Family Law Can: Professor Aloni - December 2019

Professor Aloni – December 2019
FAMILY LAW CAN

TABLE OF CONTENTS
FUNCTIONS OF FAMILY LAW, CONFLICTING POLICIES AND VALUES, DIVERSITY OF FAMILY FORMS................3
Evolutions and functions of family law – family autonomy, privacy, equality protection............................................3
Sociodemographic of Canadian families......................................................................................................................5
JURISDICTION & SOURCES OF FAMILY LAW....................................................................................................5
Federal and provincial family law...............................................................................................................................5
Other sources of jurisdiction.......................................................................................................................................7
ESSENTIAL AND FORMAL VALIDITY:...............................................................................................................8
Essential validity: same-sex marriage..........................................................................................................................8
Divorce for non-resident same-sex couples:....................................................................................................................................8
Objections to officiate:......................................................................................................................................................................9
Essential validity: multiple partners............................................................................................................................9
Polyamory:.......................................................................................................................................................................................11
Essential and formal validity: annulment, consent, common law requirements, formalities....................................11
Annulment vs. divorce:...................................................................................................................................................................11
Consent:...........................................................................................................................................................................................13
Duress – forced and arranged marriages:......................................................................................................................................13
Marriage for obtaining a benefit:...................................................................................................................................................14
Ability to consummate:...................................................................................................................................................................14
Prohibited degree of consanguinity & affinity:..............................................................................................................................14
Age:..................................................................................................................................................................................................15
Formal validity:................................................................................................................................................................................15
DISSOLUTION OF RELATIONSHIPS - DIVORCE...............................................................................................16

Divorce jurisdiction and conflict of law.....................................................................................................................16
Marriage breakdown................................................................................................................................................16
Living Separate and Apart – Divorce Act s8(2)(a) and FLA s3(4):...................................................................................................17
Adultery – Divorce Act s8(2)(b)(i):..................................................................................................................................................18
Cruelty – Divorce Act s8(2)(b)(ii):....................................................................................................................................................19
Removal of barriers to religious marriage.................................................................................................................19
Duty of legal advisor.................................................................................................................................................19
DIVISION OF PROPERTY & DEBT AT DISSOLUTION........................................................................................20
Definition of family property....................................................................................................................................20
Excluded property.....................................................................................................................................................21
Tracing......................................................................................................................................................................22
Transfers of excluded property between spouses.....................................................................................................23
Presumption of advancement:.......................................................................................................................................................23
Valuation of property and debt and unequal distribution.........................................................................................24
Unequal distribution:......................................................................................................................................................................25
Pensions:..........................................................................................................................................................................................26
1
Division of excluded property:........................................................................................................................................................26
NONMARITAL FAMILIES, CHARTER AND INCLUSION IN PROPERTY REGIMES................................................27

Obligations of provinces and territories to recognize non-marriage.........................................................................27
Inclusion in property scheme....................................................................................................................................28
OPT-OUT REGIMES, DEFINITION OF MARRIAGE-LIKE, UNJUST ENRICHMENT, NONCONJUGAL FAMILIES......29
Marriage-like definition in FLA..................................................................................................................................29
Unjust enrichment claims.........................................................................................................................................30
Nonconjugal families................................................................................................................................................32
DOMESTIC CONTRACTS................................................................................................................................33
Agreements about property division.........................................................................................................................34
Agreements respecting parenting arrangements......................................................................................................35
Defect in the process of making a family law agreement..........................................................................................36
SUPPORT OBLIGATIONS...............................................................................................................................37
Child support vs. spousal support:.................................................................................................................................................37
Spousal support........................................................................................................................................................37
Objectives of spousal support & factors:.......................................................................................................................................37
Determining entitlement to spousal support:...............................................................................................................................38
Relevance of spousal misconduct:..................................................................................................................................................40
Spousal support – Quantum and duration................................................................................................................41
Spousal Support Advisory Guidelines (SSAG):...............................................................................................................................41
Variation or termination of spousal support order:......................................................................................................................43
Child Support............................................................................................................................................................43
Jurisdiction:......................................................................................................................................................................................43
Obligations to pay under the Divorce Act:.....................................................................................................................................44
Obligations to pay under the FLA:..................................................................................................................................................45
Child age of majority:......................................................................................................................................................................45
Child Support – Determining the Amount.................................................................................................................46
LAW OF PARENTAGE: ASSISTED AND NON-ASSISTED REPRODUCTIVE TECHNOLOGY, MULTIPLE PARENTS....48
Birth registration and presumptions of paternity......................................................................................................48
Children conceived by assisted reproduction............................................................................................................49
Parentage in assisted reproduction:...............................................................................................................................................49
Assisted Human Reproduction Act:................................................................................................................................................51
Surrogacy:........................................................................................................................................................................................52
Who owns gametes?.................................................................................................................................................53
PARENTING OF CHILDREN – CUSTODY, ACCESS, GUARDIANSHIP, BEST INTERESTS OF THE CHILD, B C-78......54
Jurisdiction re: parenting..........................................................................................................................................54
Terminology: Divorce Act – custody and access; Family Law Act – guardianship and contact...................................54
DA vs FLA Terminology:...................................................................................................................................................................54
Best interest principle...............................................................................................................................................55
Divorce Act Provisions re: Best Interests:.......................................................................................................................................55
2
Family Law Act Provisions re: Best Interests:.................................................................................................................................55
2011 Report on Best Interests  court relies heavily on this expert report in determining BIOC:............................................56
Making orders for custody and access – Divorce Act.................................................................................................57
Authority/types of orders:..............................................................................................................................................................57
Considerations in making orders – BIOC:.......................................................................................................................................58
Denial or limit of access:.................................................................................................................................................................58
Variation of custody/access orders:...............................................................................................................................................58
Making orders for custody and access – Family Law Act...........................................................................................58
Establishing/ordering guardianship:..............................................................................................................................................58
Parenting arrangements (FLA s40):................................................................................................................................................59
Parenting time (FLA s42):................................................................................................................................................................60
Contact agreements/orders:...........................................................................................................................................................60
Considerations in making orders – BIOC:.......................................................................................................................................60
Parents gender or sexual identity:..................................................................................................................................................61
PARENTAL ALIENATION...............................................................................................................................61
GUEST LECTURES.........................................................................................................................................61
Indigenous Individuals and Family Law: Property Division and Adoption..................................................................61
Alternative Dispute Resolution.................................................................................................................................62
Domestic Violence....................................................................................................................................................65
ADDITIONAL POLICY MATERIALS..................................................................................................................67
Privatization - the “private welfare function”...........................................................................................................67
Gender......................................................................................................................................................................68
Vulnerable persons...................................................................................................................................................68
Autonomy/choice.....................................................................................................................................................69
Terminology of bill c-78 – An Act to amend the Divorce Act......................................................................................69
FUNCTIONS OF FAMILY LAW, CONFLICTING POLICIES AND VALUES, DIVERSITY OF FAMILY FORMS
Why should the state intervene?

- Protection of the vulnerable
- Conflict resolution
- Economic stability
- Classification of family members
Evolutions and functions of family law – family autonomy, privacy, equality protection
5 Functions of family law (Carl Schneider):

- Protective function  main focus
o Basic duty of law to protect citizens against harms done by other citizens – in context of family, we think
particularly of state’s interest in protecting spouses and children from abuse and of fostering children’s
best interests
- Facilitative function
3
o To help people organize their life in way they prefer – family law does this by offering ppl the law’s
services in entering and enforcing contracts, by giving legal effect to their private arrangements
- Arbitral function
o Resolve disputes – seen in law of divorce, since divorce courts primarily adjudicate conflicting claims to
marital property, alimony, child custody
o Mandatory mediation
o Default rules impacting settlement
- Expressive function
o Signals what is important
o Deploys the law’s power to impart ideas through words and symbols –provides a voice in which citizens
may speak and, second, to alter behaviour of people law addresses
o Basically: expressing some kind of norm through the system
- Channelling function  most controversial
o Channel people into legal institutions  e.g., civil unions for same sex partnerships
o Policy: should it be the role of the law to channel us? Should we be channelled towards certain
behaviours or reflect current values?
o Schneider argues that law creates or supports social institutions which are thought to serve desirable
ends
- Private welfare function
o Families provide private care – if families don’t provide, state must do so
Marriage today vs. Marriage in past:
Marriage today:
- Perception of those who are married vs those who are not (community/family perception)
- Human right – same sex couple
- Commitment of marriage
- Public celebration/declaration
- One key change  no longer mandated by law
- One key change  marriage for love/autonomous decision
- Often today people don’t get married bc don’t have enough money
o Implies that the public aspect is a key reason (i.e., wedding reception)
o Low income people = one of the key groups who do not marry
o Also waiting for financial stability
- Stable relationships = sign of success
o Class issues
Marriage in past:
- Social alliance
- Wealth
- Assortative mating (similar wealth/race/religion)
- Procreation
- Sexual satisfaction
- Channel women into particular roles
Four trends in history:

1) Movement from public to private ordering
a. Marriage used to be highly state-regulated institution
i. E.g., divorce
4
ii. E.g., could not contract about marital property
b. Degree of control has decreased
2) Changing role of federal government
a. Uniform divorce law being contemplated
3) Broadened commitment to equality
a. At least on paper
b. More intention to equality in relationships and their regulation
4) Growing number of transnational issues
a. Immigration
b. Polygamous relationships
Sociodemographic of Canadian families
Why are demographics/family composition relevant?

- Need to ensure law doing its job as social institution – responding to proper challenges
2016 Census Report:

 Significant shifts in family demographics
- One-person households = most common type of household (↓nuclear families; ↑living alone)
o Possible reasons for shift:
 Aging population – elderly living alone
 Gender equality on the rise – more women in workforce, able to live independently, support
themselves, marriage not necessary for security
 Easier access to divorce (no longer fault based; breakdown of marriage)
o Policy implications:
 Under current system, many rights/duties/obligations distributed through marriage  if most
people live alone, may need to channel benefits through other means (e.g., leaving pension or
assets to friends vs. spouse)
 Reconsideration of care and support (e.g., methods of privatizing care besides relying on
spouses)
- ↑ number of people choosing common law marriage-like arrangements over marriages
- ↑ number of couples living without children
o Attributed in large to dying out of baby-boomers
- Rising/shifting role of women in labour force
o Women still majority of stay-at-home parents but number of women staying home ↓
 Note: now less feasible to have a stay-at-home parent  need multiple incomes
o Although more women participating in labour force, many doing so part-time (full-time work still
dominated by men)
o Policy Implications:
 May alter how families approach care of children and how judges make decisions regarding
custody/care
JURISDICTION & SOURCES OF FAMILY LAW
Federal and provincial family law
Constitution Act 1867 - Division of Powers

- 91(26) – Marriage and divorce exclusively under federal law
- 92(12) – Solemnization of Marriage in the province
- 92(13) – Property and civil rights in the province
- 92(16) – Matters of merely local/private nature
5
o Private – obligations/duties between partners – e.g. FL contracts
Federal government control over marriage and divorce:

