable than those of litigation.
Disadvantages of arbitration:
i) The absence of due process can lead to arbitrary results.
ii) Lack of sufficient regard to the merits of the case
iii) Some arbitrators are disinclined to order costs on favour of either party.
Mediation and arbitration need not be exclusive of one another. Typically, a fixed time will be set
aside for mediation, with the understanding that if no consensus is reached, the mediator will then act
as an arbitrator who will give a final and binding decision.
Alternative dispute resolution methods: counselling, negotiation, mediation, arbitration and med-arb
Separated and divorced couples must be made aware of the diversity of processes available to foster
family conflict management and dispute resolution.
SHIELDS, RYAN AND SMITH, COLLABORATIVE FAMILY LAW: ANOTHER WAY TO
RESOLVE FAMILY DISPUTES
Collaborative law is a revolutionary new way to practice family law that is spreading like wildfire
across North America.
The concept is simple and profound: tailor the process to the parties and give lawyers a joint mandate
to empower the parties to create their best possible agreement, as they define it.
In the collaborative law process, trained collaborative lawyers represent and support the parties
throughout each stage of the process. The parties agree to act in good faith, make full disclosure and
put their children first. If either party decides to go to court, both lawyers are disqualified from
The goal is for the parties to achieve closure of their relationship with dignity at reasonable cost.
The parties seek a compromise. The end result will almost certainly be less for each than what was
sought and what might have been realized through litigation.
It appears to occupy a place at the opposite end of the conflict resolution continuum from
Facilitative skills of the lawyers
An increasing number of litigants in family law cases are unrepresented.
Section 9(2) of the Divorce Act requires the lawyer acting in a divorce proceeding to discuss with his
or her client “the advisability of negotiating the matters that may be the subject of a support order or
a custody order” and inform the client “of the mediation facilities known to him or her that might be
able to assist the spouse in negotiating those matters.”
Section 31(1) of the Ontario Children’s Law Reform Act authorizes the court, at the request of the
parties, to appoint a person selected by the parties to mediate any aspect of a custody dispute.
Good mediators encourage or require the parties to seek legal advice prior to mediation.
Arbitration of many aspects of family disputes is permitted within the general framework of the
Ontario Arbitration Act, 1991. If the arbitration agreement does not provide for appeals, a party can
still appeal on questions of law, provided that the court grants leave.
A retired Ontario lawyer suggested that the Institute would offer a form of Sharia court under the
Ontario Arbitration Act, 1991.
The critics were especially concerned that women’s rights might be at risk.
The government of Ontario appointed Marian Boyd to review it. She points out in her report that the
parties can generally choose the rules that the arbitrator is to apply to determine their dispute and that
these rules can be based on a religious code. In the end, Ms. Boyd recommends that arbitration
should continue to be an option to deal with family disputes and that parties should be able to have
disputes determined in accordance with religious law. However, these main recommendations are
conditional upon a long list of legislative and regulatory reforms. These reforms include the
clarification and expansion of the scope of judicial review of awards, developing procedures to
ensure that the consent to the arbitration process is freely given and fully informed, and some training
and regulation of family arbitrators.
SILVERMAN, “CONFLICT OF LAWS: SOME MATRIMONIAL PROBLEMS”
Choice of law problem: Law of Ontario or New York
Jurisdiction problem: whether to assume jurisdiction
Recognition and enforcement problem: Whether to recognize the judgment of the court of a foreign
The special body of laws that deals with these circumstances is called Conflict of Laws.
The courts make use of what they call connecting factors.
In a divorce recognition case, the court may say that the connecting factor is the place where the
couple makes their home, so that it will recognize the divorce decree only if it was made by a court of
One of the most important issues in conflict of laws is determining what connecting factors should be
used by the courts in solving conflict problems.
CHAPTER 2: MAKING A VALID MARRIAGE
Hahlo, NULLITY OF MARRIAGE IN CANADA
A decree of nullity is not a divorce by another name. Divorce presupposes a valid marriage.
Nullity results from some defect or disability which exists at the time of the marriage ceremony and
prevents an unassailable marriage from coming into existence.
Nullity has a retroactive effect.
Today, when almost everywhere in the Western world divorce is easy, nullity actions are statistically
speaking, insignificant, and one or two countries, including Sweden have done away with them.
Persons who have together entered into a marriage that is voidable or void are accorded all the rights
and obligations of married persons under the Ontario Family Law Act, provided that the person
claiming a right under the Act acted in good faith.
Spouse is defined in s. 29 of the Ontario Family Law Act, for the purposes of spousal support, to
include two persons who have cohabited continuously for at least three years. Note, however that
this extended definition of spouse does not apply to part I of the Act, dealing with family property.
Essential validity concerns the legal capacity of the parties to marry, while formal validity involves
ceremonial or evidentiary requirements.
Legal capacity of the parties to marry is a federal matter (s. 91(26)).
Formal validity is a provincial matter falling within s. 92(12).
The SCC has also held that the provinces can require parental consent as a condition of a marriage
involving minors (Kerr v. Kerr)
The formal validity of the marriage is determined by the law of the place where the ceremony
The Federal Court of appeal held that a marriage will also be valid if each party has the capacity to
marry the other according to the law of the jurisdiction of their intended matrimonial home (Canada
The Parliament of Canada has never legislated comprehensive, specific criteria governing essential
Traditional opposite sex requirement
Halpern v. Toronto, 2003, Ont. C.A.
The definition of marriage in Canada has been based on the classic formulation in Hyde v. Hyde: “I
conceive that marriage, as understood in Christendom, may for this purpose be defined as the
voluntary union for life of one man and one woman, to the exclusion of all others.”
This case is ultimately about recognition and protection of human dignity and equality.
Sexual orientation is an analogous ground that comes under the umbrella of protection in s. 15(1) of
the Charter: Egan v. Canada, 1995, SCC.
The question at the heart of this appeal is whether excluding same-sex couples from another of the
most basic elements of civic life – marriage – infringes human dignity and violates the Canadian
The Modernization of Benefits and Obligations Act is the federal government’s response to the
SCC’s decision in M. v. H.. The Act extends federal benefits and obligations to all unmarried couples
that have cohabited in a conjugal relationship for at least one year, regardless of sexual orientation.
In Hendricks c. Quebec, Lemelin J. declared invalid the prohibition against same-sex marriages in
Quebec. It was held that it contravened s. 15(1) of the Charter and could not be saved under s. 1.
In EGALE Canada Inc. v. Canada, the BC CA declared the common law definition of marriage
Marriage and Divorce: s. 91(26)
Solemnization of marriage: s. 92(12)
To freeze the definition of marriage to whatever meaning it had in 1867 is contrary to this country’s
jurisprudence of progressive constitutional interpretation.
In Law, Iacobucci J. described the purpose of s. 15(1) in the following terms:
“It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and
freedom through the imposition of disadvantage, stereotyping or political or social prejudice and to
promote a society in which all persons enjoy equal recognition at law as human beings or as members
of Canadian society, equally capable and equally deserving of concern, respect and consideration.”
The first stage of s. 15(1) inquiry requires the court to determine whether the impugned law: (a)
draws a formal distinction between the claimant and others on the basis of one or more personal
characteristics; or (b) fails to take into account the claimant’s already disadvantaged position within
Since the enactment of the Modernization of Benefits and Obligations Act, same-sex couples receive
substantive equal benefit and protection of the federal law.
It is clear that a distinction has been made.
There is no doubt that the common law definition of marriage creates a formal distinction between
opposite-sex couples and same-sex couples on the basis of their sexual orientation. The first stage of
the s. 15(1) inquiry has been satisfied.
A discriminatory purpose is not a requirement for a successful s. 15(1) challenge; it is enough for the
claimant to demonstrate a discriminatory effect.
In Law, Iacobucci J. identified four contextual factors that a claimant may reference in order to
demonstrate that the impugned law demeans his or her dignity in purpose or effect.
(i) Pre-existing disadvantage, stereotyping or vulnerability of the claimants
(ii) Correspondence between the grounds and the claimant’s actual needs, capacities or
1. intimacy, companionship, societal recognition, economic benefits, the
blending of two families, to name a few are some of the reasons that
couples choose to marry.
2. the common law requirement that marriage be between persons of the
opposite sex does not accord with the needs, capacities and
circumstances of sex-sex couples.
(iii)Ameliorative purpose or effects on more disadvantaged individuals or groups in society
(iv) Nature of interest affected
The AGC submits that the existence of the Modernization of Benefits and Obligations Act precludes
a finding of discrimination.
We do not agree that same-sex couples are afforded equal treatment under the law with respect to
benefits and obligations.
As the passage cited from Egan indicates, s. 15(1) guarantees more than equal access to economic
benefits. One must also consider whether persons and groups have been excluded from fundamental
Same sex couples are excluded from a fundamental societal institution _ marriage.
Conclusion: It is our view that the dignity of persons in same-sex relationships is violated by the
exclusion of same-sex couples from the institution of marriage. The next step is to determine whether
this violation can be justified under s. 1 of the Charter.
What needs to be determined is whether there is a valid objective to maintaining marriage as an
exclusively heterosexual institution.
It is our view that the AGC has not demonstrated any pressing and substantial objective for excluding
same-sex couples from the institution of marriage. We conclude that the violation of the Couples’
rights under s. 15(1) of the Charter cannot be saved under s. 1 of the Charter.
Our conclusion under the first stage of the Oakes test makes it unnecessary to consider the second
stage of the test.
Second stage of the test: 3 branches to the proportionality test
1) Rational Connection
2) Minimal Impairment
3) Proportionality between the effect of the law and its objective
Remedy: There is no evidence before this court that a declaration of invalidity without a period of
suspension will pose any harm to the public, threaten the rule of law, or deny anyone the benefit of
legal recognition of their marriage. We would reformulate the common law definition of marriage as
“the voluntary union for life of two persons to the exclusion of all others”.
In response to M v. H decision, the Ontario legislature passed the Amendments Because of the SCC
Decision in M v. H Act. The act amended the Family Law Act and 66 other statutes so that they
would apply to the same-sex couples in the same way as they applied to unmarried, opposite-sex
The parliament of Canada has saved the term spouse for married persons. It responded in 2000 to the
M v. H by passing the Modernization of Benefits and Obligations Act. This Act amended some 67
federal statutes so that the benefits, right and obligations that apply to married persons or spouses
now apply in the same way to common law partners. The term common law partnership is defined as
“the relationship between two persons who are cohabiting in a conjugal relationship, having done so
for a period of at least one year.”
Reference Re Same-sex Marriage, 2004, SCC
Determination of Legislative Competence: in pith and substance, therefore, the section pertains to the
capacity for marriage.
The meaning of marriage is not constitutionally fixed.
Given the government’s stated commitment to this course of action, an opinion to the
constitutionality of opposite-sex requirement for marriage serves no legal purpose.
There is no precedent for answering a reference question which mirrors issues already disposed of in
lower courts where an appeal was available but no pursued.
The SCC’s refusal to answer the 4th question was used by Stephen Harper, the leader of the
Conservative party of Canada, to argue that parliament could pass legislation affirming the traditional
definition of marriage without using a notwithstanding clause to override equality rights (as permitted
by s. 33 of the Charter).
ABILITY TO CONSUMMATE:
The ability to consummate a marriage as a requirement to valid marriage has been abolished in some
jurisdictions such as Australia, it continues to be a pre-requisite in Canada. Yet, its continuing
existence is hard to reconcile with the view that a same-sex marriage is valid.
S. 4 of the Civil Marriage Act states: “For greater certainty, a marriage is not void or voidable by
reason only that the spouses are of the same sex”.
The number of annulments on this ground are few.
Gajamugan v. Gajamugan, Ontario H.C., 1979
Following the religious ceremony the parties retired to a room in a hotel and there slept together for
the first time.
The effect of the plaintiff’s evidence is that he attempted to have sexual intercourse with the
defendant but as soon as he touched her face with his hand he had a mental revulsion to the marks on
Thereafter, the parties slept in the same bed, but, as the plaintiff said, apart.
He was not able to proceed with intercourse.
Adopted the following overview: the essential ingredients to be proved in an action for nullity
because of impotence was provided in the Ontario Court of Appeal in Rae v. Rae:
1) Impotence must exist at the time of marriage
2) The incapacity pleaded must be such as to render intercourse impractical.
3) The incapacity may stem from a physical or mental or moral disability
4) The impotence must be incurable.
My price concern stems from the requirement that the disability, mental in this case, must be found to
There will, therefore, be a declaration that the marriage in question is void.
Aisaican v. Kahnapace, Saskatchewan Q.B., 1996
The applicant seeks to annul her marriage to the respondent on the basis that he is impotent and
cannot consummate the marriage.
The parties did not engage in sexual intercourse whatsoever after the date of marriage.
The respondent was, two weeks prior to marriage, shot by persons unknown and as such, is a
quadriplegic and is incapable of having intercourse.
What is not so clear is the incapacity of the respondent’s incapacity to engage in sexual intercourse.
RATIO: If the petitioner knew of the respondent’s incapacity prior to the marriage and married him
despite that knowledge, she too ought to be denied a decree of nullity.
In Norman v. Norman, the Ontario Unified Family Court held that where the parties have married for
companionship and separate because of a quarrel rather than the lack of sexual contact, it is not open
to the applicant to complain of the absence of sexual intercourse.
If the applicant is not entitled to a decree of nullity for the evidentiary reasons previously identified,
the mere fact that the respondent has not opposed the application is irrelevant
Inability to consummate renders a marriage voidable, not void. Accordingly, the marriage continues
to exist until terminated by a declaration of nullity or by divorce.
OUTSIDE THE PROHIBITED DEGREES OF CONSANGUINITY AND AFFINITY
In order for two persons to marry, they must no fall within the prohibited degrees of consanguinity
(relationship by blood) and affinity (relationship by marriage).
Parliament enacted the Marriage (Prohibited Degrees) Act. By virtue of s. 4, this legislation contains
“all of the prohibitions in law in Canada against marriage by reasons of the parties being related”.
Under this act, two persons are within the prohibited degrees only if (i) they are related lineally by
consanguinity or adoption; (ii) they are brother and sister by consanguinity, whether by the whole
blood or the half blood; they are brother and sister by adoption.
NO PRIOR EXISTING MARRIAGE
A marriage is void if one of the parties is, at the time of the marriage, already a party to a prior
Meszaros v. Meszaros, Ontario H.C., 1969
Shortly before the desertion he advised her that he had a wife in Russia but she was unable to verify
RATIO: The rule with respect to the presumption of death is set out in Re Phene’s Trusts (1870):
If a person has not been heard of for seven years, there is a presumption of law that he is
dead; but at what time within that period he died is not a matter of presumption, but of
evidence, and the onus of proving that the death took place within the seven years lies
upon the person who claims a right to the establishment of which the fact is essential.
The second union may therefore be presumed to be valid unless and until it is shown that the person
presumed dead was not in fact dead at the time of the solemnization of the second marriage.
Cruelty was sufficient to come within s. 3(d) of the Divorce Act, 1967-68.
NOTE: Today someone in the same position as Mrs. Meszaros could obtain a divorce under s. 8(2)(a)
of the Divorce Act.
Bate v. Bate, Ontario H.C., 1978
This matter concerns a petition for divorce on the grounds of adultery and three years’ separation.
The wife is also seeking maintenance and costs. The husband opposes the action on the grounds that
the alleged marriage between the petition and the respondent in Las Vegas was void by reason of a
valid marriage subsisting at the time between the petitioner and her first husband.
Issue is whether the parties are presently married. This will depend on whether this court recognizes
the 1957 Nevada divorce purporting to dissolve the marriage between the petition and her first
husband, as a valid and effective divorce in Ontario.
There is no question that the ultimate burden of proof, the risk of non-persuasion, on a balance of
probabilities rests with the respondent.
The marriage was rendered null and void, since it was found that the Las Vegas divorce could not be
recognized in Ontario and the petitioner was found to be married to her first husband.
Banton v. Banton, Ontario General Division, 1998
Lily died from Alzheimer’s disease.
He had cancer of the prostate, his life expectancy was two or three years, his testicles were removed,
he was severely afflicted with deafness, his mobility was also affected.
On January 30, 1991, George Banton executed a will according which his estate was to be divided
equally among his five children.
Banton developed close attachment to a waitress in the restaurant of the retirement home. Muna was
31 years of age.
A notice of continuance of certificate of incompetence to manage one’s own estate was issued.
George Banton and Muna married at her apartment. He stayed at Muna’s apartment on the night of
marriage and returned to the retirement home on the following day.
Mr. Wolfe was instructed that in Benton’s new will, his entire estate would be left to Muna.
George Banton left Lifestyles and moved into Muna’s apartment.
Dr. Silberfeld conducted an assessment of George at the request of his solicitors. He reported that in
his opinion, George had capacity to manage his property and to give a power of attorney.
The Public Guardian and Trustee brought an application and Dr. Chung provided his opinion that
George was incapable of managing property but had capacity to give a power of attorney and
capacity for personal care.
Muna also brought an application to be appointed his statutory guardian in the event that the Court
made a finding of incapacity.
He died on Feb. 14, 1996.
All medical experts agreed that George had capacity to give a power of attorney over property.
The burden is on a person attacking the validity of marriage.
Principle of freedom of testamentary disposition
ISSUE: At the time of execution of those wills, did he have the capacity to do so or was he subject to
undue influence at that time?
Judge concluded that the wills of 1994 and 1995 were invalid because he lacked the testamentary
capacity and Muna had subjected him to undue influence.
Still to determine whether the will of 1991 had been revoked by the deceased’s third marriage in
accordance with the Wills Act, it was necessary to enquire into the validity of this marriage.
Mr. Allen testified that he was aware of the prohibition in the Marriage Act of marriages of persons
who are mentally ill.
Marriage is a legal contract and to some extent is governed by the laws applicable to contracts in
A marriage can be set aside on the ground of duress or coercion of a degree sufficient to negative
He was a willing victim. In my view, George consented to the marriage, and in view of this finding,
it is unnecessary to deal with the questions whether duress makes a marriage void or voidable.
My finding that there was undue influence sufficient to invalidate his testamentary dispositions does
not require a similar conclusion with respect to the marriage from which he obtained benefits of care
A finding of a lack of testamentary capacity does not necessarily determine whether an individual has
the mental capacity to marry.
Ratio: It is well established that an individual will not have capacity to marry unless he or she is
capable of understanding the nature of the relationship and the obligations and responsibilities it
involves. The burden of proof on this question is on those attacking the validity of the marriage and
in my judgment it has not been discharged in this case.
Despite his weakened mental condition, he had sufficient memory and understanding to continue to
appreciate the nature and the responsibilities of the relationship to satisfy what I have described as
the first requirement of the test of mental capacity to marry.
He had capacity to marry and his marriage to Muna was valid. In consequence, his will of January
30, 1991, was revoked and in view of my other findings, he died intestate.
A marriage contracted while one of the parties is insane is void but capable of ratification by
continued cohabitation after recovery.
S. (A.) v. S.(A.), Ontario Unified Family Court, 1988
The applicant was 16 years of age at the time of marriage. Her mother and her stepfather applied
pressure to her to marry the respondent. She was told that there was $2,000 involved. She did not live
with him after the ceremony. The parties never engaged in sexual intercourse and the respondent
subsequently left Canada. The applicant had been sexually abused by her step-father.
The judge concluded that the fact that the respondent entered into the marriage so as to facilitate
residence in Canada did not affect the validity of the marriage.
The Ontario Marriage Act does not render the quality of consent a justiciable issue and the court is
not empower to determine whether the consent was given too readily, or indeed, for an improper
motive. (parent consent)
Further, the judge held that lack of parent consent did not affect the validity of the marriage under the
[Duress] The conduct contended by Mr. Rogers to constitute duress was pressure of a non-physical
Public policy still requires that marriage should not be lightly set aside.
At this point in time there seems no need for parties to turn to the law of nullity simply to obtain
relief denied them by divorce law.
RATIO: To constitute duress, it must be established that the applicant’s mind was so overcome by
oppression that there was an absence of free choice. The point that falls for decision is whether the
consent given at the time of the ceremony was a real, understanding and voluntary consent.
RATIO: The determination involves consideration of all relevant circumstances, including the age of
the applicant, the maturity of the applicant, the applicant’s emotional state and vulnerability, the lapse
of time between the conduct alleged as duress and the marriage ceremony, whether the marriage was
consummated, whether the parties resided together as man and wife and the lapse of time between the
marriage ceremony and the institution of the annulment proceeding.
I am satisfied that the applicant has discharged the onus of proof and is entitled to a declaration of
Consent obtained by duress renders a marriage voidable on the application of the aggrieved party.
Thoompson v. Thoompson, Saskatchewan Q.B., 1971
Once the wedding plans were underway, the plaintiff was not able to muster sufficient courage to
cancel them, because of the social consequences insofar as her family was concerned. She contended
that she was afraid of the creation of a rift between her and her family. The plaintiff’s mother exerted
influence on the plaintiff to continue with the plans. The marriage was consummated.
RATIO: Exertion of influence to marry is not a sufficient ground for rendering a marriage annulled.
Pascuzzi v. Pascuzzi, Ontario H.C., 1955
It was intimated to the plaintiff that if she and the defendant were married no criminal charges would
After a reference to the law of duress, the court held that the marriage between the plaintiff and the
defendant should be declared a nullity.
DURESS THRESHOLD IS HIGH.
Parihar v. Bhatti, B.C. S.C., 1980
Had she wanted to alienate herself completely from her family, probably necessitating leaving home,
she could have refused to go through with the marriage.
The evidence does not satisfy me the marriage ought to be declared null and void.
LIMITED PURPOPSE MARRIAGES, FRAUD AND MISTAKE
Canadian courts have generally held that a marriage is valid even if one party enters into it only for
immigration purposes. The same result follows if both parties are aware that this is the sole purpose
of the marriage.
Iantsis v. Papatheodorou, Ont. C.A., 1970
“English cases consistently lay down the rule that neither a fraudulent nor an innocent
misrepresentation will of itself affect the validity of a marriage unless, of course, the
misrepresentation induces an operative mistake, e.g. as to the nature of the ceremony or deception as
to the identity of one of the persons to the marriage, as whom A is induced to marry B, believing that
she is marrying C.
S. (A.) v. S. (A.)
“The mere fact, therefore, that parties go through a form of marriage for a limited or extraneous
purpose will not, of itself, render the marriage invalid.”
Even if the immigration marriage is valid, the immigrant’s desire to enter into or remain in Canada
may be frustrated.
Seeing that essential mistake nullifies consent, one should think, on principle, that it renders the
marriage null and void, not only voidable.
Legebokoff v. Legebokoff, B.C. S.C., 1982
The marriage of a child less than 7 years is void. The marriage of a male older than 7 years but
younger than 14 years, or a female older than 7 years but younger than 12 years is voidable at the
instance of the infant upon his or her attaining the requisite minimum age. Further, a marriage where
either or both parties were under age becomes validated if they continue to cohabit as husband and
wife after reaching the age of capacity.
Under the criminal Code, generally the age of consent for sexual acts is 14.
FORMAL VALIDITY OF MARRIAGE
Sin Ontario, the Marriage Act deals with such preliminary formalities as the need for a licence or
banns, who can officiate, the form of the ceremony, and registration of the marriage.
Alspector v. Alspector, Ontario C.A., 1957
The parties had neglected to obtain a marriage licence. The trial judge took the view that both parties
intended to be married in accordance with both Jewish law and Ontario law and that s. 31 of the
Ontario Marriage Act applied.
Section 4(1) of Ontario Marriage Act (Not sure if it’s current)
“No minister, clergyman or other person shall solemnize any marriage unless duly authorized
so to do by licence under the hand and seal of the Lieutenant-governor or of his deputy, or by
certificate under this Act, unless the intention of the persons to intermarry has been published
[by banns] as provided by subsection 2.”
Section 31 of the Ontario Marriage Act
“Every marriage solemnized in good faith and intended to be in compliance with this Act
between persons not under a legal disqualification to contract such marriage shall be deemed
a valid marriage so far as respects the civil rights in Ontario of the parties or their issue and in
respect of all matters within the jurisdiction of this legislature, notwithstanding that the
clergyman, minister or other person who solemnized the marriage was not duly authorized to
solemnize marriage and notwithstanding any irregularity or insufficiency in the proclamation
of intention to intermarry or in the issue of the licence or certificate or notwithstanding the
entire absence of both; provided that the parties, after such solemnization, lived together and
cohabited as man and wife.”
As for Mr. Alspector, it is not unreasonable to conclude that although he knew that a licence had not
been issued he proceeded in good faith believing that a licence was not necessary because of the
intention shortly thereafter to go with the plaintiff to reside in Israel.
The appeal should be dismissed with costs.
McKenzie v. Singh, B.C. S.C., 1972
Plaintiff, then 18 years of age- a female acquaintance told her that she could arrange for her to be
paid $200 if she would marry someone in the name only.
I reject the contention of plaintiff’s counsel that the plaintiff went through the ceremony of marriage
because of fear and that there was therefore no real consent on her part.
s. 21 of the Marriage Act reads;
“No irregularity in the compliance with section 19 and 20 invalidates a marriage solemnized in
pursuance of these section if the marriage is entered into in a good faith.”
Ordinarily, a claim of lack of good faith is made by someone against someone else. Here the plaintiff
was guilty of lack of good faith.
Section 21 does not say directly that if the marriage is not entered into in good faith it will be invalid
if the provision of ss. 19 and 20 are not complied with, but I think it does so by clear necessary
The nullity declaration was granted.
Section 5(2) of the Ontario Marriage Act directs licence issuers to refuse to issue licences to anyone
Section 6 of the Ontario Marriage Act allows a court to dispense with the need for parental consent.
THE EFFECT OF INVALIDITY
With regards to insanity, essential mistake, and non-age, Professor Hahlo takes the view that the
marriage might be void but capable of ratification.
TABLE OF IMPEDIMENTS AND DEFECTS (PAGES 137, 138)
Force, Fear, duress Marriage voidable at instance of coerced party
THE EFFECTS OF THE VOID/VOIDABLE DISTINCTION
A void marriage is regarded as never having taken place. A voidable marriage is one that will be
regarded by every court as a valid subsisting marriage until a decree annulling it has been
pronounced by a court of competent jurisdiction.
The validity of a voidable marriage can only be questioned in proceedings brought by one of the
parties to the marriage during the subsistence of the marriage. A voidable marriage can, therefore,
never be challenged after the marriage is ended by the death of on of the parties.
CHAPTER 3: DIVORCE Page 141
HISTORY OF CANADIAN DIVORCE LAW
Prior to 1968, the divorce law varied from province to province. In Newfoundland and Quebec, there
was no judicial divorce.
The Divorce Act, 1930 introduced judicial divorce into Ontario.
The grounds for divorce in Ontario were those specified in the English Matrimonial causes Act,
1857, as modified by the Divorce Act, 1925.
In 1967, a husband could obtain a divorce only by proving his wife’s adultery, while a wife could
petition on the grounds of adultery, rape, sodomy, bestiality or bigamy.
Section 23 of the Divorce Act of 1968 repealed all prior divorce laws. This statute provided, for the
first time, a Canada-wide law of divorce.
The matrimonial offences were grounds for divorce in Canada prior to 1968. the 1968 Divorce Act
introduced concept of permanent marriage breakdown as a ground for divorce. Section 4 of the act
provided that where a husband and wife were living separate and apart a petition could be brought on
the ground that there had been a permanent breakdown of marriage by reason of one of the
circumstances listed in s. 14(1). A petitioner could rely on the permanent marriage breakdown
ground only by establishing one of the following circumstances.
Section 4(1)(a): Imprisonment
Section 4(1)(b): Alcohol or Narcotic Addiction
Section 4(1)(c): Whereabouts of Spouse Unknown: for a period of not less than 3 years
Section 4(1)(d): Non-consummation, a period of not less than one-year
Section 4(1)(e): Separation and desertion: period of not less than 3 years, deserting spouse: 5 years
Section 3 retained the matrimonial offence basis for divorce.
DEPARTMENT OF JUSTICE, EVALUATION OF THE DIVORCE ACT, 1990
On June 1, 1986, the Divorce Act came into force. The stated objectives where:
(a) make the divorce process less adversarial and increasing chances for the reconciliation of the
(b) To provide a more humane and fairer resolution
(c) To recognize provincial responsibilities
Adversarial approach was seen not only as inappropriate but as also intensifying and exacerbating
pain and suffering and impeding the likelihood of an amicable settlement.
The “best interest of the child” principle became the sole basis for awarding custody.
The Divorce Act
Adoption of marriage breakdown as the sole ground for divorce, the reduction of the separation
period from three of five years to one year.
Adultery and mental and physical cruelty are retained but they are not viewed, along with one-year
separation as methods of demonstrating marriage breakdown.
In principle, use of these former fault grounds would allow for immediate divorce. In practice, since
it is possible to file for divorce before having actually lived separate and apart for one year, it is
debatable whether there would be much time advantage in choosing one of the methods over another.
Reconciliation and Mediation:
The provision in the 1968 Divorce Act, requiring lawyers to inquire as to the possibility of
reconciliation and to advise clients of marriage counselling services in the community, is retained in
the new legislation. Lawyers are now under the additional legal obligation to advise their clients
about the advantages of negotiation and of the divorce mediation services available in their
For purpose of reconciliation, it is now possible for couples to make several attempts at cohabitation
as long as the total time does not exceed 90 days.
Spousal and Child Support
In making an order for support, the Divorce Act specifies the court shall not take into consideration
fault or misconduct of the spouse in relation to the marriage.
Courts are also direction to take into account four objectives of support:
(a) to recognize any economic advantages or disadvantages to the spouses arising from the
marriage or its breakdown.
(b) To apportion between the spouses any financial consequences arising from the care of any
child of the marriage over and above the obligations apportioned between the spouses
pursuant to subsection 7.
(c) To relieve any economic hardship of the spouses arising from the breakdown of the marriage;
(d) Insofar as practicable, to promote the economic self-sufficiency of each spouses within a
reasonable period of time.
Child Custody and Access
The sole criteria for the making of an order of custody and access is “the best interest of the child of
the marriage as determined by reference to the conditions, means, needs and other circumstances of
Eliminate the consideration of past conduct
Legislation recognizes joint custody
Parties to the divorce may now petition jointly when, presumably, no matters are in dispute. The
second is that the necessity, under the previous legislation of a trial has not been eliminated.
Provinces are now permitted to make rules by which, if no matters are to be litigated, divorce may be
granted by a judge without an oral hearing.
Under the 1968 DA, an innocent spouse had considerable bargaining power if the other spouse
wished an immediate divorce because the latter would have to wait 5 years before petitioning.
By the time a divorce proceeding instituted on the basis of either cruelty or adultery is determined by
the court, the parties may have been living and apart for over a year. The allegations of fault are then
irrelevant to the granting of the divorce. The court may decline to determine if the adultery or cruelty
is proved and simply use the separate and apart ground.
Even if a divorce is based on no-fault grounds, cruelty may be relevant to other issues such as
possession of the matrimonial home, spousal support and custody and access.
The vast majority of divorces in Canada today are uncontested.
Where the divorce is uncontested but collateral issues such as property or support remain in dispute, a
court has jurisdiction to grant a divorce prior to the trial of the remaining issues.
In 1990, Parliament amended the DA to specify that the court can dismiss an application filed under
the Act or strike out any other pleading filed under the Act if the spouse has failed to remove any
barriers to the remarriage of the other spouse within the latter’s religion.
M. (M.) v. H.(J.)
Same-sex couples, DA redefined spouse, the definition was found unconstitutional
THE SOCIAL CONTEXT OF DIVORCE, AMBERT, DIVORCE: FACTS, CAUSES AND
Almost one in every three Canadian couples (31%) who married in 1991 will eventually split up if
the 1991 divorce rate prevails.
1998: 44% in the US
Annual Divorce Rate in Canada:
Divorce rates have gone down substantially during the 1990s.
Divorce has greatly increased since 1968 when the Divorce Laws entered into effect; in fact, we have
experienced a five-fold increase from 1968 to 1995. divorce rates peaked in 1987 in Canada.
Adults b/w 25 to 45: age range most susceptible to divorce
The U.S. has actually the highest divorce rate in the western world.
At least 15% of divorces are redivorces for one or both spouses.
Both in Canada and the U.S., children are predominantly in the physical custody of their mother.
Only about 10 to 12% of children live with their father – a percentage which has not changed much
over the years. However, joint custody has become more common and now accounts for about 30%
of custody cases.
Approximately 70% and 58%, respectively, of divorced men and women remarry in Canada,
In 2001, 12% of families composed of a couple with children were stepfamilies.
Remarriages after a divorce have a higher rate of dissolution, probably 10% higher.
Common-law unions are increasing for all age groups, but remain more frequent among the younger
In 1996, 47% of all cohabiting unions included children.
Cohabitations are definitely not as stable as marriages and this is true both in the U.S. and Canada.
Couples who cohabit before marriage divorce more than others.
Lesser commitment than marriage
Higher rates of premarital violence
Reasons behind rapid rise of divorce in Canada and other western countries in the second part of the
Marriage has become an individual choice rather than a covenant before God
Easier divorce laws
Trends toward individualism: rights rather than duties
Lower treshold of tolerance
Demographic factors: (risk factors)
Low incomes and poverty
Low religiosity: racial heterogamy
Consequences of Divorce: The two most salient consequences of divorce are property and an
increased risk for the development of problems among the children involved.
Women’s poverty rises from 16% before divorce to 43% after divorce.
In 1994, 21% of all children lived in poverty but an astounding 65.8% of children in single-families
Children whose parents are divorced are more likely to:
Suffer from depression, anxiety and other emotional disorder
Exhibit behavioural problems
Become young offenders
Do less well in school
Have more relationship problems
Have achieved lower educational levels
Be more often unemployed
Have more marital problems and divorce more
Have less happy childhood
Six major explanations for children’s negative outcomes following a parental divorce:
Parents are less responsive to their children’s needs and are depressed
Continued parental conflict
Some of the causes of divorce are actually in part causes of the troubled home in which the
children lived during their parents’ marriage.
Girls adapt generally better to divorce although not necessarily to the remarriage of a custodial
Children between 4 and 10 may be the most negatively affected.
The spouse who is left generally suffers more, at least in the first three years.
Divorce is or should be a good thing when there is abuse, alcoholism and severe conflict.
For society as a whole, the dissolution of average to very good marriages and cohabitations, is a
costly proposition. (juvenile delinquency, welfare costs, health costs and loss of productivity)
As institutions, divorce and remarriage are not necessarily in the best interest of the children.
A sizeable proportion of marriages that end in divorce were actually quite salvageable and that many
of these ex-spouses are no happier.
Severe conflict afflicts only about a third of divorcing couples.
In 1997, the federal government introduced legislation adopting child support guidelines and ending
the tax regime whereby child support was a deduction from the payor’s income and an inclusion in
the recipient’s income.
Conflict of Laws:
Hinter v. Hinter, 1996, Ontario general Division
Questions of jurisdiction
He has come to Ontario periodically. He stayed with the wife in their home in Toronto. The wife
started an intimate relationship with a man who resides in Florida. The wife started her first Florida
action in 1995 in which she swore that she lived in Florida. She later reaffirmed it. the wife’s 1995
tax return is filed on the basis that she is a resident of Ontario. The wife is in Florida now. She has
provided no evidence as to when she plans to return to Toronto.
I find that the husband is not ordinarily resident in Ontario.
Section 3(1) of the Divorce Act reads as follows:
“A court in a province has jurisdiction to hear and determine a divorce proceeding if
either spouse has been ordinarily resident in the province for at least one year
immediately preceding the commencement of the proceeding.”
Thompson, “ordinarily resident: in a place where in the settled routine of his life, he regularly,
normally or customarily lives.”
Based on the governing case law as set out above and on the particular circumstances of this case, it
is clear and obvious that this court does not have jurisdiction to entertain the petitioner’s claim for a
The wife has exclusive possession of the condominium in Florida. She has established a personal
relationship with a gentleman there, and has worked in the business.
The wife gave two separate sworn statements in December of 1995 in which she referred to herself as
a resident of Florida.
The wife has not been ordinarily resident in Ontario for “at least one year immediately preceding the
commencement of the proceeding” on march 1996, as required by section 3(1) of the Divorce Act.
By virtue of s. 6(1) of the Divorce Act, where a divorce proceeding involves an application for a
custody or access order that is opposed and the child concerned is most substantially connected with
another province, the court having original jurisdiction may transfer the divorce proceeding to a court
in that other province.
CASTEL AND WALKER, CANADIAN CONFLICT OF LAWS
Canadian divorces have legal effect throughout Canada pursuant to section 13 of the 1985 Divorce
Section 22(1) applies to foreign decrees granted after June 1, 1986, the date of coming into force of
the Act. Degrees granted before June 1, 1986 continue to be subject to the old rules as to recognition.
The important change involves the adoption of the test of ordinary residence of either spouse in the
foreign country for at least one year immediately preceding the commencement of the proceeding for
the divorce. In other words, if either spouse was ordinarily resident in the granting country for at least
one year immediately preceding the institution of the proceeding, the decree will be recognized in
Canada even if the foreign court took jurisdiction on a different ground.
In Canada, the basic common law jurisdictional rule of recognition was the domicile of both souses
in the foreign jurisdiction at the commencement of the proceeding combined with the now obsolete
common law rule that upon marriage the wife acquires the husband’s domicile.
The jurisdictional bases on which the foreign divorce decrees are recognized by Canadian courts
have been summarized as follows:
(i) where jurisdiction was assumed on the basis of the domicile of the spouses;
(ii) where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is
recognized by the law of the domicile of the parties;
(iii) where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in
(iv) where the circumstances in the foreign jurisdiction would have conferred jurisdiction on a
Canadian court had they occurred in Canada;
(v) where either the petitioner or the respondent had a real and substantial connection with the
foreign jurisdiction wherein the divorce was granted; and
(vi) where the foreign divorce is recognized in another jurisdiction with which the petitioner
or respondent has a real and substantial connection.
One would anticipate that it might be slightly more difficult to have a foreign decree recognized in
Canada on the basis of ordinary residence of less than a year.
Where a divorce has been granted in a place in which the petitioner had resided for substantial
periods of time in the past, the real and substantial connection might be established upon returning
for less than a year.
Domicile: the jurisdiction other than a person’s domicile of origin, in which a person resides with the
intention to remain there permanently
If a person abandons his or her domicile of choice without acquiring a new one, that person’s
domicile is once again his or her domicile of origin.
(1) LIVING SEPARATE AND APART
Rushton v. Rushton, 1968, B.C. S.C.
The parties begun to live separate lives, although they continued to reside in the same suite in an
apartment building. Sexual intercourse ceased entirely. The wife performed no domestic services for
the husband. They followed separate and individual lives.
I am of the opinion that in the case at bar the parties have been living separate and apart for 3 yrs
within the meaning of s. 4(1)(e)(i) of the Divorce Act.
RATIO: There must be a withdrawal from the matrimonial obligation with the intent of destroying
the matrimonial consortium, as well as physical separation. Two conditions must be met.
Dupere v. Dupere, 1974, C.A.
They continued to live under the same roof. They had two children. In the fall of 1968, the petitioner
moved in with the respondent and normal marital relations were resumed for about a month. They
began to occupy separate bedrooms. No sexual intercourse between them took place since that time.
The petitioner has supported the home, has clothed his wife and family and has given the respondent
a $20 weekly allowance. The respondent says she was just a maid. There was often mutual discussion
There can be a physical separation within a single dwelling unit.
To meet the statute, there must be both (a) physical separation and (b) a withdrawal by one or both
spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium.
The petition is dismissed.
Cooper v. Cooper
RATIO: Holland J. pointed out that generally a finding that spouses were living separate and apart
was made where the following circumstances were present:
(i) Spouses occupying separate bedrooms.
(ii) Absence of sexual relations
(iii) Little, if any, communication between spouses.
(iv) Wife providing no domestic services for husband.
(v) Eating meals separately.
(vi) No social activities together.
Dorchester v. Dorchester, 1971, B.C. S.C.
The petitioner took his wife to the hospital for treatment of a mental illness. The parties had not
cohabited since the admission of the wife to the said hospital.
A serviceman may be posted overseas and be away from his wife for over 3 years without the parties
living “separate and apart” within the meaning of the Act.
I am unable to find that the spouses had been living separate and apart for a period of not less than 3
years immediately preceding the presentation of the petition.
Under the 1985 Divorce Act, the one-year period of separation need not immediately precede the
commencement of the divorce proceeding, merely its determination. The parties must, however, be
living separate and apart at the commencement of the proceeding.
Rogler v. Rogler, 1977, Ontario H.C.
The husband and wife separated in September 1973 and the divorce proceedings commenced on 28th
December 1976. In or about fall of 1974, the parties had sexual intercourse and the only issue is
whether this sexual intercourse interrupted the period of living separate and apart. They did not live
together. He did not eat at the house; she performed no services for him.
In the case at bar the only element which existed was that of sexual intercourse.
I therefore find that the acts of sexual intercourse did not interrupt the period of living separate and
Cohabiting for a period of not more than 90 days with reconciliation as its primary purpose.
Section 8(3)(b)(ii) is only one of the provisions of the DA designed to encourage attempts at
Nature of Adultery: Under s. 8(2) of the Divorce Act, the breakdown of marriage is established if the
respondent to a divorce application has committed adultery since the celebration of the marriage.
Oxford v. Oxford, 1921, Ontario H.C.
The wife sought alimony. The husband responded by claiming that the wife had committed adultery.
At that time, a wife’s adultery was a complete bar to alimony. She denied having sexual intercourse
with another man and claimed that the child had been conceived as a result of artificial insemination.
Mr. Justice Orde:
Adultery was always regarded as an invasion of the marital rights of the husband or the wife.
RATIO: The essence of the offence of adultery consists of voluntary surrender to another person of
the reproductive powers or faculties of the guilty person.
If such a thing has never before been declared to be an adultery, then, on grounds of public policy,
the Court should now declare it so…
Maclennan v. Maclennan, 1958, Scotland Ct. Sess.
The husband seeks decree of divorce from the defender on the ground of her adultery.
She claims that she conceived the child not as a result of sexual intercourse with another man but as a
result of artificial insemination from a donor.
She has committed a grave breach of the contract of marriage.
Self-adultery is a conception as yet unknown to the law.
RATIO: Artificial insemination by a donor does not constitute adultery according to our law.
PROOF OF ADULTERY, STANDARD AND NATURE OF PROOF
Shaw v. Shaw, 1971, T.D.
I granted a decree nisi in the divorce petition by Mr. Shaw on the ground of cruelty.
There is no direct evidence of any adulterous relationship.
“Since it is never possible to adduce direct evidence of the act of adultery its commission is permitted
to be proven by evidence of acts or a course of conduct which convinces the court that it should infer
that it did occur. The standard required is the ones used in civil actions where the preponderance of
probabilities determine the issues.”
They were seeing s much of each other that the opportunities for her to commit adultery were
I am not led to conclude that adultery was committed.
A civil standard of proof applies to determine if adultery has been established. Finding of adultery no
longer affects any property or support rights.
Direct evidence of adultery is obviously rare.
Knoll v. Knoll, 1970, Ontario C.A.
Petition for a divorce based on the husband’s cruelty. The husband drank heavily. The husband’s
abusive conduct towards her after he drank. The husband assaulted his wife on a number of
occasions. He was very rude and disrespectful when inebriated. She has high blood pressure and was
RATIO: The determination of what constitutes cruelty in a given case must depend upon the
circumstances of the particular case, having due regard to the physical and mental condition of the
parties, their character and their attitudes towards the marriage relationship.
RATIO: Conduct amounting to mental cruelty of such a kind as to render intolerable the continued
cohabitation of the spouses.
Gilbert v. Gilbert, 1980, N.S. T.D.
The wife left the family home with her daughter, stating that life with her husband had become
intolerable. The wife petitioned for divorce, alleging mental cruelty. Her complaint was that the
husband had a domineering personality and often criticized her.
I do not think that the acts of which she complains constituted mental cruelty. The acts accompanies
of were not grave and weighty.
I am not satisfied that the difficulties the petitioner had over the last year of their marriage can be
attributed to conduct of the respondent that constituted mental cruelty.
Delaney v. Delaney, 1971, Ontario C.A.
The husband had persistently refused to gratify her wishes.
The erosion of her self-esteem, the feelings of despair and frustration did have unwholesome
consequences upon the petitioner’s mental and physical health.
The continued cohabitation was rendered intolerable b/c of the conduct of the husband
B.(Y.) v. B.(J.), 1989, Atla. Q.B.
The respondent had admitted to me and to my eldest daughter that he is a practising homosexual.
RATIO: The conduct relied upon to establish cruelty must be intolerable to the petitioner.
The petitioner must provide some basis for a court’s determination that the husband’s conduct made
continued cohabitation with him intolerable to her. in this case, there is not even an assertion by her
to that effect.
The courts held that s. 3(d) of the Divorce Act of 1968 incorporated both a subject and objective test.
BARS TO PROCEEDINGS:
Section 11 of the Divorce Act indicates that it is the duty of the court to ascertain whether or not any
of the relevant bars exist, even if neither parties raises this issue.
Section 11(1)(a) of the 1985 DA retains collusion as an absolute bar to an application of divorce.
SOPINKA, “THE DIVORCE ACT, 1968:COLLUSION CONFINED”
In order to eliminate the uncertainty in the law of collusion, Parliament has narrowed the definition of
collusion. Parliament intended to remove the taint of collusion from those troublesome agreements
by which divorce proceedings are agreed to be brought in return for financial benefits by way of
support or for division of marital property and costs.
The bars of collusion has caused problems in some immigration marriages where a person agrees to
marry another solely to allow the latter to obtain favourable immigration status.
The purpose of the bar of condonation is to prevent a spouse who agrees to resume or continue
cohabitation with a partner who has committed a matrimonial offence from holding that offence over
the other’s head forever afterwards.
Leaderhouse v. Leaderhouse, 1970, Saskatchewan Q.B.
Condonation has not been made absolute by s. 9*2( of the 1968 Act.
RATIO: Condonation of a matrimonial offence requires three essential elements, namely:
(1) A knowledge by the innocent spouse of the matrimonial offence which has been committed
by the other spouse.
(2) An intention by the innocent spouse to forgive and remit the offence – an animus remittendi.
(3) The reinstatement in his or her marital position of the guilty spouse by the innocent one _ the
factum of reinstatement.
There must be both forgiveness of the offence and reinstatement of the erring spouse: Blyth v. Blyth.
“restoring the offending party to the same position which or she occupied before the offence was
Mutual desire of the spouses for reinstatement is also required: An innocent spouse who desires to
condone the offence which has been committed by the guilty spouse and thus resume their married
life together cannot bring such to pass unless the guilty spouse is willing that such be done.
The courts in the most of the modern cases do not find condonation despite the fact that the parties
have engaged in sexual relations.
Continued or resumed cohabitation may not lead to a finding of condonation. Continued or resume
cohabitation may not establish that an actual reconciliation has occurred.
Notwithstanding condonation, s. 11(1)(c) of the Divorce Act empowers a court to grant the divorce if
“the public interest would be better served by granting the divorce”.
Under the doctrine of revival, condonation was always condition upon the other spouse not
committing a further matrimonial offence.
Notwithstanding the abolition of the doctrine of revival, it appears settled that the court may examine
a respondent’s condoned conduct to determine if a subsequent act or course of conduct amounts to
Maddock v. Maddock, 1958, C.A.
Two drivers became friends. They and their wives associated together frequently. As he was moving
out, he met his friend going into the house with his clothes. The trial judge on the facts found
I am unable to place a construction upon the evidence which would support his conclusion that the
plaintiff was guilty of connivance which precluded his right to a decree dissolving marriage.
It is well recognized, of course, that a petitioner m ay connive at adultery otherwise than by giving an
express consent. If, with a corrupt intention, he stands by and permits the act to take place he would
be guilty of connivance by acquiescence.
RATIO: Connivance may consist of any act done with corrupt intention of a husband or wife to
promote or encourage either the imitation or the continuance of adultery of his or her spouse, or it
may consist of passive acquiescence in such adultery.
There is a presumption of law against the existence of connivance and the Court should not find a
spouse guilty of connivance unless the evidence shows clearly that all the essential ingredients
thereof exist in the particular facts under consideration.
Fleet v. Fleet, 1972, Ontario C.A.
We also point out that it would not be connivance even if the misconduct had not commenced at the
time the petitioner and her witness arrived.
The learned trial judge appeared to be of the opinion that at any time a petitioner becomes aware that
the adultery may take place it is incumbent upon the petitioner to stop it or become disentitled to any
relief by reason of connivance. In our view this is not the law.
Section 11(1)(c) of the Divorce Act authorizes a court to grant a divorce notwithstanding connivance
if this serves the public interest.
REASONABLE ARRANGEMENTS FOR THE SUPPORT OF CHILDREN
Orellana v. Merino, 1998, Ont. Gen. Div.
There are two children of this marriage. The girls have lived with their mother since separation. The
respondent is required to pay 50 dollars per month per child.
He has not exercised access at all since the summer of 1996. he is in arrears of child support. He
declined to disclose his address. The applicant is currently engaged to be married and her partner acts
as a father to the children. The applicant’s partner is prepared to support the children.
The Child Support Guidelines clearly intend to offer consistency to Canadian children by requiring
Canadian parents to meet their financial obligations to their children in a fair, consistent and
predictable manner. What the applicant seeks would, in my view, represent a complete abrogation of
the court’s obligations and a direct contravention of the intent and principles of the Child Support
It is not for the applicant to choose not to bother to try to obtain reasonable support.
The primary financial obligation remains with the natural parents of these children.
Unless the applicant’s primary partner intends to adopt the children, the respondent’s obligation to
his daughters continues.
The divorce was stayed on the 1st of June, 1998. there is nothing properly before the court upon
which the court could or is willing to exercise its discretion to change the status.
Pursuant to s. 11(1)(b) of the Act, a judge must stay the granting of a divorce unless he or she is
satisfied that reasonable arrangements have been made for the children’s support.
If a custodial parent is able to support the child and is prepared to do so, a court should grant the
custodial parent’s application for divorce regardless of whether the non-custodial parent is paying
sufficient child support.
The Divorce Act puts an onus on a petitioner to explain why a judge does not have to worry about the
children’s financial needs. There must be some evidence before a judge that the children’s needs will
be met. A petitioner’s divorce affidavit or testimony must address child support.
Evidence in divorce proceedings may be by viva voca testimony or an affidavit. It is a small matter
for the lawyer to take the evidence in the letter and put it into an affidavit for the wife to swear.
She stated that she did not have sufficient information to justify an application to increase child
support and that her new partner, whom she planned to marry, could and would support the children.
Campbell J. wasn’t convinced. With respect it is submitted that the wife’s explanation, if contained in
an affidavit, should be sufficient to satisfy the onus under s. 11(1)(b) of the Divorce Act. The
children’s needs will be met and the Sate will not be called upon to contribute a child support.
Campbell J. seems to ignore the fact that it costs money to bring a support claim.
Campbell J. states that the step-father’s willingness to support the children is insufficient to satisfy
the onus under s. 11(1)(b) because the primary financial obligation remains with the natural parents
of the children. With respect, even if this were true, it is no reason to deny the divorce.
A natural parent’s child-support obligation does not have priority to a step-parent’s obligation
pursuant to the Divorce Act or the Family Law Act. It is submitted that as long as someone with a
legal obligation to support a child will do so, a court should not delay a custodial parent’s application
for divorce: Zarebski v. Zarebsi.
WILLENBORG V. WILLENBORG, 2001, SASKATCHEWAN Q.B.
They have three children. $250 per month per child.
The petitioner is effectively receiving one-half or less of what parliament has presumed to be the
appropriate child support payable.
On its own this is not a reasonable arrangement having regard to the Guidelines.
There will be an order staying the granting of any judgment of divorce until either reasonable
arrangements have been made or the Court can be satisfied that the present arrangement satisfies the
criteria of s. 11(1)(b).
McIllwraith v. McIllwraith, 1999, N.B. Q.B.
The husband earned only $15,000 per year. Under an informal agreement, he purchased cloths worth
$700 a year for his daughter and also spent $500 per year on trips so that the child could spend
almost every long weekend and school holiday at his home. Under the Guidelines, the husband would
be required to pay $118 per month to his wife as child support. Justice Gurette considered the
arrangement reasonable, granted the divorce. He suggested:
When the parties request a court to confirm their private support arrangements because they
deem them to be satisfactory for their situation, a court should be loathe to change them.
Such arrangements, when freely entered into, are an important manifestation of their
wishes to resolve issues between themselves and should accordingly be given appropriate
weight by the court.
Professor Thompson notes that not all courts take this deferential view in applying s. 11(1)(b) of the
Divorce Act. He adds
In my view, the correct approach is taken by justice Guerette. If the parties are able to agree
upon something reasonably close to the table amount, then squeezing out that extra few
dollars to achieve certainty and consistency sacrifices the objective of encouraging
RECONCILIATION AND CONCILIATION
S. 9(1) of the Divorce Act imposes upon every legal advisor in all cases except where the
circumstances of the case are of such a nature that it would clearly not be appropriate.”
Section 9(1)(a) requires a lawyer to draw to the attention of the spouse “those provisions of this Act
that have as their object the reconciliation of spouses”.
It is also the duty of every legal advisor to inform the spouse of the marriage counselling or guidance
facilities known to the advisor that might be able to assist the spouses to achieve a reconciliation.
Finally, each legal advisor is required to discuss with the spouse “the possibility of the reconciliation
of the spouses”.
Section 9(2) of the Divorce Act encourages the use of mediation to resolve corollary matters.
Section 10(1) of the Divorce act requires the court “before considering the evidence, to satisfy itself
that there is no possibility of the reconciliation of the spouses, unless the circumstances of the case
are of such a nature that it would clearly not be appropriate to do so.”
If the possibility of reconciliation appears to exist, the court is obliged by s. 10(2) of the Divorce Act
to adjourn the proceedings and may nominate a marriage counsellor to assist the parties to achieve a
reconciliation. Where the proceedings are adjourned, either spouse may apply after 14 days for a
resumption of the proceeding: s. 10(3).
EFFECTIVE DATE OF DIVORCE
Generally, the divorce takes effect on the 31st day after the day on which the judgment granting the
divorce is rendered: s. 12(1). If an appeal is launched the divorce takes effect when the appeal pocess
is exhausted: s. 12(3)-(6).
The norm of separate property was itself introduced in the 19th century by a series of Married
Women’s Property Acts as a response to the doctrine of unity of legal personality. According to this
doctrine, the husband and wife became one legal personality upon marriage. In effect, the common
law treated the husband as that legal personality.
The common law compensated to some extent for the wife’s loss of legal personality. A husband was
liable for his wife’s ante-nuptial debts, her torts and for debts incurred by her marriage to procure
necessaries of life.
The courts became more and more concerned with the actual intentions of the parties in order to
determine if the contribution to family life should be considered a contribution to the acquisition of
property. Contributions through household management and child-raising were not treated as relevant
contributions giving rise to a presumption of resulting trust.
For many, the notorious Murdoch case illustrated the inability or unwillingness of the courts to use
equitable principles to achieve justice between spouses on marriage breakdown. Murdochs worked
on the ranches. In 1947, the husband and his father-in-law purchased a guest ranch for $6000. The
husband paid half of purchase price. Laskin J. pointed out that an indeterminate part of the husband’s
share of the purchase price of this first property came from savings from the earnings of the couples,
which were received by the husband. The ranch was sold in 1951 and he received $3500 from the
proceeds of sale. After separation in 1968, Mrs. Murdoch claimed an interest in the ranch in her
husband’s name. The majority of the SCC applied a resulting trust analysis. It was held that she
couldn’t establish a financial contribution. It was held that her contribution through physical labour
was not adequate. B/c her contribution could be characterized as the performance of the usual duties
of matrimony, it could not by itself raise the presumption of resulting trust. Laskin J. Dissented. He
held that the wife had made a modest financial and a substantial physical contribution to the
acquisition of the ranch.
The use of the constructive trust as a remedial or restitutionary device in property disputes was
approved by three SC justices in Rathwell v. Rathwell and adopted by a majority in Pettkus v. Becker.
Ontario Family Law Reform Act: destroying the vestiges of unity of personality and abolishing the
presumption of advancement between husband and wife and also where the husband and wife took
property as joint tenants, the presumption was that the beneficial interest was also held jointly (s. 14
of FLA), preclude the characterization of a spouse’s contribution to the acquisition of the property as
that of a reasonable spouse in the circumstances where applying the concept of resulting trust.
The Family Law Reform Act, 1978
Featured deferred sharing of some assets coupled with considerable judicial discretion
The norm for the division of family assets was that of equal division, although there was authority to
divide these assets unequally.
Problems: Support rules, it seemed odd that only assets used fro family purposes were subject to the
general rule of equal division, the act did not distinguish b/w property acquired before or after
marriage, it provided considerable judicial discretion, no prima facie right to share equally the value
of pensions build up during the marriage.
Once the marriage has broken down, the profits of the marriage are divided equally b/w spouses.
Unmarried couples are not covered by Part I of the FLA.
When the Nova Scotia Court of Appeal held in Walsh v. Bona that the omission of unmarried
opposite-sex couples from the Martimonial Property Act, constituted unjustified discrimination on
the basis of marital status contrary to s. 15 of the Charter, the legislature responded by enacting a
registered domestic partnership scheme. Under this scheme, two individuals, whether of the same sex
or of opposite sexes, who are cohabiting or intend to do so can formally register a domestic-partner
declaration. Registration accords the domestic partners the same rights and obligations as spouses
under 17 statutes, including the Matrimonial Property Act.
The SCC’s decision in Walsh v. Bona surprised many observers. The court’s holdings in Miron v.
Trudel and M. v. H. appeared to call into question the constitutionality of all legislation that
differentiated between married and unmarried couples or between unmarried opposite-sex couples
and same-sex couples.
Walsh v. Bona, 2002, SCC
Charter challenge to the Nova Scotia Matrimonial Property Act
Whether the Act’s failure to include unmarried cohabiting opposite sex couples from its ambit
violates s. 15(1).
The distinction chosen by the legislature does not affect the dignity of unmarried persons who have
formed relationships of some permanence and does not deny them access to a benefit or advantage
available to married persons. It is not discriminatory w/i the meaning of s. 15(1).
Facts: Cohabiting relationship for 10 years, 2 children.
Only registered partnerships are eligible for the benefits of the MPA.
Law v. Canada test (page 229), four contextual factors
They deliberately avoided marriage and it would be unfair to impose a matrimonial property regime
on persons who have chosen not to marry.
Consideration of whether differential treatment is discriminatory must always be done in a purpose
and contextual manner.
Choice must be paramount.
If they so choose, they are able to access all of the benefits extended to married couples under the
Requirement of consensus, be it through marriage or registration of a domestic partnership, enhances
rather than diminishes respect for the autonomy and self-determination of unmarried cohabitants and
their ability to live in relationships of their own design.
Provincial legislation provides that an unmarried cohabitant or common-law partner may apply to a
court for an order of maintenance or support.
For those couples who have not made arrangements regarding their property at the outset of their
relationship, the law of constructive trust remains available to address inequities that may arise at the
time of the dissolution. The law of constructive trust recognizes both pecuniary and non-pecuniary
The essential human dignity of unmarried persons is not violated.
One of the essential charter values is liberty.
Family property regimes such as Ontario's leave little room for judicial discretion to vary the sharing
of the gain that accrued during the marriage.
All the common law provinces now have obligations extending support obligations to unmarried
couples, including same-sex couples, if certain prerequisite are met.