- Advantages:
o Fewer barriers for inter-provincial marriages – marriage/divorce status moves with you
o Minimizes role of religion
- Disadvantages:
o Argument that provinces know best (made WRT same-sex marriage)
o Two different rules for the same thing  e.g., common law status
Federal Provincial
91(26) – Marriage and divorce exclusively under federal 92(12) – Solemnization of Marriage in the province
law
- Common law requirements 92(13) – Property and civil rights in the province
91(27) – Criminal jurisdiction – can define family 92(16) – Matters of merely local/private nature
relationships WRT prohibiting bigamy, polygamy, incest,
failure to provide necessities of life
Essential validity  capacity to marry Formal validity  ceremonial and procedural
- Marriage (Prohibited Degrees) Act: codifies requirements
prohibited degrees of consanguinity, affinity and - BC Marriage Act: who can officiate, requirement for
adoption witnesses
- Civil Marriage Act: minimum age, union of two - Property – rules for division of property after
persons (max), free and enlightened consent divorce/separation
- Grounds for divorce - Granting marriage licenses, requirements for
minimum age/parental consent
Marriage and divorce, including its effects (e.g. Spousal Custody and support where these arise in context other
Support, custody/access, child support where these than divorce (e.g. unmarried couples; interim periods)
issues arise from divorce)
Concurrent Jurisdiction (Divorce Act AND Family Law Act)
(If qualify under DA and FLA, can choose)
- Spousal support  federal government provides guidance, most provincial governments follow this guidance but
all provinces have own legislation for spousal support
- Child support
- Custody
**Doctrine of paramountcy applies where conflict – federal law prevails
6
Choice of Forum:
- S. 96 Constitution Act provides that the Federal crown is to appoint and pay judges of the Superior Courts in
each province
o Bc of this appointment structure and fact that prov’l court judges aren’t similarly appointed, there are
some matters that must be heard by a judge of BCSC
- S. 193 FLA outlines the limitations on the jurisdiction of the Provincial Courts
CONCURRENT JURISDICTION EXCLUSIVE BCSC (FLA s192) EXCLUSIVE BCPC (FLA s192)
- Guardianship of children - Divorce Act - All child protection matters under
- Parenting arrangements - Orders about divorce the Child Family and Community
- Child and spousal maintenance - Division of a family’s property Service Act (although protective
under FLA - Financial restraining orders intervention and restraining orders
- Part 3 of FLA (Parentage) can also be obtained in BCSC)
Jurisdiction requirements – divorce proceedings, corollary proceedings (DA s3-4):
- 3(1) – Court in a province has jurisdiction to hear divorce proceeding if either spouse has been ordinarily
resident in the province for at least one year immediately preceding the commencement of the proceeding
- 3(2) – where two proceedings commenced on different days by each spouse in different courts that both have
3(1) jurisdiction, court where first proceeding commenced has exclusive jurisdiction, second proceeding deemed
discontinued
- 3(3) – where two proceedings commenced on same day by each spouse in different courts that both have 3(1)
jurisdiction, Federal Court has exclusive jurisdiction
- Note: under 3(2) and 3(3), only applies if the other proceeding is not discontinued within 30 days  spouses
could also decide to discontinue one of the proceedings
- Corollary proceedings (s4): same rules as above where two proceedings commenced but in deciding which court
can be either ordinarily resident at commencement of proceeding OR accepted by both spouses to choose court
Influence of Charter on FL
- Unmarried/CL partners
o Most significant change resulting from enactment of Charter = re: unmarried/CL partners  general
statement of state of Charter application to CL couples: when it comes to what provinces themselves are
providing, there must be equality between married and unmarried couples (see Miron), but Charter
doesn’t require provinces to treat unmarried couples the same as married for purposes of property
division (Walsh)
 Miron (1995): Statutory definition of “spouse” that excluded unmarried/CL couples for purposes
of claiming benefits under insurance policy was held to be in violation of Charter – not saved
under s.1
7
 Walsh (2002): Court said differing statutory treatment of married/unmarried couples re:
property division is NOT discrimination b/c unmarried couples have chosen to live this way and
we cannot mandate that provinces equalize division between these 2 classes
 Quebec v A: Majority of court found that exclusion of CL spouses from spousal support regime
was discriminatory, but the exclusion was ultimately upheld
- Same-sex partners
o K(re) – court found discrimination for not allowing lesbian mothers to adopt a child
o M v H – Same-sex partners cannot be treated differently under property division schemes (unlike
unmarried couples)
- Polygamy
o 2011 reference found that Criminal prohibition of Polygamy limits freedom of religion, but is justified
under s.1 to prevent harm to women, children, and society
- Parental rights
o Parental rights are an integral part of parents’ s. 7 rights
- Child protection/adoption and other FL proceedings
o New Brunswick v G(J) (1999) – Such proceedings affect vitally important aspects of “security of the
person” under s.7 – must be conducted in accordance w/ principles of fundamental justice
Other sources of jurisdiction

- Family Homes on Reserves and Matrimonial Interests or Rights Act
- Hague Convention on Civil Aspects of International Child Abduction
ESSENTIAL AND FORMAL VALIDITY:
Essential validity: same-sex marriage
Same-sex marriage = matter of essential validity – federal jurisdiction  provinces cannot provide a “provincial
definition” of marriage
Landmark cases prior to Reference Re Same-sex Marriage (2004):

- Layland v Ontario (1993): denied application to recognize same-sex relationships; cited Hyde (precedent
confirming opposite-sex requirement for valid marriage) and general arguments against same-sex marriage
- K (Re) (1995): court recognized lesbian couple as spouses for purpose of adoption
- M v H (1999): recognized discrimination on basis of sexual orientation  for purposes of spousal support must
recognize same-sex couples as equivalent to married couples
- Halpern v Canada (2003): in favour of same-sex marriage; federal gov did not appeal
Reference Re: Same-Sex Marriage, 2004 SCC 79: federal gov submitted questions to SCC WRT constitutionality of
proposed civil marriage statute; proposal included 2 provisions:
- s1 marriage, for civil purposes is the lawful union of two persons to the exclusion of all others
- s2Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are
not in accordance with their religious beliefs.
 4 questions:
1) Is the Proposal for an Act w/in legislative authority? s1 YES; s2 NO
8
2) Is the extension of capacity to marry to same-sex couples consistent with the Charter? YES
a. Giving rights (vs. taking away)
3) Does freedom of religion protect religious officials from being compelled to marry same-sex couple if contrary to
beliefs? YES
a. Only confirms religious officials performing religious ceremonies cannot be compelled  not clear
whether state officials solemnizing relationships are protected
4) Is opposite-sex requirement for marriage for civil purposes per common law and Quebec civil law consistent
with the Charter? Did not answer
Divorce for non-resident same-sex couples:

- After same sex marriage legalized, Canada = tourist hot spot for same-sex couples – bc Canada had jurisdiction
to marry people not living in Canada (i.e. Civil Marriage Act did not impose residency requirement)
- PROBLEM: s. 3 Divorce Act imposes 1yr residency requirement
o 3(1) 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 1 year immediately preceding the
commencement of the proceeding
o E.g. Lesbian couple (1 from England 1 from Florida) got married in Ontario couldn’t get divorce in either
of their home places; came back to Ontario for divorce – court couldn’t grant bc of s3 DA
- LEGISLATIVE RESPONSE: Civil Marriage Act s. 7(1): divorce of non-resident persons
o 7(1) The court of the province where the marriage was performed may, on application, grant the
spouses a divorce if
 (a) there has been a breakdown of the marriage as established by the spouses having lived
separate and apart for at least one year before making the application
 (b) neither spouse resides in Canada at the time the application is made; and
 (c) each of the spouses is residing – and for at least 1 year immediately before the application is
made, has resided – in a state where a divorce cannot be granted b/c that state doesn’t
recognize the validity of the marriage
o Allows ppl to get divorce decree regardless of not meeting domicile requirement
- Continuing issues: S7(1) of Civil Marriage Act creates divorce equality BUT doesn’t grant any jurisdiction WRT
other correlative issues such as property division, children, etc.
Objections to officiate:
- Per Reference re Same-Sex Marriage, religious officials performing religious ceremonies may refuse to perform
same-sex ceremony
- Marriage commissioners = public official carrying out state function (although often independent contractors,
including BC)
- Nichols v M.J. – in SK, civil marriage commissioner may not refuse
- PEI Marriage Act – permits person to refuse to perform if it interferes with religious beliefs
- BC – still live issue as to whether civil commissioner can refuse to officiate same-sex marriage on religious
grounds  Nichols and Marriage Commissioners Reference likely persuasive
Nichols v M.J., 2009 SKQB 299: N (civil marriage commissioner) refused to perform same-sex marriage; appeal of HRT
finding that N discriminated by denying provision of service; government official with sincere religious belief able to
refuse? NO – marriage commissioner solemnizing civil marriage pursuant to Marriage Act implementing government
scheme; members of public shouldn’t bear burden of finding marriage commissioner with no moral/religious objection;
harm = discriminating celebratory day, may be no other commissioner in the area, gov expected to be fair/impartial;
RATIO: marriage commissioner employed by gov cannot refuse to perform same-sex marriage
Marriage Commissioners Appointed Under the Marriage Act (Re), 2011 SKCA 3: SK gov requested SK Court of Appeal’s
opinion on constitutional validity of two possible amendments to SK’s Marriage Act. Both would allow a commissioner
to decline to solemnize a marriage if performing the ceremony would be contrary to his or her religious beliefs;
9
constitutional? NO  accommodating the religious beliefs of marriage commissioners could not justify discrimination
against gay and lesbian couples
Essential validity: multiple partners
Essential validity requires no prior existing marriage for valid marriage  excludes bigamy and polygamy
- Civil Marriage Act s2: marriage defined – lawful union of two persons to the exclusion of others
- Civil Marriage Act s2.3: no person may contract new marriage until every previous marriage dissolved by death
or divorce or declared null by court order
- Criminal Code s290: guilty of bigamy if you marry someone while already married to someone else, or marry a
person knowing that they are already married
- Criminal Code s291: punishment for bigamy – up to 5 years
- Criminal Code s292: cannot procure or knowingly aid in procuring feigned marriage
- Criminal Code s293: prohibition against polygamy
Bigamy:
290 (1) Every one commits bigamy who
(a) in Canada,
(i) being married, goes through a form of marriage with another person,
(ii) knowing that another person is married, goes through a form of marriage with that person, or
(iii) on the same day or simultaneously, goes through a form of marriage with more than one person; or
(b) being a Canadian citizen resident in Canada leaves Canada with intent to do anything mentioned in
subparagraphs (a)(i) to (iii) and, pursuant thereto, does outside Canada anything mentioned in those
subparagraphs in circumstances mentioned therein.
Polygamy:
293 (1) Every one who
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law
recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a
relationship mentioned in subparagraph (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
- Polygamy = marriage to more than one person
- Polygyny = one man with multiple wives
- Polyandry = one woman with multiple husbands
Bigamy vs. Polygamy:

- Polygamy: “any conjugal union” “whether or not recognized as binding form of marriage”
o Broader, includes marriage-like relationship (need not be binding marriage)
o Just need some type of sanctioning event/ceremony to fall under a “conjugal union”
- Bigamy: requires form of marriage defined in s214 of the Code – a “form of marriage:
o Form of marriage includes a ceremony of marriage that is recognized as valid
 (a) by the law of the place where it was celebrated, or
 (b) by the law of the place where an accused is tried, notwithstanding that it is not recognized as
valid by the law of the place where it was celebrated
o Does NOT include common law marriage
o Commonly involves form of deception
10
Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588: is the prohibition on polygamy consistent
with the Charter? YES – s293 of the Criminal Code infringes freedom religion but justified under s1 due to harm to
women, children, society
 Arguments for criminalization:
- Age of consent issues – harmful to children
- Sexual assault issues
- Significant proof of harm
- Higher rates of domestic violence and sexual abuse
- Higher rates of depression and mental health issues
- Collection/commodification of women – generally a culture of men with many wives, sending message of
inequality, patriarchy
 Arguments against criminalization:
- Security of the person – criminalization pushes polygamist relationships underground and has opposite effect
intended (similar to criminalization of abortion, sex work)
- Not just the man who is criminalized  the act is criminalized therefore women also criminal
- Overbroad – unclear who is targeted by this law
o May target someone not yet divorced
- Already have laws governing issues of sexual assault
- Serves a channeling function which is debatable  prohibition prompted by largely secular concerns with
perceived harms associated with the practice of polygamy to women, children, society and the institution of
monogamous marriage.
o Settler/Christian notion that one way of life is right and another is not
o Protecting the Christian institution of marriage
“Bountiful Voices”
- Reports of many women in polygamous marriages who report very favourably about their arrangements
- Women indicate that decriminalization would have a hugely positive impact on their lives
- Ideas of sisterhood/community/support
Polyamory:
- Polyamory (definition from Loving More) = relationships where an adult intimately loves more than one other
adult. This includes forms like open couples, group marriages, intimate networks, triads and even people who
currently have one or no partners, yet are open to the possibility of more. People who describe themselves as
polyamorous (or poly) also usually embrace the value of honesty in relationships. They do not want to have
affairs or cheat on a loved one and are dedicated to growing beyond jealousy and possession in relationships.
o Suggests people can be poly without actually exercising it
- Are polyamorous relationships criminalized? Depends on whether sanctioning event occurs
- Reference Re s. 293 says polyamory doesn’t fall under criminal prohibition – is that true? Some poly relationships
have sanctioning events – this suggests that even while trying to give narrow definition, the criminal prohibition
is overly broad
- Is it fair to distinguish between polyamorous couples and polygamous couples?
o Arguably polyamory less harmful to women, grounded in equality
o Looking at idea of harm that “inheres” in polygamy – if object is targeting harm flowing from these
arrangements, hard to make a distinction between polyamory and polygamy
o Strong argument for saying that we should be addressing the alleged harms flowing from polygamous
arrangements through independent laws/prohibitions rather than a broad prohibition of the whole
arrangement (i.e. criminalize abuse, not polygamy)
- G. (B.D.) v B. (C.M.), 2016 BCPC 97: relocation case; should not assume dysfunction in polyamorous family
11
- Assuming this is not criminalized – what about regulation?
o Thinking about polyamory – assuming we decided to regulate these arrangements – assume 1 of 3
parties leaves relationship  how should property be divided?
 We could give that person 1/3
 Could stipulate by contract
 Who would be entitled to survivor benefits?
 Testimonial privileges
o If you don’t have default provisions in place, you need lots of documents (contracts, wills, etc.)
o Think about situations where we default to spouse – e.g. end of life decisions  who do we go to w/
polyamorous units?
G. (B.D.) v B. (C.M.), 2016 BCPC 97: relocation case; application by mother to move children from Nanaimo to Edmonton;
mother was in polyamorous relationship, has son, leaves relationship but maintains close by and father maintains
polyamorous relationship; should mother be able to move to Edmonton and be primary caregiver? NO – court rejects
assumption of dysfunction; no evidence children have been negatively affected by being raised by polyamorous family
half the time (shared custody); relocation application denied, joint custody continues; RATIO: progressive decision – no
assumption that polyamorous family dysfunctional
Essential and formal validity: annulment, consent, common law requirements, formalities
Annulment vs. divorce:

- Annulment = court declaration that marriage never existed; marriage null and void
o Preference for annulment:
 Never married – avoids stigma, religious reasons, etc.
 Faster than divorce usually
o Where marriage = invalid, annulment is only remedy
o Can still make claim for spousal support and property under the FLA even where marriage is void (Li v
Rao)
- Divorce = terminates marriage from date of judicial decree
- Policy: why not make annulment easier?
o Protect reasonable expectations of parties
o Presumption in favour of validity of marriage – preserve family ties
FLA s. 21: Void and voidable marriages:

- Attempt to remedy implications of s198 of FLA which read literally states certain actions can only be brought by
a spouse (including property division, support orders – also see Li v Rao)
21. (1) For the purposes of this Part, if
(a) 2 persons go through a form of marriage to each other, with at least one of them
doing so in good faith,
(b) the 2 persons live together during the marriage, and
(c) the marriage is void,
the 2 persons are deemed to have been married during the period they were living together, and the marriage is
deemed to have ended when the persons stopped living together.
(2) For the purposes of this Part, if a voidable marriage is declared a nullity, the persons who went through the form of
marriage are deemed to be married until the date of the declaratory order of nullity.
Li v Rao, 2018 BCSC 142: L and R married while R still married (lied); agree marriage is void; L filed for divorce; entitled to
division of property and spousal support under FLA? YES – based on context of FLA as a whole, void marriage does not
12
prevent party from claiming entitlements under Part 5 and 7 of FLA; RATIO: property and support claim still available
under FLA for void marriage
Void vs. voidable marriage:

- Void and voidable marriages have same outcome  annulment; key distinction = voidable marriage is ratified if
you continue cohabitating without challenging voidability
Void:
- Marriage never existed/never took place
- Every person can seek annulment, not just the parties themselves; can seek annulment after death of parties
Voidable:
- Can be ratified later
o Void can never be ratified bc never existed  e.g., if previously married, cannot ratify by continuing to
live together bc still married to someone else
- Only parties themselves can seek annulment
- Null only after declaration of the court
- If ratified, can no longer seek annulment  “deadline”
o Similar to a minor ratifying a contract after reaching age of majority by continuing to abide by contract
o Once you learn about mistake
- In Pascuzzi, fact that wife married in February and did not leave until December did not mean consent where
significant duress – wife was raped and pressured by husband’s family to marry him to drop criminal charges
Defect Effect
Prior existing marriage Void
Prohibited degree Void
Failure re: formalities Based on particular type of problem; look at the statute  e.g., if parental consent, not void
Non-age Void but can be ratified by continued cohabitation (according to text  but bc can be
ratified, Aloni says voidable) (valid if over 16 but under 19)
Non-consummation Voidable
Capacity (mental) Void (may have possible of ratification if could recover from incapacity)
Intoxication Voidable  possible to ratify after sobering up (textbooks say void but can be ratified
therefore voidable)
Essential consent is lacking
Duress Voidable at the option of the coerced party
Mistake Generally valid  if void, can be ratified
Fraud Valid
Consent:
- Absence of consent renders marriage null and void
Capacity:
- Capacity to marry typically requires lower level than other capacity tests  protect persons with disabilities;
resect autonomy and dignity of people with diminished capacity
- Test: A person is mentally capable of entering into a marriage contract only if he or she has the capacity to
understand the nature of the contract and the duties and responsibilities it creates (Donna Devore-Thompson v
Poulain, 2017 BCSC 1289)
- Presumption of capacity – person challenging presumption bears burden of proving
Intoxication:
- Test: was the plaintiff so intoxicated as to be incapable of understanding that they were entering into a
marriage? (Davison v Sweeny, 2005 BCSC 757)
13
- In Davison parties did not meet test bc were able to go to the chapel, go get a license, then go back to the chapel
to marry
Duress – forced and arranged marriages:

- Exertion of pressure that includes fear; does not require physical force
- Test: Party alleging duress must prove their mental state was so overborne by duress that they were actually in
a state of “mental incompetence” ( H. (R.) v T. (R.))
o Reluctance and feeling pressure not enough if parties mentally competent to give consent (H(R) v T(R))
o Subjective test
Factors to consider whether applicant’s mind so overborn by pressure to constitute duress (H(R) v T(R)):
- Party’s emotional state at the time of the marriage ceremony (most important consideration)
- Party’s vulnerability
- Time between the alleged coercive conduct and the marriage ceremony
- Whether marriage was consummated
- Residence of the parties during the marriage
- Amount of time until the start of the annulment proceeding
H(R) v T (R), 2011 BCSC 678: RH seeking annulment on claiming coerced into marriage; sufficient to warrant duress? NO
– RH sophisticated businessman; pressured by RT to give up businesses, have a child & marry for immigration purposes;
RH felt emotionally trapped but still had numerous assets – not sufficiently vulnerable, insufficient pressure or coercion;
RATIO: clear and cogent evidence required to rebut presumption of marriage; party alleging duress must prove mental
state so overborne by duress that they were in a state of mental incompetence vitiating consent to marriage
Arranged Marriage:
- Arranged marriage still has free and informed consent of both parties
- S.A. v S.A. (cited in H(R) v T(R)) – showed that pressure by parents/third parties may vitiate consent by
constituting duress (i.e. pressured doesn’t have to come just from the other spouse)
- BUT need more than parental pressure to vitiate consent (Parihar v Bhatti) – “there are many situations where
families, or others, bring great persuasion upon a person to enter into marriage. However, the cases indicate
that the duress sufficient to set aside the marriage must be of such nature that her powers of volition were so
affected, it really was no consent”
Forced Marriage:
- Coerced into marriage against their will and under duress – can include emotional and physical pressure
- Criminal Code s293.1: Forced Marriage: 293.1 Everyone who celebrates, aids or participates in a marriage rite or
ceremony knowing that one of the persons being married is marrying against their will is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five years.
Marriage for obtaining a benefit:
Immigration:
- Annulment of a marriage on basis of immigration reasons, even when was no consummation of the marriage
and no intention to live together, was not sufficient grounds to dissolve the marriage (Silver v Silver; H v H)
- Fact that you participate in marriage fraud does not render invalid  may be invalid for purposes of immigration
but not annulment
Misrepresentation and Mistake:

- Misrep as to character or personality traits of spouse ≠ fraud in proceedings  not grounds for annulment
- Fraudulent misrepresentations inducing person to marry do not undermine consent EXCEPT where
misrepresentations lead to operative mistake
14
- 2 types of mistake that render marriage void for lack of consent
o 1) Mistake as to identity of person whom marriage is entered into (A intended to marry B but ended up
marrying C)
o 2) Mistake as to nature of the ceremony (e.g. person didn’t realize they went through a marriage
ceremony b/c of language or cultural barrier)
Ability to consummate:
- Ability to have sexual intercourse at least once after marriage ceremony – cases = rare
- Part of essential validity; diminishing in importance
- Can arise from physical incapacity or psychological aversion/repugnance to sex (Juretic v Ruiz)
- Consummation may be practical impossibility warranting annulment
- Test: non-consummation due to physical aversion, must establish (Grewal v Sohal):
o 1) No consummation of marriage
o 2) Refusal persistent and not due to obstinacy or caprice (not temporary)
o 3) Applicant has invincible aversion to sexual intercourse with the specific spouse
o 4) Applicant’s invincible aversion to intercourse with that spouse has been brought about by
circumstances resulting in “paralysis of the will” consistent with incapacity
o 5) Applicant’s incapacity may be based upon normal, predictable reactions that need not be expressed
in pathological terms
- Non-consummation due to physical incapacity (Aisaican v Kahnapace)
o Need clear and unequivocal evidence of incapacity
o Pre-knowledge of the condition (physical incapacity) or an implicit agreement to live w/ non-
consummation bars a claim for annulment on this ground (“lack of sincerity”)
- Party seeking annulment must produce clear and unequivocal evidence of inability to consummate (Komon)
Prohibited degree of consanguinity & affinity:

- Cannot marry relatives  parents, grandparents, brother, sister, half-brother, half-sister, or adopted sibling
Marriage (Prohibited Degrees) Act s2-3:

No prohibition
2 (1) Subject to subsection (2), persons related by consanguinity, affinity or adoption are not prohibited from marrying
each other by reason only of their relationship.
Prohibition
(2) No person shall marry another person if they are related lineally, or as brother or sister or half-brother or half-sister,
including by adoption.
Marriage not invalid
3 (1) Subject to subsection (2), a marriage between persons related by consanguinity, affinity or adoption is not invalid
by reason only of their relationship.
Marriage void
(2) A marriage between persons who are related in the manner described in subsection 2(2) is void.
Age:
- At common law, marriage of child less than 7 years void (Legebokoff)
- Marriage of male older than 7, younger than 14 OR female older than 7, younger than 12 voidable at insistence
of the infant upon attaining requisite minimum age (Legebokoff)
- Marriage where either or both parties underage validated if continue to cohabit as husband and wife after
reaching age of capacity (Legebokoff)
Civil Marriage Act s2.2: Minimum Age:

2.2 No person who is under the age of 16 years may contract marriage.
15
Marriage Act s28-20:

- Provincial provisions requiring parental consent for persons under 19 to marry (s28)
- Marriage of person under 16 cannot be solemnized unless shown to be expedient and in interests of the parties
(s29)
- Nothing in s28 or s29 invalidates a marriage – merely requirements of formality, therefore if you get married
without parental consent, still valid (s30)
Formal validity:
Marriage Act s2, 7-9, 15-18, 25, 28-30:

- Key steps WRT formal validity under marriage act:
o 1) Get marriage license
o 2) Go through solemnization process with marriage commissioner or religious official (w/in 3 months of
getting license)
- Key sections:
o Qualifications for registration (s3)
o Authority to solemnize marriage (s7)
o License requirement (s8)
o Requirements as to witnesses and public ceremony (s9)
o Issue of licenses (s15)
o Application for license (s16)
o Unused license void after 3 months (s17)
o Protection against irregularities in issuance of license (s18)
o Manner of registration (s25)
o Consent required to marriage of person under 19 (s28)
o Marriage of person under 16 (s29)
o Validity of marriages preserved (s30)
Name Changes:
- Generally to change name for any reason, must apply, pay fee, have criminal background check
- In BC if changing name for marriage, less rigorous process
Name Act s3: Use of surnames on marriage:

3 A spouse by marriage may
(a) Use the surname he or she had immediately before marriage
(b) Use the surname he or she had at birth or by adoption, or
(c) Use the surname or his or her spouse by marriage
 Cannot create a new name (e.g., hyphenating or combining name)
DISSOLUTION OF RELATIONSHIPS - DIVORCE
- Most divorces today = “paper”/affidavit divorces – essentially, all prepared outside of court and judge just signs
divorce papers
- BC, as of last summer, is the 1st jurisdiction to provide for online divorce
- Sections 8-11 of the Divorce Act deal with divorce
16
Divorce jurisdiction and conflict of law
Conflict of Jurisdiction:
- Arises where one spouse ordinarily resident of one province and the other spouse ordinarily resident of another
(i.e., separated and one spouse moves to different province)
- See s3(2) and 3(3) of Divorce Act for dealing with conflict
o 3(2) filed on different days – proceeding commenced first has exclusive jurisdiction
o 3(3) filed on same day – federal court has exclusive jurisdiction
Ordinarily resident = discretionary question

- One party must be ordinarily resident in the jurisdiction for at least 1 year prior to filing for divorce
- Can be ordinary resident of two jurisdictions
- “Ordinarily resides” requires you to regularly, normally or customarily live in the location in question;
indefinitely live there (Hinter v Hinter)
- Most common-law courts understand ordinary residence to mean a place where a person resides in the ordinary
course of his or her day to day life. If the inquiry is directed towards a person’s real home as many courts
suggest, a person usually will have only one place of ordinary residence notwithstanding the Family Court’s
earlier reliance on cases decided in an income tax context of the courts held that an individual can have more
than one residence. (James G. MacLeod, The Meaning of Ordinary Residence and Habitual Residence in the
Common Law Provinces in the Family Court Context)
Hinter v Hinter, [1996] OJ No. 2601: Husband and wife live in ON, have residence in FL; after separating , wife spend
significant time in FL, started seeing someone in FL, said FL was primary residence but also filed taxes as resident of ON;
wife started multiple legal proceedings including divorce petition in ON; wife ordinary resident of ON? NO – wife has
lived in FL since leaving matrimonial home; no intention to leave FL; has relationship in FL and worked in his business;
gave two sworn statements referring to herself as resident of FL; RATIO: “ordinarily resides” requires you to regularly,
normally or customarily live in the location in question; indefinitely live there
Marriage breakdown
Per s8 of Divorce Act: 3 ways to establish breakdown of marriage to qualify for divorce:
1) Living separate and apart for minimum one year
2) Adultery  only available to innocent spouse
3) Cruelty  only available to innocent spouse
Per s11 of Divorce Act: 4 bars to divorce:

1) Collusion (to obtain divorce, e.g., manufacturing evidence)
2) Connivance = petitioner actively promoted commission of offence complained of
a. Provisional bar, not absolute (only relevant WRT cruelty or adultery)
3) Condonation = condone behaviour; if mutual intention to reconcile, cannot then allege cruelty/adultery
a. Provisional bar, not absolute (only relevant WRT cruelty or adultery)
4) Absence of reasonable arrangements for child support (granting divorce stayed until reasonable arrangements
made)
Living Separate and Apart – Divorce Act s8(2)(a) and FLA s3(4):
Living Separate and Apart per s8(2)(a) Divorce Act?