On the other hand, most provinces including Ontario, have limited their family property regime to
THE USE OF TRUST DOCTINRES:
Becker v. Pettkus, 1980, SCC
They were never married. It is not to his efforts alone that success can be attributed. The respondent
Rosa Becker through her labour and earnings, contributed substantially to the good fortune of the
common enterprise. He began to introduce her as his wife and to claim her as such for income tax
purposes. She paid the rent. She bought the food and clothing and looked after other living expenses
and that enable him to save his entire income. The physical participation by Miss Becker in the bee
operation continued over a period of about 14 years. The evidence is clear that they had no express
arrangement for sharing economic gain.
The sought-for common intention is rarely, if ever express; the courts must glean phantom intent
from the conduct of the parties.
Artificiality of the common intention approach has been stressed.
If she is to succeed, constructive trust emerges as the sole juridical foundation for her claim.
RATIO: Constructive trust is imposed without reference to intention to create a trust and its purpose
is to remedy a result otherwise unjust. The principle of unjust enrichment lies at the heart of the
constructive trust. In Rathwell I ventured to suggest there are three requirements to be satisfied before
an unjust enrichment can be said to exist: an enrichment, a corresponding deprivation and absence of
any juristic reason for the enrichment.
The first 2 requirements are clearly satisfied. She received little or nothing in return for her work.
As for the third requirement, I hold that where one person in a relationship tantamount to spousal
prejudices herself in the reasonable expectation of receiving an interest in property and the other
person in the relationship freely accepts benefits conferred by her in circumstances where he knows
or ought to have known of the reasonable expectation, it would be unjust to allow the recipient of the
benefit to retain it.
For the unjust enrichment principle to apply it is obvious that some connection must be shown
between the acquisition of property and corresponding deprivation.
The extent of the interest must be proportionate to the contribution, direct or indirect, of the claimant.
Even division in this case
Sorochan v. Sorochan, 1986, SCC
The central issue is whether a court can impose a constructive trust in a situation where a common
law wife has contributed her labour for a number of years to preserving and maintaining a farm and
doing all of the domestic labour despite the fact that her spouse already owned the property prior to
the date cohabitation commenced.
FACTS: lived together for 42 years, 6 children
There was no juristic reason for the enrichment. She was under no obligation, contractual or
otherwise to perform the work and services in the home or in the land.
She asked him to transfer part of the land into her name. These incidents convince me that he knew
or ought to have known that she had a reasonable expectation of obtaining some share in the land in
return for her long-term commitment to working in the farm and raising the children.
The three pre-conditions for unjust enrichment have been satisfied.
She did not contribute in any way to the acquisition of the farm.
RATIO: The constructive trust remedy should not be confined to cases involving property
acquisition. A contribution relating to the preservation, maintenance or improvement of property
may also suffice.
There is a clear link in this case b/w the contribution and the disputed assets.
A reasonable expectation of benefit
She was awarded title to 1/3 of the farm property by way of constructive trust and also an order for
monetary relief for $20,000 was awarded.
Peter v. Beblow, 1993, SCC
The issue is whether the provision of domestic services during 12 years of cohabitation in a common
law relationship is sufficient to establish the proprietary link which is required before the remedy of
constructive trust can be applied to redress the unjust enrichment of one of the partners in the
FACTS: the appellant with her 4 children moved into the respondent’s home, 2 children of the
respondent were living in the home. Both of them contributed to the purchase of groceries and
household supplies, although he contributed a greater share. She took part-time work as a cook. He
began to drink heavily. At the time of trial, she was on welfare.
There is ample support for the proposition that once enrichment has been found, the conclusion that
the plaintiff has suffered a corresponding deprivation is virtually automatic.
12 years is not an insignificant period of time.
The value of the commitment of a homemaker should to be underestimated.
Where a person provides spousal services to another, those services should be taken as having been
given with the expectation of compensation unless there is evidence to the contrary.
I don’t think that the required link b/w the deprivation suffered and the property in question is as
difficult to establish as it may seem.
As long as there was no compensation paid for the work and services provided by one party to the
family relationship, then if can be inferred that their provision permitted the other party to acquire
lands or to improve it.
Where the relationship is of short duration or where the are no assets surviving its dissolution, a
monetary award should be made.
RATIO: List of factors which I think are helpful in determining that a monetary distribution may be
more appropriate than a constructive trust:
a) is the plaintiff’s entitlement relatively small compared to the value of the whole property in
b) is the defendant able to satisfy the plaintiff’s claim without a sale of the property in question
c) does the plaintiff have any special attachment to the property in question
d) what hardship might be caused to the defendant if the plaintiff obtained the rights flowing
from the award of an interest in the property.
In this case, her principal contribution was made through the provision of domestic service.
It would be both reasonable and appropriate to choose the Sicamous property as the objective of the
There are two methods of evaluation the contribution of a party in a matrimonial relationship. The
first method is based upon the value received. (the amount the defendant would have had to pay for
the services on a purely business basis to any other person doing the work that was provided by the
claimant.) It can be based upon value surviving, which apportions the assets accumulated by the
couple on the basis of the contributions made by each. Value surviving is the approach that has been
traditionally employed in cases of constructive trust.
In this case trial judge chose the first method, but I would observe that the value surviving approach
will often be the preferable method of determining the quantum of a claimant’s share.
In this case, awarding the Sicamous property to the appellant reflected a fair assessment of her
contribution to the relationship.
RATIO: Domestic services by spouse in common-law relationship suffices in triggering the remedy
of unjust enrichment.
Nowell v. Town Estate, 1997, Ontario Court of Appeal
Nowell and Town, a married man had an affair for 24 years. They maintained separate residences and
never cohabited. They spent most weekends at the farm. Nowell did cooking, cleaning, gardening
and organizing social events. She was not paid for those services. Town often assured Nowell that he
would look after her. during the relationship, he gave her many works of art. She subsequently sold
most of them for over $120,000. Subsequently, she sold many of his works of art for over $125,000.
RATIO: The relationship lasted for 24 years, and for the last 13 years resembled a quasi-spousal
The appellant is entitled to a monetary award as compensation for unjust enrichment. We think that a
proper disposition is to allow the appeal, set aside the order below and award her the amount of
The reasons for judgment of the Ontario court of appeal in Nowell v. Town Estate are disappointing.
The trial judge did not view them as cohabiting or involving in a spousal relationship. The court of
appeal went out of its way to institutionalize the couple’s relationship by labelling it quasi spousal.
The reasons in Novell v. Town Estate come close to asserting an almost automatic right to relief to
In Peter v. Beblow, the SCC held that spousal services go beyond purely domestic services and it is
unfair to link the value of a spouse’s benefit to the family to the value of domestic services on the
In a family context, home and child-care services are valued by reference to the family wealth.
Family law in the 1990s is beginning to look like family law in 1970s. the result in a particular case
depends more on an exercise of judicial discretion than an application of legal rules. When a
relationship ends, the spouse with the larger net worth can expect to transfer money or property to
spouse with the lesser net worth, regardless of legal niceties. In Nowell v. Town Estate, the Ontario
Court of appeal extends the class of relationships to which this philosophy applies to long-term
Wylie v. Leclair, 2003, Ontario Court of Appeal
Cohabited as common law couple for more than 15 years and had two children. The trial judge held
that Wylie was unjustly enriched by Leclair’s domestic services during their 15-year relationship.
Spouses are deemed common law if they have been living together for at least 12 continuous months.
The trail judge essentially awarded an equalization of net family property.
A set-off analysis would have been particularly relevant in light of findings of the trial judge that
Leclair lived rent-free for the duration of her 15 year relationship with Wylie and had made no
contribution during the first 3 year of relationship.
Value received basis method should be used.
The $150,000 awarded by the trial judge is far too high. I would award Leclair $70,000.
PART I OF THE FAMILY LAW ACT:
The key feature of the property regime established by Part I of the FLA is that spouses are entitled to
an equal share of the total financial product of marriage, determined by calculating the net family
property (defined in s. 4(1)) of each spouse, when the relationship ends. The classic premise
underlying the regime is that both spouses make a vital and essentially equal contribution to the
economic viability of the family unit and hence to the acquisition of wealth by the unit.
Section 10 provides a procedure whereby ownership or possessory rights of the spouses may be
determined at any time in accordance with these modified rules.
Where a spouse intentionally or recklessly depletes his or her net family property, the court may
determine that equalization of the net family properties is unconscionable and may vary the
equalization entitlement to favour the other spouses. (Section 5(6) of the FLA)
There may be circumstances where a court can use the Fraudulent Conveyances Act to set aside
certain transfers that reduce a spouse’s net family property. (Stone v. Stone)
The triggering events set out in s. 5(1) of the FLA occur when a divorce is granted, when a marriage
is declared a nullity or when the spouses are separated and there is no reasonable prospect of resumed
cohabitation. Under s. 5(2), a surviving spouse is also entitled to one-half of the difference b/w his or
her net family property and that of the deceased spouse.
Section 5(3) permits one spouse to apply to the court under section 7 to “have the differences b/w the
net family properties divided as if the spouses were separated and there was no reasonable prospect
that they would resume cohabitation” if “there is a serious danger that one spouse may improvidently
deplete his or her net family property”.
Only s. 5(3) permits equalization claims during an ongoing marriage relationship.]
Stone v. Stone: Justice Feldman stated: “one of the effects of s. 5(3) of the act is to provide the
remedy to a spouse in those circumstances where the other spouse seeks to divest himself of herself
of his or her property in anticipation of death and in order to defeat the spouse’s claim to
In many situations, but especially when an application for equalization of net family property is
based on s. 5(3), it may be prudent to apply for a preservation order under s. 12 of the FLA.
In the absence of an order under s. 12, the owning spouse generally remains free to deal with his or
her property, other than a matrimonial home after the valuation date. Therefore, a spouse who is
owed an equalization sum under s. 5 is in a vulnerable position. By the time a court order for
payment is made under s. 9 there may be few assets held by the other spouse and it may be difficult
to enforce the judgment. Orders under s. 12 are intended to prevent this situation. Accordingly, a s.
12 order should be made in equalization proceedings wherever there is a real risk that the ability of a
spouse to satisfy an equalization payment is likely to be impaired by his or her dealings with property
prior to trial.
The wording of s. 5(1) suggests that as soon as the spouses separate without reasonable prospect of
resumed cohabitation, the spouse with the lesser of the two net family properties is entitled to ½ of
the difference b/w the two.
To enforce tthis entitlement, a spouse may bring an application for equalization under s. 7 and the
court is then empowered by s. 9 to make various orders to ensure that this sum is realized in a fair
and effective manner.
Enforcement of the entitlement may also become statutorily barred if a s. 7 application is not
commenced within the limitation periods set by s. 7(3). Note, however that a court may extend the
period under s. 2(8).
When the parties cannot settle the equalization entitlement, an application under 7 is required.
Section 7(1) permits the court to “determine any matter respecting the spouse’s entitlement under
section 5”. Where an application is made under s. 7, each party must serve on the other and file with
the court a statement of property in accordance with s. 8.
The definition of net family property in s. 4(1):
1) Determine the valuation date
2) List the property owned by the spouse on the valuation date
3) Determine if any of the spouse’s property is excluded by s. 4(2)
4) Determine the value of property owned by the spouse on the valuation date which is not
5) Calculation the amount of the spouse’s debts and liabilities on the valuation date.
6) Deduct the figure arrived at in step #5 from that determined under step #4.
7) Determine the value of the property, other than a matrimonial home, that the spouse owned on
the date of the marriage.
8) Calculate the value of the debts and other liabilities of the spouse on the date of the marriage.
9) Deduct the figure arrived at in step #8 from that determined under step #7.
10) Subtract the figure arrived at in step #9 from that determined under step #6. If the result is a
negative number, it is deemed to be zero by s. 4(5).
11) Under s. 5(6) of the FLA, a court may award a spouse a greater or lesser amount “if the court
is of the opinion that equalizing the net family properties would be unconscionable” having
regard to the factors listed.
Spouses can opt out of Part I of the Act or modify the rules applicable to their relationship by
entering into a domestic contract.
Winstein v. Winstein, Ontario General Division, 1997 (PROCEDURE)
A wife made a will leaving her estate to her grandchildren. Subsequently, she became mentally
incapable due to Alzheimer’s disease. The husband applied for an equalization of the spouses’ net
family property under s. 5(3) of the FLA and received $2.5 million. When the husband died, his will
provided that the bulk of his estate should go to the University of Western Ontario. The
grandchildren successfully argued that the original order equalizing the net family properties should
be set aside because they had not received notice of the proceeding.
The property regime created by Part I of the FLA is based on the concept of marriage as a partnership
in which each spouse contributes equally to the financial product generated.
Under the Ontario legislation, the spouses would be deemed to have contributed equally to the
acquisition of family assets.
Section 4(1) of the FLA defines “valuation date” as the earliest of five dates. In the context of a
marriage breakdown, the earliest of these is almost always the date on which the spouses separate and
there was no reasonable prospect of resume cohabitation.
Caratun v. Caratun, Ontario H.C., leave to appeal to SCC refused, 1987
FACTS: She moved out of the family home on 1981 and cohabitation never resumed. She argued that
the valuation date should be set at some point in 1984 because there was a reasonable possibility of
reconciliation until that time.
Valuation date is defined in s. 4(1) as the date the spouses separate and there is no reasonable
prospect that they will resume cohabitation.
The evidence shows that the respondent led the petitioner to believe that there was such a prospect of
reconciliation under January 1984.
From the date of separation, the respondent had put off the resumption of cohabitation on the ground
that he could not cohabit with her as long as she had an order for custody and he postponed it
subsequently until she had some weight off and finally until she would stop smoking.
I find that there was no reasonable prospect that they would resume cohabitation after July 1981.
Fleming v. Fleming, Ontario S.C., 2001
The husband sought to argue that separation would have occurred about 13 years earlier if he had
been aware of the wife’s affair. Justice Mackinnon held that this argument was irrelevant under the
FLA where there was no discretion to alter the valuation date.
DaCosta v. DaCosta, 1992, Ontario Court of Appeal
The main issue in this appeal is the husband’s interest in the capital of the estate of Biddle. This
interest is valued at $596,783. The parties married in 1980 and separated in 1987.
At the present time he has, at best, a possible right to a contingent interest, that is to say, an interest
contingent upon surviving Isabella Saga and upon successfully asserting his right in the Pennsylvania
courts to a share of the capital of the estate. Whatever interest he may have is so uncertain that it
cannot come within the definition of property.
The husband’s interest in the estate is a contingent interest and it is property within the definition of
RATIO: In my view, it was foreseen by the legislation in s. 9(1)(c) and (d) that in certain cases the
equalization payment, or part thereof be paid in the future.
It is appropriate, pursuant to s. 9(1)(d)(i), to direct the husband to hold his interest in the capital of the
estate in trust for the wife to the extent of her interest therein. The asset, however, is located in a
foreign jurisdiction, and to protect the wife the husband should be required to provide her with
security, as foreseen under s. 9(1)(b) to ensure that she received payment when the same is
forthcoming to the husband from the estate. The security shall be by way of bond or charge on
property located in Ontario or by way of any other security satisfactory to the parties.
As DaCosta case indicates, beneficial interests in express trusts are clearly property within the
definition of s. 4(1).
A wide range of interests are considered property for the purposes of determining a spouse’s net
family property under the FLA. Pensions, RRSPs, retirement allowance, survivor rights under a
pension, entitlement to compensation for unused sick days, stock options, and interests in
discretionary trusts have all been valued and included in the equalization calculation.
Caratun v. Caratun, Ontario C.A., leave to appeal to SCC refused, 1992
Dr. Caratun’s primary objective in marrying Mrs. Caratun and father their child was to assist him in
immigrating to NA to practice dentistry. Two days after he learned that he passed his final exam and
was qualified to practise dentistry in Ontario, he rejected her as his wife, at a time when family assets
were next to non-existent but his future income-earning ability was substantial.
RATIO: It is my view that a professional licence does not constitute property within the meaning of
s. 4 of the F.L.A.
I am of the view that a compensatory support order is appropriate in this case. (amount of $30,000)
Rawluk v. Rawluk, S.C.C., 1990
ISSUE: whether the doctrine of constructive trust can be applied to determine the ownership of assets
of married spouses under the provisions of the FLA.
Married in 1955, together for 29 years, worked together in 2 business operations, two years prior to
the marriage he had bought a New Holland Farm Equipment franchise. Shortly after the marriage, his
father died. The spouses then took over the farm that had been run by his parents.
She put 7000 dollars of her inheritance from her mother’s estate into the business operations.
RATIO: In my view, far from abolishing the constructive trust doctrine, the FLA 1986 incorporates
the constructive trust remedy as an integral part of the process of ownership determination and
equalization established by that Act.
I see no reason why the remedial constructive trust should not be included in the list of equitable
principles or remedies that may be used to calculate the beneficial ownership of net family property.
RATIO: Where the property at issue is 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
have legal title should be able to claim an interest in that property by way of a constructive trust and
realize the benefits that ownership may provide.
Section 10 of the FLA, 1986, reinforces the Act’s emphasis on the importance of individual
ownership, even when a regime of deferred sharing.
Even if the appellant’s argument that the FLA equalization provisions replace the constructive trust
remedy were to be accepted, this would not prevent a deserving spouse from obtaining a declaration
of constructive trust in his or her spouse’s property during cohabitation pursuant to s. 10.
In this case, fairness requires that the dedication and hard work of Mrs. Rawluk in acquiring and
maintaining the properties in issue be recognized. This equitable remedy of constructive trust was
DISSENT: Section 5(6)(h) should be used to vary the figures.
The statutory regime established by Part I of the FLA is designed to operate with only limited judicial
discretion. The continued relevance of the constructive trust introduced flexibility, but it does so by
increasing judicial discretion.
In Gallant v. Gallant, the Manitoba Court of Appeal held that there should be an unequal division of
the marital property owned at separation b/c of a subsequent substantial decrease in the value of the
husband’s property. As a result there was no need to consider the constructive trust argument
presented by the husband.
The Law Reform Commission of British Columbia’s draft legislation, modeled on the Ontario
scheme, explicitly directed the courts to consider a significant change in the value of assets b/w the
valuation date and the date of trial other than changed caused by either of the spouses.
As Granger J. recognized in Heon v. Heon, facts occurring after the valuation date should be taken
into account to the extent that they were predictable at the date. Evidence of subsequent events may,
be relevant in assessing the fundamental assumptions underpinning the opinions.
Ordinarily, the appropriate measure of value is the fair market value of the asset in question: “the
highest price obtainable in an open and unrestricted market b/w informed and prudent parties, acting
at arm’s length and under no compulsion.”
It may be concluded therefore that the ordinarily fair market value is the appropriate measure of
value. Another method of valuation should however be used both where the property has no fair
market value and where fair market value is an inappropriate measure of value for the property in
question. (where it would be inequitable)
A number of cases have confirmed that one should generally determine the property’s value on the
valuation date without the benefit of hindsight, although subsequent events that could reasonably be
contemplated at that time can be factored into the calculation.
The impact of the general rule against the use of hindsight is dramatically illustrated in McKenzie v.
McKenzie where the wife was on long-term disability ont he valuation date and was never expected
to return to work. The present value of the future payment was $370,614 at the valuation date. By the
time of the trial, the wife had unexpectedly returned to work and in a few months would no longer
receive any disability payment. Even so, Justice Glass included $370,614 in the list of the wife’s
assets at the valuation date.
SENGMUELLER v. SENGMUELLER, 1994, Ontario Court of Appeal
At the time of trail he had approximately $26,000 worth of non-taxable assets with which to satisfy
the equalization payment of $365,556.05. the balance of his assets at the time considered primarily of
an R.R.S.P., two parcels of real estate and Film Sound Services Ltd.
The trial judge, in valuing net family property, deducted as a debt or other liability under s. 4(1) of
the Act amounts estimated as taxes (but not other types of costs of disposition, such as real estate
commissions), which would b exigible if the assets involved were realized upon.
In my view, it is equally appropriate to take such costs into account in determining net family
property under the Family Law Act if there is satisfactory evidence of a likely disposition date and if
it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to
have disposed of them. In my view, for the purposes of determining net family property, any asset is
worth only the amount which can be obtained on its realization.
An allowance for taxes should not be made where it is not clear if the assets will ever be disposed of.
If the evidence satisfies the trial judge, on a balance of probabilities, that the disposition of any item
of family property will take place at a particular time in the future, then the tax consequences are not
speculative, and should be allowed either as a reduction in value or as a deductible liability.
R.R.S.P.s, in particular are taxable in full regardless of the time of realization.
From the McPherson case I glean three rules to apply in all cases:
(1) apply the overriding principle of fairness, i.e., that costs of disposition as well as benefits
should be shared equally;
(2) deal with each case on its own facts, considering the nature of the assets involved, evidence
as to the probable timing of their disposition and the probable tax and other costs of
disposition at that time, discounted as of valuation day; and
(3) deduct disposition costs before arriving at the equalization payment, except in the situation
where it is not clear where, if ever, there will be a realization of the property.
The court affirmed the trial judge’s decision.
There is a general consensus that, in the absence of special circumstances, there should be a discount
for the spouse’s future tax liability in determining the value of a pension.
DEDUCTIONS AND EXCLUSIONS:
HOIVUS AND YOUDAN, THE LAW OF FAMILY PROPERTY
The debts and liabilities of the spouses should generally be deducted from the value of their property.
Similarly, account should be taken of pre-marital property since its existence cannot be attributed to
the partnership effort.
Folga v. Folga, Ontario H.C., 1986
FACTS: at the time of the marriage, the husband owned a house, the parties lived in this house for 3
years following the marriage. It was sold and the husband purchased another house, which became
the family home.
The husband claims a deduction pursuant to s. 4(1)(b) of the FLA. By the terms of s. 4(1)(b), the
value of an interest in a matrimonial home may not be deducted.
Section 18 is in Part II of the Act. Section 18(1) reads:
“Every property in which a person has an interest and that is or, if the spouses have separated, was at
the time of separation ordinarily occupied by the person and his or her spouse as their family
residence is their matrimonial home.”
RATIO: Status of a matrimonial home is not immutable and a spouse may lose the protection given
by the matrimonial home status and that a spousal owner may regain the right to deduct under s.
Not being a matrimonial home, it now qualifies for deduction under s. 4(1)(b).
The respondent then will be able to deduct his former equity in the amount of 12000 dollars for the
purpose of determining his net family property.
Collier v. Torbar, Ontario Court of Appeal, 2002
Before the parties were married, the respondent wife purchased land by means of a loan. She built a
house on the land, which later became the parties’ matrimonial home. The purchase of the land was
financed by a loan from a corporation which the wife and her business partner owned and operated.
The loan was not secured by a mortgage. When the parties married, the wife owed $513,748 to the
corporation on account of the housing loan.
The issue on this appeal is whether the trial judge erred in holding that the wife was not required to
deduct the amount of the housing loan from the marriage date value of the property she owned at the
marriage date for the purpose of calculating her net family property.
In DaCosta v. DaCosta, the court held that where the debt is secured against the land in the form of a
mortgage, it should not be deducted from the marriage date value of property owned on the marriage
A housing loan that meets the requirements of the income tax act is sufficiently similar to a mortgage
and the amount of the housing loan should not be deducted from the marriage date value of property
owned on the marriage date.
RATIO: Although there is much to be said for treating all debts on the same basis regardless of the
legal form they take, unsecured and undocumented family loans may require different treatment.
While I do not wish to rule out the possibility of similar treatment for other debts incurred to
purchase a matrimonial home, courts must closely scrutinize unsecured and undocumented family
loans to ensure the integrity of the equalization provisions of the Family Law Act.
The Deduction in respect of pre-martial property can be taken even where the property no longer
belongs to the spouse on the valuation date or cannot be traced into other property owned by the
Exclusion of property under s. 4(2) of the FLA is permitted only if the property described in
paragraphs 1 to 4 still belongs to the spouse on the valuation date or can be traced into property, other
than the matrimonial home, that belongs to the spouse on the valuation date.
Mittler v. Mittler, Ontario H.C., 1988
Mrs. Mittler was incarcerated in a German concentration camp, and became entitled to damages from
the German government in the form of a pension. No moneys were paid until after her marriage to
Mr. Mittler. Three categories: 1) $7,210 referable to a period prior to her marriage; 2) $30,369 was
paid to her during the marriage and prior to the date of separation; 3) 18,198, being the commuted
value as of the date of separation of the pension payable to her after separation.
Section 4(2) The value of the following property that a spouse owns on the valuation date does not
form part of the spouse’s net family property.
4) Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of
guidance, care and companionship, or the part of a settlement that represents these damages.
I have no doubt that the moneys to which she was and is entitled are all in the nature of damages as
described in clause 3 above.
The statutory provision seem to indicate that she could deduct from net family property the value at
marriage of all three amounts of damages, and also exclude from net family property the value of any
German moneys owned on valuation date. That in effect would constitute a double deduction.
In considering s. 4(2), it is argued for her that the amount of $30,369 which was paid to her during
her marriage and prior to separation, which was not retained in a separate and identifiable cash
account, is nonetheless traceable into Canada Saving Bonds owned by her on the date of separation,
and is therefore excluded from the calculation of net family property. She cannot establish this
tracing by a clear following of specific funds into her bank accounts and thence out for the purchase
of Canada Saving Bonds, as required by the first in first out principle established by the rule in
Had the legislature wished to modify for the purposes of the F.L.A. the well known principles of
tracing as set out in Clayton’s Case, it could have used language clearly indicating that intention. I
therefore find that tracing is not possible on the facts of this case, and the $30,369 cannot be excluded
from the calculation of net family property pursuant to s. 4(2)3 and 5.
The legislature had been fit to limit the exclusion to property received as damages which has been
retained in its original form or property into which it can be traced.
Counsel for Mr. Mitler argues that although properties owned by him at marriage date had a net value
of $115,000 at the time of marriage, that amount, reflected in 1985 dollars by using the CPI, would
be equivalent to $367,270 on valuation date. He claims that this amount should be deducted.
There is no suggestion anywhere in s. 4(1) that the result of that calculation should be altered to
reflect the effect of inflation.
I conclude with some reluctance that the legislature has directed the court, in deducing the value of
property owned at the date of marriage, to deduct only the value based on date of marriage dollars.
Oliva v. Oliva, Ontario Court of Appeal, 1988
Mr. Olivia’s relatives provided the down payment for several rental properties before and after the
marriage. The remainder of the purchase price was raised through mortgages on the properties and
rental income was then used to pay off the mortgages.
With respect to the two properties found to be gifts after the marriage. S. 4(2) provides that with
respect to property acquired by gift after marriage, “ the value of the …. Property that a spouse owns
on the valuation date does not form part of the spouse’s net family value”. It follows that the whole
value including any appreciation therein after the date of the gift cannot be included.
Section 4(2)2 provides that income from the property, unless expressly otherwise stated in the gift,
will be included.
Ho v. Ho, Ontario General Division, 1993
During the course of the marriage, the husband’s father and mother made substantial cash gifts to
ether the husband or the wife, or both. It has been argued that gifts were advanced to the wife solely
for tax purposes. She was in a much lower tax bracket.
I accept the evidence that the funds were transferred to Mrs. Ho for tax purposes. Mr. Ho cannot have
it both ways.
Those funds have not been commingled with other funds to such an extent that it is not possible to
trace the items claimed by the wife.
The difference between a premarital property deduction and an exclusion is dramatically illustrated
by Black v. Black. Under the terms of the will of the husband’s grandparents, one half of the residue
of their estates was directed to be held in trust by the husband’s father for the husband and his
younger brother until the latter reached 25 years of age. At that time each brother would receive an
equal share of the corpus of the trust. She the husband married in 1964, the value of his share in the
corpus of the trust was $468,050. The husband received his share of the corpus in 1969 and its value
on the valuation date was $6.2 million. The husband claimed that these assets were inherited after the
marriage and that he was therefore, entitled to exclude their entire value of $6.2 million in calculating
his net family property. But the court concluded that the husband inherited the assets prior to the
marriage and that he was only entitled to a pre-marital property deduction of $468,050.
S. 4(3) of the Family Law Act provides that the onus of proving a deduction or exclusion is on the
person claiming it.
Ho v. Ho stands for the legal proposition that a spouse is not permitted to assert that a transaction that
was characterized in one way for tax purposes should be treated differently for family law purposes.
A BRIEF NOTE ON TRACING
As indicated in the Mittler and Ho cases, paragraph 5 of s. 4(2) of the FLA provides for the exclusion
from a spouse’s NFP of the value of property, other than a matrimonial home, into which property
excluded under paragraphs 1 to 4 can be traced.
A husband inherits $25,000 under his father’s will. He does have to include $80 as income on the
money in the bank account unless his father stipulated that income from the legacy was to be
excluded from the husband’s NFP.
In the Mittler case, the court referred to the first in, first out principle from Clayton’s case. however,
the Ontario Court of Appeal in Ontario v. Greymac Credit Corp. confined the application of the rule
in Clayton’s Case essentially to its facts.
The spouse claiming that a property held on the valuation date can be traced back to an excluded
property may be unable to produce the documents demonstrating the chain of transaction. Frequently,
this leads to the loss of the exclusion.
In Bennett v. Bennett, it was stated: “With respect to parcel C and the tracing of inherited funds
which went to purchase it, I find the proximity of the two events (the inheritance and the purchase) to
be such that, on a reasonable balance of probabilities, the inherited funds were used for this purchase.
Strict tracing rules would not provide for this result but common sense and reasonable view of how
the couple could have found the amount of money required for the purchase of the land leads to a
conclusion that the strict tracing rules should be relaxed.”
HOIVUS AND YOUDA, THE LAW OF FMAILY PROPERTY
If the computation of a spouse’s net family property results in a negative figure, the spouse’s net
family property is deemed to be equal to zero by section 4(5).
Section 5(6)(f) specifies that one of the items that a court must consider in determining whether
equalization of the net family properties would be unconscionable is “the fact that one spouse has
incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the
support of the family.”
Section 5(6) creates a discretionary power which may or may not be exercised.
If the husband also incurred a family debt of $5,000, it is questionable whether one could conclude
that the wife incurred a disproportionately larger amount of debt for the support of the family.
Perhaps the court would resort to the catch all factor listed in section 5(6), namely, paragraph (h), to
justify an unequal sharing of net family properties.
It is question whether section 5(6) can be used to order one spouse to pay a sum that is greater than
the spouse’s net family property. (when one spouse incurs debt during the marriage)
PAGE 350: PROBLEMS
VARIATION OF THE EQUALIZATION PAYMENT
Ferguson v. Kalupnieks, Ontario General Division, 1997
The wife’s NFP was $127,995.51, while the husband’s was zero.
The main issue is whether unequal division of NFP pursuant to s. 5(6) of FLA should be exercised in
Death of a patient of the respondent caused by his negligent administration of an anaesthetic, the
respondent’s licence was revoked. He made an assignment in bankruptcy.
In Thompson, debt was tainted with recklessness and bad faith and the husband dealt with his debts in
a secretive way that deprived his wife of the opportunity to attempt to secure the rest of the family’s
finances. The court ordered an unequal division of property.
There is no evidence of band faith on the part of the respondent. It appears that he was always open
about his situation with his family.
In interpreting reckless in the context of s. 5(6)(d), one must consider the entire subsection as it refers
to a spouse’s intentional or reckless depletion. It is not enough that the person was careless or made
an honest mistake, there must be some culpability or mala fides behind the depletion. Absent such a
state of mind, the depletion must be so excessive as to shock the conscience of the court.
Family property must be divided equally.
Naidoo v. Naidoo, Ontario S.C.J., 2004
(b): liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in
(d) depletion of a spouse’s net family property was reckless,
(h) any other circumstances relating to the acquisition, preservation, maintenance or improvement of
The test of unconscionability sets a high bar, which requires something more than unfairness or
She blames the respondent for squandering over $100,000 on gambling. He characterizes this as his
recreational expenditure. It is apparent that in each year he put at risk and lost through gambling b/w
13 and 30 percent of his net income. He was asked to stop repeatedly and he refused.
The respondent’s conduct was reckless in that it put at risk and dissipated substantial amounts
yearly, depriving the applicant of her bona fide expectations.
I conclude that this dissipation passes the high threshold of unconscionability in s. 5(6) of the Family
Abaza v. Abaza, Ontario S.C.J., 2001
In 1997, the wife discovered that the husband frequented a local strip club and was a regular user of
It would be unconscionable for Ms. Abaza to have her entitlement to an equalization payment
reduced by one-half of any debts which Dr. Abaza had as of the valuation date which could easily
have been paid by Dr. Abaza if he had not diverted his moneys to nightly entertainment and escort
RATIO: Once she became aware of what he was doing, she had the choice of triggering the valuation
date under Part I of the FLA or seeking recourse under s. 5(3).
I will disallow $16,000 of Dr. Abaza’s debts.
Mittler v. Mittler, Ontario H.C., 1988
The son received substantial gifts. (Value of shares were around 0.5 million dollars)
One half of these shares were transferred in 1970, and the rest in 1982, some three year before
(argument of intention depletion of his NFP by gifts)
I do not consider it appropriate to make an order pursuant to the provisions of s. 5(6).
Stone v. Stone, Ontario Court of Appeal, 2001
He then began to transfer all of his business assets to the children.
The relevant section of the Fraudulent Conveyances Act is s. 2:
Every conveyance of real property or personal property and every bond, suit, judgment
and execution heretofore or hereafter made with intent to defeat, hinder, delay or
defraud creditors or others of their just and lawful actions, suits, debts, accounts,
damages, penalties or forfeitures are void as against such persons and their assigns.
Mrs. Stone did not initiate an application under s. 5(3) of the Act.
Mrs. Stone did not have an opportunity to initiate an application because the transfers were kept
secret from her.
One of the effects of s. 5(3) of the Act is to provide a remedy to a spouse in those circumstances
where the other spouse seeks to divest himself or herself of his or her property in anticipation of
death and in order to defeat the spouse’s claim to equalization.
RATIO: B/c she had the right to apply for equalization at the time of the transfers, but was deprived
of her ability to exercise that right by the actions of Mr. Stone and his children, the parties to the
transfers, she was a credit or other within the meaning of the Fraudulent conveyances Act.
The debtor-creditor relationship arises only on the valuation date.
I find that Mrs. Stone was a creditor or other of Mr. Stone at the time of his inter vivos transfers and
therefore entitled to set those transfers aside under s. 2 of the Fraudulent Conveyances Act.
The FLA does not exclude other applicable statutory or common law remedies which deal with the
ownership of property at law and in equity, including the Fraudulent Conveyances Act.
Futia v. Futia, Ontario H.C., 1990
The parties were in 1986 and separated in 1988. the petitioner is entitled to judgment for divorce
based on separation in excess of one year.
The only factor which has particular relevance to this case is contained in paragraph (e) which allows
an unusual division if an equal division would be disproportionately large in relation to a period of
cohabitation that is less than 5 years.
Counsel for the petitioner contends that the cruelty of the respondent should neutralize the impact of
While conduct may in some limited circumstances be relevant to the division of family property I am
not persuaded that it is relevant to the issue in this case and accordingly I reject the argument.
She is entitled to receive 40 percent of the net family of the matrimonial home or $33,600.
Waters v. Waters, Ontario District Court, 1986
The wife’s income had been considerably greater than the husband’s. Since the couple had all major
assets jointly and were jointly liable for existing debts, the NFP of the husband and wife were equal.
The husband had been an alcoholic and irresponsible with money.
She made a greater contribution.
RATIO: To say that it is inherent in the relationship that the contributions are equal is to say
something that is patently untrue. Section 5(7) must mean that as a matter of public policy the
contributions are deemed equal.
LeBlanc v. LeBlanc, S.C.C. (NB), 1988
Seven children were born in the first 8 years of marriage, he was alcoholic and drank heavily on a
daily basis, family lived largely on welfare, thereafter, the wife began working full time at a takeout
restaurant, working a 3 p.m. to 3 a.m. shift. She then bought the restaurant.
The trial judge found that the husband made no contribution to child care or household management
and in fact he made no financial contribution to the family in any way.
Where the property has been acquired exclusively or almost wholly through the efforts of one spouse
and there has been no, or a negligible, contribution to child care, household management or financial
provision by the other, then, in my view, there are circumstances relating to the acquisition,
maintenance and improvement of property that entitle a court to exercise its discretion.
Unequal division was ordered. (affirmed)
Berdette v. Berdette, Ontario H.C., 1988
In addition to her financial contribution the family, the wife had primary responsibility for child care
and household maintenance. The wife instituted proceedings in an attempt to secure all of the
proceeds of sale of the matrimonial home and a cottage. Both had been purchased in joint names, but
the wife had provided the funds. It was concluded that when title was taken in joint tenancy, the wife
intended to make a gift of a ½ interest in each property to her husband.
In Waters v. Waters, the judge held that a departure from the rule of equal sharing could not be based
on a gross disparity of contribution to the marriage even if such equal sharing would be
LeBlanc v. LeBlanc was decided under the NB Marital Property Act.
Applying LeBlanc v. LeBlanc I am required to consider the contributions of the spouses as defined in
s. 5(7) to determine if equalization would be unconscionable.
RATIO: If he disparity arises from a mala fides failure to contribute or an abdication which was not
accepted by the other spouse, such disparity will affect the division of NFP.
In this case, an equalization of the net family property would be shocking and unconscionable and
would require redress through an unequal division in favour of Mrs. Berdette, if she had not made
gift to Mr. Berdette of an undivided one-half interest in the matrimonial home and cottage.
Berdette v. Berdette, Ontario Court of Appeal, 1991
The court held that the gifts were not invalid as a result of undue influence or duress and the finding
that the wife made valid gifts of the half-interests in the properties defeat any claim based on either a
resulting or a constructive trust.
RATIO: s. 5(6) was inapplicable to this case. It is inapplicable b/c there is no difference in the NFPs
of these parties. Where, as here, there is no difference b/w the NFP, s. 5(6) can have no operation.
Unlike s. 5(7) of the FLA, the New Brunswick legislation considered in LeBlanc v. LeBlanc did not
expressly state that equal contribution to the listed responsibilities is inherent in the marital
Section 5(7) of the FLA certainly precludes a husband from arguing that his business acumen was
much more significant in building up the NFPs that his wife’s contribution to the home. Hicks v.
In Merkingler v. Merkingler, the Ontario Court of Appeal concluded that post-valuation date events
can be considered under s. 5(6) of the FLA. (to the extent that it is relevant to the factors listed in s.
5(6). To ensure an equitable result, having regards to the cause of the fluctuations)
IMPLIMENTATION OF THE EQUALIZATION ENTITLEMENT: HOIVUS AND
YOUDAN, THE LAW OF FAMILY PROPERTY
Section 9 then empowers the court to make various orders to ensure that this sum is realized in a fair
and effective manner. Section 9 is therefore, an implementation provision that only comes into play
after the court has determined the equalization sum under section 5.
The range of options available under section 9 is extensive:
(1) the whole amount can be ordered paid forthwith; (2) if necessary, to avoid hardship, the whole
amount can be paid in instalments not exceeding ten years; (3) security may be imposed for the
whole or part of the amount; (4) to satisfy all or part of the amount, property may be transferred to
the receiving spouse absolutely, for life, or a term of years; (5) to satisfy all or part of the amount,
property can be placed in trust or vested in a spouse absolutely, for life, or a term of years; (6) to
satisfy all or part of the amount, any property may be partitioned or sold.
The section provides the court with considerable flexibility enabling it to balance the interests of the
debtor spouse and creditor spouse while choosing the most appropriate method of satisfying the
equalization sum in a particular case. Section 11(2) empowers the court to make special orders
regarding operating businesses or farms to avoid their sale or the serious impairment of their
Section 11(1) which forbids the court form making an order that would require or result in the sale of
an operating business or farm or that would seriously impair its operation unless there is no
reasonable alternative method of satisfying the award.
If the court could only render a money judgment, the credit spouse would in all case have to rely for
enforcement on the general debtor-creditor law.
Security: such security may include a charge on property, which can then be registered to ensure
priority over subsequently acquired interests of third parties. The awarding of security pending
payment in full is particularly appropriate where a court orders deferred payment or payment by
instalments pursuant to section 19(1)(c) and there is some concern whether the money will be paid.
Where an order for security has been made, the court has authority under section 13 to vary or
discharge the order on the application of either party.
In McDougall v. McDougall, the wife was entitled to an equalization sum of about 64 thousand
dollars. Almost all of the husband's assets consisted of shares in a farming operation conducted by
himself, his father and his brother.
Killeen D.C.J concluded that the fair order is to direct that the defendant pay the equalization sum in
five yearly instalments.
Corollary order: if the court orders deferred payment or payment by instalments, it may make certain
corollary orders under section 9(2) either at the time the original order is made or, on motion at a
later time. It can order that the debtor spouse furnish the other spouse with specified financial
information, which may include periodic financial statements.
Variation: Section 9(3) permits the court to vary the order for deferred payment or payment by
instalments where there has been a material change in the circumstances of the spouse who has the
obligation to make instalments or delayed payment.
Interest: payment of interest has been ordered in several cases, presumably pursuant to sections 139
and 140 of the Courts of Justice Act, 1984. In other cases, the courts have not addressed the issue,
while in a third set of case the judges have specifically directed that no interest be paid w/o
explaining the rationale for this decision.
Unless there is good reason why this detriment should be borne solely by the creditor spouse,
compensation in the form of interest is appropriate.
The most common order made under this subparagraph (9(1)(d)) requires the sale of property held
jointly by the spouses with payment of all or some of the equalization sum to be made out of the
debtor spouse’s share of proceeds.
In Leslie v. Leslie, the court concluded that nay form of deferred payment was not economically
feasible and it carefully designed an order requiring the sale of some farm property to permit
payment of the equalization sum w/o undue impairment of the farm operation.
Prejudgment interest: there is no provision in the FLA regarding prejudgment interest. However,
section 137-140 of the Courts of Justice Act apply. A successful litigant has a prima facie right to
It’s not a transferable. It doesn’t have a market value. It’s hard to evaluate it b/c it’s contingent on a
lot of factors that are hard to foresee.
It’s fairly difficult to assign a value on it.
It ends up to be a very hugely important asset to the spouses.
Lawyers generally don’t take Canada Pension Plan into account (wash).
If you work, you are attributing to it. You build up credit due to your contributions.
At separation, the spouses are entitled to get half of the CPP proceeds of the other spouse. In theory
you have to include it in calculation. But in practice it’s disregarded b/c CPP divides it.
RSP is privately, tax deductible, the person who is employed undertakes to put his own money in the
portfolio. After retirement is generally the time you will take it out. Common deduction rate is 25% if
you cash it in.
CPP and RRSP are simple.
Employee pension plan is much more difficult to deal with.
Under section 4(1): it falls in the pension category
There are two ways of satisfying pension payments.
1) you can determine present lump-sum value of the assets. You can then treat it like any other
asset and divide it in two. The extent you can defer it for is 10 years.
a. Best v. Best
2) If and When approach
a. Wait until the personal retires and divide it as it is received. If you are only 30, it’s
likely that if and when approach will not be used. If you are 62, it’s likely that it will
be used. It depends on the age of the parties as well.
b. In theory you need to determine both figures. In If and When approach it’s not a real
concern what the real figure is.
c. You still need to assess the value of pension for family law purposes. You have to
assess to what share of it the other spouse is entitled.
d. Rutherford: prorating
i. ½ * (# of months of cohabitation during which pension contribution was
made)/ (total pension Amount … contribution is made)*Pension payment
Lump-Sum payment: you have a clean break, no need for ongoing contribution, the employee
spouse can retire anytime they want, they can decide their own career, one spouse has to come up
with a large amount of money, if you are not close to unemployment, it makes more sense.
If and When approach: They get their own pension out of it, has to deal with both early and late
retirement, it’s complex, there is no need of large capital sum at one time,
Types of Pensions: a) private plans, b) public plans (Teacher’s Pension Act, …); c) Government
sponsored plans (CPP, OAS)
Contributory and non-contributory plans
IF AND WHEN ARRANGEMENTS:
Although the courts express a strong preference for a lump-sum settlement at the time of marriage
breakdown, such a settlement may be difficult for the member spouse where one of the assets is a
An if and when trust arrangement can be created by means of a domestic contract b/w the parties or
by a court order. An if and when order typically will not be made by the courts if the parties are
young, the value of the pension is small, the equalization payment can be satisfied through available
liquid assets, or the portion of the equalization payment relating to the pension benefits is relatively
Amendment to Pension Benefit Act in 1988, made it possible to impose a trust on the administrator
of the pension plan itself, in favour of the non-member spouse, requiring the plan administrator to
pay a portion of the member spouse’s pension directly to the non-member spouse after the
commencement of the pension payments.
Best v. Best, S.C.C., 1999
B/c the pension would likely not have become payable for another twenty year and the non-member
spouse had a pressing need for funds, the Court held that an if and when arrangement would not be
appropriate. The court established a general rule that an if and when arrangement should not be
ordered if the pension benefit will not be realized for ten or more years.
I have concluded that absent special circumstances, a pro rate method of pension valuation best
achieves the purpose of the FLA.
I believe that the termination pro rata method produces a fairer valuation of defined benefit pensions
for equalization purposes than the termination value-added method.
IF marriage date, 10 year, $2,000 valued at $5,000
Valuation date, 25 year, accrued $30,000 valued at $240,000
Pro rate method: (25-10)/25 * 240,000
Valuation date method: 240,000 – 5,000 = 235,000
18. (1) Every property in which a person has an interest and that is or, if the spouses have separated,
was at the time of separation ordinarily occupied by the person and his or her spouse as their family
residence is their matrimonial home. R.S.O. 1990, c. F.3, s. 18 (1).
Residence on farmland, etc.
(3) If property that includes a matrimonial home is normally used for a purpose other than residential, the
matrimonial home is only the part of the property that may reasonably be regarded as necessary to the
use and enjoyment of the residence. R.S.O. 1990, c. F.3, s. 18 (3).
[Part that is necessary for the enjoyment of family: Ponds and lakes sorrounding it qualify as
Matrimonial home. (Recreational part) 1 Acre]
Possession of matrimonial home
19. (1) Both spouses have an equal right to possession of a matrimonial home. R.S.O. 1990,
c. F.3, s. 19 (1).
(2) When only one of the spouses has an interest in a matrimonial home, the other spouse’s right
(a) is personal as against the first spouse; and
(b) ends when they cease to be spouses, unless a separation agreement or court
order provides otherwise.
[Both spouses are given an equal right to possession of a matrimonial home, regardless of its
ownership. When only one of the spouses has an interest in the home, the other spouse’s right of
possession is a personal right that can only be asserted against the owning spouse: s. 19(2)(a)]
A spouse who has no interest in a matrimonial home but is occupying it at the time of the other
spouse’s death, whether under a court order or otherwise, is entitled to retain possession against the
spouse’ estate, rent free, for 60 days after the spouse’s death: s. 26(2).
Notwithstanding each spouse’s equal right to possession, a court is authorized by s. 24 to grant
exclusive possession to one spouse.
Order made under Part II can be registered against land under the Registry Act and the Land Titles
Act: s. 27.
S. 26(1) provides that if a spouse dies owning an interest in a matrimonial home as a joint tenant and
not with the other spouse, the joint tenancy is deemed to have been severed immediately before the
time of death. As a result, the joint tenancy becomes a tenancy in common and the surviving joint
tenant loses the benefit of the right of survivorship. The deceased’s interest falls into his or her estate,
rather than passing to the surviving tenant.
Part II only applies to matrimonial homes that are situated in Ontario: s. 28(1).
The general definition of spouse in section 1(1) applies to part II. It stipulates that a spouse is either
of a man or woman who (a) are married to each other, or (b) have together entered into a marriage
that is voidable or void, in good faith on the part of the person asserting a right under this Act.
(changed to two persons)
In Ontario, it’s possible to have more than one matrimonial home. A cottage in Quebec was
characterized as a matrimonial home in determining the spouses’ net family properties under Part I in
Perrier v. Perrier. (Ont H.C)
Two requirements: Ordinary occupied as a family residence, single visit won’t qualify something as
If you move out to another house and the original house is rented out, then the first one no longer
retains its characteristic as matrimonial home.
HOVIUS AND YOUDAN, THE LAW OF FAMILY PROPERTY
In part III: section 30 stipulates that every spouse has a duty to support the other spouse in
accordance with need, to the extent this he so she is capable of doing so. In part III, a spouse includes
“either of a man and woman who are not married to each other and have cohabited (a) continuously
for a period of not less than three years, or (b) in a relationship of some permanence, if they are the
natural or adoptive parents of a child.”
Section 34(1) lists the types of order that a court may make in an application for support. One of
these is an order for exclusive possession of the matrimonial home.
A court can secure exclusive possession of the family residence for a cohabitee in a support
application through the power granted by section 34(1)(c).
Where domestic violence has occurred, however, it may be possible for the victim indirectly to obtain
exclusive possession at least until an application for partition or sale is heard.
Sections 18(2) and (3) are virtually identical to s. 39(3) and (4) of the 1978 Act.
Hartling v. Hartling, Ontario H.C., 1979
[Deals with section 18(3), Apartment in Toronto
Husband owned a 50% share and a business partner had 50% share
The court held that there is no evidence that shows the property is being used as family residence.
Shares weren’t treated as matrimonial home.]
The farmhouse and one acre of land constituted the matrimonial home of them since it was property
in which he had an interest and it was occupied by them as their family residence from July 1974
until at least sometime in November 1974.
I find that the farm house and one acre constitute family asset and that the remaining portion of the
farm property is a non-family asset.
DaCosta v. DaCosta, Ontario General Division, 1990
[Single visit doesn’t qualify a place as matrimonial home. Title in the husband’s name. Court
accepted that the couple intended to use it as a matrimonial home. He argued that it was a part of
inheritance. In this case, the wife went to the property only 2 times. He went there frequently.
It wasn’t considered to be a matrimonial home. (No evidence that anyone other than the husband
occupied it regularly as place of residence.)]
Mrs. DaCosta attended at the farm on two occasions. They did not stay overnight at the farm.
In order to be a matrimonial home, it must be ordinarily occupied by the spouses at the time of
Goodyear v. Goodyear, Ontario General Division, 1999
[Inheritance, matrimonial home, can’t be excluded. The court found it to be a part of matrimonial
residence. To exclude a place, it needs to have a separate entrance and shouldn’t be used regularly by
the family. Part 2 only applies to matrimonial homes situated in Ontario. For properties situated
outside the jurisdiction of Ontario, part 1 deals with it (equalization).]
Is the granny flat included?
The unit was not sealed off from the rest of the house. To occupy something ordinarily does not
require constant or continual occupancy, nor does it require occupancy of every square metre. The
great majority of the area was used by various family members. I do not see that subsection 18(1)
was intended to exclude from the spouses’ matrimonial home parts of the home used for residential
purposes primarily or even exclusively by an extended family member who was not even paying rent.
I note that the only cases found by counsel that even come close to this one involve portions of the
matrimonial home that were rented out to parties at arms’ length from the spouses, and even they are
in the majority against the husband.
Section 24 allows the court to make exclusive possession orders regarding the matrimonial home and
its contents. Such orders may be made on a temporary or interim basis (s. 24(2)).
Section 24(1) confers upon the court ancillary powers respecting the following: contents of the
home; release of other property that is also a matrimonial home from the application of part II;
payments in the nature of occupation rent; fixing the obligation to repair and maintain the home and
to pay liabilities arising in respect of the property; ..
Section 24(3) sets out the factors that court should consider in deciding whether to make an order for
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
[Technically it’s not binding on the court. The court shall consider the written agreement. It’s very
persuasive, unless the separation is the result of duress (contract).]
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children. R.S.O. 1990, c. F.3,
s. 24 (3).
Best interests of child
(4) In determining the best interests of a child, the court shall consider,
(a) the possible disruptive effects on the child of a move to other accommodation; and
(b) the child’s views and preferences, if they can reasonably be ascertained.
5) A person who contravenes an order for exclusive possession is guilty of an offence and upon
conviction is liable,
(a) in the case of a first offence, to a fine of not more than $5,000 or to imprisonment for a term of
not more than three months, or to both; and
(b) in the case of a second or subsequent offence, to a fine of not more than $10,000 or to
imprisonment for a term of not more than two years, or to both. R.S.O. 1990, c. F.3, s. 24 (5).
Arrest without warrant
(6) A police officer may arrest without warrant a person the police officer believes on reasonable and
probable grounds to have contravened an order for exclusive possession.
[The factors listed in s. 24(3) and (4) indicate that the court has considerable discretion in
determining applications for exclusive possession.]
[Courts are reluctant to order exclusive possession. If it significantly disrupts the life of the children,
then the court grants exclusive possession. (the disruption has to be significant) Court would rather
encourage clean break. Courts are fairly reluctant to do so b/c usually there is not enough money
Pifer v. Pifer, Ontario District Court, 1986
[Two daughters (6 and 4), based on affidavits, interim order, the factors listed in 34(4) aren’t
exhaustive, psychological effect of the children might be taken into account, the court separated the
father from the home, there are some evidence that he had been drinking excessively, interim interim
order, claims of abusive conduct, she was able to bring affidavit evidence from someone else. ]
In his affidavit, he refutes most of the allegations made by the plaintiff against him.
RATIO: In my view what amounts to the best interests of the child may include many other factors
such as the psychological stresses and strains to a child arising out of the daily friction b/w parents.
Allegations: drinking heavily, smoking heavily
Allegations of excessive drinking are supported by the babysitter in her affidavit.
Perrier v. Perrier, Ontario H.C., 1989
[High friction context, each parent was blaming the other one, physical alteration, the court rules that
both parents are good enough parents, neither of them should consider themselves failure at this
point, temporary (interim)]
Both parents claimed interim custody of the children and interim exclusive possession of the
matrimonial home. Constant argument
The husband alleges that the wife has been extremely abusive towards the daughter and that she has
exhibited some violence towards the daughter and himself. The wife states that the husband
The parties descriptions of the pushing and shoving as described in their affidavits do not contain that
element of violence or volatility that would prompt a court to exclude either one from the
Section 19(1) of the Family Law Act provides that both spouses have an equal right to possession of
a matrimonial home.
RATIO: An interim custody order, along with interim exclusive possession of the matrimonial
home, based on the materials filed, appears to be more calculated towards the gaining of a tactical
legal advantage as opposed to determining what is in the best interests of the children. The court
should not allow this to take place.
Vollmer v. Vollmer, Ontario General Division, 1998
[s. 24(4)(b): Children want to live with the mother. The court held that there was no prejudice to the
Each accused the other of being verbally abusive and threatening. Mr. Vollmer has his parents and 2
brothers in the area.
It would not give either party any advantage in terms of any claim for long-term exclusive possession
of the Matrimonial home since the parties intend to sell it.
Hill v. Hill, Ontario District Court, 1987
Her husband undertook a deliberate campaign of what I regard as psychological warfare against her.
it drove her to seek psychiatric help. Both parties have the financial resources to find alternate
RATIO: For s. 24(4)(f) violence includes psychological assault upon the sensibilities of the other
spouse to a degree which renders continued sharing of the matrimonial dwelling impractical.
His is the lesser emotional attachment to the home. He will be the least inconvenienced by finding
Cicero v. Cicero, Ontario U.F.C., 1978
Older child, medical condition, Italian community, children are near the school, wife’s relatives are
nearby and can provide assistance, interests of the children,
Ordered exclusive possession: his interest in the property is still there and at some future time he can
realize on that interest, perhaps at a profit.
Rosenthal v. Rosenthal, Ontario Higher Court, 1986
Three sons, aged 21, 21 and 23. She was under emotional stress that she was suffering as a result of
the marital breakdown.
Section 24(3) factors: balance of probability
It is in the best interest of both parties to sell the matrimonial home.
21. (1) No spouse shall dispose of or encumber an interest in a matrimonial home unless,
(a) the other spouse joins in the instrument or consents to the transaction;
(b) the other spouse has released all rights under this Part by a separation agreement;
(c) a court order has authorized the transaction or has released the property from the application of
this Part; or
(d) the property is not designated by both spouses as a matrimonial home and a designation of
another property as a matrimonial home, made by both spouses, is registered and not cancelled.
R.S.O. 1990, c. F.3, s. 21 (1).
Setting aside transaction
(2) If a spouse disposes of or encumbers an interest in a matrimonial home in contravention of
subsection (1), the transaction may be set aside on an application under section 23, unless the person
holding the interest or encumbrance at the time of the application acquired it for value, in good faith
and without notice, at the time of acquiring it or making an agreement to acquire it, that the property
was a matrimonial home.
[any attempt by a spouse to dispose of or place a direct encumbrance on his or her interest in the
matrimonial home without the consent of the other spouse violates s. 21.]
In light of the wording of s. 21(2), it would appear that a transaction that does not comply with s.
21(1) is valid unless set aside by a court.
PART III (FLA)
30. Every spouse has an obligation to provide support for himself or herself and for the other
spouse, in accordance with need, to the extent that he or she is capable of doing so.
Obligation of parent to support child
31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a
minor or is enrolled in a full time program of education, to the extent that the parent is capable of
(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age
or older and has withdrawn from parental control.
Order for support
33. (1) A court may, on application, order a person to provide support for his or her dependants
and determine the amount of support.
Setting aside domestic contract
(4) The court may set aside a provision for support or a waiver of the right to support in a
domestic contract and may determine and order support in an application under subsection (1)
although the contract contains an express provision excluding the application of this section,
(a) if the provision for support or the waiver of the right to support results in unconscionable
(b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who
qualifies for an allowance for support out of public money; or
(c) if there is default in the payment of support under the contract at the time the application is
Purposes of order for support of spouse
(8) An order for the support of a spouse should,
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the
relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property)
and II (Matrimonial Home).
Determination of amount for support of spouses, parents
(9) In determining the amount and duration, if any, of support for a spouse or parent in
relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed
standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and
the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) Repealed: 1997, c. 20, s. 3 (3).
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over
and unable by reason of illness, disability or other cause to withdraw from the charge of his or her
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a
child eighteen years of age or over who is unable for that reason to withdraw from the charge of his
or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as
if the spouse were devoting the time spent in performing that service in remunerative employment
and were contributing the earnings to the family’s support,
(v.1) Repealed: 2005, c. 5, s. 27 (12).
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a
(m) any other legal right of the dependant to support, other than out of public money.
(10) The obligation to provide support for a spouse exists without regard to the conduct of either
spouse, but the court may in determining the amount of support have regard to a course of conduct
that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.
Powers of court
34. (1) In an application under section 33, the court may make an interim or final order,
(a) requiring that an amount be paid periodically, whether annually or otherwise and whether for an
indefinite or limited period, or until the happening of a specified event;
(b) requiring that a lump sum be paid or held in trust;
(c) requiring that property be transferred to or in trust for or vested in the dependant, whether
absolutely, for life or for a term of years;
(d) respecting any matter authorized to be ordered under clause 24 (1) (a), (b), (c), (d) or (e)
(e) requiring that some or all of the money payable under the order be paid into court or to another
appropriate person or agency for the dependant’s benefit;
(f) requiring that support be paid in respect of any period before the date of the order;
(g) requiring payment to an agency referred to in subsection 33 (3) of an amount in reimbursement
for a benefit or assistance referred to in that subsection, including a benefit or assistance provided
before the date of the order;
(h) requiring payment of expenses in respect of a child’s prenatal care and birth;
(i) requiring that a spouse who has a policy of life insurance as defined under the Insurance Act
designate the other spouse or a child as the beneficiary irrevocably;
(j) requiring that a spouse who has an interest in a pension plan or other benefit plan designate the
other spouse or a child as beneficiary under the plan and not change that designation; and
(k) requiring the securing of payment under the order, by a charge on property or otherwise.
Effect of divorce proceeding
36. (1) When a divorce proceeding is commenced under the Divorce Act (Canada), an
application for support under this Part that has not been adjudicated is stayed, unless the court orders
Application for variation
37. (1) An application to the court for variation of an order made or confirmed under this Part
may be made by,
(a) a dependant or respondent named in the order;
(b) a parent of a dependant referred to in clause (a);
(c) the personal representative of a respondent referred to in clause (a); or
(d) an agency referred to in subsection 33 (3).
Powers of court: spouse and parent support
(2) In the case of an order for support of a spouse or parent, if the court is satisfied that
there has been a material change in the dependant’s or respondent’s circumstances or that evidence
not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them;
(c) make any other order under section 34 that the court considers appropriate in the circumstances
referred to in section 33.
Priority to child support
38.1 (1) Where a court is considering an application for the support of a child and an application
for the support of a spouse, the court shall give priority to the support of the child in determining the
Spousal support order
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an
order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or
such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
(2) Where an application is made under subsection (1), the court may, on application by either
or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such
lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for
the support of the other spouse, pending the determination of the application under subsection (1).
[You don’t need to wait until trial to get spousal support. You can file your petition immediately and
get corollary relief.]
Terms and conditions
(3) The court may make an order under subsection (1) or an interim order under subsection
(2) for a definite or indefinite period or until a specified event occurs, and may impose terms,
conditions or restrictions in connection with the order as it thinks fit and just.
(4) In making an order under subsection (1) or an interim order under subsection (2), the court
shall take into consideration the condition, means, needs and other circumstances of each spouse,
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
(5) In making an order under subsection (1) or an interim order under subsection (2), the
court shall not take into consideration any misconduct of a spouse in relation to the marriage.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides
for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or
(b) apportion between the spouses any financial consequences arising from the care of any child of
the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable
period of time.
Variation, Rescission or Suspension of Orders
Order for variation, rescission or suspension
17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending,
prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses; or
(4.1) Before the court makes a variation order in respect of a spousal support order, the court
shall satisfy itself that a change in the condition, means, needs or other circumstances of either
former spouse has occurred since the making of the spousal support order or the last variation order
made in respect of that order, and, in making the variation order, the court shall take that change into
(7) A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the
marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any
child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage;
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a
reasonable period of time.
[1985 Divorce Act: Section 15.2(4) identifies factors that the court is to consider and s.
15.2(5) explicitly specifies that “any misconduct … in relation to the marriage” is not to be taken into
Even though the provincial legislative provisions dealing w/ spousal support vary from province to
province and also differ from the equivalent provisions in the Divorce Act, the case law suggests that
this is not very significant.
[Even though cohabiting spouses are entitled to receive spousal support, they are less likely to be
awarded spousal support than married couples]
[Child support is completely independent of spousal support.]
M. v. H., S.C.C., 1999
The principle issue raised is whether the definition of spouse in s. 29 of the FLA infringes s. 15(1) of
the Charter and if so, whether it can be saved under s. 1 of the Charter.
Section 15(1) of the Charter is infringed by the definition of spouse in s. 29 of the FLA. This
definition, which only applies to Part III of the FLA, draws a distinction b/w individuals in conjugal,
opposite-sex relationships of a specific degree of duration and individuals in conjugal, same-sex
relationships of a specific degree of duration.
Human degree is violated and it is not justified under s. 1 of the Charter.
The remedy is to declare s. 29 of no force and effect and to suspend the application of the declaration
for a period of 6 months.
NOTE: as a result of the SCC decision in M. v. H., the Ontario legislature introduced a bill which
amended the FLA and 66 of other statutes. Finally, the words a man and a woman in the definition
of spouse in s. 1(1) and s. 29 were struck out and replaced by two persons.
The Parliament of Canada has saved the term spouse for married persons.
Moldowich v. Penttinen, Ontario District Court, 1980
A guideline in determining if a couple had been cohabiting in a conjugal relationship was set out
1) Shelter (sleeping arrangements, living under the same roof, …)
2) Sexual and personal behaviour (fidelity, communicate, eat meals together, buy gifts, have
sexual relations, …)
3) Services (preparation of meals, washing, ….)
4) Social (participate together in community activities, …)
5) Societal (how did the community view them)
6) Support (economic) (financial arrangement, arrangements for acquisition and ownership of
7) Children (attitude and conduct concerning children)
The SCC’s decision in M. v. H. described the listed components in Moldowich as the generally
accepted characteristics of a conjugal relationship.
Sanderson v. Russell, Ontario Court of Appeal, 1979
o Brief cooling-off period does not bring relationship to an end; need a settled state of
mind that relationship has come to an end (period of 5 days)
o Has to be a convincing demonstration that the relationship came to an end
o Desire to protect the economically vulnerable spouse
Where you think the relationship is over, when you leave, take your things with you. In context of
choosing to treat cohabitees the same way as married couples for spousal support, determining
whether you are cohabitees is complicated.]
Not married, lived together for 6 years, four or five day separation, he moved out of the house they
were living in, taking his clothes and a small bed.
RATIO: It could be said that a relationship has come to an end when either party regards it as being
at an end, by his or her conduct, has demonstrated in a convincing manner that this particular state of
mind is a settled one. The test should be realistic and flexible enough to recognize that a brief
cooling-off period does not bring the relationship to an end. Such conduct does not convincingly
demonstrate a settled state of mind that the relationship is at an end.
There was no break in cohabitation.
Stoikiewicz v. Filas, U.F.C., 1978
- [Woman gets pregnant, he asked to move in to his apartment which she resided for 6 years,
they never got married but he gave her an engagement ring, they slept in separate bedrooms,
she was getting provincial welfare, he was charging her rent, they each buy food, she cooks
for the lower rent
- Man was superintendent of the building where the sole-support mother lived, did domestic
- They never shared a bedroom, they had occasional sexual relations and she cooked for him
- Surprisingly, the court held that they were residing together
- This is a 78 case
- The judge says that there has to be a strict construing of what cohabitation means
- To retain their personal freedom, the court noted that many couples cohabit
- He doesn’t support her, the child is to be support but she doesn’t get a spousal support
o Very narrowly construed, under both tests (5 years at that time and having a child)
- Judge felt that economic dependence was needed to show she was a spouse
o But if she was independent, her welfare would have been cut off
o Judge didn’t think man was stand up guy, didn’t want her to not have spousal support,
then she would have been deprived of Social assistance as well
Bending the rules
In Armstrong, the court politely noted that the court made an error in Stoikiewicz.]
Indeed if the parties had been married this would have been considered to be living separate and
In my view, the unmarried persons cannot be found to be cohabiting unless it can be determined that
their relationship is such that they have each assumed an obligation to support and provide for the
other in the same manner that married spouses are obliged to do.
Their economic life was on an arms-length basis.
Labbe v. McCullough, Ontario Provincial Court, 1979
[1 ½ year relationship, she became pregnant, during that period of time, he either resided with his
parents or he was on the road, he never moved in, they had discussion of possible marriage
There is no question that he owed child support.
Was he a spouse under the definition of section 29(b)? was there some permanence to it.
The court held that there is more than no permanence to the relationship, therefore there was some
permanence. They were found to be common law spouses, b/c of short period of cohabitation. (small
amount was awarded b/c they were together for a short period of time)
Inconsistent reasonings in Labba and Stoikewitz.
Neither of them is considered to be setting precedent.]
Respondent is a musician who tours the country w/ a musical group. When he was informed that she
was pregnant, he terminated the relationship.
I place great weight on the fact that the parties discussed the possibility of marriage some day. That
gives a relationship a touch of permanence.
The length of time was very brief. That goes to quantum of support.
State wants to limit its financial obligation and direct it to the spouses.
In measuring the amount of support, the courts generally rule that the welfare amount should
not be taken into consideration.
S. 33(9)(m) of FLA: public money should not be considered.
There is a lot of pressure on women who are seeking public fund to seek spousal support.
(sometime it’s a condition for the grant)
They may not push her to do it if there is evidence of family violence
In 1995, changes were made so that is a man was living in the house, there were some
presumptions that he will take care of her and public funds should not be available to her and
should be cut off of social assistant.
[The argument was made that the legislation deprive them of getting into relationships. It was argued
on section 15 of the charter and the Ontario Court of Appeal held that there was systemic
discrimination. The argument was made that there was also violation of security of the person. The
argument was also made that it was an assault on privacy. At the Ontario court of appeal, it was
argued successfully that the dignity of those women were violated.
The legislation was found so that it now reads that spouse is “a person who has been residing in the
same dwelling as an applicant for a period of at least 3 months. If the extent of financial support
provided by one spouse to another is consistent with cohabitation, …*
It looks like there is improvement but it is still unconstitutional.
Harris v. Godkewitsch, Ontario Family Court, 1983
The applicant was denied support. The applicant would occasionally absent herself without notice or
the respondent’s blessing. On one occasion, she went to Paris for four months. Prior to her departure,
she indicated to friends that she would be there at least a year and might never return. It was held that
the applicant failed to prove that she did not intend to end the continuous relationship with the
respondent when she left for Paris. As a result, the period of continuous cohabitation was interrupted
by her action.
Sullivan v. Letnik, Ontario U.F.C., 1994
RATIO: whether couples are separated is a question of intent, not geography; at least one of the
parties must intend to permanently sever the relationship.
Armstrong v. Thompson, Ontario Co. Court, 1979
RATIO: The economic dependence theory is not applicable to this situation.
To say that b/c the dependent spouse worked outside the home, maintained her own bank account and
spent her own money, is reason to deny spousal support is not what is contemplated in the act.
Lehner v. Grundl, Ontario General Division, 1999
Consenting adults with separate residences who visit one another cannot be said to cohabit.
Thauvette v. Maylon, Ontario General Division, 1996
A man and woman began an affair while still married to others. He spent 3 or 4 nights a week at the
woman’s house and paid most of the expenses associated with it. the woman was unaware of the
man’s affairs with at least three other women. Cohabitation was found in this case.
Roberts v. Clough, P.E.I. T.D., 2002
A man and woman who kept separate residences, but spent time at a cottage together and
occasionally spent nights together in the man’s residence, cohabited continuously for at least 3 years.
In Gostlin v. Kergin, the BC CA affirmed that the non-marital status of an applicant should not be a
factor in discounting the amount of a support.
NOTE: It is the typical circumstances of unmarried relationships which militate against the awarding
of support rather than the fact that the parties are not married.
If no divorce is being sought, is it shrewd to go under the FLA?
If you go under the divorce act, you have to apply 4 objectives which are set out in section
The court has to consider the length of cohabitation, functions performed by each spouse during
cohabitation and any existence or order (s. 15.2(4)).
Divorce act explicitly states that conduct should not be taken into account.
Section 33.8 (almost identical to 15.2(6) of DA)
Child support guidelines are laws but spousal support guideline is not law.
You have to ask which Act will follow? Divorce act (corollary relief) or under the family law act
(Only if a divorce is being sought????)
Couples can be married and separate and still need spousal support and child support dealt with and
not seeking a divorce, there might be a religious reasons for not getting a divorce. You can still deal
with it with Family Law Act.
Spousal support can be indefinite. It can be hinged to another event (remarry). It can be paid in lump-
sum or it can be paid periodic. In theory it can involve property transfer to satisfy it. Once spousal
support order has been granted, either spouse can apply for variance under section 17 of DA or
section 37(2) of the FLA.
Variance will arise when there has been a long time from order or when one party loses his job or one
party remarries or when one party has to support new children.
Is there a link b/w spousal support and conduct of one of the spouses during the course of the
marriage? There is a popular understanding that if one’s conduct leads to breakdown of marriage, it
needs to play a role in the spousal support.
Conduct is usually not a factor in determining spousal support.
Fault is not legislatively at issue in determining spousal support.
Only conditions, means, need, length of time, function of spouses and any order and agreement
should be considered.
We have moved away from fault-based concept of divorce.
Spousal support used to be only for the innocent wife whose partner committed adultery.
There is a slight difference in Family Law Act. (S. 33(10) of FLA)
Morey v. Morey, Ontario Provincial Court, 1978
[Shows that it is a very high treshold (to find the conduct so unconscionable to play a role). She is
seeking spousal support under family law reform act.
The conduct has to be exceptionally bad, such as could reasonably be expected to destroy a marriage,
it should persist in the face of innocence and virtual blamelessness.
The court has to consider course of conduct (length of it).
Section 33(10) didn’t apply in this case.]
The obligation for support now exists quite apart from conduct but there appears to be some
discretion left with the court to measure conduct and arbitrate as to when conduct has reached a level
where it can properly be included in the considerations surrounding the support award.
The test of relevant conduct is to be a strict one.
The principles which are relevant include:
(a) The conduct must be exceptionally bad.
(b) The conduct must be such as could reasonably be expected to destroy the marriage.
(c) The conduct must have persisted in the fact of innocence and virtual blamelessness on the part
of the other spouse.
(d) The commission of a so-called matrimonial offence is not necessarily sufficient by any
Melanson v. Melanson, Ontario General Division, 1991
The court appeared to assume that the respondent’s conduct could be considered under s. 33(10) of
the Family Law Act. The judge concluded that the husband’s abusive conduct and the occasional real
or perceived extra-marital incidents did not amount to a gross and obvious repudiation of the
Lawless v. Lawless, Ontario Provincial Court, 1979
The wife began to live w/ another man after she and her husband mutually agreed to separate. The
judge concluded that the wife’s conduct could not be characterized as repudiation of the relationship
since the marriage had already been mutually repudiated in a fashion that was admittedly not gross or
B.(S.) v. B.(L.), Ontario Superior Court, 1999
The wife had several affairs and twice got pregnant w/ children not fathered by her husband.
Although the conduct was exceptionally bad and could reasonably be expected to destroy the
marriage, the judge concluded that the wife’s support claim was not affected by s. 33(10) of the FLA.
The husband had been aware of his wife’s conduct and had continued the relationship.
Fried v. Fried, Ontario Co. Ct., 1982
The court held that the wife’s conduct precluded periodic support. There, the wife had refused on
several occasions to measure the diabetic husband’s insulin dose as punishment for his refusal to
comply w/ her wishes.
MacDonald v. MacDonald, Ontario General Division, 1991
The judge found that the wife’s conduct satisfied the test set out in s. 33(10).
The parties’ 24 year-marriage was punctuated by violence, usually instigated by the wife. The
husband finally declared the relationship at an end when the wife stabbed him twice w/o warning
while he was driving. She served 3 months in jail. The wife’s course of conduct resulted in a
reduction of the quantum and duration of the support order. The order provided for $700 per month
for 5 years.
It is now well established that a recipient’s remarriage or cohabitation w/ another does not
automatically result in disentitlement to support. In Harris v. Gilbert, the Ontario Court of Appeal
found that the ex-wife’s remarriage was a material change in circumstances justifying a reduction in
the amount of support in light of the economic benefits flowing from the second relationship.
Divorce Act criteria are more rigid. In this case the divorce was not an issue at the junction.
Payee: divorce act (Conduct is not considered)
If one party filed under the divorce act, divorce act will prevail but if you start under the family law
act and the other party wants to apply under divorce act and wants to ….
If people are not married, FLA should be chosen.
Once you claim under the divorce act, it governs.
Property is only available under provincial law (FLA) b/c divorce act is silent on it.
Even though there is a final agreement b/w the parties or a final order has been made under FLA, one
of the spouses can revoke the Divorce Act when he applies for divorce.
Ultimately divorce court is under duty to assess the previous arrangement to see if it meets the
standards of divorce act.
If they choose to question the previous arrangement, the divorce court has to take a look at it.
20 year marriage, they have child together, she financially contributed to the education of her
husband, she suffered back injury, very soon after that he told her he wanted a divorce to marry
another person. In this case, the issue relates to section 15.2(6)(d) in term of her ability to become
The SCC makes it absolutely clearly that conduct should not be taken into account under the Divorce
act. (section 15.2(4))
RATIO: The Court gave spousal support using different factors but they did say that the court could
take into account the consequences of misconduct. Even though the conduct itself is not to be taken
into account, the fact that she was emotionally influenced, that might render her incapable of being
self-sufficient and play a role. Misconduct can play a role by looking at the consequences that it lead
Under FLA, Conduct is:
The conduct to be relevant can be a course of conduct. (can’t be a single act)
It has to be so unconscionable that there would be an obvious repudiation of obligation. (very high
Couples were married for 21 years. They had a child. He suffered an injury and stayed home as a
result and home-schooled the child and did domestic work and did the house work.
The case deals with whether he gets spousal support or not.
The court held that he was responsible for the fact that he earned much less than her (84 grand vs. 35
Different factors: Causal connection b/w spouse’s inferior income and family obligation, clean
Messier v. Delage, S.C.C., 1983
[12 year period of cohabitation, Couples married, 2 children, She gives up working to look after
children, The wife gets custody, She get $1600 for both child support and spousal support.
His income: 4700 per month
After paying support, he has twice the income of wife and children
She goes university and gets a master degree after separation. The son lives with the father.
She has a hard time finding a job in her field. She earns only 5000 dollars per year.
Downward variation b/c his son was living with him and he argues that his wife should have been
self-sufficient by now
She argues that the losses she is suffering were caused by their marriage
Under 1968 Divorce Act
The trial court allows for 700 dollars per month for eight months. SCC reverses the trial judge’s
opinion saying that 700 dollars should continue indefinitely. It rejects the time limit order (It’s split
The majority says that you can’t assume that she will have a job. It has to be revisited on further
variance. It’s clear that the wife has to take reasonable steps to become self-sufficient.
They are clear that she is a relatively young woman.
In Dissent: Clean break causal connection principle is factored in. Clean break as much as possible,
they shouldn’t be bound to each other financially
Lamer says that he would expect her to go under welfare if she can’t find a job. The problem is a
social one and the government should bear the burden for it. Gender equality: women cannot have it
Married in 1962, separated in 1974, in 1979 Messier applied for a variation of the spousal support
order. He stressed that she had five years following separation in which to reorganize her life.
Lamer J. (DISSENTING)
The purpose of maintenance is to reduce in material terms the consequences resulting from breaking
the marriage bond.
The evolution of society and the status of women both require us to re-examine what the nature of
maintenance should be.
Women cannot on the one had claim equal status without at the same time accepting responsibility
for their own upkeep.
(interest of self-reliance)
A maintenance is only granted for as long as it takes to acquire sufficient independence, once that
independence has been acquired it follows that maintenance ceases to be necessary. A divorced
spouse who is employable but unemployed is in the same position as other citizens, men or women,
who are unemployed. The problem is a social one and it is therefore the responsibility of the
government rather than the former husband.
Justice Lamer suggested that spousal support could be ordered where one spouse’s needs might be
related to the marriage.
The philosophy articulated by Lamer J. in dissent in Messier v. Delage appeared to be adopted by a
majority in what has become known as the Pelech trilogy: Pelech v. Pelech; Richardson v.
Richardson and Caron v. Caron.
(1968 Divorce Act; variance w/ a separation agreement.)
Pelech v. Pelech, S.C.C., 1987
[Lasted for 15 yrs, woman had psychological difficulties, husband got custody of the children,
$29,000 lump-sum spousal and property
15 years after the divorce the wife is on welfare and wants variation under Divorce Act.
SCC reversed the Trial judge’s decision and gave her 0. (clean break, fostering independence)]
They entered into a settlement agreement, having each received independent legal advice.
The husband prospered and his net worth increased from about $128,000 in 1969 to $1,800,000 in
The SCC denied the appeal, emphasizing the policy of promoting individual autonomy in setting the
contractual terms for all issues arising out of a marriage breakdown.
WILSON J.: The Hyman principle that parties cannot by contract oust the jurisdiction of the court in
matters of spousal maintenance is an established tenet of Canadian law.
Where the parties have negotiated their own agreement freely and on the advice of independent legal
counsel, as to how their financial affairs should be settled on the breakdown of their marriage, and
the agreement is not unconscionable in the substantive law, it should be respected. This should be the
overriding policy consideration.
RATIO: Absent some causal connection b/w the changed circumstances and the marriage, it seems to
me that parties who have declared their relationship at an end should be taken at their word.
The causal connection b/w the severe hardship being experienced by the former spouse and the
marriage provides, in my view, the necessary legal criterion for determining when a case falls w/I the
narrow range of cases [where a court should override a final agreement relating to spousal support.]
She has suffered a radical change in circumstances flowing from an economic pattern of dependency
engendered by the marriage.
(she has suffered a radical change in circumstances flowing from an economic pattern of dependency
engendred by the marriage.)
No link is found by trial judge b/w the change of circumstances and her former marriage.
Psychological problems predated the marriage and contributed to it failure.
Richardson v. Richardson, S.C.C., 1987
[12 years, the wife agrees to receive one year spousal support
The wife is on welfare and wants an order overriding the agreement.
Ontario Court of Appeal and SCC give 0 for spousal support and 500 for child support.]
A court should vary a settlement agreement only where there has been a radical change in the
circumstances of a former spouse and that change is the result of pattern of economic dependency
generated by the marriage relationship.
The underlying rationale is:
1) the importance of finality in the financial affairs of former spouses and
2) the principle of deference to the right and responsibility of individuals to make their own
No event has occurred which the appellant is peculiarly unable to deal w/ b/c of a pattern of
economic dependency generated by the marriage.
It was also questionable whether Mrs. Richardson’s position at the time could be attributed to a
pattern of economic dependency developed during the marriage.
The period of time from her last employment until the date of separation was not that great.
It cannot be said that the possibility of her being unemployed was completely outside the reasonable
contemplation of the parties. (at the time of the agreement)
Caron v. Caron, S.C.C. 1987
[With spousal support, the courts are unwilling to override the agreement that the parties reached.
Wilson indicates that causal connection b/w hardship and poverty and marriage itself has to be
established otherwise the state should take over.]
The SCC unanimously dismissed the former wife’s appeal. It concluded that the paragraph providing
for termination of support was valid and enforceable and had been properly invoked by the
respondent. It also held that the paragraph allowing for variation was limited to quantum and did not
authorize reinstatement of support where the right to such support had been forfeited.
The spousal support was ceased after the former wife cohabited w/ a man for more than 3 months.
Both parties legal counsel advised them.
Notion of choice has to be fully accepted.
The emphasis on each spouse becoming self-supporting. Also the emphasis on causal connection can
There were fewer support orders after the trilogy was decided.
McLeod‟s annotation on trilogy‟s decisions:
In order to obtain support, a claimant must prove:
(2) that the need arises for a legally acceptable reasons; and
(3) that the need/inability is causally connected to the marriage…
Parties should be free to make new lives for themselves w/o an ongoing contingent liability.
Where a spouse is unable to relate his/her inability to achieve self-sufficiency to the marital
relationship, there is no reason to burden the other spouse w/ the support obligation.
Where, through the roles adopted during the marriage, one spouse has made a significant contribution
to the career of the other which is not fully recognized by the distribution of marital property, the
appropriate means of recognizing the contribution is by a compensatory allowance (Magee v.
Magee), not the indefinite maintenance of the accustomed standard of living.
If the claimant has lost nothing from his/her income position b/c of the marriage, he/she should
receive no support.
Bast v. Bast, Ontario H.C., 1988
The wife was awarded support for only a 2 year period where she had managed to obtain a job after
separation paying $14,000 per year.
An order for support in the case should attempt to promote self-sufficiency at the same time
recognizing that Mrs. Bast will need some time to gear down from her former standard of living.
Increasingly, the clean break model of spousal support was criticized, especially as documentation
appeared confirming the decline in the economic circumstances of women and children after
By the early 1990s, an increasing number of appellate cases began to reject the causaul connection
test as the sole basis for entitlement to support and also began to take a more sophisticated approach
to the determination of economic disadvantages flowing from the marriage relationship. The SCC
built on the development in the Moge v. Moge and endorsed a much more expansive compensatory
model of spousal support.
Moge v. Moge, S.C.C., 1992
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides
for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or
(b) apportion between the spouses any financial consequences arising from the care of any child of
the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable
period of time.
(7) A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the
marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any
child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage;
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a
reasonable period of time.
[Long term marriage, 3 children, he works as a wielder, low income couple, she works as office
cleaner at night, she is working just above minimum wage
New traditional marriage, she has worked less, part time and lower wage
The amount of child and spousal support is b/w 500 and 1000
She is making about 800 dollar per month
He remarries. He applies to terminate all spousal support on variation application. 15 years after
separation. The children move out.
He make an argument on causal connection test. (related to her lack of education and not his fault)
SCC unanimously gives 150 dollars per month.
There is no separation agreement.
The court held that the model that focuses on causal connection, self-sufficiency and clean break is
not sufficient anymore.
It’s recognized that usually women sacrifice their income. (differential gender impact on women)
Compensatory model of spousal support: compensation is not going to be the only factor but
it‟s going to be a significant factor.
15.2(6): All four factors have to be taken into account
If there is a primary principle b/w 4 of them, it’s compensation.
There should be some recognition if they have children, there is going to be an ongoing responsibility
for child-care which will have impact after separation.]
Married from mid 1950s, separated in 1973, variance application under s. 17 of the Divorce Act
This case is not one which involves a final agreement entered into b/w the parties in order to settle
the economic consequences of their divorce. (trilogy)
It involves the development of parameters w/ which to assess the respective advantages and
disadvantages of the spouse as a result of their roles in the marriage.
All 4 objectives defined in the Act must be taken into account. No single objective is paramount.
In many cases a former spouse will continue to suffer the economic disadvantages of the marriage
and its dissolution while the other spouse reaps its economic advantages. In such cases,
compensatory spousal support would require long-term support or an alternative settlement which
provides an equivalent degree of assistance in light of all of the objectives of the act.
Sacrifices should be taken into account. (birth of children: ongoing childrearing obligation)
The marriage does not automatically entitle a spouse to support.
If child-care responsibilities continue past the dissolution of the marriage, the existed disadvantaged
Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to
either party the standard of living enjoyed during the marriage, the standard is far from irrelevant to
S. 17(4) factors
Decision: spousal support should continue
[Trilogy: Clean break, if there is a spousal agreement, it should be respected,
Moge: compensatory support, Because of the respective roles the parties assumed during the
relationship, one of the spouses is now needing to be compensated for foregone opportunities during
If there are no children is the relationship, it’s less likely that spousal support will be awarded.
Relationship b/w compensatory order and needs of both parties: Moge underlies that there is a
compensator nature to spousal support
Need and marital standards are two main factors that are looked at. It looks like status and marital
status have resurfaced again.
Even following Moge, there is a need for spouses to become self-sufficient. You can’t wilfully not
look for a job. It doesn’t eliminate the obligation for becoming self-sufficiency by spouses.
(reasonable measures have to be taken)]
ROGERSON, “SPOUSAL SUPPORT AFTER MOGE”
Moge has transformed the legal landscape of spousal support. It has signalled a shift toward more
generous spousal support awards. Post-Moge spousal support awards are in general for higher
amounts and for longer periods of time than in the past. Most noticeably there has been a significant
decline in the use of time-limited orders, and an increasing prevalence of indefinite and permanence
A great deal of confusion still remains w/ respect to the precise implication of the compensatory
model of spousal support.
The Moge’s decision sends out a strong message that clean break principle is clearly inappropriate as
a principle of general application.
While justifying spousal support in many situations, a compensatory analysis eliminates entitlement
in others. For example, an ill or disabled spouse’s economic needs may not be traceable to any loss of
earning capacity due to the role adopted during the marriage.
In the case that follows, the SCC explicitly expanded the framework of spousal support to include
entitlement to “non-compensatory” support.
Bracklow v. Bracklow, S.C.C., 1999
[Cohabited for 7 ½ years (marriage and cohab), both were in working force, she suffered psychiatric
problem, at the beginning of marriage she had the higher income, she was paying more for the needs,
he wanted to split the costs more equally, the husband provides support for the last year they were
together, not a long relationship (somewhere in the midi-range)
She gets CPP pension (800 dollars), no children to take care, he makes gross income of 3800 and by
the time it gets to SCC, he is making 6000 per month and he was getting married.
Marriage wows are not contractual promises (sickness and health), mere expression of hope
Tort base analysis by lower court: No career sacrifices for the woman, no economic gain for the man
(both working) and b/c of that he has no duty of support her
SCC rejects the approach taken by lower court, NEED BASED CLAIM
(Rogerson says that the Bracklow’s decision is disappointing)
McLachlin: She doesn’t decide what should happen at the end and sends it back to the trial court,
(using principles that have not been articulated)
Basic social obligations and clean break
Contractual: express or implied
Need to provide support until the dependent becomes self-sufficient
Wife was in need because she became mentally ill, unable to work and dependent after marriage
ended; not entitled on the basis of compensation
SCC: the state is not going to provide support, so former family members should
SCC: keep paying –still have to compensate her for foregone opportunities during marriage
There might be grounds for indefinite support, support is not indefinite this case (not a long term
DECISION: $400 per month for 5 year (duration of cohabitation is taken into account)]
Second marriage for both, wife brought two children into the relationship, the husband was aware of
the wife’s health problems
The husband told her to leave this job and she did so after about a year. Psychiatric problems led to
Trail judge reasoned that no economic hardship befell the wife as a result of the marriage or its
breakdown since she was in no different circumstances than if she had never married.
It is now well-settled law that spouses must compensate each other for foregone careers and missed
opportunities during the marriage upon the breakdown of their union.
RATIO: The law recognizes three conceptual grounds for entitlement to spousal support: (1)
compensatory; (2) contractual; and (3) non-compensatory. Indeed, a review of cases suggests that in
most circumstances compensation now serves as the main reason for support. However, contract and
compensation are not the only sources of a support obligation. The obligation may alternatively arise
out of the marriage relationship itself. Where need is established that is not met on a compensatory or
contractual basis, the fundamental marital obligation may play a vital role. Absent negating factors, it
is available, in appropriate circumstances, to provide just support.
Both the mutual obligation model and the independent, clean-break model represent important
realities and address significant policy concerns and social values.
I conclude that she is eligible for support based on the length of cohabitation, the hardship marriage
breakdown imposed on her, her palpable need and Mr. Bracklow’s financial ability to pay.
Relation of 4 years, wealthy husband, child was born, they broke up before child was born, she then
gets married to somebody else, they meet up again and marry and cohabit for a period of 4 years, she
is very sick just before they get married, he told her that he would take care of her for life and relies
on it, (implied contract to take care of her)
The court looks at the fact that he has considerable means and she has needs
Spousal support was granted (3,000 per month (indefinite)
Courts in some recent cases put at least 50 percent of the spouses’ net disposable incomes in the
dependent spouse’s new family unit.
5 year marriage (ST), one child resulted, she had been a good student in high school, she stayed at
home to take care of the child, husband was earning 35000 per years, she was making 520 per month
(wants to go to the university)
support payment of 600 per month
Child support of 600 per month
RATIO: Ongoing childcare responsibilities are taken into account in awarding spousal support.
1997: first child support guideline: divorce act was amended to separate child support and spousal
support and award child support based on the guideline
Child support has to be calculated on mechanical basis.
Non deductible to payor and not taxable for the payee.
Facts govern everything. Factors have to be taken into account and it’s factual based. (great amount
of discretion): One factor is more important in one case and one in another
Entitlement and quantum: in practice entitlement is not an issue anymore, short of very short
cohabitation or complete intertwined of financial, one is entitled to spousal support
Income disparity gives rise to spousal support. (duration of cohabitation has become a key factor in
The ones that are judicated before court constitutes 2 per cent of cases that enter the court.
The prospects of spouses are taken into account.
Messier: Time limited spousal support, operating on status of marriage giving rise to spousal support
Appellate trilogy and new act: moved away from treating marriage as an status
Conditions, needs of the parties
4 factors and 4 objectives: neither of which is given priority over the others
Bracklow: includes 3 theories: compensatory, needs and non-compensatory and none of them is
given priority over others
Child support: a grid (determine child support(
Spousal support was widely unstructured after Bracklow’s decision.
Child support guidelines are laws but spousal support guidelines are advisory (they are not laws).
Many courts are following spousal support guidelines.
Thompson: you have to establish entitlement based on factors and objectives laid out in the
Income has to be determined.
ROGERSON, “SPOUSAL SUPPORT POST-BRACKLWO: THE PENDULUM SWINGS
1983 Messier v. Delage Directed judges to make awards that were fit and just on the facts
before the court, a test that was generally understood as providing
a fairly generous basis for spousal support.
1987 Pelech Triology Test of causal connection: narrowed the basis for spousal support
and led to an increased emphasis on clean breaks and the
widespread use of time-limited support orders.
1992 Moge The pendulum swung back in the direction of a broader basis for
spousal support around the idea of compensation.
1999 Bracklow Characterized spousal support as basic social obligation. In terms
of swings of the spousal support pendulum, Bracklow is generally
regarded as further broadening the basis of spousal support even
beyond what was accomplished by Moge.
If there is no compensatory basis for support, need alone may be
enough to ground an award of support, and if need is interpreted
broadly to cover any significant drop in standard of living, the
basis for entitlement is very broad.
Justice McLachlin recognized in Bracklow that there are no simple answers to the question of the
appropriate model of spousal support b/c there are competing and often conflicting policy pulls in
this area that have to be balanced.
Bracklow encouraged the attitude that spousal support is an area of law w/o rules or principles where
discretion rules the day. Furthermore, entitlement is no longer a serious issue (with Bracklow’s clear
recognition of non-compensatory support). Need alone may be enough.
Spousal support post-Bracklow is not too different a world from that of spousal support post-Moge.
SPOUSAL SUPPORT GUIDELINES
ROGERSON AND THOMPSON, SPOUSAL SUPPORT ADVISORY GUIDELINES: A
These advisory guidelines are very different from the Federal Child Support Guidelines. They are not
being legislated by the federal government. They are informal guidelines that will operate on an
advisory basis only.
The proposed advisory guidelines will be used to determine the amount and duration of spousal
support w/I the existing legal framework of the Divorce Act and the judicial decisions interpreting its
provisions. The guidelines are not legally binding and their adoption and use will be voluntary.
The advisory guidelines do not deal w/ the effect of a prior agreement on spousal support.
There are two basic formulas in the proposal: the w/o child support formula and the w/ child support
formula. The formulas produce ranges for the amount and duration of support, not just a single
Ceiling: Incomes lower than 20 thousand dollars and higher than 350 thousand dollars
The w/o Child Support Formula
o (<25 yrs): Amount ranges from 1.5 to 2 percent of the gross income difference for
each year of marriage (or more precisely the years of cohabitation), up to a maximum
of 50 percent.
o (>25 yrs): The range remains fixed for marriages 25 years or longer at 37.5 to 50
percent of income difference.
o (<20 yrs): Ranges from .5 to 1 year for each year of marriage.
o (>20 yrs): Support will be indefinite
o (Rule of 65): If the marriage has lasted five years or longer, when the years of
marriage and age of the support recipient at separation added together total 65 or
more, support will be indefinite.
A number of factors will affect the precise amount or duration w/I those ranges: a strong
compensatory claim, the recipient’s needs, property division, the needs and limited ability to pay on
the part of the payor spouse and self-=sufficiency incentives.
Restructuring allows the amount and duration under the w/o child support formula to be traded off
against each other.
The w/ Child Support Formula
Where the are dependent children, the primary rationale is compensatory, as both Moge and
Bracklow made clear. What drives support is not the length of the marriage, or marital
interdependency, or merger over time, but the presence of dependent children and the need to provide
care and support for those children.
Not just the past loss, but also at the continuing economic disadvantages that flows from parent and
future child care responsibilities, (S. 15.2(6)(b))
The w/ child support formula uses the net income of the spouses.
This formula divides the pool of combined net incomes b/w the two spouses, not the gross income
The upper and lower percentage limits of net income division in the w/ child support formula do not
change w/ the length of the marriage.
Usually require computer software.
Initial order would be indefinite in form, subject to the usual process of review or vataition.
o Determine the individual net disposable income of each spouse
o Guidelines Income minus Child Support minus Taxes and Deductions = payor’s INDI
o Guidelines Income minus Notional Child Support minus Taxes and Deductions Plus
Government Benefits and Credits = Recipient’s INDI
o Add together the INDIs. Determine the range of spousal support amounts that would
be required to leave the lower income recipient spouse w/ b/w 40 and 46 percent of
the combined INDI.
Duration: There are two tests and whichever produces the longer duration will apply.
o First is the longer-marriage test, which is modelled on the maximum duration under
the w/o child support formula, i.e. one year of support for every year of marriage, and
which will likely govern for most marriages of 10 years or more.
o Second is the shorter-marriage test, which sets the outside time limit for support at the
time that the last or youngest child finishes high school and which will typically apply
for marriages under 10 years. In these shorter marriage cases, there will likely be
review conditions attached.
The ceiling: payor spouse gross annual income for the payor of $350,000
The floor: set at $20,000 Below which no support is to be paid.
It doesn’t change with the length of marriage either, b/c the obligations persist. (as indicated in
Shared and split custody situations require a slight variation in the computation of individual net
disposable income, as the backing out of child support obligations is a bit more complicated. There is
also a different formula for cases where spousal support is paid by the custodial parent. Under this
formula, the spouses’ Guidelines incomes are reduced by the gross-up amount of child support
(actual or notional) and then the w/o child support formula is applied to determine amount and
Advantages of Guidelines:
To provide a starting point for negotiations and decisions
To reduce conflict and to encourage settlement
To reduce the costs and improve the efficiency of the process
To avoid budgets and to simplify the process
To provide a basic structure for further judicial elaboration.;
To create consistency and legitimacy.
Disadvantages of Guidelines:
Spousal support is too complicated
Discretion allows intuitive reasoning
Regional variations too great
Litigation will be foreclosed.
Spousal support guidelines come into force in 1995.
Rogerson: longer period that you live together, the assumption is that more your incomes are merged
and more sacrifices have been made mutually
Entitlement: the proposed advisory guidelines do not deal w/ entitlement. A mere disparity of income
that would generate an amount under the advisory guidelines, does not automatically lead to
entitlement. Post Bracklow, any significant income disparity generates an entitlement to some
Under the guidelines, length of marriage of under 5 years is characterized as a short marriage, 5-19
years as medium and 20 years plus as long marriage.
EFFECT OF A MODESTIC CONTRACT
Miglin v. Miglin, 2003, S.C.C.
Married in 1979, separated in 1993
Husband managed the business, while the wife was responsible for its day-to-day operations
The wife was the primary caregiver for the couple’s four children.
Each retained a lawyer after separation and eventually reached a settlement.
The separation agreement stipulated that the wife would receive her husband’s interest in the
matrimonial home in exchange for giving up her interest in the lodge. (each valued $500,000)
Each of the parties specifically abandoned all possible claims for spousal support.
The husband was to provide $60,000 per year in child support.
A consulting agreement was drafted b/w the wife and the lodge provided for payments of $15,000 per
year to the wife. The agreement covered five years, but was renewable by mutual consent.
Just before the consulting agreement was to expire, the wife brought proceeding pursuant to the
Divorce Act for sole custody, child support in accordance with the Federal Child Support Guidelines
and spousal support. The husband later caused the lodge not to renew the consulting agreement. The
oldest child had gone to live w/ the husband.
The SCC allowed the husband’s appeal and set aside the spousal support award.
BASTARACHE, ARBOUR JJ.:
One of the main issues is to address directly the question of the continued application of the Pelech.
We believe that a fairly negotiated agreement that represents the intentions and expectations of the
parties and that complies substantially w/ the objectives of the DA as a whole should receive
The Pelech trilogy has come to stand for the proposition that a court will not interfere w/ a pre-
existing agreement that attempts fully and finally to settle the matter of spousal support as b/w the
parties unless the applicant can establish that there has been a radical and unforeseen change in the
circumstances that is causally connected to the marriage. (Clean break)
The 1985 Act abandons the reference to the conduct of the parties.
Such an emphasis on self-sufficiency is inconsistent w/ both the compensatory model of support
developed in Moge, and the non-compensatory model of support developed in Bracklow.
The language and purpose of the 1985 Act militate in favour of a contextual assessment of all the
The narrow test enunciated in the Pelech trilogy for interfering w/ a pre-existing agreement is not
appropriate in the current statutory context.
We endorse the reasoning of this Court in Moge that the spousal support objectives of the Divorce
Act are designed to achieve an equitable sharing of the economic consequences of marriage and
marriage breakdown. (objectives listed in s. 15.2(6) should be considered)
Two stage test:
Stage One: the court should look to the circumstances in which the agreement was negotiated
and executed to determine whether there is any reason to discount it.
o The circumstances of Execution
Whether there were any circumstances of oppression, pressure or other
The degree of professional assistance received by the parties will often
overcome any systemic imbalances b/w the parties.
o The substance of the Agreement
The court must determine the extent to which the agreement takes into account
the factors and objectives listed in the Act, thereby reflecting an equitable
sharing of the economic consequences of marriage and its breakdown.
Only a significant departure from the general objectives of the Act will warrant
the court’s intervention on the basis that there is not substantial compliance w/
Stage Two: The court should assess the extent to which enforcement of the agreement still
reflects the original intention of the parties and the extent to which it is still in substantial
compliance with the objectives of the Act.
o It is unlikely that the court will be persuaded to disregard the agreement in its entirety
but for a significant change in the parties’ circumstances from what could reasonably
be anticipated at the time of negotiation.
o The applicant must clearly show that in light of the new circumstances, the terms of
the agreement no longer reflect the parties’ intentions at the time of execution and the
objectives of the Act. (was not contemplated)
In this case, there is ample evidence to conclude that any vulnerability experienced by Ms. Miglin
was more than adequately compensated by the independent and competent legal counsel.
Her economic needs were address through child support.
Bastarache trying to protect autonomy
The Court in Miglin makes it clear that the appellate trilogy test does not apply anymore.
1. The agreement has to be reviewed in light of circumstances in which it was
drafted. (vulnerabilities): whether the contract is fair (look at whether one of
the parties took advantage of the vulnerability of the other party. If both parties
had legal counsel, then it would be a high threshold.
Part 2 of first stage: Substance of agreement and whether it substantially
complies with the 4 objectives laid out in 15.4(6). (equitable sharing): promote
2. Changes in circumstances must be taken into account. (has to be established
that the agreement no longer reflects the original intentions of the parties): new
circumstances that weren’t reasonably anticipated by the parties: (very high
test for review) (e.g. child becomes sick)
Disappointing decision: Most post Mighlin decisions have shown the reluctance by courts to interfere
with the agreement that the parties have reached.
In this case, what she did wasn’t rational. McLeod notes that since one doesn’t want to expose herself
to emotional turmoil and legal expenses, one would try to avoid litigation.
o YUMCHUCK (2005) and REDBATH (2006) (B.C. C.A.) Website
o Both cases dealing with spousal support. Spousal support advisory guidelines weren’t
taken into account by the lower court judges.
o In Yumchuck, the Court of appeal makes it clear that these are just guidelines. They
are intended to reflect the current law rather than change it. The court says that the
guideline is a very effective tool to use. (supplementary). They don’t constitute
evidence but can be submitted by the counsels.
o In Redpath, the Court of Appeal says that guidelines are useful tools. Advisory
guidelines set standard on what’s normal for spousal support. The awards were varied
in these cases accordingly.
You can’t deal with child support, child custody and matrimonial home in domestic contracts.
Marriage contract: more likely to be overturned using the criteria in Miglin than separation contract
Under section 15(2) of DA, courts have jurisdiction to override final support order.
Disappointing decision: the court tries to balance out two things: autonomy, certainty and equitable
Professor McLeod: Miglin instated a four-stage analysis:
1. Was the agreement fairly negotiated?
2. Did the agreement fairly reflect the parties’ expectations and the relevant support objectives?
3. Was there a fundamental change in circumstances beyond the contemplation of the parties?
4. Did the non-contemplated change undermine the integrity of the parties’ bargain?
Section 32 of the Family Law Act stipulates that adult children have an obligation to support their
parents who have cared for or provided support for them. (Succeeded in Godwin v. Bolcso and
Dragulin v. Dragulin.
CLAIM FOR RETROACTIVE CHILD SUPPORT
Louie v. Lastman, Ontario Court of Appeal, 2001
Two brothers, aged 38 and 42 brought an action against Lastman whom they learned in 1997 was
likely their biological father. The mother received a total of $27,500 under an agreement and she
released all claims against Lastman and withdrew the allegation that he was the father of the children.
B/c they were independent adults, they could not bring a support application under the FLA. Their
claims were based on breach of a fiduciary duty, unjust enrichment and the torts of intentional or
negligent infliction of mental suffering and intentional infliction of impoverishment.
Lastman successfully brought a motion asking the court to strike out all the claims prior to trial.
Courts have been all over the place w/ awarding retroactive child support.
S.(L.) v. P.(E.), B.C. C.A., 1999
She decided she wanted to raise a child fathered by the man and w/o informing him of her plan, got
pregnant. The mother rejected the father’s suggestion that she obtain another abortion.
The father denied paternity. A court declared him to be the father. The mother claimed no support in
the paternity proceeding. The court issued a child support order requiring the father to pay $1.00 per
month. When the boy was 13, the mother was injured and was forced to quit work. She sought child
support and a lump sum based on unjust enrichment.
The B.C. C.A. affirmed the trial judge’s ruling. It was held that retroactive child support was not
appropriate in light of the earlier order and the mother’s willingness to live w/ it for many years.
However, the court noted that it was disturbing that the 1984 order failed to recognize that the
obligation to support the child fell on both parents and suggested that today’s courts would not make
such an order.
It is more likely for it to be awarded if there is some blameworthy conduct on payor party:
Custodial parent has to incur debts to raise the children
Reasons for not bringing it forward earlier is also taken into account. (intimidated)
Whether non-custodial parent has been put on notice that non-custodial parent is seeking child
The court considers whether it will impose unreasonable burden.
They will take into account whether there is a reason that they haven’t applied for it earlier.
Park v. Park, Ontario Court of Appeal, 2005
The Ontario Court of Appeal declined to reconsider the issue of retroactive child support.
The Court stated that there was no presumption that a court should make a child support order
effective at a date prior to the date of application and that jurisdiction to award retroactive support
should be exercised sparingly.
It identified the following factors as favouring making of a retroactive order: the existence of unmet
needs of the child, the non-custodial parent’s ability to pay, any blameworthy conduct by that parent,
the custodial parent’s need to encroach on capital or incur debt, and excuse for the delay in bringing
the application, and any notice to the custodial parent of an intention to pursue support.
In its view, factors militating against a retroactive order included any reasonable burden that would
be caused for the non-custodial parent, the fact that the award would serve only to redistribute capital
or award spousal support in the guise of child support, and any significant, unexplained delay in
bringing the application.
D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, SCC, 2006
These 4 cases dealt with retroactive child support.
Four different scenarios that have overlapped in similarities.
Blameworthy conduct is the issue which SCC is concerned about.
In DBS, there was a common law relationship for 4 years. 3 children. Father had sole custody in the
beginning. Eventually: shared custody. She applies for retroactive child support. She is not given
retroactive child support. The lower court held that it will not benefit the kids. It only benefits the
mother. The income of the spouses were close to each other. No blameworthy conduct from the
father: NO retroactive child support was ordered
LJW: common law relationship, 3 children, mother had the children, father was paying about 150-
200 dollar on consent order, mother was earning about 50 thousand, father entered into another
relationship, retroactive support wasn’t granted, the SCC felt that father’s conduct wasn’t deceitful
and blameworthy, he honoured the agreement
Henry: 2 children, residing with the mother, order to pay 700 dollar child support, the father was put
on notice that she didn’t think he was paying enough child support, he hadn’t fully disclosed her
income, father intimidated her, in this scenario, the award of retroactive support was given. the
mother didn’t unreasonably delay in asking for increase. He wasn’t forthcoming about his income.
Himstra: 2 children, son moved back with the mother and child support payment ceased, father had
substantial income, the mother requested that he would contribute toward her college expenses, she
applies for retroactive child support. Retroactive order of chamber judge was reaffirmed.
The payor parent's interest in certainty must be balanced with the need for fairness to the child and
for flexibility. In doing this, the court should consider the reason for the recipient parent's delay in
seeking child support, the conduct of the payor parent, the past and present circumstances of the
child, including the child's needs at the time the support should have been paid, and whether the
retroactive award might entail hardship. Once the court determines that a retroactive child support
award should be ordered, the award should as a general rule be retroactive to the date of effective
notice by the recipient parent that child support should be paid or increased, but to no more than three
years in the past. Effective notice does not require the recipient parent to take legal action; all that is
required is that the topic be broached. Once that has occurred, the payor parent can no longer assume
that the status quo is fair. However, where the payor parent has engaged in blameworthy conduct, the
date when the circumstances changed materially will be the presumptive start date of the award.
Finally, the court must ensure not only that the quantum of a retroactive support award is consistent
with the statutory scheme under which it is operating, but also that it fits the circumstances.
Fact specific: blameworthiness of the conduct
Payor’s parent’s interest in certainty is taken into account. Reason for delay, conduct of the payor
Once the court determines that there should be retroactive payment, one should refer back to the
guidelines. (3 year cut-off)
Has to go back to the date that effective notice was given, it doesn’t mean that you should take legal
action, you should just raise the issue w/ him, the payor parent can no longer assume after notice is
given that child support amount is sufficient, if the payor parent is blameworthy in their conduct, the
date that the circumstances have changed materially will be the presumptive starting date of the
award (as opposed to 3 year rule)
Children’s Law Reform Act, ss. 1 and 2
L. (T.D.) v. L. (L.R.), Ontario General Division, 1994
A wife w/ her husband’s encouragement, gave birth to a child conceived through artificial
insemination by an anonymous donor.
The wife asked for a declaration that the husband was not the father of the child and the husband
responded by asking for a declaration that he was.
The court declared that the husband was the father on the child. “Nowhere in s. 5 of the Children’s
Law Reform Act is there any suggestion that the relationship of father and child must have a
biological or genetic character.
If a husband consents to his wife’s artificial insemination, he is still treated as a legal father.
It’s not necessary for it to have a biologically or genetically related.
Buist v. Greaves, Ontario General Division, 1997, (superceded by AA v. BB)
The parties lived together in a same-sex relationship for seven years. The plaintiff was a lawyer. The
defendant bore a son conceived through artificial insemination by an anonymous donor.
The plaintiff was involved in all aspects of the child’s life. She was not however the primary
The defendant was offered a job in Vancouver and wanted to move there with her son. The plaintiff
applied for custody of the boy and an order that he not be removed from London. She also applied for
a declaration under the CLRA that she was a mother of the child. The defendant applied for child
Sole custody was awarded to the biological mother and she was permitted to take the child to
Vancouver. The Justice refused to issue a declaration that the defendant was a mother of the child.
Section 4 of the CLRA: The use of the definite article “the” indicates that the drafters of the
legislation did not consider that more than one person be the mother of a child.
Even if I had the jurisdiction to declare that a child could have 2 mothers under section 4, I would
not, on the facts of this case, exercise my discretion to do so. Ms. Buist has not on a balance of
probabilities established the relationship of mother and child.
An order was made for Buist to pay $450 per month in Child support.
A.(A.) v. B.(B.), Ontario Superior Court, 2003
The court refused to declare that a woman involved in a same-sex relationship was a mother of a
child born to her partner. The woman had selected the father of the child and expected him to be
actively involved in the child’s upbringing.
It was noted that the applicant fulfilled the role of a parent and would be considered a parent for
support purposes under the FLA.
He said he was prepared to grant the declaration if he had the jurisdiction to do so. He found that s. 4
of the CLRA did not permit a court to declare more than two persons to be parents of a child.
Court of Appeal’s decision (website)
2 mothers and 1 father under the birth of certificate, biological father (BB) and biological mother
(CC). CC is in a relationship with AA. Two women would be the primary caregiver of the child. But
they found it to be necessary for the father to be involved. The son calls both of them mother.
In the lower court, the judge goes through the legislation (s.4: possibility of only one father and one
mother). Lower court says that to allow a second mother would be the court legislating.
RATIO: Court of appeal looks at Children Law Reform Act in context and notes that it’s a product
of its time. The court of appeal fills in the legislative gap. Court takes into account the real
relationship that exists. Three parents that have rights, custody and access, and three parents that have
potential child support obligation.
Child support application: legal obligation on both biological parents regardless of the circumstances
of conception. (deception does not factor in)
Reasons behind it: people have personal responsibilities, lack of intent is not a factor, policy factor
driving it: desire to protect public purse
Legislation in place that makes it clear that sperm donor is not responsible for child support.
C.(J.) v. Manitoba, Manitoba Queen’s Bench, 2000
A husband and wife applied for a declaration that they were the natural and legal parents of an
unborn child being carried by the husband’s sister. They provided the egg and the sperm.
It was concluded that under the relevant provincial legislation only the person who gave birth could
be registered as the mother of a child. the couple later adopted the child.
R.(J.) v. H.(L.), Ontario Superior court, 2002
As common law couple was accepted into an in vitro fertilization clinic at a Toronto hospital.
Another woman agreed to carry the couple’s embryos and she and her husband signed a gestational
carriage agreement. After the birth of twins, a court granted a declaration under s. 4 of the CLRA that
the common law couple were the father and m mother.
11. (1) Upon the application of a party in a civil proceeding in which the court is called upon to
determine the parentage of a child, the court may give the party leave to obtain blood tests of such
persons as are named in the order granting leave and to submit the results in evidence.
(3) Where leave is given under subsection (1) and a person named therein refuses to submit to the
blood test, the court may draw such inferences as it thinks appropriate.
Silber v. Fenske, Ontario General Division, 1995
The plaintiff moved for an order requiring the defendant to pay interim child support of $2,500 per
month. She has requested an order pursuant to s. 10 of the Children’s Law Reform Act requiring the
parties and child to submit to blood tests to determine the child’s paternity.
He takes the position that she made false representations to him that she was using contraception
during their relationship. (it was criminally induced.) Furthermore, he takes the position that she
falsely represented to him that she would not ask for child support if he signed the vital statistics
The Court may grant leave to obtain a blood test of a person named when paternity is an issue. If
such person refuses to submit to the blood test, the Court may draw an adverse inference from such
refusal. (section 10 of the CLRA)
There is no evidence that such a blood test would physically harm any of the parties, nor is there any
question as to the bona fides of the application. The court therefore should grant leave permitting
such blood tests to be obtained.
No one is forced to give the blood sample.
RATIO: One has to be careful not to lose sight of the rights of the child to financial support from
both parents and her right to be raised w/ a reasonable standard of living commensurate w/ that of
both of her parents.
Leave to obtain results of blood tests was granted. Judgment: payment of child support
He argues that getting blood sample is coercive (violation of physical integrity)
The court says that it’s not coercive. The court doesn’t order him to do it but if he doesn’t, adverse
inference is drawn from it.
It has been held that grandparents can also be in that relationship. if they provided support..
Page 761: reluctance to grant leaves for blood test
In the past decade, it has been recognized that it’s the child’s right to support and knowing who his
father is. (so the leave for getting blood test is now always granted)
F.(M.) v. S.(R.), Ontario Provincial Division, 1991
A request for leave to obtain blood tests under s. 10 should be granted unless:
(a) it can be shown that the actual process of conducting the blood tests might prejudicially affect
the health of the child or
(b) the actual request for leave to obtain the blood test is made in bad faith.
Chartier v. Chartier, S.C.C., 1999
The wife had a child from a previous relationship. While the parties lived together, the husband
played an active role in caring for both children and was a father-figure for Jessica. The parties,
discussed, but did not proceed w/, the husband’s adoption of Jessica.
Following separation, the husband terminated his relationship w/ Jessica.
SCC allowed the wife’s appeal.
If one can unilaterally terminate a relationship where a person stands in the place of a parent to a
child, why define such a relationship as giving rise to obligations under the Divorce Act?
RATIO: If a person is found to stand in the place of a parent, that relationship cannot be unilaterally
withdrawn by the adult.
Spouses are entitled to divorce each other, but not the children who were part of the marriage.
Until Mr. Chartier’s unilateral withdrawal from the relationship, Jessica saw him as her father in
The opinion of the child regarding the relationship w/ the step-parent is important, but it constitutes
only one of many factors to be considered. In particular, attention must be given to the
representations of the step-parent, independently of the child’s response.
RATIO: The court must determine the nature of the relationship by looking at a number of factors,
among which is intention. Intention will not be expressed formally. The court must infer intention
from actions. The relevant factors in defining the parental relationship include, but are not limited to,
whether the child participates in the extended family in the same way as would a biological child;
whether the person provides financially for the child; whether the person disciplines the child as a
parent; whether the person represents to the child, the family, the world, either explicitly or
implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child's
relationship w/ the absent biological parent.
Once it is shown that the child is to be considered in fact a child of the marriage, the obligations of
the step-parent towards him or her are the same as those relative to a child born of the marriage w/
regard to the application of the Divorce Act. The step-parent at this point, does not only incur
obligations. He or she also requires certain rights, such as the right to apply eventually for custody or
access under s. 16(1) of the Divorce Act.
Decision: Jessica was a child of the marriage.
Extending child support obligations to step parents
All biological parents have child support obligation. That obligation is terminated when the child is
Canada imposes obligation on parents who put themselves in a position of taking care (a parent).
Section 2(2) of Divorce Act and Section 1 of Family Law Act; A parent of a child includes one
standing in the place of a parent.
Step parents fit into that category (not all of them).
There are several reasons behind it: To protect the public purse, Reliance expectation that is
developed by children
For the older girl, this was the only psychological father she knew.
Legislation should be interpreted in a way that economic and psychological effects will be taken into
account. The court is taking the best interest of the child approach.
What if it’s not unilateral and the child doesn’t want the relationship to continue? The Caselaw is
clear that if the relationship doesn’t continue, the obligation (child support) will continue.
Test: Multifactor: Does the parent discipline the child? Does the parent give directions to the child?
How much time do they spend together? While they were living together, did he step into the role of
a parent? Did the child call him dad?
Doe v. Alberta, Court of Appeal, 2007
Two party, Jane and John Doe: She does want a child and she assured him that he will never be on
the hook for child support. Domestic contract is drafted to make sure that the government doesn’t
intervene. The case goes forward to determine whether the contract is sufficient?
The couple tried to argue that they have a contract that determines the settled intension. The court
says you need to look at the context of the relationship. You can’t speak determinatively and remove
court’s jurisdiction by drafting a domestic contract.
You have to go through the facts. The court says you can’t contract out of it. It may be relevant but
can’t remove the court’s jurisdiction by drafting a domestic contract.
P.(G.N.) v. G.(L.A.), Superior Court, 2001
Mother tells the man that he is that father of the twin. Just before they separate, the woman tells him
that he wasn’t the biological father. (after 7 yrs)
He continues to see the children. The woman is living with another man (the brother of the biological
father). He want the relationship to be classified as friendship.
P stood in the place of a parent or not?
Emphasis in Charter of the best interest of the child
He also wants to have access rights (b/c of friendship).
The court says despite lack of DNA Connection, he should pay support child.
The court says that it’s inappropriate to have P. pay the full amount. (1/3)
Three payees: P, the guy who she lives with and biological father
Now, there is no statutory presumption of respective obligation.(that the father has to pay the full
If a biological father is paying support, he will not get any reduction.???
Although he was devastated, P. continued to see the boys. She testified that C.T. was acting as the
boys’ father and that the boys called him Dad. She stated that she had no intention of seeking
support from S.T. and that the twins were unaware of S.T.’s existence.
All of the circumstances lead me to find that Mr. P. stands in the place of a parent as intended by the
Divorce Act. To rule otherwise in these circumstances could set a dangerous precedent for significant
upheaval in well and long established family support situations.
Section 5 of the Federal Child Support Guidelines provides:
“Where the spouse against whom a child support order is sought stands in the place of a parent for a
child, the amount of a child support order is, in respect of that spouse, such amount as to court
considers appropriate, having regard to those Guidelines and any other parent’s legal duty to support
the phrase any other parent’s legal duty to support child has been given liberal or large and purposive
interpretation to appropriately reflect the general intent of the Guidelines as to what other parent may
Mr. P’s Guideline income: $56,000
Ordinarily require basic child support of $754 per month
There are two other persons beside Ms. G. and Mr. P
I find that an appropriate amount of child support for Mr. P. is approximately one third of the table
amount he would be otherwise required to pay. $275
Children’s Law Reform Act:
1. (1) Subject to subsection (2), for all purposes of the law of Ontario a person is the child of his or
her natural parents and his or her status as their child is independent of whether the child is born
within or outside marriage.
[Section 1 of Children Law Reform Act: legitimacy and illegitimacy has nothing to do with it ]
(3) Where the court finds on the balance of probabilities that the relationship of father and child has been
established, the court may make a declaratory order to that effect and, subject to sections 6 and 7, the
order shall be recognized for all purposes.
[Proof of paternity: the proceedings are civil in nature (used to be criminal standard) Proof on a
balance of probability]
8. (1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male
person is, and he shall be recognized in law to be, the father of a child in any one of the following
1. The person is married to the mother of the child at the time of the birth of the child.
2. The person was married to the mother of the child by a marriage that was terminated by
death or judgment of nullity within 300 days before the birth of the child or by divorce where the
decree nisi was granted within 300 days before the birth of the child.
3. The person marries the mother of the child after the birth of the child and acknowledges
that he is the natural father.
4. The person was cohabiting with the mother of the child in a relationship of some
permanence at the time of the birth of the child or the child is born within 300 days after they ceased
5. The person has certified the child’s birth, as the child’s father, under the Vital Statistics
Act or a similar Act in another jurisdiction in Canada.
6. The person has been found or recognized in his lifetime by a court of competent
jurisdiction in Canada to be the father of the child.
[A presumption that a man is the parent of the child if they are married at the time of birth of 300
days before the birth. (300: average day of pregnancy) 300 gives the benefit of doubt to the mother.]
10. (1) Upon the application of a party in a civil proceeding in which the court is called upon to determine
the parentage of a child, the court may give the party leave to obtain blood tests of such persons as are
named in the order granting leave and to submit the results in evidence.
(3) Where leave is given under subsection (1) and a person named therein refuses to submit to the blood
test, the court may draw such inferences as it thinks appropriate.
[Leave could be granted to get blood test. (1000 dollars)
It’s not conclusive but in practice it’s treated as actual proof. (unless technical error or twin brother)
s. 10 of CLRA: Blood test: the court grants leave under the application for it
If one of the parties says that he won’t get blood test, under s. 10(3) the court draws adverse inference
from their refusal.)]
Tendency is to start from presumption that biological parent has the principal obligation if he is
located and he paying child support and his income is sufficient to pay the support and thereby
allowing the other parent to get reduction. But if the biological parent is no where to be found, there
might be no reduction on child support.
(Statutory) Presumption that primary obligation is on the biological parent is not valid anymore but
still in most cases, that’s what happens.
Some of the cases allocate child support based on the role, amount the first payor has paid and
reduce that from the other one, some of them take into account the needs, means and …
There is a lot of confusion in this area. It’s fact driven. Very little income by legislation.
What are the incomes?
Very common that a parent signs a domestic contract before getting married to say that he won’t take
parental role but it will not be binding on the court.
Parental obligation doesn’t necessarily come to an end at the beginning of adulthood.
Divorce act under section 2(1)(a): Age of minority (Under 18)
Divorce act under section 2(1)(b): can go on longer than age 18 (if the child is unable b/c of the
reason of illness or disability to support himself)
Family Law under section 31: every parent has an obligation to provide support for his child until the
age 18, (can go longer …………….
Section 31(2): does not extend to a child that is 16 years or older and withdraws (Go through the
Under section 31 of FLA, a child can apply for child support even when their parents are not
Kids can apply for child support when: Kids are abused at home, they leave home, enrolled in school
program, nobody pays child support
Cheng v. Cheng, Ontario Court of Appeal, 1996
The Court allowed a mother to add the father’s parents to a claim for child support on the basis that
the FLA “does not exclude grandparents as persons who may be responsible for support of children.”
M.(C.) v. P.(R.), Ontario Court of Appeal, 1997
The Court held that it did not necessarily mean that the biological parents had to pay more than one
half of the cost of child-rearing. Instead, the court concluded that the courts retained an overriding
discretion to determine the appropriate apportionment and suggested that the apportionment should
reflect the extent and nature of each parent’s involvement w/ the child.
Frequently, there is no reduction where the biological parent is not paying any support.
More often, some adjustment, even if only modest, is made to the step-parent’s obligation where the
biological parent is paying support. Some cases deduct the full amount being paid from the amount
that the step-parent would otherwise have to pay.
There is a considerable divergence of opinion in the cases regarding the application of s. 5 of the
Guidelines. There is a huge amount of uncertainty in this area of family law and in apportioning
child support b/w the biological parent and step-parent, the courts reasonings are inconsistent.
Section 33(5) and (6) of the FLA permit third parties to be added in support applications.
The Divorce Act does not contain a comparable provision, but some have permitted a step-father,
against whom a child support order is sought, to add the biological father as a party defendant in
Zedner v. Zedner, Ontario Provincial Court, 1989
She left home and lived with her grandparents. Reason: argue with stepfather, he at least on one
occasion physically removed her from the house, she sued her mother for child support under section
31 of family law act.
Biological parents had separated but it’s not contingent on that.
The mother says that she voluntarily left.
Mother was ordered to pay 300 dollar per month.
Parents had effectively forced her out of the house.
It can’t be that somebody is unhappy at home, it has to be a home situation which is unbearable
Dana, aged 19, lived w/ her mother and her mother’s husband. Life in the home became tense and
stressful, w/ constant fights.
This is an application under the Family Law Act by 19 year old Dana for support from her mother.
Her mother disputed the claim stating that although Dana is enrolled in a full-time program of
education, she has withdrawn from her mother’s control.
I am satisfied that in this case Dana did not voluntarily withdrew from parental control.
Circumstances simply made it impossible for her to continue to live w/ her mother.
Child support payment of $300/ month was order.
Wahl v. Wahl, Alberta Q.B., 2000
The parented entered into settlement which provided that the father would support the daughter who
lived w/ her mother, after she reached 18 if she continued her education.
The daughter withdrew $12,600 from a RESP set up for her. the daughter then handed her father a
strongly worded letter indicating that she did not wish to have any relationship w/ him, but that she
would take him to court if he failed to pay support. The daughter used much of the RESP money to
fund a trip to Egypt.
The father stopped paying child support as soon as the daughter turned 18, in large part b/c he was
upset by her letter.
Justice began her analysis by confirming that a child, adult or minor has no standing to claim support
under the Divorce act.
The onus to prove that a child is a child of marriage rests on the one seeking maintenance for a child
who is over the age of 16 (now the age of majority).
The factors that are relevant:
(1) Enrollment in post-secondary education:
Courts have generally regarded a child over the age of majority how is in full time attendance at an
education institution as a child of the marriage and therefore entitled to support.
(2) Student Loan and other Financial Assistance
An adult child is expected to contribute towards her education to the fullest extent possible through
bursaries, scholarships, student loans or summer employment.
(3) The Career Plans of the Child
The reasonableness of the child’s course of studies in relation to their aptitude and past achievement
is also considered.
(4) Part-time Employment
It is very rare when a Court will not require a student to contribute through his or her own earnings,
to the cost of his or her maintenance
I do not find it unreasonable that Leah does not wish to work during the school term.
The test is one of dependency not age. Yet the age of the child can be a factor to consider when
(6) Past Academic Performance: success in the chosen course of studies
She must maintain certain grades and this factor will be taken into account in my determination.
(7) Parental Plans for the Child‟s Education
In cases where parents have made provisions for their children’s future education, the Courts have
tended to enforce that obligation.
(8) Supporting Parent‟s Relationship w/ the Adult Child
She unilaterally renounced the relationship. She was quite young at the time and has henceforth
It is clear that the quality of the parent/child relationship rarely determines the matter. It is but one of
the failing factors; that is, there must be others in addition to it, unless the circumstances are
Leah still remains a child of the marriage.
RATIO: In circumstances where adult children are attending university or college away from home,
the Courts normally do not establish child support based upon the guideline amounts but rather resort
to the condition, means and needs consideration set forth in s. 3(2)(b) of the Guidelines.
Amount of $1,188.52 / month was awarded. (RESP amount used for the vacation was deducted and
several conditions were set-out)
Wesemann v. Wesemann, B.C. S.C., 1999
[The parents separated. The boy continues to live with the mother and visits his father. The father had
been paying 300 dollar per month child support. He gets into UBC.
The question was whether the child support had to persist.
The mother and son applied for an increase in child support to reflect the fact that he is in university.
The court notes that the father has to pay 350 dollars directly to the son but the court does not order
that the son has to continue relationship with his father to get the support.
The court has discretion to consider the cost of post secondary education.
Guideline section 7: extraordinary expenses (university is considered to be one)
They consider the income of the father
They thought that child’s education should take precedence over alcohol.
They take into account earnings of the son (in summer) and the new husband.]
The following four step procedure was set out for determining child support for adults under the
Decides whether the child is a child of the marriage as defined in the Divorce Act.
Determine whether the approach of applying the Guidelines as if the child were under the age of
majority is challenged. If that approach is not challenged, determine the amount payable based on the
usual guidelines approach.
If the usual Guidelines approach is challenged, decide whether the challenger has proven that the
usual Guidelines approach is inappropriate. If not, the usual Guidelines amount applies.
If the usual Guidelines approach is inappropriate, decide what amount is appropriate, having regard
to the condition, means, needs and other circumstances of the child and the financial ability of each
spouse to contribute to the support of the child.
2. (1) In this Act,
(b) in any other case, the Federal Child Support Guidelines;
“child of the marriage” means a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or
other cause, to withdraw from their charge or to obtain the necessaries of life;
Smith v. Smith, B.C. S.C., 1987
[Father is ordered to pay child support: $100 for 6 months
At the age 20, the father goes to court trying to terminate the child support.
The court held that he has to provide child support for 6 months. (enough time for her to find a job)
RATIO: Child support is not going to continue on an indefinite basis just because the child is
The petitioner husband seeks to vary a maintenance order by a declaration that his 20-year-old
daughter is no longer a child of the marriage w/I the definition of the Divorce Act.
She is in good health, high school dropout, she had worked 3 months on a part-time basis.
Whether an adult qualifies as a child of the marriage will depend upon the circumstances of each
case. in the case at bar there is no evidence to suggest that the daughter has made no diligent efforts
to obtain employment. Her financial dependence of her mother due to her unemployment and
inability to find a job qualifies her as a child of the marriage w/I the meaning of the Act. This is a
valid and legitimate other cause. She clearly is in need of maintenance.
However, they should not continue on an indefinite basis.
Limit must be imposed on it. (6 months)
They take into account if parent has several degrees (in continuing to order child support even for a
child that is over 30)
Generally support child comes to an end at age 18. Also, if he pursues education, it will come to an
end after he gets his first degree. Also if it’s reasonable, it will continue until he gets further degrees.
Child support has been radically revolutionized.
Litigation cost went up b/c of disputes on what the children need (soccer, tennis, golf, …)
It wasn’t driven by what the parents’ income were. It was based on budgets produced.
It wasn’t based on objective sense of what parents would be paying.
Now obligations are set fairly mechanically on the basis of annual income of payor and on the basis
of number of children to whom support is owed.
TEST: They look at statistical studies of what an average parent on different income level would
spend on a child.
Based on non-custodial parent only (you don’t look at custodial parent income: b/c you assume that if
the child is living with custodial parent, you spend a certain amount on the kid if you have an
You only look at payor’s income
60 percent or more of a time
The provinces each passed their own legislation using very similar formulas to the federal guidelines.
The rate varies depending on the income on non-custodial parent and the number of children.
The basis presumptive rule is that section 3(1) of federal child support guidelines: in absence of
specified exception, the court has to order …
No room for budget, only income, very littler room for judicial discretion, there is some residual
room for judicial discretion, one of the areas in which judicial discretion exists in is determining
Section 15-20 of the guidelines define how the income has to be determined.
Section 16 (easiest way): income that’s set out in T1 general form (income tax form)
You use the last income tax return form
It could be complex if you have somebody who is self-employed. It’s possible to have fluctuations
from year to year. (section 17: average it out), someone might be drawing income from corporation
(section 18: attribute income in cases where income is artificially low), payor might be voluntarily
unemployed or underemployed (Section 19: impute income to someone who is unemployed or
underemployed or exempt from paying income tax or living in a country (USA) in which has
different regime for determining income tax or have a property that is not reasonably used to generate
QUANTUM (FEDERAL CHILD SUPPORT GUIDELINES)
3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the
age of majority is
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the
order relates and the income of the spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
Child the age of majority or over
(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of
majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the
condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the
support of the child.
(3) The applicable table is
(a) if the spouse against whom an order is sought resides in Canada,
(i) the table for the province in which that spouse ordinarily resides at the time the application for the child support order,
or for a variation order in respect of a child support order, is made or the amount is to be recalculated under section 25.1
of the Act,
Incomes over $150,000
4. Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a
child support order is
(a) the amount determined under section 3; or
(b) if the court considers that amount to be inappropriate,
(i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of
children under the age of majority to whom the order relates;
(ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the
condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of
each spouse to contribute to the support of the children; and
(iii) the amount, if any, determined under section 7.
Spouse in place of a parent
5. Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount
of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to
these Guidelines and any other parent’s legal duty to support the child.
Special or extraordinary expenses
7. (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any
portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in
relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and
those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or
training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic
treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person,
physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet
the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
8. Where each spouse has custody of one or more children, the amount of a child support order is the difference
between the amount that each spouse would otherwise pay if a child support order were sought against each of the
9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the
time over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
10. (1) On either spouse’s application, a court may award an amount of child support that is different from the amount
determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect
of whom the request is made, would otherwise suffer undue hardship.
Circumstances that may cause undue hardship
(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:
(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their
children prior to the separation or to earn a living;
(b) the spouse has unusually high expenses in relation to exercising access to a child;
(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of
(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or
Form of payments
11. The court may require in a child support order that the amount payable under the order be paid in periodic
payments, in a lump sum or in a lump sum and periodic payments.
12. The court may require in the child support order that the amount payable under the order be paid or secured, or paid
and secured, in the manner specified in the order.
Circumstances for variation
14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that
gives rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table,
any change in circumstances that would result in a different child support order or any provision thereof;
(b) in the case where the amount of child support does not include a determination made in accordance with a table, any
change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support;
Determination of annual income
15. (1) Subject to subsection (2), a spouse’s annual income is determined by the court in accordance with sections 16
(2) Where both spouses agree in writing on the annual income of a spouse, the court may consider that amount to be the
spouse’s income for the purposes of these Guidelines if the court thinks that the amount is reasonable having regard to the
income information provided under section 21.
Calculation of annual income
16. Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the
heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with
Pattern of income
17. (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be
the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and
determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a
non-recurring amount during those years.
(2) Where a spouse has incurred a non-recurring capital or business investment loss, the court may, if it is of the opinion
that the determination of the spouse’s annual income under section 16 would not provide the fairest determination of the
annual income, choose not to apply sections 6 and 7 of Schedule III, and adjust the amount of the loss, including related
expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate.
Shareholder, director or officer
18. (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the
amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to
the spouse for the payment of child support, the court may consider the situations described in section 17 and determine
the spouse’s annual income to include
(a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the
most recent taxation year; or
(b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does
not exceed the corporation’s pre-tax income.
19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances,
which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or
unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the
reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a
lower rate than employment or business income or that are exempt from tax; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
To establish the amount one needs to know:
(1) the relevant table
(2) the number of children to whom the order relates
(3) the annual income of the payor or non-custodial parent
THE NEW CHILD SUPPORT PACKAGE
Courts will be required to award the amount set out in the Child Support Payment Schedule, plus
allowable special expenses, unless the court makes a written finding that the award causes undue
hardship to either parent or to the child.
The Guidelines will not be mandatory for support awards that are negotiated out-of-court.
Spending on children is not fixed but changes as the income of either parent changes.
Where a court is determining applications for both child and spousal support, it must give priority to
child support: s. 15.3 of the Divorce Act and s. 38.1 of the Family Law Act.
Drygala v. Pauli, Ontario Court of Appeal, 2002
[He applied to university. He said he wanted to become a teacher. He also said that he wasn’t happy
with the job he had. The court held that he was realistic but still imputed income to him. He appeals
At the Court of Appeal, the question is whether he is unintentionally underemployed or
unemployed? Tensions: the Court of appeal said that we can look at those 2 values: the court looks at
whether what you are doing is reasonable?
Court of appeal reduces it. Income is reduced from 30 thousand to 16 thousand.]
In 1996, he earned about #33,000. He became a full time student. The trial judge concluded that his
goal of become a teacher was a realistic one.
RATIO: There is no need to find a specific intent to evade child support obligations before income
can be imputed. There is no requirement of bad faith.
Imputing income based on s. 19(1)(a)
A parent is intentionally unemployed when he or she chooses not to work when capable of earning an
Once it has been established that a spouse is intentionally unemployed or under-employed, the
burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational
The trial judge must first determine whether the educational needs are reasonable.
RATIO: When imputing income, the court must consider the amount that can be earned if a person is
working to capacity while pursuing a reasonable educational objective.
He is spending $240 per month for cigarettes.
Age, education, experience, skills and health should be factored in.
No error in deciding to award retroactive support.
Very little discretion in awarding child support.
Section 7 confers discretion to judges in certain situations: Deals with extraordinary expenses:
reasonable of expenses (you look at both parties’ income): provides an exhaustive list of factors that
court can take into account: a) child care expenses, 2) medical care, c) health related expenses
(exceed by 100 dollars), c) primary or secondary education or any program that meets the children’s
needs, f)extracurricular activities, e)…
The cost should be shared by both parties. (in proportion to their income)
They don’t all have to be extraordinary expenses. (necessary and reasonable suffice) d and f
(extracurricular activities should be extraordinary
Exhaustive list: expenses have to be reasonable according to the parents’ means
SPECIAL OR EXTRAORDINARY EXPENSES
Under the presumptive rule found in s. 3 of the Guidelines, the quantum of appropriate child support
is the table amount plus any amount determined under s. 7. Section 7(1) sets out an exhaustive list of
special or extraordinary expenses, the cost of which is to be shared in accordance w/ s. 7(2) by the
parents in proportion to their incomes.
McLaughlin v. McLaughlin, B.C. C.A., 1998
The couple had 3 children. The mother earned $50,000 per year and the father’s annual income was
$70,000. The table amount was $1,722 per month. The chambers judge ordered the father to pay
$509.88 per month as additional child support under s. 7 of the Guidelines. The father appealed.
It is appropriate to have recourse to the combined incomes of the parties as an aid in determining
whether an expense is extraordinary under s. 7(1)(f).
In situations in which there are no “add ons” under s. 7 or hardship factors under s. 10, it is only the
payor’s income which is relevant.
Certainty of results should not be elevated to the paramount objective of the Guidelines. (subjective)
RATIO: In the result, I conclude that, in deciding whether an expense, or the totality of expenses
claimed on behalf of children under s. 7(1)(f) are extraordinary, the court should take into
consideration the combined income of the parties, as well as the nature and amount of the individual
expense, the nature and number of the activities, any special needs or talents of the children and the
overall cost of the activities. Once an expense or expenses are found to be extraordinary it is
necessary for the court to proceed to determine whether the expenses are necessary in relation to the
children’s best interests and reasonable, having regard to the means of the spouses and those of the
child, and to the family’s spending pattern prior to separation.
Those questions do not need to be addressed until the expense or expenses in question have been
found to be extraordinary.
Expenses claimed in this case:
Tutor: 140 dollars per month toward the cost of a tutor for Sean who has a reading disability was
found to be reasonable.
Child Care for Sean: was also found to be extraordinary and reasonable in circumstances.
Extracurricular activities: soccer, field hockey, softball, swimming, …
None of these expenses, individually, can be viewed as extraordinary expenses. The activities are
common extracurricular activities for child of these ages.
His proportionate share of these expenses must be treated as being included w/I the amount of
maintenance he is paying under the basic table.
S. 4 of guidelines – how you determine amount payable to an income higher than $150,000
Some judicial discretion for high income earners
Section 4 allows for deviation from section 3. For amounts over 150,000, the courts have 2
alternatives: they can use a percentage formula (bottom of table: Base amount 150 thousand + 0.74%
of the rest or court can exercise its discretion in awarding the amount it thinks is necessary. (means
and needs and detailed budgets)
The onus is on payor table to demonstrate that the table amount is inappropriate. (it’s too high)
It’s not based on social needs. It’s based on what the parents who have the same amount of income
Francis v. Baker, S.C.C., 1999
[His income was close to a million dollar. He had other children. She was living with 2 children and
was earning 65 thousand dollar.
RATIO: t was held that the word inappropriate means unsuitable or unadvisable. The burden of
establishing an amount is inappropriate or unadvisable is very high. The onus is on payor to show
that the table amount is not appropriate.
(Set a high burden for section 4)]
“I find that in all cases parliament intended that there be a presumption in favour of the Table
amounts.” In that case, Mr. Baker was unable to rebut this presumption.
Simon v. Simon, Ontario Court of Appeal, 1999
[Short term marriage (2 yrs), father was a minor league hockey player, she is on social assistant. His
income went to a million dollar / year. The judge awards 5 thousand dollar per month and a part of it
was ordered to be deposited in trust account.
She appealed. The court can’t order that the parent to put the money in trust fund, unless there is
strong evidence that the mother is selfish and irresponsible. There is no control on whether the kid
goes to the hockey club or …. after the money is awarded. If his income goes down, he can go to
court and ask for variance.
Francis v. baker set a very high standard. The presumption is that unless it’s inappropriate, the table
has to be followed.]
Trial judge’s crucial error, in my view, was the imposition of a heavy burden on Ms. Simon to justify
her child care budget. This is inconsistent w/ Francis v. Baker which establishes that the burden is on
the paying spouse to demonstrate that the table amount is inappropriate.
If his income changes in the future, he can apply to have the child support order varied.
Absent a good reason for imposing a trust, the court should not do so.
Even where a court has a discretion, need does not appear to be a significant consideration.
R. v. R., Ontario Court of appeal, 2002
[The court allowed for a variance downward. They established a lifestyle before breakdown of
marriage. Laskin looked at the mother’s proposed budget. The father was successful in arguing that
they didn’t have a lavish lifestyle and they didn’t spend a lot of money. The father’s income was 4.1
million dollar per year. In the course of marriage, it was 1.4 million dollar. Final judgment allowed
for variance upward but not as high as it is permitted in the table. (he successfully rebutted and
established that the table figure is inappropriate.) There was a pattern established and as a result 32
thousand dollar instead of the table amount of 68 thousand dollar per month was awarded.]
Justice Laskin held in R. v. R. that the family’s lifestyle prior to the parents’ separation was relevant
in determining whether the table amount was appropriate and if not what amount should be ordered.
He described Simon v. Simon, as an unusual case b/c the parents separated before the child was born
and so never established a family lifestyle or pattern of expenditure of the children.
Section 4 allows courts taking into account both parents having high incomes as well. If the payor
earns less than 150,000 dollars, you have to refer to section 3(1). If the payor earns more than
150,000 dollars, then you have to refer to section 4. (the payor can argue that the figure on the table is
Under section 7, there is a slim possibility that the payee can get an amount higher than the one in the
Sections 8 and 9:
Split custody: where there is more than one child and each parent has custody of one or more
children, each parent is a custodial parent, each parent is also an access parent for the other one.
Section 8 deals with it. Set off: (deduct the amounts payable from each other)
Share custody: Section 9 deals w/ it, with each parent at least 40 percent of the time (146 days)
If under 40 percent, section 3.1 deals with it.
Difference b/w joint legal custody and joint physical custody
You can have one parent who has sole legal custody (decision making: religion, education, …) but
still have joint physical custody. (child physically resides)
You can also have joint legal custody but one parent having physical custody.
It’s the physical custody that matters.
Section 9: conditions, means and needs of spouses are taken into account, huge source of litigation,
If you have two parents who have same income, then no one pays. But when there is substantial
income disparity, there have been conflicting cases and approaches on how courts deal with them.
Even if there is shared custody, that doesn’t reflect on who is spending money on the child. In some
cases, one parent pays for the extracurricular activities or cloths. Costs are not necessarily equally
distributed. Judicial discretion is allowed in this area.
It’s often individualized and that’s still the case even after the Contino’s decision.
9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the
time over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
Contino v. Leonelli-Contino, S.C.C., 2003
When the parties separated, they made an agreement, $500/month child support
few years later, mother wanted to go back to school and father had kid 50% of the time
o s. 9 application to reduce amount of child support
Trial judge: agreed with father, should only pay $100/month; despite mom used cash for home
Divisional court (on wife saying there’s a miscalculation) said father had to pay $688/month
ONCA: lots of calculations to show father had to pay $399.61/month
His income was 87 thousand and her income was 67 thousand.
SCC allowed mother’s appeal and said (8-1) father had to pay $500/month
The Court of Appeal reduced the monthly amount payable by the father to $399.61. It used the
simple set-off amount as a starting point for determining the support amount (s. 9(a)) and adjusted
the set-off amount by applying a multiplier of 67.6 per cent to account for the mother's fixed costs (s.
9(b)) and by taking the actual situation of the parents and the child into account (s. 9(c)).
Under s. 9, there is no presumption in favour of awarding at least the Guidelines amount under s. 3.
Nor is there a presumption in favour of reducing the parent's child support obligation downward from
the Guidelines amount
Under s. 9(a), a court is required to take the financial situations of both parents into account. The
court retains the discretion to modify the set-off amount where, considering the financial realities of
the parents, it would lead to a significant variation in the standard of living experienced by the
children as they move from one household to the other.
Section 9(b) recognizes that the total cost of raising children may be greater in shared custody
situations than in sole custody situations.
Lastly, s. 9(c) vests the court with a broad discretion to analyse the resources and needs of both the
parents and the children. Financial statements and/or child expense budgets are necessary for a proper
evaluation of s. 9(c).
A court should neither make "common sense" assumptions about costs incurred by the payor parent,
nor apply a multiplier to account for the fixed costs of the recipient parent.
The mother should be awarded the sum of $500 per month in child support.
We know why each of the lower courts got it wrong, but we are left wondering why $500 was
(a) Propositions About Section 9 That Are Mistaken and Rejected
(1) No Presumption of Table Amount.
(2) No Automatic Reduction for Shared Custody.
(3) No Formula Is Mandated. A "formulaic" or "mathematical" approach, such as that employed by
the motions judge, is rejected. Even the simple set-off "serves as the starting point, but it cannot be
the end of the inquiry. It has no presumptive value.
(4) No Use of Pro-rated Set-off. The straight or simple set-off of table amounts is the proper starting
point under s. 9. The pro-rated set-off should not be used, as it was here by the motions judge, as it
has a disproportionate impact upon the lower income spouse
(5) No Multipliers. Multipliers of any kind are rejected, whether 50 per cent or any other percentage,
as they make assumptions about additional costs. The Ontario Court of Appeal was wrong to resort to
such a multiplier (paras. 58- 61).
(6) No Need to Separate Out Section 7 Expenses. Section 9(c) confers a broad discretion, one which
allows direct examination of special or extraordinary expenses along with all the other factors.
(7) No Need to Resort to Section 10. The Ontario Court of Appeal was wrong to suggest that a
reduction in support under s. 9 might cause "undue hardship", which in turn might require the use of
s. 10 of the Guidelines. A court has full discretion under s. 9(c) to do the right thing, to exercise its
discretion to avoid undue hardship, apart from "an extraordinary situation"
Here's the step-by-step method for quantum laid out by Justice Bastarache:
(1) Determine the Simple Set-Off Amount. The starting point under s. 9(a) is the simple or
straight set-off of each parent's table amount for the number of children involved in the
shared custody arrangement. No pro-rating, no multiplier (paras. 40-51).
(2) Review the Child Expense Budgets. A court must look at the parents' actual spending
patterns, based upon child expense budgets, and not just make assumptions about spending.
Further, a court should look at all the expenses of both parents under s. 9(b): not just the
additional expenses resulting from an increase in access, not just the variable or fixed
expenses, not just the expenses of the recipient parent. Under s. 9(b), a court has two
concerns: (i) the overall increased total costs of child-rearing for both parents, especially
duplicated costs; and (ii) any disproportionate assumption of spending by one parent or the
other (paras. 52-53).
These expenses should be "apportioned between the parents in accordance with their
respective incomes" (para. 53), to "verify" the set-off (para. 77) and to determine "the need
for significant adjustments to the set-off amounts" (para. 78).
(3) Consider the Ability of Each Parent to Bear the Increased Costs of Shared Custody and
the Standard of Living for the Children in Each Household. In assessing each parent's ability
to bear the increased costs of shared custody, a court should look at the income levels of
each parent, the disparity in incomes, and the assets and liabilities of each.
The child's standard of living in each household is "particularly useful for the exercise of
discretion in a predictable manner" (para. 70). The children should not experience "a
significant variation in the standard of living ... as they move from one household to
another" (para. 51). As the term "household" is used, the incomes and resources of new
partners in each household would presumably be relevant.
(4) Distinguish Between Initial Orders or Agreements and Variations. "An application that represents
a variation of a prior support arrangement will usually raise different considerations from a s. 9
application where no prior order or agreement exists." (para. 55) A recipient parent "may have
validly incurred expenses based on legitimate expectations about how much child support would be
provided", especially for fixed costs (para. 55).
The real factual wild card here was the house purchase by the mother. It skewed the whole analysis.
(In reliance to the child support for the best interest of the child)
I'm not sure how much precedential value can be found in the factual result in Contino. At most, it
points strongly toward adjusting support upwards from the set-off amount in variation cases, where
there has been a long-standing financial status quo arising from primary care or a major fixed
expenditure made in the expectation that child support will continue at the full table amount. Contino
tells us little about the likely result for an initial order in a shared custody case.
Contino: got rid of Colorado 1.5 multiplier approach.
SCC gave a very discretionary ruling; ONCA was trying to make it more consistent
SCC gave 500 dollar per month. The ultimate result ends up being very arbitrary.
No presumption of table amounts, SCC says that there is no presumption that you have to follow the
figure in the table when you have shared custody, there is no automatic reduction for shared custody,
the court has the ability to say that the full table amount has to be awarded (to deter parents from
using the shared custody to avoid paying child support), there is no formula in these cases, there is no
prorating, you can start will set-off, no multiplier should be followed, for shared custody.
It’s clear under s. 9(a) that court has to take into account the higher cost of taking care of the child.
The new approach: determine what the basic set-off is, look to see who is spending on the child and
how much he/she is sharing, there shouldn’t be a huge difference in the standard of living of 2
General approach is very fact driven, (means, needs and circumstances)
The best thing that came out of it is that it prevented one spouse from trying to using split joint
custody to avoid paying child support.
Section 10: different from other sections if the court finds out that one parent is suffering from undue
hardship (the court can look at recipient’s income), limits on the discretion, if the court finds undue
hardship, you need to have a lower household income than the recipient to argue it.
The court has to compare the standard of living of the parents.
It is usually used by the payor to reduce the amount paid, the threshold is very high, it has to be a
hardship that is excessive
List is not exhaustive. Just on the virtue of meeting one of the conditions, it will not meet the burden.
Has to be hardship associated with it that is extreme and excessive
10. (1) On either spouse’s application, a court may award an amount of child support that is different from the amount
determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect
of whom the request is made, would otherwise suffer undue hardship.
Circumstances that may cause undue hardship
(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:
(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their
children prior to the separation or to earn a living;
(b) the spouse has unusually high expenses in relation to exercising access to a child;
(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of
(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or
Under s. 10 of the Guidelines, a court may adjust the Guidelines’ amount where the parent asking for
the adjustment establishes that
1) paying the Guidelines’ amount would cause undue hardship and
2) that his or her household’s standard of living is lower than that of the other spouse. (s. 10(3))
Most claims under this section of the Guidelines are unsuccessful.
Dean v. Friesen, Saskatchewan Q.B., 1999
[Father has two children from first marriage and 3 from the second marriage.
He couldn’t afford to buy groceries.
The court reduced it only slightly. She is in a difficult situation as well.]
Seven years of marriage, two children, the father remarried and had three more children, he stated
that there were time when the family had no groceries.
At this level of income, the existence of a second family with three children constitute a ground for
the determination of undue hardship under s. 10(2)(d) of the Guidelines.
Under s. 10 of the Guidelines, even if a determination of undue hardship is made, the court must deny
the application unless it is satisfied that the party suffering undue hardship has a standard of living
lower than that of the other spouse.
The respondent has the lower standard of living. (Considering the number of dependents)
The child support is lowered to $236 per month, an amount which will make the parties’ household
income ratios relatively comparable.
Section 10 provides a narrow exception and adjustments have been rare. Even if one of the
circumstances listed in s. 10(2) exists and the parent seeking the adjustment resides in a household w/
a lesser standard of living, the courts may conclude that there is no undue hardship: Hansvall v.
In general, access parents have not had much success in revoking s. 10. Judges have also been
reluctant to find that the expenses are unusually high.
The circumstances listed in s. 10(2) of the Guidelines are not exhaustive.
As the Scharf case illustrates, s. 10 has occasionally been used to increase the amount of child
support. B/w 1998 to 2002, in only one case was the payee’s request for an increased amount
To compare household standards, s. 10(3) of the Guidelines indicate that the court may, but need not,
use the formula set out in Schedule II.
If the custodial parent moves in with another partner, the payor’s obligations will not be affected.
Spousal support might be effected but child support will remain the same.
Very difficult to get a variance downward even in a case where you have a second family
If we are dealing with periodic payments
Child support: Since 1997, it’s not deductible by payor and not taxable by payee
Spousal support: Deductible by payor and taxable by payee
Different tax treatments: it’s more beneficial to try to characterize it as spousal support in settlements
Tax implications of spousal and child support: it’s beneficial to characterize it as spousal support.
(not child support)
Section 15(3)(i) of DA and Section 38(1) of FLA gives priority to child support.
The court can stay the granting of divorce if they are not satisfied that appropriate provisions for
child support have been made.
Tax advantages can also be taken into account. If they are not following the guideline strictly, they
have to say why. (consent)
The court is not bound by the content of consent order or separation agreement for child support but
it can be influential. The contract remains vulnerable but the courts remain inclined to say there is no
equity when there are appropriate tradeoffs.
Enforcement (not in the text book)
Historically very difficult to get child support payment enforced. Used to be that default on child
support was very high. There has been a shift in this particular area of the law from private
enforcement to public enforcement (b/c of fairness).
Public purse implication (people would end up on social assistant)
Reason: can be psychological (lack of contact with the child)
There has been a big change in the last 20 years. State has legislation in place that states that it’s the
family responsibility to make sure that state will take action to see that child support is collected
Can hold someone in contempt of the court and send them to jail for up to 90 days. It usually doesn’t
come to that. The reforms have been hugely successful.
- Always cited by government as a reason to introduce/amend guidelines
- Studies – 1986 – found 82% of child support orders were in some degree of default
- Provincial approach: created FRO, a government agency that enforces orders
- So, if you bring an application to vary child support, it will be varied
o But most people are not eager to go back to court to ask for variations
o Statistics hide that most people won’t change orders even if inappropriate
- Federal level
o Enacted and promoted legislation in the provinces that can claw back entitlement to
CPP, income tax refund, federal pensions, etc.
o Can lose your driver’s license and other licenses if you fail to pay
For many parents, relationship w/ their child defines who they are. The courts do not take into
account parent’s happiness, it’s not based on what’s in the best interest of the parents. It’s solely
based on the best interest of the child.
In many cases, one parent’s anger toward the other, causes the child to hate the other parent
(conscious or unconscious)
Parental alienation: describes children who have been alienated from one parent b/c of the other
parent (It’s not a syndrome)
If you get custody, you’ll get child support and you might get the matrimonial home.
It’s linked to gender wars.
There is no longer a presumption on who should get custody.
Very detailed exercise of discretion that may the courts not be equipped.
There is no accepted theory of what the good life is for the child. (life of stability of the life of
excitement?) Is it better for children to live with the impoverished parent to learn responsibilities?
Children‟s Law Reform Act
Father and mother entitled to custody
20. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally
entitled to custody of the child.
Rights and responsibilities
(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect
of the person of the child and must exercise those rights and responsibilities in the best interests of
Authority to act
(3) Where more than one person is entitled to custody of a child, any one of them may exercise
the rights and accept the responsibilities of a parent on behalf of them in respect of the child.
Where parents separate
(4) Where the parents of a child live separate and apart and the child lives with one of them with
the consent, implied consent or acquiescence of the other of them, the right of the other to exercise
the entitlement of custody and the incidents of custody, but not the entitlement to access, is
suspended until a separation agreement or order otherwise provides.
(5) The entitlement to access to a child includes the right to visit with and be visited by the child
and the same right as a parent to make inquiries and to be given information as to the health,
education and welfare of the child.
[Custody rights can be forfeited. You can’t lose you access rights by now exercising it.]
Entitlement subject to agreement or order
(7) Any entitlement to custody or access or incidents of custody under this section is subject to
alteration by an order of the court or by separation agreement.
Assessment of needs of child
30. (1) The court before which an application is brought in respect of custody of or access to a
child, by order, may appoint a person who has technical or professional skill to assess and report to
the court on the needs of the child and the ability and willingness of the parties or any of them to
satisfy the needs of the child. R.S.O. 1990, c. C.12, s. 30 (1).
When order may be made
(2) An order may be made under subsection (1) on or before the hearing of the application in
respect of custody of or access to the child and with or without a request by a party to the application.
Agreement by parties
(3) The court shall, if possible, appoint a person agreed upon by the parties, but if the parties do
not agree the court shall choose and appoint the person.
Attendance for assessment
(5) In an order under subsection (1), the court may require the parties, the child and any other
person who has been given notice of the proposed order, or any of them, to attend for assessment by
the person appointed by the order.
Refusal to attend
(6) Where a person ordered under this section to attend for assessment refuses to attend or to
undergo the assessment, the court may draw such inferences in respect of the ability and willingness
of any person to satisfy the needs of the child as the court considers appropriate.
(7) The person appointed under subsection (1) shall file his or her report with the clerk or local
registrar of the court.
Copies of report
(8) The clerk or local registrar of the court shall give a copy of the report to each of the parties
and to counsel, if any, representing the child.
Admissibility of report
(9) The report mentioned in subsection (7) is admissible in evidence in the application.
Assessor may be witness
(10) Any of the parties, and counsel, if any, representing the child, may require the person
appointed under subsection (1) to attend as a witness at the hearing of the application.
Best interest of the Child
24. (1) The merits of an application under this Part in respect of custody of or access to a child shall
be determined on the basis of the best interests of the child.
Best interests of child
(2) In determining the best interests of a child for the purposes of an application under this Part
in respect of custody of or access to a child, a court shall consider all the needs and circumstances of
the child including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the care and upbringing of the child;
(b) the views and preferences of the child, where such views and preferences can reasonably
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the
child with guidance and education, the necessaries of life and any special needs of the child;
(e) any plans proposed for the care and upbringing of the child;
(f) the permanence and stability of the family unit with which it is proposed that the child
will live; and
(g) the relationship by blood or through an adoption order between the child and each person
who is a party to the application.
(3) The past conduct of a person is not relevant to a determination of an application under this
Part in respect of custody of or access to a child unless the conduct is relevant to the ability of the
person to act as a parent of a child.
[Section 16(9) of DA and section 24(3) provide that the parent’s past conduct is not relevant in the
adoption case unless it undermines the person’s ability to raise the child.]
Application for custody or access
21. A parent of a child or any other person may apply to a court for an order respecting custody
of or access to the child or determining any aspect of the incidents of custody of the child.
Chauvin v. Chauvin, Ontario District Court, 1987
Judge relied on s. 21 of the CLRA to order that two boys, who were in their mother’s sole custody
should attend a French language school. In that case, the mother had transferred the children to an
English language school and the father objected.
[The court decides that it’s in the best interest of the child to go to the French school. The mother has
the physical custody.]
This case indicates that a non-custodial parent can obtain judicial scrutiny of a decision made by the
Either party can apply for child custody under s. 21 of the CLRA. Such an application can be made
even if there is initially an agreement b/w the parents. The court has authority to disregard the terms
of the agreement if it is in the best interests of the child to do so (s. 56(1) of the Family Law Act).
Custody and access orders can be made under the Divorce Act in divorce proceedings or in corollary
relief proceedings after the divorce. Section 16(8) stipulates that in making custody or access orders,
“the court shall take into consideration only the best interests of the child of the marriage as
determined by reference to the condition, means, needs and other circumstances of the child”.
Professor Mnookin argues that the best interests test in custody cases does little more than give broad
discretion to the courts. (incapable of predicting)
Young v. Young, SCC, 1993
The SCC was divided sharply regarding the appropriate role of the access parent.
A custodial mother wanted to limit the access rights of a father who was a Jehovah’s Witness and to
restrict the extent to which he could share his religious views and observances w/ his children.
Justices McLachlin and Sopinka emphasized the importance of the continued involvement of non-
custodial parents in the lives of their children, reflected in s. 16(10) of the Divorce Act which
provides for a presumption of maximum contact. Justice McLachlin wrote: “the only circumstances
in which the contact w/ either parent can be limited is where the contact is shown to conflict w/ the
best interests of the child.”
She indicated that generally expert evidence should be adduced in an application to restrict access.
There were contrasting opinions in this case.
Two justices whose views were decisive noted that the proper application of the best interests of the
child test did not support forbidding Mr. Young from discussion his religion w/ the children.
in 2002, for the first time, orders granting mothers sole custody did not represent the majority of all
custody awards in divorce cases. They occurred in 49.7% of the cases, fathers received sole custody
in 8.5% of cases and almost 42% of the awards contained some form of joint custody.
Convention on Civil Aspects of International Child Abduction (the Hague Convention) came into
effect in 1983 to deal w/ the increasing problems of international child abduction by a parent. A
parent who lost a custody battle or who was afraid of doing so, could fairly easily take the child and
seek out a friendly forum in which to apply for custody. (forum shopping)
The Hague Convention deals exclusively w/ civil and not criminal aspects of international child
abductions. It provides a mechanism for ensuring that custody decisions take place in the State of the
child’s habitual residence. The objectives of the Hague convention, set out in Article 1, are “to secure
the prompt return of children who have been wrongfully removed to or retained in any Contracting
State,” and “to ensure that rights of custody and of access under the law of one contracting state are
effectively respected in the other contracting states.”
The Hague convention deters the wrongful removal and retention of children by depriving the
abductor of any practical or juridical consequences of the removal. (it focuses on prompt return as a
Hague Convention: comes up w/ ways of dealing w/ civil aspects of custody. Child abduction:
takes into account one parent unilateral
Doesn’t deal w/ criminal aspect of it just the civil aspect
If there is a claim, determination of custody is not given based on it.
They send the kid back to the original jurisdiction
Doesn’t address the merits of custody dispute
Basically undermines any kind of award that a parent will take by taking a kid to another
Attention is on immediate return of the children to their original jurisdiction
Criminal code: It’s a criminal offence if a parent takes the child away from a parent who has
custody (in violation of custody right of another parent).
The vast majority of custody and access disputes are in fact resolved through negotiation, settlement
conference and mediation.
Decision makers often turn for assistance to professionals w/ expertise in child development and
human relations, who may appear to offer the promise of a scientific basis for making the decision.
Social workers, psychologists and psychiatrists provide a range of different types of assessments to
If the report contains a recommendation, and most of them do, it effectively places a tactical onus on
the party seeking to challenge its conclusion. Frequently, this means that a case will be settled on the
basis of the court appointed assessor’s recommendation and not even proceed to trial, as the party not
favoured by the report recognizes that there is little to be gained by taking the case to trial. Judges,
however, repeatedly emphasize that it is they, and not assessors, who bear the ultimate responsibility
for making a best interests determination in court.
The process of assessment is expensive, and can be intrusive for the child and parents.
Alberta Court of Appeal in Tucker v. Tucker noted that “an assessment should not be ordered
routinely or w/o good reason.”
Most judges welcome the involvement of mental professionals in seriously contested best interests
cases. Some judges however are less receptive to involving assessors.
Linton v. Clark, Ontario Divisional Court, 1994
Assessments should not be ordered in all cases as a vehicle to promote settlement of custody
disputes. If the legislature had intended that assessments were to be a vehicle to settle custody
disputes the legislation would have mandated assessments in all cases.
In my view, assessments should be limited to cases in which there are clinical issues to be
determined in order that such assessments can provide expert evidence on the appropriate manner to
address the emotional and psychological stresses w/I the family unit in the final determination of
The expense and time for an assessment is relatively minor compared to the costs and delay involved
in litigation process as a whole.
Both the work of individual assessors and the work of mental health researchers will continue to be
very influential for resolving these cases.
In Ontario the government funds the Office of Children‟s Lawyer to act on behalf of the child in
contested best interests cases.
In cases where parents have separated and are litigating, pursuant to s. 112 of the Courts of Justice
Act the court may request an investigation to be carried out by a social worker from the office, and a
report made to the court.
It’s possible for parents to hire their own experts (psychologists, social worker …)
Feeling that the expert who is paid to do the assessment will be more biased toward the parent who
has paid them.
Both parents are interviewed alone, they might be interviewed together as well, child is interviewed
w/ each parent as well, new partners might be interviewed, home visits, psychological test might be
ordered if the child is acting in an inappropriate way, or the reports are reviewed. And after several
weeks an assessment is generated. It could be a lengthy and expensive process.
Report is sent to the parties and the court and usually has a recommendation of who should have
access and get custody. That report is very influential especially if it’s court ordered b/c it’s
independent. The courts are not bound to follow it but in over 80 percent of the cases, it’s settled after
the report comes out. (b/c parents know that court will possibly follow it)
It’s possible for the parent to challenge it but it’s an uphill fight. (they have to show that it’s biased,
but if they lose, cost order is given)
It’s not a perfect system. We have an assessor who does the judge’s role.
In Linton it was held that resorting to assessor’s expertise should be “limited to cases in which there
are clinical issues to be determined”.
Many judges will still order assessment.
Assessment is one manner in which the child custody problem is solved.
There is another mechanism to find out what the child’s wishes are.
A lawyer can be assigned to the child (free). They represent children. They also have social worker
that can do the most appropriate thing.
It’s not unusual for the parents to consent to the appointment of a lawyer for the children. Children
are very reluctant to express their wishes. Children are hesitant to be interviewed by a social worker.
Officer of children has to present what the child’s views are. It’s not clear if they can say what’s in
their best interest.
OCL aren’t entitled to express what’s in the best interest of the child. They just have to say what the
child’s views are.
It’s likely to be very influential with the judge, but it’s not determinative.
In practice, it doesn’t happen that often. There is a lot of deferral to the presentation of the lawyer or
Child Custody and Access
Area of law that is largely fact driven
Stability in children’s life is important
Who gets interim custody is very important in who gets the custody at the end.
S. 24(2)(c)(e)(f): indicates how arrangements before the trial is significant (length of it, plans,
permanent stability of family unit (can be associated with de facto interim custody)
Marshall v. Marshall, N.S. C.A., 1998
The test set out in Webber v. Webber was applied:
“Given the focus on the welfare of the child at this point, the test to be applied on an application for
an interim custody order is: what temporary living arrangements are the least disruptive, most
supportive and most protective of the child. in short, the status quo of the child, the living
arrangements w/ which the child is most familiar, should be maintained as closely as possible.”
Some of the factors that are taken into account are: “short-term needs, daily routine of the child, the
relationship of the child w/ competing parties, proximity to school or preschool facility, availability
of access by the non-custodial parent, danger of physical, emotional or psychological harm, ..”
If there is no reason to change the existing situation, that situation should continue until the trial.
Test for Interim Custody: What temporary living arrangement is most supportive, w/ whom
has the child been residing in the immediate past, preschool needs, the child’s daily routine
and needs should be taken into account, closeness to community, school, Access to non-
custodial parent, whether the child is in physical or psychological danger
Lisanti v. Listanti, Ontario Family Court, 1990
I granted an interim order that the father would have custody of the two children of the marriage.
Another judge set aside my order and directed that the issue of interim custody be heard before me at
a later date.
The husband came home and found out that his wife and children had gone.
The position is pressed that the fact that the mother was the primary caretaker of the children in the
past should determine the issue. I am unable to do so.
There is nothing in the affidavit material which would satisfy me that either the mother or the father
is unable to look after these two children in a perfectly acceptable, loving and caring manner in the
short time b/w now and trial.
She now lives in a transition state and her future accommodation is not assured.
Interim custody goes to the father.
Mother is alleging physical violence
W/o mother being present, he moves to get interim custody
Mother’s doctor supports her position (is not very useful b/c she went to the doctor after the
The families return to status quo (the children have to go back to the matrimonial home):
protection of status quo
Discourages the parties from taking self-help steps
Would have been helpful if she had affidavit material supporting her allegation (it’s not
o Concern: might encourage abused mothers to not leave the matrimonial home
The courts are very reluctant to disturb the status quo
Renaud v. Renaud, Ontario District Court, 1989
ISSUE: Who should get the custody? The father had the interim custody.
The wife assumed the traditional role in the family of being the primary caregiver.
Since the separation, the husband had de facto custody of the children. The wife was locked out of
the matrimonial home and had no alternative but to leave w/o the children.
He had slapped her before on two separate occasions and abused her verbally.
My main concern is the character of the husband. Following the separation, he did not allow the wife
access to the children.
I am also concerned about the husband’s fits of anger.
I am not satisfied that it is in their best interests that he continue as the custodial parent.
The mother was the primary caregiver.
Custody was awarded to the mother.
Verbally and physically abusive
Even though the father had de facto custody, it’s wasn’t w/ the mother’s consent, (b/c of his
The father tried to cut off the relationship b/w children and the mother
Lack of concern about the children’s welfare by not recognizing the important link of children
to the mother
The court takes into account his abusive behaviour
RATIO: Stability and continuity are important but it’s not the absolute determinant especially
in the case where the parent who didn’t have de facto custody wasn’t the primary caregiver.
Spencer v. Spencer, 1980, B.C. C.A.
The mother left the matrimonial home. The Court of Appeal held that the trial judge had erred in
stating that mothers have an edge over fathers.
The children have strong roots in the rural community where they live.
RATIO: I do not believe that it is possible to over-emphasize the need of young children to feel
secure in every way. This feeling of security, which they now enjoy, may well be impaired if they are
taken away from all their friends and the physical setting w/ which they are familiar.
To leave the children where they are is not a gamble. To change the status quo is a gamble which I
am not prepared to take.
The parties separated in 1979
The mother leaves the matrimonial home even though she was the primary caregiver
Presumption that mother is in a better position to take care of the children. (this presumption
is not valid anymore)
B.C. C.A.: reverses the trial judge’s decision. Strong links in the community, the father
already has a plan in place w/ babysitter,
Stability and continuity is very important. (retaining the status quo)
The courts are very keen on discouraging self-help
Initial arrangement at the time of separation is very critical.
If parent moves out, they might have forfeited child custody and child support
Moores v. Feldstein, Ontario Court of Appeal, 1973
The plaintiff sought custody of her daughter. The daughter had been delivered by the mother into the
care of the appellants. She hoped that this would lead to reconciliation w/ her husband, who was not
the father of the child. w/I months, the mother requested the return of the child but proceedings were
not begun until almost 2 years after the birth of girl and the child was almost four years old when the
matter came to trial.
The child should be left w/ the Feldsteins.
It is important that adequate weight and consideration is given to the present position of the child.
Unless the result of such a change is shown to be in the interests of the child, I would hesitate to risk
the effect of such disturbance.
Almost four years
Report went on to say that there was a strong atmosphere of warmth and care in the home and that
the child receives excellent physical and emotional care.
Since the evidence does not show that the child will benefit by the mere fact of its blood relationship
w/ its mother, it cannot be said that the welfare of the child in its broadest sense will best be served
by its being returned to her.
De Facto custody was given to a couple, hoping that not having the biological child in house
would foster reconciliation in the marriage.
Concern of disturbing the child’s continuity, the safest course is leaving the kid w/ the family
Very long period of de facto that the Feldsteins had.
Length of time it takes from filing of the initial motion to the trial creates a period during
which stability and continuance is created.
Blood tie: strong presumption in favour of biological parent having custody of the children.
Best interest of the child: when by consent one person becomes psychological parent
Custody and access typically applies to parent. But according to s. 16.3 of divorce act, a
parent of the child or anyone else can apply for the custody or access. (genetic link is not a
Case law requires someone who has a very strong psychological link in absence of genetic
As Lisanti indicates the courts sometimes frown on attempts at self-help.
The principle of ensuring stability in children’s lives also governs the judicial response to
applications for variation of custody orders. The existing order will not be disturbed unless it is
demonstrated that there has been a material change in circumstances and that the child’s best interests
require a change in the order. Williams v. Williams, B.C. C.A., 1989
Fishback v. Fishback, Ontario District Court, 1985
The mother had de facto custody of two girls.
Mr. Fishback did at least as much as Mrs. Fishback in the care of the matrimonial home and in the
care of the children.
Mrs. Fishback found Mr. Fishback insufficiently exciting.
Mrs. Fishback had shown that her own desires really have priority to her children.
Except for the last 9 months or so, the children have throughout lived at the matrimonial home.
Children had preference to be w/ their father. Their preference in itself is of little importance. What is
important is that Mr. Fishback clearly commands their affection and respect as much, if not more,
than does Mrs. Fishback.
I was impressed w/ Mrs. Tye.
I am obliged to say that neither Mr. Yeoman’s past performance nor his demeanour as a witness left
me fully confident that his present relationship w/ Mrs. Fishback will last. (not satisfied of the
stability of Mrs. Fishaback’s life)
Indicates that the court is taking into account the spousal conduct of the mother
After marriage, they have 2 girls, he works in Ford Assembly Line, father is a religious man,
the court stresses how he is an exceptional father, she loses interest in the children, the court
is satisfied that the fault should be laid on her, she gets involved w/ someone else, the mother
gets interim custody (based on the fact that she was a primary caregiver)
The children were living w/ the man who she had an affair w/
The custody is given to the father in the court. (Stability: school and friends)
It looks like that the judge is taking into account the personality of the children.
The mother is more interested in relationships and he is more interested in raising the kids.
Judge is more impressed w/ the father’s partner than the mother’s partner.
The judge seems to be concerned about the conduct of the mother. (priorities of the mother:
putting herself ahead of others)
Older case: such a fact driven criteria (custody of the child)
Court considers cruelty directed toward the other spouse (abusive toward the other spouse)
Martial misconduct used to be a very important factor in determining who will get child
custody and support.
Now, marital misconduct isn’t relevant
Section 16(9) of DA and section 24(3) provide that the parent’s past conduct is not relevant in
the adoption case unless it undermines the person’s ability to raise the child.
Parental conduct not the spousal conduct is taken into account.
In one case it was held that abusive behaviour toward one parent might be relevant.
Young v. Young, Ontario H.C., 1989
Both parents worked outside the house, but the wife assumed primary responsibility for child care.
The children remained w/ wife after separation. The son and daughter wished to live w/ their father.
Mrs. Young alleges that she was emotionally, physically, verbally and sexually abused by Mr.
Young. He told her no one else could or would ever love her.
A doctor of psychology (expert witness) described her as being depressed, anxious and suffering
from long-standing emotional and verbal abuse.
I am mindful of the fact that the stated preference of the children should be considered, however,
there are other factors I should look at, notably, the abuse.
I accept the expert evidence that children who witness abuse can become abused even though the
abuse is not intentionally directed at them and that abused male children often become abusers and
abused female children may become compliant to abusers.
I accept Mrs. Young’s opinions that the children are too young at this point to give paramountcy to
their stated desire.
Man’s abusive conduct toward his wife becomes a very important factor in determining who
gets the custody.
Children expressed their desire to live w/ the father.
He was abusive toward the wife.
The wishes of the child have to be taken into account but in the light of the context.
Section 16(9) of the Divorce Act
(9) In making an order under this section, the court shall not take into consideration the past conduct of any
person unless the conduct is relevant to the ability of that person to act as a parent of a child.
Parent‟s relationship w/ a third party
Reid v. Reid, Ontario Divisional Court, 1975
Catherine Reid took her three young children from the family home and began to live w/ Donald
Reid. The trial judge awarded custody to the mother and the father appealed.
The question is whether it is in the best interests of the children that Donald Reid become their
There was evidence that Donald Reid was harsh w/ his own children and that basically he did not like
RATIO: this case stands for the proposition that the character and the parenting skills of the person
w/ whom a person resides or intends to reside are relevant.
The father looks up the wife’s lover’s history
He was present but he didn’t take part in the proceeding
Appeal court noted that they are reluctant to overturn the trial judge’s ruling but the lover’s
history played a role.
The concern is that the new parent may not be an adequate person to take care of the children.
SEXUAL ORIENTATION OF PARENT
B. v. B., Provincial Court, 1980
Father had the custody of the two sons and two daughters. The daughter didn’t want to live w/
the father. She moved in w/ another woman.
testimony of a social worker in which she talked about the closer relationship of the daughter
w/ her mother, and also that homosexuality wasn’t going to be passed on to the daughter.
Saunders v. Saunders, B.C. Co. Ct., 1989
homosexual father, the found him unsuitable to raise the child since he was a homo
The father was denied overnight access as long as they continued to live in same-sex relationship.
Sexual orientation is not relevant anymore.
TENDER YEARS DOCTRINE, PRIMARY CARE-GIVING AND WORKING MOTHERS
Gender neutrality: Gender is completely not a factor. We have shifted from tender years
doctrine to primary caregiver doctrine.
There used to be a very strong presumption for the mother to take care of the child (until the
child was 7). It was very rare for the father to get custody in the absence of adultery being
committed by the mother.
Huge change in social roles and legislation is now gender neutral.
Case law reflects change in social roles
Both a father and a mother equally are entitled to custody. Typically, it is the mother who gets
the custody. Mothers getting sole custody and joint custody has reached parity, there is still a
much smaller proportion of arrangement where the father gets sole custody.
R. v. R., Alberta Court of Appeal, 1983
The case stands for the proposition that tender year doctrine is no longer relevant.
Tender year doctrine is addressed.
They adopt a child.
Mother stops working and starts taking care of the child.
Parents separate. Mother moves about 50 miles away.
There is an interim arrangement in which the child is left w/ the mother.
The trial judge gives the custody to the father. Court of appeal upheld the decision.
Tender year doctrine: Common sense: Court of appeal rejects any presumption that mothers
are in a better position to raise the children who are younger than 7 and it doesn’t reflect the
underlying principle: best interest of the children.
Growing awareness of fathers in children’s lives, you can’t presume that mothers are more fit,
you have to just look at what’s in the best interest of the children.
He was a farmer. The mother would have to rely on daycare.
In this particular case it was held that it’s better for children not to be raised in daycare. It’s
important for them to be raised in someone of immediate family.
DISSENTING JUDGMENT: that encourages the parent to stay home and go on welfare.