- 2 requirements to be separate and apart (Rushton):
o 1) Withdrawal from matrimonial obligation with intent of destroying matrimonial consortium
o 2) Physical separation
17
- Physical separation doesn’t automatically constitute living separate and apart per the DA – need intention to
separate (Dorchester)
- Can live under same roof and be considered separate and apart (Rushton)
- Factors generally indicating that spouses are living separate and apart (NOTE: none of these factors is
determinative; must be weighed case-by-case and court must consider all of the circumstances)
o Cooper v Cooper (cited in Dupere):
 Spouses occupying separate bedrooms
 Absence of sexual relations
 Little, if any, communication between spouses
 Wife providing no domestic services for husband
 Eating meals separately
 No social activities together
- Other factors discussed in class
o Conducting separate lives (Rushton)
o Treatment of one another (Rushton)
o Tax returns marked as “married” during relevant period
o Ways in which couples had presented themselves to others (i.e. did they hold themselves out as
married?)
- Judicial considerations where marriage breakdown is alleged on the ground of separation even though the
spouses continue to live under the same roof (Dupere):
o 1) Great care must be exercised in considering the evidence and each case determined on its own
circumstances.
o 2) There can be a physical separation within a single dwelling unit.
o 3) A case is not taken out of the statute just because a spouse remains in the same house for reasons of
economic necessity.
o 4) 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.
o 5) Cessation of sexual intercourse is not conclusive but is only one factor to be considered in
determining the issue.
o 6) There may be an atmosphere of severe incompatibility but remain one household and one home — a
distinction may be drawn between an unhappy household and a separated one.
- Effect of periods of reconciliation:
o Per DA s.8(3), if parties have reconciled for 90 days or more (in total, adding up all various periods of
reconciliation), the clock starts over on their time living “separate and apart” – if periods of
reconciliation total less than 90 days, their period of living separate and apart won’t be considered to
have been interrupted or terminated
o Illustrated in Dupere
Dorchester v Dorchester, 1971 CarswellBC 50: husband claims breakdown; took wife to Riverview in 1967, haven’t
cohabitated since; husband says decided marriage done when filed for divorce; separate and apart per DA? NO –
physical separation but marriage had not ceased; can be physically separated but not “separate and apart”; lacked
intention to separate; RATIO: physical separation doesn’t automatically constitute living separate and apart per the DA –
need intention to separate
Rushton v. Rushton, 1968 CarswellBC 196: husband and wife caretakers of apartment building; began living separate
lives in 1960 and stopped sex by 1965 but continued to live in apartment together bc required to keep jobs; did own
shopping cooking, etc. and eventually moved into separate suites when allowed; separate and apart per the DA? YES –
can be physical separation within one suite of rooms; stopped functioning as a family unit; RATIO: husband and wife
18
living under same roof can be considered living separate and apart if meet 2 requirements – 1) withdrawal from
matrimonial obligation with intent of destroying matrimonial consortium and 2) physical separation
Dupere v. Dupere, 1974 CarswellNB 7: parties had 2 children, separated and lived on and off together mostly for
economic purposes/sake of children; had separation agreement; resumed relationship only for one month over several
years; separate and apart per DA? NO – on and off relationship not separation; unhappy household different from
separated household; staying together for sake of children doesn’t give right to later opt out of marriage by consent;
RATIO: judicial considerations where marriage breakdown is alleged on the ground of separation even though the
spouses continue to live under the same roof (see above)
FLA has own definition of what constitutes separation per s3:

3 (1) A person is a spouse for the purposes of this Act if the person
(a) is married to another person, or
(b) has lived with another person in a marriage-like relationship, and
(i) has done so for a continuous period of at least 2 years, or
(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.
(2) A spouse includes a former spouse.
(3) A relationship between spouses begins on the earlier of the following:
(a) the date on which they began to live together in a marriage-like relationship;
(b) the date of their marriage.
(4) For the purposes of this Act,
(a) spouses may be separated despite continuing to live in the same residence, and
(b) the court may consider, as evidence of separation,
(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and
(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.
Date of separation under FLA:

- Parties intention = central consideration; may be sufficient if one party has intention to separate if intention
communicated through words or actions and some form of physical separation (Naring v Sauer, 2015 BCSC 58)
- Courts analysis for date of separation focuses on (Naring):
o Intention to remain married
o Having sexual involvement
o Carrying on activities in public
o Sharing financial resources
o Sharing significant family events
Adultery – Divorce Act s8(2)(b)(i):

- No statutory definition  traditionally defined as voluntary intercourse between spouse and member of
opposite sex who isn’t spouse
o P(SE) v P(DD) said activities that constitute adultery will be those that “violate the marital bond” –
suggests a significant extension of the traditional conception of adultery (certainly at least to include
same-sex activities)
o Consequences of infidelity not confined to heterosexual acts (P(SE) v P(DD)) and should not be confined
to heterosexual spouses, as this would grant license to homosexual spouses to be sexually unfaithful
and violate vows  not equal treatment (Thebeau v Theabau, 2006 NBBR 154)
- Historical function: reproductive confidence and procreation
- Function today: marriage is a voluntary union that satisfies needs and feelings; adultery = fundamental betrayal
which justifies skipping 1-year requirement
o May stigmatize open marriage
19
- Where parties have lived separate and apart for more than one year but one of the parties request judicial
pronouncement of adultery for faith-based reasons, court may exceptionally grant divorce on both grounds
(P(H) v P(CT), 2014 BCSC 2024)
- Court should avoid adultery as a ground bc likely to increase hostility and increase difficulty of resolving issues
(Aquilini v Aquilini, 2013 BCSC 217)
P(SE) v P(DD), 2005 BCSC 1290: wife applied for divorce on grounds of adultery with other man; adultery not defined in
the DA and historically at common law required penetration; sufficient grounds for divorce? YES – definition of adultery
used today should reflect views consistent with Civil Marriage Act and values enunciated in Charter; same-sex marriage
is legalized therefore extra-marital relationship with same-sex should be adultery; purpose in today’s society of adultery
as ag round = protect bond of marriage therefore no reason to distinguish; RATIO: adultery does not depend on whether
act occurs with same-sex or opposite sex; note: court does NOT determine what constitutes adultery
Cruelty – Divorce Act s8(2)(b)(ii):

- No precise definition – generally disposition to inflict suffering, delight or exhibit indifference to pain and misery
of others, mercilessness or hard-heartedness; question of fact (Payne & Payne, Canadian Family Law)
- Mere estrangement and/or verbal arguments do not constitute cruelty per Divorce Act
- Test for cruelty is subjective – particular sensitivities taken into consideration (Ifield)
Removal of barriers to religious marriage
Divorce Act s21.1(1): Definition of spouse

21.1 (1) In this section, spouse has the meaning assigned by subsection 2(1) and includes a former spouse.
Divorce Act s21.1(2): Affidavit re removal of barriers to religious marriage

 Helps remove the bar to religious divorce; historically to protect Orthodox Jewish women who were civilly divorced
but did not have the divorce granted by spouse
 Gives court ability to strike out pleading or affidavit or have power over man refiling if he refuses to give ghet
(2) In any proceedings under this Act, a spouse (in this section referred to as the “deponent”) may serve on the other
spouse and file with the court an affidavit indicating
(a) that the other spouse is the spouse of the deponent;
(b) the date and place of the marriage, and the official character of the person who solemnized the marriage;
(c) the nature of any barriers to the remarriage of the deponent within the deponent’s religion the removal of
which is within the other spouse’s control;
(d) where there are any barriers to the remarriage of the other spouse within the other spouse’s religion the
removal of which is within the deponent’s control, that the deponent
(i) has removed those barriers, and the date and circumstances of that removal, or
(ii) has signified a willingness to remove those barriers, and the date and circumstances of that
signification;
(e) that the deponent has, in writing, requested the other spouse to remove all of the barriers to the remarriage
of the deponent within the deponent’s religion the removal of which is within the other spouse’s control;
(f) the date of the request described in paragraph (e); and
(g) that the other spouse, despite the request described in paragraph (e), has failed to remove all of the barriers
referred to in that paragraph.
Duty of legal advisor
Per s9 of Divorce Act: Duty of legal advisor
20
- Lawyer has duty in divorce proceeding to let spouse they represent know they should consider reconciliation
and discuss possibility of reconciliation, advise of facilities they can use (e.g., mediation, collaborative divorce)
UNLESS circumstances of case are such that it would be inappropriate
DIVISION OF PROPERTY & DEBT AT DISSOLUTION
FLA working scheme – property and debt:

1) Is there a valid agreement in place?
a. See “agreements about property division”, p. 34
2) What assets are subject to division? To answer, the court must identify all property and characterize it as
excluded or marital, including debt (FLA, s84-86)
3) Value all property subject to division (or all property belonging to either spouse) (FLA, s87)
a. What is the appropriate time to value the property from?
i. From the time the marriage-like relationship began (not after 2 years)
ii. E.g., began dating in 2000, moved in together 2002, separate 2010
1. Value property from 2002 onward even though would not have qualified as spouses
until 2004 (2 years into marriage-like relationship)
4) Divide the divisible property “equally” (unequal division of family property and/or family debt if it would be
“significantly unfair” to divide it equally) (FLA, s95-96)
a. Court may be able to decide unequal division OR that excluded property is up for division
Presumptions re property division: At the moment of separation, both parties are presumptively entitled to half the
family property, regardless of contribution
- Equal entitlement to family property, equal entitlement to family debt
- Family property and family debt = anything from start of marriage-like relationship until separation
- S. 81 FLA – Equal entitlement and responsibility
- Subject to an agreement or order that provides otherwise and except as set out in this Part and Part 6,
o (a) spouses are both entitled to family property and responsible for family debt, regardless of their
respective use or contribution, and
o (b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant
in common, and is equally responsible for family debt
Prerequisites for claims under FLA Part 5 – Property Division:

- Standing
o Rights/remedies under part 5 only available to those who qualify as spouses
o Treaty First Nations may also have standing per s10(1)
- Time limits
o Applications for order to divide property/allocate debt must be brought within two year period
commencing from date of divorce order or marriage declared nullity (for married couples) or for date of
separation (for unmarried spouses)
o Time limit for married and unmarried spouses suspended during any period spouses engaged in family
dispute resolution with a family dispute resolution professional
- Jurisdiction
Definition of family property
Family property = all real and personal property owned by one or both spouses at the date of separation except for
excluded property, where only the increased or decreased value of the excluded property during the relationship is
family property
FLA s84: Family property

21
84 (1) Subject to section 85 [excluded property], family property is all real property and personal property as follows:
(a) on the date the spouses separate,
(i) property that is owned by at least one spouse, or
(ii) a beneficial interest of at least one spouse in property;
(b) after separation,
(i) property acquired by at least one spouse if the property is derived from property referred to in
paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of
either, or
(ii) a beneficial interest acquired by at least one spouse in property if the beneficial interest is derived
from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a)
(ii), or from the disposition of either.
What is “separation”
- Time of separation is when we determine what constitutes family property/the triggering event per s. 81(b)
which vests an undivided one-half interest in all family property in each spouse
- S. 3(4) partially describes indicia of separation
- (4) For purposes of this Act,
o (a) Spouses may be separated despite continuing to live in the same residence, and
o (b) The court may consider, as evidence of separation,
 (i) Communication, by one spouse to the other, of an intention to separate permanently, and
 (ii) An action, taken by a spouse, that demonstrates the spouse’s intention to separate
permanently
- Case law also helps determine what constitutes “separation” – largely the same as “living separate and apart”
for purposes of divorce proceedings
Examples of Family Property:

84 (2) Without limiting subsection (1), family property includes the following:
(a) a share or an interest in a corporation;
(b) an interest in a partnership, an association, an organization, a business or a venture;
(c) property owing to a spouse
(i) as a refund, including an income tax refund, or
(ii) in return for the provision of a good or service;
(d) money of a spouse in an account with a financial institution;
(e) a spouse's entitlement under an annuity, a pension plan, a retirement savings plan or an income plan;
(f) property, other than property to which subsection (3) applies, that a spouse disposes of after the relationship
between the spouses began, but over which the spouse retains authority, to be exercised alone or with another
person, to require its return or to direct its use or further disposition in any way;
(g) the amount by which the value of excluded property has increased since the later of the date
(i) the relationship between the spouses began, or
 s3(3) of FLA covers when a relationship begins (earlier of 2 dates – if live together before
getting married, relationship begins when moved in together)
(ii) the excluded property was acquired.
Excluded property
Per FLA s 85(1) excluded property includes:

- (1) The following is excluded from family property:
o (a) property acquired by a spouse before the relationship between the spouses began;
o (b) inheritances to a spouse;
o (b.1) gifts to a spouse from a third party
22
 We are concerned here w/ intention of donor at the time they made donation/transfer/gift (i.e.
was the intention to gift to only one spouse or to both of them?) (Pecore, cited in Cabezas)
o (c) a settlement or an award of damages to a spouse as compensation for injury or loss, unless the
settlement or award represents compensation for
 (i) loss to both spouses, or
 (ii) lost income of a spouse;
  bc settlement is compensation for an individual harm; some exceptions incl. if award was for
loss to both spouses or loss of one spouse’s income
o (d) money paid or payable under an insurance policy, other than a policy respecting property, except
any portion that represents compensation for
 (i) loss to both spouses, or
 (ii) lost income of a spouse;
  bc settlement is compensation for an individual harm; some exceptions incl. if award was for
loss to both spouses or loss of one spouse’s income
o (e) property referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse;
o (f) a spouse's beneficial interest in property held in a discretionary trust
 (i) to which the spouse did not contribute, and
 (ii) that is settled by a person other than the spouse;
o (g) property derived from excluded property or the disposition of excluded property continues to be
excluded property
- Excluded property doesn’t become “frozen in time” – if you gift it to spouse/change its character (i.e. turn it into
family property), it is no longer excluded
o Demonstrated in F(VJ) v W(SK) – husband got gift of $2 million from boss  transferred it into wife’s
name and they used it to build house  became family property
Dividing excluded property per FLA s96:

- 96 The Supreme Court must not order a division of excluded property unless
o (a) family property or family debt located outside British Columbia cannot practically be divided, or
o (b) it would be significantly unfair not to divide excluded property on consideration of
 (i) the duration of the relationship between the spouses, and
 (ii) a spouse's direct contribution to the preservation, maintenance, improvement, operation or
management of excluded property.
- May be justified when court finds “the consequences of not dividing excluded property would be so weighty as
to produce an unjust or unreasonable result” (Andermatt v Tahmasebpour, 2015 BCSC 1743)
- Court reluctant to invoke s96
o Appelby v Marshman, 2018 BCSC 212: Husband moved in and contributed significantly to building
additions to house – physically contributed to property BUT home declined in value so no family
property to divide – husband asked court to divide the excluded property; court refuses/declines to
invoke s96 (even though husband contributed)
o McCarthy v McCarthy, 2018 BCSC 1210: 6 years together, no children, exploded property that belonged
to husband’s parents; husband’s mother transferred to their joint names testifying she did this at his
request for savings; court found no intention to gift the wife’s contribution amount to the
chores/household work; even though wife had contributed in some way, court finds insufficient to
invoke s96
Tracing
FLA Tracing Provision:

- 85 (1) The following is excluded from family property:
23
o (g) property derived from property or the disposition of property referred to in any of paragraphs (a) to
(f).
- “Derived” is broader than “received” and equivalent to “arising or accruing” while “disposition” is a transfer by
any method and includes assign, give, sell, grant, charge, convey, bequeath, and lease (F(VJ) v W(SK), 2016 BCCA
186)
- Per s84(g), the amount of the exclusion from the new property is equity in the original property at the later of
(1) the purchase of the original property or (2) the commencement of the spousal relationship
Transfers of excluded property between spouses
Presumption of advancement:
- Rebuttable common law presumption pertaining to gifts made by husband to wife and NOT to gratuitous
transfers made by wife to husband
- Where evidence insufficient and transfer was made by husband to wife, law presumes a gift was intended
- Other provinces have specific provisions stating presumption does not apply  in BC, FLA does NOT expressly
abolish presumption of advancement, however courts have stopped following binding BC precedents that find
presumption still valid
o Issue in flux (Pisarski v. Piesik, 2018 BCCA 326)
o FLA not a complete code bc doesn’t address the presumption (F(VJ v W(SK))
- Outstanding questions regarding the presumption:
o Is it husband and wife as husband and wife, or spouses as per FLA (aka include common law or only
formal marriage)?
 Lawrence v Mulder, 2015 BCSC 2223: Presumption of advancement may apply in common law
relationships
o Does the presumption work the other way around (wife to husband)
o Include same-sex couples?
Cases finding presumption of advancement still exists:
Well v Campbell, 2015 BCSC 3: transfer of excluded property from one spouse to other may be a gift which causes loss of
transferring spouses claim to exclude the property
F. (V.J.) v. W. (S.K.), 2016 BCCA 186: husband got $2M inheritance gift but suspect $$ was to protect him from a possible
lawsuit; husband used the money to buy new house and pay off family debt; husband transferred home into wife’s
name bc he may be sued; is the $2M excluded property? NO – presumption of advancement applies – he transferred
property into wife’s name; statutory interpretation would favour tracing provision and finding of excluded property but
the fact that the house was then put in wife’s name to shield from creditors shows intention of a gift  cannot enjoy
protection and also get benefit of excluded property; RATIO: presumption of advancement still applies; FLA not a
complete code
Baryla v Baryla, 2019 BCCA 22: FLA does not eliminate common law and equitable concepts relating to property but
rather builds on those principles, preserving concepts such as gifts and trusts, and evidentiary presumptions such as the
presumption of advancement. Thus, excluded property, or the proceeds thereof, that gratuitously transferred between
spouses during the course of a relationship may lose excluded status unless the presumption is rebutted
Cases NOT following presumption of advancement:
Remmem v. Remmem, 2014 BCSC 1552: a transfer of excluded property from one spouse to the other does not cause
the exclude property to become family property
24
G(P) v G(D), 2015 BCSC 1454: G owned property before marriage; G transferred the property into joint tenancy and put
proceeds of sale into former family home which was held in joint names; is the value of home G owned before marriage
excluded property? YES – equity in former family home derived from the pre-marriage property is excluded; tracing
provision not restricted to asset held solely by spouse who owned original excluded asset; recognizing presumption of
advancement here would extinguish right of spouse who brought property into relationship to retain on separation if it
becomes mingled with property held by other spouse
HCF v DTF, 2017 BCSC 1226: 3 assets in dispute – 1) money from sale of home husband owned prior to relationship, 2)
money for sale of company, 3) money for sale of book of business; excluded or family property? BOTH – $ from move
excluded; $ from selling book of business not excluded – had new clients during relationship and chose to place portion
of proceeds from sale of book of business in wife’s name for tax benefits (similar to considerations in F(VJ) – can’t have I
both ways); RATIO: presumption of advancement no longer applicable under FLA
McManus v. McManus, 2019 BCSC 123: husband sought an exclusion of his equity in the family home, purchased prior
to the relationships. The husband transferred the home into joint names with the wife during the marriage. The court
agreed with the reasoning in HCF and held that, if it were not possible to discern the husband’s intention in transferring
the home to the wife, the presumption of resulting trust would apply
Valuation of property and debt and unequal distribution

- Although we use date of separation to determine what = family property/debt and what = excluded property, we
presumptively assess the value of family property on date of trial/court hearing
FLA s86: Family debt:

86 Family debt includes all financial obligations incurred by a spouse
(a) during the period beginning when the relationship between the spouses begins and ending when the spouses
separate, and
(b) after the date of separation, if incurred for the purpose of maintaining family property.
 Debts incurred after separation not family debt UNLESS incurred for purpose of maintaining family property
FLA s87: Valuing family property and family debt:

- 87 Unless an agreement or order provides otherwise and except in relation to a division of family property
under Part 6,
o (a) the value of family property must be based on its fair market value, and
o (b) the value of family property and family debt must be determined as of the date
 (i) an agreement dividing the family property and family debt is made, or
 (ii) of the hearing before the court respecting the division of property and family debt.
- Presumptive valuation date for family property (other than pension plan benefits) = date of trial or date of an
agreement dividing family property and family debt
o Court has discretion to choose different date of valuation if significantly unfair
o Value must be based on fair market value
- However, all debts or financial obligations incurred after separation NOT family debts, unless debt has been
incurred for purpose of maintaining family property
o Party alleging the existence of a debt bears the onus of establishing it
Determining fair market value: Maguire v Maguire, 2016 BCCA 431

- Fair market value is the price at which a transaction would occur, in an open and unrestricted market between
informed and prudent parties acting at arm’s length, where neither party is acting under compulsion
25
- The use of “fair market value” in s. 87 of the FLA does not entail that the fair market value of family property is
reduced by taxes payable
o E.g., If the sale of an investment property would trigger a capital gain, and capital gains tax payable by a
vendor, the fair market value of the property is not reduced by the taxes payable by the vendor
- Question of bringing in evidence, experts to valuate, etc.
Unequal distribution:
FLA s95: Unequal division by order:

95 (1) The Supreme Court may order an unequal division of family property or family debt, or both, if it would be
significantly unfair to
(a) equally divide family property or family debt, or both, or
(b) divide family property as required under Part 6 [Pension Division].
(2) For the purposes of subsection (1), the Supreme Court may consider one or more of the following:
(a) the duration of the relationship between the spouses;
 not relevant unless very short-term relationship; long relationship not usually grounds for deviating from
norm
(b) the terms of any agreement between the spouses, other than an agreement described in section 93
(1) [setting aside agreements respecting property division];
(c) a spouse's contribution to the career or career potential of the other spouse;
(d) whether family debt was incurred in the normal course of the relationship between the spouses;
(e) if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of
the family debt;
(f) whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family
property or family debt beyond market trends;
(g) the fact that a spouse, other than a spouse acting in good faith,
(i) substantially reduced the value of family property, or
(ii) disposed of, transferred or converted property that is or would have been family property, or
exchanged property that is or would have been family property into another form, causing the other
spouse's interest in the property or family property to be defeated or adversely affected;
(h) a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an
order;
(i) any other factor, other than the consideration referred to in subsection (3), that may lead to
significant unfairness.
(3) The Supreme Court may consider also the extent to which the financial means and earning capacity of a spouse have
been affected by the responsibilities and other circumstances of the relationship between the spouses if, on making a
determination respecting spousal support, the objectives of spousal support under section 161 [objectives of spousal
support] have not been met.
Addressing significant unfairness WRT equal division and presumptive valuation dates:
- Court has discretion to choose different date of valuation if significantly unfair
o FLA s87 does not provide criteria WRT using this discretion
26
- Court has discretion to consider unequal division where spouse after date of separation caused significant
increase or decrease in value of family property or family debt beyond market trends
o Significantly unfair threshold set out in s. 95(1) should be interpreted as “a caution against a departure
from the default of equal division in an attempt to achieve ‘perfect fairness’” (G(L) v G(R), 2013 BCSC
983)
- If increase in value is just due to market trends, NOT a reason for unequal division – only relevant if increase or
decrease is beyond market trend  i.e., if one of the spouses has contributed to the increase
Blair v Johnson, 2015 BCSC 761: B & J separate, both successfully employed; one of B’s companies significantly increased
in market value after separation; should company be valued at date of separation or hearing date and should there be
unequal division? Date of valuation should be trial date, yes to unequal division – s87 does not provide criteria to guide
court; although J did not contribute much directly or indirectly during relationship, J’s consent and cooperation was
necessary for B to obtain line of credit (95(2)(c)); length of parties relationship (95(2)(a)) neutral in this case; B caused
dramatic increase in revenues while J did not contribute to business, therefore significantly unfair to divide equally
Jaszczewska v Kostanski, 2016 BCCA 286:
K started building new home after separation on land where old home was; since separation, both home and land value
have significantly increased; how should increased value of home be divided? 70/30 in favour of K – K designed and built
new residence which enhanced value of the property beyond market trends; increase in value significant and caused
after relationship ended
Lahdekorpi v Lahdekorpi, 2016 BCSC 2143: not enough in spousal support so wife got 60% prop
Willams v. Killey 2014 BCCSC 1846: short relationship, one brought in townhouse/car/rrsp which increased in 200k+$,
court looks at how much both contributed, she was awarded 15% of 100k increase in townhouse
Smith v Clough-Smith, 2015 BCSC 319: 6-year marriage, family home went 70% to wife bc she paid for all ongoing
expenses, looked after family debt, had maintained fam home and significantly preserved it by paying for repairs
Chang v Xia, 2015 BCSC 1994: not acting in good faith; spouse didn’t disclose all the assets he had; husband clearly failed
to disclose pension assets and RRSP; relieved wife of contributing to family debt bc of husband’s actions
Pensions:
- FLA s127 allows parties to opt out from default rules – can design a plan the way they want – but s129 still
allows courts to override such a decision so as to ensure parties are self-sufficient
- FLA s129 allows courts to divide so as to allow one of parties to be self-sufficient
o Example of privatization
Methods of dividing a pension plan:

1) Compensation payment: typically a pension may be divided by way of a compensation payment only with the
agreement of the parties. Barring exceptional circumstances, usually regarded as unfair to order a member to
pay a lump sum for benefits that may never be received.
2) Benefit split: pension account itself left intact. Division deferred until the member actually retires. At that time,
spouse entitled to receive from the member a share of each payment made from the plan.
a. Common method
b. Depends on detailed agreement or court order that addresses when member may retire
c. Consequences if member doesn’t retire, delay, etc.
3) Account split: under an immediate account split, the spouse’s share of the pension is transferred from the plan
into a prescribed vehicle (such as an RRSP). The spouse’s share of the pension is satisfied by a deferred account
split. Spouse becomes limited member of plan
a. Maybe most common way
27
Division of excluded property:

- May be justified when the court finds that “the consequences of not dividing excluded property would be so
weighty as to produce an unjust or unreasonable result” (Andermatt v. Tahmasebpour, 2015 BCSC 1743)
- Bar is set even higher to divide excluded property, given presumption that excluded property will not be divided
and that s. 96 limits the consideration of significant unfairness to only two factors (Parton v. Parton, 2016 BCSC
1528)
FLA s96: Division of excluded property:

96 The Supreme Court must not order a division of excluded property unless
(a) family property or family debt located outside British Columbia cannot practically be divided, or
(b) it would be significantly unfair not to divide excluded property on consideration of
(i) the duration of the relationship between the spouses, and
(ii) a spouse's direct contribution to the preservation, maintenance, improvement, operation or
management of excluded property.
NONMARITAL FAMILIES, CHARTER AND INCLUSION IN PROPERTY REGIMES
Common Law Partner – Federal Law:

- Miron led to recognition of common law partners in federal law
- Most federal laws distinguish between legally married individuals, called “spouses,” and “common-law
partners.”
- Qualifying as a common-law partner might mean that you receive the Old Age Security spouse allowance or
survivor’s benefits, or the spouse amount for the GST Credit.
- In general, must live with a partner for at least one year in “conjugal relationships” to qualify as a common-law
partner under federal legislation
- Examples:
o Old Age Security Act: “common-law partner,” in relation to an individual, means a person who is
cohabiting with the individual in a conjugal relationship at the relevant time, having so cohabited with
the individual for a continuous period of at least one year.
o Income Tax Act: "common-law partner", with respect to a taxpayer at any time, means a person who
cohabits at that time in a conjugal relationship with the taxpayer and(a) has so cohabited throughout
the 12-month period that ends at that time, or…
Miron v Trudel, [1995] 2 SCR 418: common law marriage; husband injured in MVA in 1987 and claimed under wife’s
insurance policy as spouse but denied – not spouse; does exclusion of unmarried partners from accident benefits
available to married partner’s violate Charter? YES – although statutory interpretation would find that common law
couples expressly excluded, the limitation violates the Charter bc marital status is an analogous ground; violation not
justified – purpose of the law is to compensate person injured AND their family; RATIO: marital status = analagous
ground of discrimination; excluding unmarried cohabitants from statutory definition of spouse violates Charter
Common Law Partner – Provincial Law:

FLA s3: Spouses and relationships between spouses
(a) is married to another person, or
(2) A spouse includes a former spouse.
(3) A relationship between spouses begins on the earlier of the following:
28
(a) the date on which they began to live together in a marriage-like relationship;
(b) the date of their marriage.
(4) For the purposes of this Act,
(a) spouses may be separated despite continuing to live in the same residence, and
(b) the court may consider, as evidence of separation,
(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and
(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.
Obligations of provinces and territories to recognize non-marriage
Provincial Approaches to Informal Relationships:

Contract-based Only support obligations Opt-out
- Quebec - NB, NL, NS, ON, PEI, YT - SK, MB, NWT, NU, BC,
- 48 US states - Moderately ascriptive Australia
- Least ascriptive - Most ascriptive
Is an opt-out regime better or worse? Aloni – Marriage by Default:
Inclusion in property scheme
Arguments against inclusion: (Bastarache’s majority in Walsh; Majority in Quebec v A)

- Choice/autonomy to not marry should be respected
- Other options – domestic contracts, own property jointly, register as domestic partners, seek support through
unjust enrichment claim
Arguments for inclusion: (L’Heureux-Dube’s dissent in Walsh; Abella’s dissent in Quebec v A)

- People don’t get married for various reasons but doesn’t disentitle to support (Walsh)
- Heterosexual unmarried cohabitants historically face disadvantages – often cohabit out of necessity not choice;
may have choice to marry denied bc of partner’s wishes (Walsh)
- May not know about protections available as married couple (Walsh)
29
- Requiring unmarried couples to seek support through contract or unjust enrichment claims when they have
same needs as married couples offends dignity AND difficult to do (Walsh)
- Status quo/non-intervention favours economically stronger partner (Walsh)
- Regime has greater negative impact on women and children (Walsh)
- Presumptively protective scheme with right of de facto spouses to opt out would provide economically
vulnerable spouses with necessary protection without interfering with freedom of choice (Quebec v A)
o Minimally impairing
- No autonomy if people do not know their rights/obligations (Quebec v A)
Nova Scotia (AG) v Walsh, (2002) SCC 83: W and B cohabitated for 10 years; upon breakdown of relationship, W applied
for spousal support, child support, and declaration that definition of “spouse” in Matrimonial Property Act
unconstitutional for failing to provide her with presumption of equal division of matrimonial property; does NS Act
violate Charter? NO – choice not to marry should be respected; unmarried couples still have other options to get
support including domestic contract to share property, unjust enrichment; RATIO: right to choose to avoid consequence
of marriage or registered domestic partnership must be respected
Québec (AG) v. A, 2013 SCC 5: A met B when she was 17 and he 32; travelled world together, A had their first child then
moved to Quebec with B; had two more children; A didn’t work outside the home when living together and went with B
on many of his travels; B provided for A and the children; A wanted to marry, B didn’t believe in marriage; lived together
for 7 years before separating; A seeking sole custody and child support; does exclusion of de facto spouses from
patrimonial and support rights violate Charter? NO – couples in de facto unions choose not to marry; Quebec law
provides options to enter into agreements to organize financial relationships; RATIO: in absence of agreement to the
contrary, de facto spouses in Quebec cannot, upon breakdown of their relationship, claim spousal support or division of
property that is owned by one of the de facto spouses only, regardless of length of relationship or whether they had
children
OPT-OUT REGIMES, DEFINITION OF MARRIAGE-LIKE, UNJUST ENRICHMENT, NONCONJUGAL FAMILIES
Marriage-like definition in FLA
FLA s3: Spouses and relationships between spouses

What is a marriage-like relationship?

- Factors are not a particular check-list  parties need not meet all in order to be “marriage-like” (Weber)
o Economic interdependence/comingling of finances isn’t necessarily required to est. marriage-like
o Court will look at “quality” of the relationship, not the fact that the parties called it “marriage”/had
intentions to get married or not
- Even if not living together anymore can still be in marriage-like relationship together if still operating as intimate
partners (Roach)
Test: Considerations WRT whether parties in marriage-like relationship? (Kneller v. Greenwood, 2015 BCSC 1410)
1. Shelter:
a. Did the parties live under the same roof?
b. What were the sleeping arrangements?
c. Did anyone else occupy or share the available accommodation?
30
2. Sexual and Personal Behaviour:
a. Did the parties have sexual relations? If not, why not?
b. Did they maintain an attitude of fidelity to each other?
c. What were their feelings towards each other?
d. Did they communicate on a personal level?
e. Did they eat their meals together?
f. What, if anything, did they do to assist each other with problems or during illness?
g. Did they buy gifts for each other on special occasions?
3. Services:
What was the conduct and habit of the parties in relation to:
a. preparation of meals;
b. washing and mending clothes;
c. shopping;
d. household maintenance; and
e. any other domestic services?
4. Social:
a. Did they participate together or separately in neighbourhood and community activities?
b. What was the relationship and conduct of each of them toward members of their respective families and how
did such families behave towards the parties?
5. Societal:
a. What was the attitude and conduct of the community toward each of them and as a couple?
6. Support (economic):
a. What were the financial arrangements between the parties regarding the provision of or contribution toward
the necessaries of life (food, clothing, shelter, recreation, etc.)?
b. What were the arrangements concerning the acquisition and ownership of property?
c. Was there any special financial arrangement between them which both agreed would be determinant of their
overall relationship?
 These indicia may be present in a relationship in varying degrees and all are not necessary for the relationship to be
marriage-like:
- In some relationships, there is a complete blending of finances and property while, in others, spouses keep their
property and finances totally separate
 Although a party may subjectively believe that he or she is not in a marriage-like relationship, the reality may be
otherwise
Weber v Leclerc, 2015 BCCA 492: W has 2 sons, L has 1, cohabitate with children from 2002-2011; shared bedroom,
visited family, purchased property together, shared expenses; kept finances separate; L experienced health problems, W
didn’t support her emotionally/financially; separate in 2012; spouses per FLA? YES – cohabitated in a way similar to
married relationship; parties’ intentions relevant, particularly expectation that relationship will be of lengthy
indeterminate duration; financial interdependence not necessary to be marriage-like; here the parties cohabitated, had
sexual relationship, together for long period, family unit (although limited role in each other’s kids’ lives); treated
themselves as family on gov forms; RATIO: intention to live in marriage-like relationship is relevant; can be economically
separated and still be marriage-like
Roach v Dutra, 2010 BCCA 264: parties met in 1999; D gave R engagement ring and her 2 children went to live with him
and his son; built house on his property and moved into it in 2002; purchased nearby home in 2003 where R moved with
her children bc issues between R and D’s daughter; D gave R another ring in 2004; separated 2006; D argued marriage-
like relationship ended in 2003; marriage-like relationship ended in 2003? NO – continued emotional commitment,
mutual expectation of fidelity until 2006; presented to family/friends as a couple; D continued to support financially;
cared for each-other’s children; joint vacations; RATIO: can still be in marriage-like relationship even if not living
together if still operating as intimate partners
31
Unjust enrichment claims

- If don’t claim within 2-year time limit, can still use unjust enrichment
- If in marriage-like relationship for less than 2 years (don’t qualify as “spouse”) can use unjust enrichment
FLA s104: Rights under this part (Part 5):

104 (1) If there is a conflict between this Part and the Partition of Property Act, this Part prevails.
(2) The rights under this Part are in addition to and not in substitution for rights under equity or any other law.
 s104(2) allows for unjust enrichment claims
To establish unjust enrichment, plaintiff must show:

1) Enrichment/benefit to respondent
2) Corresponding deprivation by plaintiff
3) Absence of juristic reason (e.g., no intention to make gift/contract/disposition of law)
Approaching Unjust Enrichment Claims: (Kerr v Baranow, 2011 SCC 10)

1) Was there an enrichment of or benefit to the respondent?
- P must show they gave something to respondent that respondent received and retained (typically woman
showing that she performed household services and man therefore had a household)
- Benefit must be tangible – can be positive or negative (i.e. could be sparing respondent an expense he would
have undertake but for P’s contribution)
- IF YES  go to step 2
- IF NO  no recovery
2) Was there a corresponding deprivation of the claimant?
- IF YES  go to step 3
- IF NO  no recovery
3) Is there a juristic reason for the enrichment?
- 2-stage inquiry:
o 1) Is there a juristic reason from an established category? (E.g. parties have a contract, a disposition of
law, a donative intent, and other valid CL, equitable, or statutory obligations)?  if no juristic reason
from established category, prima facie case is made out  this is rebuttable under stage 2:
o 2) Is there another reason to deny recovery? – This = more open-ended inquiry – courts can look to all of
the circumstances of the transaction in order to determine whether there’s another reason to deny
recovery – court should look to 1) reasonable expectations of the parties and 2) moral/public policy
considerations
- IF YES  no recovery
- IF NO  go to step 4
4) Are there any valid defenses? (Bars to restitution, estoppel, mutual conferral of benefits)
- This is just asking about normal bars to equitable remedies
- IF YES  no recovery
5) Determining appropriate remedy
- a) Is there a link between claimant’s contributions and acquisition, preservation, maintenance or improvement
of the disputed property?
- b) Would monetary award be insufficient?
- IF YES  Proprietary remedy
o A share of the property proportionate to the unjust enrichment can be impressed w/ a constructive
trust in claimant’s favour
o NOTE: this is ONLY used where monetary award is inappropriate – monetary award = default and courts
prefer monetary awards
32
6) What type of monetary award is appropriate? “Value received” or “value survived?
- a) Was there a joint family venture? – 4 factors to consider (NOTE: these are not a checklist, just a way of
considering evidence)
o i) Mutual effort
 Did parties work collaboratively towards common goals? Indicators include: pooling of effort
and team work, decision to have/raise children together, length of relationship
o ii) Economic integration
 What degree of economic interdependence and integration characterized the parties’
relationship? E.g. joint bank account; operation of family business; sharing of expenses;
amassing of common savings
o iii) Actual intent
 Concerned w/ parties’ actual intent (express or implied), not what court thinks reasonable
parties ought to have intended in same circumstances
 Did the parties choose not to economically intertwine?
o iv) Priority of the family
 Whether/to what extent parties have given priority to the family in their DMing
 A relevant Q: whether there’s been in some sense detrimental reliance on the relationship, by
one or both parties, for sake of the family
 Q: whether parties have been proceeding on basis of understandings or assumptions about a
shared future which may or may not be articulated
 Focus on contributions to domestic and financial partnership, and particularly financial sacrifices
made by the parties for welfare of collective or family unit
- b) Was there a link between claimant’s contributions to the accumulation of wealth?
o IF YES TO BOTH  “value survived” or proportionate sharing approach
o IF NO JOINT FAMILY VENTURE  “value received” or “quantum meruit” approach
Key findings from Kerr v Baranow, 2011 SCC 10:

33
1) “Common intention” approach to resulting trust has no further role to play in resolution of property claims by
domestic partners on breakdown of relationship
2) Money remedy in case of successful unjust enrichment claim should treat claimant as co- venturer, not as hired
help
3) Mutual benefit conferral should be addressed at the defence and remedy stage
4) Parties reasonable expectations have a limited role in unjust enrichment analysis – must consider if there is a
juristic reason for the enrichment
Nonconjugal families
Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (Law Commission of Canada)
- Argument: law needs to focus less on conjugality and pursue a more comprehensive and principled approach to
legal recognition and support of full range of close personal relationships among adults  conjugality = poor
proxy for attributes subject to legislation
- Focus on non-conjugal relationships including adult siblings, persons with disabilities and their caretakers, etc.
- Equality and autonomy = 2 most important values that governments need to consider in framing policies that
recognize and support personal adult relationships
o Governments must respect both 1) relational equality – seek to equalize legal status among different
types of relationships and 2) equality within relationships – overcome unequal distributions of income,
wealth/power
- When assessing existing/proposed laws, ask:
o (1) are the objectives of the law legitimate? Should they be repealed/revised
o (2) do relationships matter? If law’s objectives are sound, are the relationships included in the law
important to the law’s objective?
o (3) if relationships matter, can individuals be permitted to designate relevant relationships themselves?
Can individuals chose which relationships to be included/not?
o (4) relationships matter, and self-designation is not feasible or appropriate, is there a better way to
include relationships?
- Burden v the UK:
o Deals with inheritance taxes – there’s spousal exemption from this – elderly sisters have lived most of
their lives together in this house that they inherited from dad – sisters wanted to be exempt from tax as
would a same-sex couple
o Shows injustice of not recognizing non-conjugal relationships
- Non-conjugal relationships are becoming increasingly significant
- There has not been much legislative movement in any jurisdiction to respond to these suggestions/ideas – we
have largely removed barriers to all types of conjugal relationships, but not non-conjugal relationships
- NOTE: recognition of status comes with a dark side too  gaining benefits means also losing benefits 
government can use this to move towards privatization and taxation
DOMESTIC CONTRACTS
Key considerations WRT contracts:

1) Capacity  assume people are rational, self-interested individuals and that average adult has intelligence to
make well-informed judgment
a. Informed bargaining requires spouses to assess their preferences and the other options – not all people
well-equipped to do so
2) Bargaining power
a. If you know you are entitled to compensatory support indefinitely, what incentive do you have to agree
to less (impact of default rules)
34
b. Generally over-optimism about longevity of marriage may cause partners to invest less in negotiating
ideal terms  premarital agreements may disadvantage economically weaker party
i. Women less likely to ask, initiate negotiations, less confident in negotiations, lower goals
c. Impacted by resources – can you afford a lawyer?
3) Externalities
a. Effect relationship will have on child
b. Effect relationship will have on state’s interests
Types of agreements:
1) Premarital/pre-cohabitation agreements
2) Post-nuptial/post-marital agreements
3) Separation agreement
a. Agreement on guardianship, parenting arrangements and child support binding ONLY if made after
separation or when parties are about to separate, to take effect on separation (FLA s44(2))
i. If you make agreement on guardianship and parenting too early, don’t know what relationship
will be like
Written agreements must be signed by all parties  FLA s1:

1 In this Act:
"written agreement" means an agreement that is in writing and signed by all parties.
Agreements about property division
Application of agreements:
- FLA s92: Agreements respecting property division – spouses may make agreements WRT division of
property/debt, including agreements to:
o (a) divide family property or family debt, or both, and do so equally or unequally;
o (b) include as family property or family debt items of property or debt that would not otherwise be
included;
o (c) exclude as family property or family debt items of property or debt that would otherwise be
included;
o (d) value family property or family debt differently than it would be valued under section 87 [valuing
family property and family debt].
o  s92 does not require agreement be written; presumably oral agreements WRT division of property
would be enforceable if properly proven on evidence (Asselin)
 S93 only pertains to written agreements BUT s95 (unequal division order) does not require
written agreement
- FLA s93(6): although agreement should be witnessed, court has discretion to apply an unwitnessed written
agreement if appropriate in circumstances
- FLA s94(2): court cannot make order WRT division of property/debt where agreement exists UNLESS all or part
of the agreement is set aside
Setting aside agreements:

- Procedural defects: FLA s93(3): Setting aside agreements respecting property division – spouse can apply to
have agreement (written, signed, witnessed – although see 93(6)) set aside or replaced IF:
35
o (a) a spouse failed to disclose significant property or debts, or other information relevant to the
negotiation of the agreement;
 Codifies principles from Rick v Brandsema
 Full disclosure required to protect integrity of agreements (Rick v Brandsema)
o (b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's
ignorance, need or distress;
 Codifies principles from Rick v Brandsema  common law principles of unconscionability
 Independent legal advice relevant (Asselin)
o (c) a spouse did not understand the nature or consequences of the agreement;
 Independent legal advice particularly relevant (Asselin)
 Legal advice does not make contract immune from scrutiny, particularly if person unable to fully
absorb advice (Rick v Brandsema)
o (d) other circumstances that would, under the common law, cause all or part of a contract to be
voidable.
 Door to arguing undue influence and duress (Asselin)
o Saving Provision: per s93(4) court may decline to act even if one of above situations occurred where
court would not replace agreement with one that is substantially different than already existing
agreement
 Policy: purpose of saving provision = protect value of autonomy where result would not be
substantially different
- Substance/Fairness defects: FLA s93(5): even if no defect per s93(3), may set aside/replace agreement if
agreement is significantly unfair, considering:
o (a) the length of time that has passed since the agreement was made;
o (b) the intention of the spouses, in making the agreement, to achieve certainty;
o (c) the degree to which the spouses relied on the terms of the agreement.
- RECALL – FLA s95 = if agreement set aside, court may order unequal division where equal division would be
significantly
Asselin v Roy, 2013 BCSC 1681: cohabitated for 24 years; 1 child together (wife had 3 children from previous
relationship); had post-cohabitation agreement (3 years into cohabitating) BUT wife had not been given agreement in
advance, husband did not disclose all relevant info, agreement waived right to spousal support, child support (note: may
have been obligated to pay for 2 of the 3 children from previous marriage bc lived with them), right to property if only
under one name (regardless of contributions); agreement binding? NO – per s93 agreement must be properly formed
(93(3)) and cannot be significantly unfair (93(5)); this agreement was BOTH procedurally unfair and significantly unfair;
s93(3) issues: inadequate disclosure, improper disadvantage (no opportunity to receive independent legal advice) and
wife was socially vulnerable bc attempting to conceive, did not understand nature and consequences of agreement and
had no role in drafting terms, again no independent legal advice; understanding general nature of agreement
insufficient; s93(5) issues: significant time has passed since making agreement, circumstances surrounding agreement
didn’t reflect joint intentions, husband encouraged wife to contribute to property that was in his name, pooled income
in some circumstances – not really separate; RATIO: application of FLA s93
Property Agreements – Enforceability flow chart:
36
Agreements respecting parenting arrangements
FLA s44: Agreements respecting parenting arrangements

44 (1) Two or more of a child's guardians may make an agreement respecting one or more of the following:
(a) the allocation of parental responsibilities;
(b) parenting time;
(c) the implementation of an agreement made under this section;
(d) the means for resolving disputes respecting an agreement made under this section.
(2) An agreement respecting parenting arrangements is binding only if the agreement is made
(a) after separation, or
(b) when the parties are about to separate, for the purpose of being effective on separation.
(3) A written agreement respecting parenting arrangements that is filed in the court is enforceable under this Act as if it
were an order of the court.
(4) On application by a party, the court must set aside or replace with an order made under this Division all or part of an
agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.
Defect in the process of making a family law agreement
Test: to assess weight to be given to agreement (relevant factor in DA s15.2(4)): (Miglin)

1) Formation of the agreement – procedurally and substantively fair?
a. Was the agreement fairly negotiated? Factors to consider:
i. Representation by counsel: the degree of professional assistance received by the party is
relevant, but a court should not presume an imbalance of power.
ii. Circumstances: was one or both parties vulnerable and if so, did presence of counsel rectify this
vulnerability?
iii. Duration of negotiations: was the agreement negotiated over a reasonable amount of time?
b. Does the agreement remain in substantial compliance with objectives of the Divorce Act?
37
i. Court must examine substance of agreement at time of formation to determine the extent to
which it takes into account the factors and objectives in the Divorce Act, thereby reflecting an
equitable sharing of the economic consequences of the marriage and its breakdown
ii. Analysis should not be restricted to spousal support component – look to whole agreement
which should substantially comply with factors and objectives of the Act
2) Have the circumstances changed since signing the agreement?
a. Assess extent to which enforcement of agreement still reflects original intention of parties and extent to
which it is still in compliance with objectives of Divorce Act
b. Foreseeability interpreted broadly  circumstances do not have to be explicitly
considered/contemplated
i. E.g., change in job, assets decreasing in value = foreseeable
c. Agreement should only be disregarded if there has been a “significant change in the parties’
circumstances from what could reasonably be anticipated at the time of negotiation”
i. E.g., one party now has disability
Miglin v Miglin, 2003 SCC 24: married 14 years, 4 children; operated resort lodge, both worked in the business;
separated in 1993 and wife wanted to stay home with children as all under 8 years; signed agreement that husband kept
lodge and start-up, wife kept matrimonial home, husband pay $60k/year child support, wife receive $15k/year
consulting agreement for 5 years (“thinly veiled” spousal support agreement for tax purposes); wife’s childcare
obligations then changed and consulting agreement not renewed – applied for spousal support; should the agreement
be upheld? YES – following 2-stage analysis to determine whether to uphold support agreement, found 1) agreement
was unimpeachably negotiated and 2) circumstances have not changed bc agreement provided wife with income in
contemplation of her not working; RATIO: established test for enforcement of support agreement; applies only to final
spousal support agreements (limit amount or duration of support OR waive support entirely)
Ability to set aside a contract: (Rick v Brandsema)

- The more the substantive agreement deviates from the default rules, the further examination is required to
ensure fairness
- Duty to make full and honest disclosure of all relevant financial info required to protect integrity of result of
negotiations
- Legal advice does not make contract immune from scrutiny, particularly if the person is unable to fully absorb
the advice
- Deliberate failure to make full financial disclosure when entering into a marriage or separation contract may
result in a court finding that the contract is unconscionable and therefore unenforceable.
Rick v Brandsema, 2009 SCC 10: separation agreement left B with substantially more assets than R after 27 years
marriage; R had mental health challenges when agreement signed; TJ found B failed to disclose or properly value assets;
separation agreement enforceable? NO – agreement was unconscionable; domestic contracts subject to more stringent
rules of fairness than commercial contracts; expanding on stage 2 of Miglin, consider how far removed the agreement is
from the default rules – the further you move from those rules, the more examination required; legal advice only useful
if can absorb advice
SUPPORT OBLIGATIONS
Child support vs. spousal support:

- Child support more common
o Obligations viewed as fundamental and primary, exist regardless of individual circumstances
- Spousal support more controversial – a matter of the relationship between the partners
- Income less relevant WRT child support
38
Spousal support
- Support is available under both DA and FLA
- DA s15.2(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
- FLA s160 FLA: If, after considering the objectives set out in s. 161, a spouse is entitled to spousal support, the
other spouse has a duty to provide support for the spouse in accordance w/ s. 162
- Step 1: Determine entitlement
- Step 2: Determine quantum
Objectives of spousal support & factors:
Divorce Act:
Divorce Act s15.2(6): Objectives of spousal support order:

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a
spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its
breakdown; (more compensatory)
(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; (more compensatory)
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (more non-
compensatory)
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of
time. (more non-compensatory)
 Self-sufficiency is a goal “so far as is practicable”  should not be used to disenfranchise women (Moge)
 Court in Leskun rejected that 15.2(6)(d) imposes a duty to become self-sufficient  objective is to promote
economic self-sufficiency in so far as practicable – failure to achieve self-sufficiency isn’t a breach of a duty – it is
simply one factor amongst others to be taken into account when considering a SS order
DA s15.2(4) Factors:
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into
consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
 see Miglin for weight to give to agreement, p. X *****
 Factors refer to compensatory and noncompenatory support
Divorce Act 17(7): Objectives of variation order varying spousal support order:
(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; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable
period of time.
Family Law Act:

39
FLA s 161: Objectives of spousal support:

161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the following
objectives:
(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship
between the spouses or the breakdown of that relationship;
(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the
duty to provide support for the child;
(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the
spouses;
(d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of
time.
FLA s162: Determining spousal support:

162 The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means,
needs and other circumstances of each spouse, including the following:
(a) the length of time the spouses lived together;
(b) the functions performed by each spouse during the period they lived together;
(c) an agreement between the spouses, or an order, relating to the support of either spouse.
 see Miglin for weight to give to agreement, p. 36
Objectives vs. factors:

- Objectives = principles
- Factors = help understand principles
- Start with identifying entitlement based on objectives then go to factors
- Objectives and factors BOTH relevant for entitlement AND quantum
Determining entitlement to spousal support:
Bases for support:

- 1) Compensatory
o Main basis for support
o Where no contractual or compensatory bases, need alone may be sufficient basis to establish
entitlement to support (Bracklow)
- 2) Non-compensatory/needs-based
- 3) Contractual
- Court doesn’t have to decide one basis to the exclusion of others – a claim can involve aspects of both
compensatory and non-compensatory support (Bracklow)
- Court in Bracklow treats compensatory and non-compensatory support as giving rise to competing theories of
marriage:
o Social obligation model:
 Social obligation consistent with idea that marriage is a potentially permanent obligation –
parties have promised to support each other forever  this theory supports basis for need-
based support
 NOTE: feminist scholars have criticized this theory/Bracklow for its return to idea of needs-
based support rather than entitlement/compensation  depicts women as dependent
o Clean break model
 Spouses seen as autonomous – retain economic independence throughout the marriage
 Court in Bracklow explains this as being consistent w/ compensatory support – idea:
compensate spouse for what they lost/contributed and then move on
40
 Aloni says this was challenged and seems confusing – says it seems counterintuitive to try to
reconcile clean break model/idea of spouses being totally separate individuals w/ compensatory
support that was initially (in Moge) explained as being consistent w/ idea that long-term
marriage was a joint venture/partnership
Steps to determining entitlement:

1) Start with the objectives of support orders per DA s15.2(6) and FLA s161
- All 4 objective from DA s15.2(6) relevant to determining entitlement (Moge)
o No objective has greater weight/importance
o Fact that one objective may be attained does not obviate need to ascertain whether other objectives
satisfied
- Self-sufficiency is a goal “so far as is practicable”  should not be used to disenfranchise women (Moge)
2) In making the order, court must consider the factors from DA s15.2(4) and FLA s162
- These things to be considered by judge in exercising her discretion in manner that equitably alleviates adverse
consequences of marriage breakdown (Bracklow)
Compensatory Model:
- Based on entitlement NOT needs  reimbursement of the spouse for opportunities foregone or hardships
accrued as result of marriage
- In cases where the extent of the economic loss can be determined, compensatory factors may be paramount
(Moge)
- Support provisions of DA intended to deal with the economic consequences for both parties of the
marriage/its breakdown  whatever the respective advantages to the parties of a marriage in other areas, the
focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the
marriage in either impairing or improving each party’s economic prospects (Moge)
- Amount/duration of support required will be proportionate to advantages conferred/ disadvantages incurred
by spouses  After divorce, spouses still have an obligation to contribute to their own support in a manner
commensurate with their abilities – where there are few advantages conferred/disadvantages incurred,
transitional support allowing for full and unimpaired reintegration back into labour force may be all that is
required – but in many cases a former spouse will continue to suffer the economic disadvantages of marriage/its
dissolution while other spouse reaps its economic advantages  in those cases, compensatory support requires
long-term support or an alternative settlement which provides an equivalent degree of assistance in light of all
the objectives of DA (Moge)
- Marriage per se does not automatically entitle a spouse to support – there may be (rare) situations where both
spouses maximize their earning potential by working outside the home, pursuing economic and educational
opportunities in a similar manner, dividing up domestic labour identically, and either making no economic
sacrifices for the other or making them equally – in such situation there may be no call for compensation (Moge)
- Financial consequences of end of marriage extend beyond loss of future earning power or losses directly
related to care of children  include: (Moge)
o Loss of seniority
o Missed promotions
o Inability to keep up with retraining when outside of the workforce  value of education/job training
may decrease
o Lack of access to fringe benefits (e.g., pension, life, disability, dental and health insurance)
o Spousal contribution to operation of a business via secretarial support, bookkeeping, etc.
o Even in childless marriage, economic disadvantage to spouse flowing from shared decision in interest of
family for one spouse to stay at home = compensable (Moge)
- Longer the relationship, closer the economic union, the greater the presumptive claim to equal standards of
living upon dissolution
41
Moge v Moge, [1992] 3 SCR 813: emigrated to Canada; wife had 7th grade education, worked 5pm-11pm as cleaner;
husband worked as welder during day; divorced – wife laid off, applied for increase in spousal support which was
granted; wife then found FT job and husband submitted application to have support cut off; should support be cut off?
NO – should be $150/month indefinitely; marriage = joint venture; goal of support is to alleviate the disadvantaged
spouse's economic losses as completely as possible, taking into account all the circumstances of the parties, including
the advantages conferred on the other spouse during the marriage; should consider in line with DA objectives; RATIO:
marriage = joint venture; should be an equitable distribution of the disadvantages or other economic consequences of
marriage upon marriage breakdown.
Non-compensatory/needs-based:
- Non-compensatory grounds = less and shorter in length
- Need alone may be sufficient basis to establish entitlement to support (Bracklow)
- DA s15.2 (4) requires court to consider “condition, means, needs and other circumstances of each spouse” 
this supports notion that courts are to consider financial circumstances of spouses beyond those related to
compensation (Bracklow)
- Social obligation model – spouses facing hardship should turn to each other before the state
o Notion that marriage lasts and spouses depend on each other for support
- Non-compensatory support needed where disparity of needs/means after marriage breakdown, even if that
disparity is not causally connected to the marriage
- Common elements in need-based support (Bracklow)
o 1) Financial need of recipient spouse
o 2) means to pay of payor spouse
- “Need” = flexible concept, not confined necessarily to basic necessities (e.g., providing for sick spouse as in
Bracklow) – rather, it is a more general concept –can look beyond basic beneficial obligations to consider
disproportionate effect of marriage breakdown on spouses (Chutter)
- Having significant assets/properties does not necessarily mean you won’t be entitled to support (Chutter)
- Need can mean meeting standard of living equivalent/comparable to that enjoyed during marriage - whether
her “need” would place her at standard of living that she had before – concept of “need” can be extended for
purpose of putting you in position you were in before (Chutter)
Bracklow v Bracklow, [1999] 1 SCR: married in 1989 after living together for 4 years; first 2 years of relationship
appellant paid 2/3 of household expenses bc she earned more $ and her 2 children from previous marriage lived with
them; afterwards shared expenses equally until appellant unemployed and respondent kept family going; divided
household chores equally until appellant had various health problems and now likely cannot work again; appellant
obtained interim support order of $275/month, increased to $400/month and also gets $787/month disability; entitled
to support where no economic hardship created by marriage or marriage breakdown? YES – early years of relationship
more independent but parties established interdependent relationship as marriage continued; respondent covered
applicant’s needs in early stages of illness – divorce DID cause economic hardship per s15.2(6)(c); based on length of
cohabitation, hardship imposed, palpable need and respondents ability to pay, entitled to some level of support
Relevance of spousal misconduct:

- Spousal misconduct is not relevant to spousal support, but consequences of spousal misconduct may be
relevant insofar as they affect self-sufficiency (Leksun)
DA s15.2(5): Spousal misconduct:

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into
consideration any misconduct of a spouse in relation to the marriage.
Leksun v Leksun, 2006 SCC 25: parties married 20 years; separated after husband’s affair; wife emotionally devastated by
infidelity; can court take into consideration fault-based issues in determining entitlement and quantum of spousal
support? NO BUT – can take into account consequences therefore support continues; spousal misconduct is irrelevant to
42
support obligations BUT consequences of misconduct and situation of recipient are relevant; genesis of the harm does
not matter; RATIO: spousal misconduct is not relevant to spousal support, but consequences of spousal misconduct may
be relevant insofar as they affect self-sufficiency.
Spousal support – Quantum and duration
Two key aspects:

1) Duration of support
2) Amount of support
Determining quantum per Bracklow = unworkable bc lack of predictability  SSAG created after
- No fixed rule – multiple objectives and factors relevant to quantum
- Amount and duration interrelated  can be traded off against each other in making support order (i.e. can front
load or stretch out over time)
o Length of relationship calculated from beginning of cohabitation, not beginning of marriage)
- Conduct may enhance, diminish or negate obligation of support
- Need alone doesn’t determine quantum – support awarded may cover only a portion of the need (i.e. you aren’t
entitled to support that will cover 100% of your need)
Spousal Support Advisory Guidelines (SSAG):

- Informal advisory guidelines
- Not binding but highly persuasive  in BC if court diverts from guidelines should justify why
- Includes series of formula that generate ranges for amount/duration of spousal support
o Formulas produce ranges of amount and duration – these are starting point, but court still has
significant discretion to make determination w/in these ranges
- Deal with quantum NOT entitlement
o Must determine entitlement first  mere presence of an income difference between parties that would
generate an amount of support under the guidelines does not mean an entitlement exists
- Floors and ceilings: Where payor’s income is below $20,000, no spousal support payable; where payor’s income
exceeds $350,000, guidelines don’t apply
Pros/Cons of SSAG:
- Pros
o Increase settlements
o Improve efficiency of system
o Consistency among courts
- Cons
o Too complicated
o Discretion allows intuitive reasoning
o Regional ranges = too great
Steps to apply SSAG:

1) Determine threshold question of whether there is entitlement and the basis for entitlement
2) Determine income for spousal support purposes
a. Spousal income is defined in accordance with the criteria defined in the Federal Child Support
Guidelines. The report opts to use different methods of calculating income under the two formulas.
i. Without Child Support Formula  gross income is used
ii. With Child Support Formula  relies upon net income calculations
3) Select the correct SSAG formula to apply
43
a. With child support formula
b. Without child support formula
4) Once a range of amount and duration have been calculated using the correct formula, consider the
circumstances to support a location on the range, including the basis for entitlement and the factors affecting
support awards pursuant to s15.2(4) of the Divorce Act
5) Consider whether restructuring by increasing or reducing duration and correspondingly decreasing or increasing
amount is appropriate
6) Consider whether any of the exceptions enumerated in chapter 12 of the SSAG apply
Without child support formula:

- Applies in cases where no dependent children (either never had children OR children now economically
independent – over 18 or 21)
- Amount:
o Range: from 1.5% to 2% of the difference between the spouses’ gross incomes for each year of marriage
(more precisely, each year of cohabitation), up to a maximum of 50%
o Range remains fixed for marriages 25yrs or longer, at 37.5-50% of income difference
 Upper end of this maximum range is capped at the amount that would result in equalization of
the spouses’ net incomes – the net income cap.
- Duration:
o Range: from 0.5-1 year for each year of marriage
o Support = indefinite (duration not specified) IF marriage is 20 years or longer in duration, OR if marriage
has lasted 5 years or longer, when years of marriage plus age of support recipient (at separation) added
together total 65 or more (“rule of 65”)
 Indefinite does not mean permanent – subject to variation if material change in circumstances
(Chutter)
- Example:
o Married 20 years; husband makes $90,000; wife makes $30,000
o Gross income difference = $60,000
o Range 1.5-2% for each year cohabitation = 30-40% (1.5 x 20 years to 2 x 20 years)
o Support range = 0.3 x 60,000 to 0.4 x 60,000  $18,000 annually ($1,500/month) to $24,000 annually
($2,000/month)
o Duration = indefinite bc 20 year marriage
Chutter v Chutter, 2008 BCCA 507: appeal for spousal support amount; without child formula; wife brought argument for
compensatory and non-compensatory support (good to bring both just in case); wife argues  economically
disadvantaged bc supported husband and took work off bc of marriage and reduced work bc of joint decision (15.2(6)
(a)); primary caregiver (15.2(6)(b)); standard of living expectation (15.2(6)(c)); can’t work as much as she used to bc of
medical needs (15.2(4)); husband argues  wife now well off and enjoys benefits of marriage bc dividing assets left each
with $4M; could invest some of home’s value for income; support determination? Entitled to support based on
compensatory AND non-compensatory grounds  wife was primarily responsible for care of child and role played in
marriage will likely diminish future prospects (compensatory) AND wife not expected to deflate her capital to maintain
standard of living (non-compensatory)
With child support formula:

- Applies where there are dependent children AND child support is being paid
- In practice, quantum of with child support orders for spousal support are calculated using a professional
software
44
- "Basic" with-child support formula applies to the most common fact situation; where the higher-income spouse
is paying both child and spousal support to the lower-income spouse, who is also the parent with custody or
primary residential care of the children.
- There are a series of sub-formulas within this formula for different custodial/child support arrangements
- Differences between with child support vs. without child support formulas
o With child support formula uses net incomes, not gross incomes of spouses
o With child support formula divides pool of combined net incomes between 2 spouses, instead of using
the gross income difference
o For with child support formula, upper and lower percentage limits of net income don’t change with
length of marriage
SSAG Exceptions:
- Compelling financial circumstances in interim period
- Debt payments
- Prior support obligations
- Illness or disability of recipient spouse
- Compensatory exception for shorter marriages under with child support formula
- Reapportionment of property (BC)
- Basic needs/hardship under without child support and custodial payor formulas
- Non-taxable payor income
- Non-primary parent to fulfil a parenting role under custodial payor formula
- Special needs of a child
- S15.3 for small amounts and inadequate compensation under with child support formula
Variation or termination of spousal support order:

- DA s17(4.1) empowers court to vary an existing order for spousal support upon proof of a substantial,
unforeseen, and continuing change in the condition, means, needs, or other circumstances of either former
spouse since the granting of the order that is sought to be varied
- An order for spousal support is subject to variation, rescission, or suspension on the application of either former
spouse brought pursuant to DA s17
- Need to consider the same objectives from s.15.2 when making variation as when making initial order for
support (Moge)
- DA s17(6): in making a variation order, the court shall not take into consideration any conduct that under this
Act could not have been considered in making the order in respect of which the variation order is sought
Child Support
Jurisdiction:
- Concurrent jurisdiction under FLA and DA
- Divorced spouses can choose whether to seek child support under FLA or DA
o A party seeking support under DA may also make an alternative support claim under FLA – court may
award support under either statute  order must specify the Act under which the order was made and
use terms appropriate to the statute; if an order is silent re: under which Act it was made, it will be
deemed to have been made under DA
o To fall under DA, child must fall w/in definition of “child of the marriage”
- Separated but not divorced spouses:
o DA only relevant for corollary relief attached to divorce
o If no divorce, under FLA
o If getting divorce can still elect to use FLA
- Couples who do not qualify as spouses use FLA
45
- Main differences between the 2 regimes are re: stepparents’ obligations
o FLA starts with presumption that stepparent is not obligated to pay
o DA imposes no presumption, but rather asks whether stepparent “stands in the place of a parent”
- Provisions re: support for child over age of majority = substantially the same
Obligations to pay under the Divorce Act:

Divorce Act s15.1: Child support orders
- (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a
spouse to pay for the support of any or all children of the marriage.
- Divorce Act s2: Child of the marriage
- (1) child of the marriage means a child of two spouses or former spouses who, at the material time,
o (a) is under the age of majority and who has not withdrawn from their charge, or
o (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or
other cause, to withdraw from their charge or to obtain the necessaries of life;
- (2) For the purposes of the definition child of the marriage in subsection (1), a child of two spouses or former
spouses includes
o (a) any child for whom they both stand in the place of parents; and
o (b) any child of whom one is the parent and for whom the other stands in the place of a parent.
o  A spouse stands in the place of a parent within the meaning of section 2(2) of the Divorce Act when
that spouse by their conduct manifests an intention of placing themselves in the situation ordinarily
occupied by the biological parent by assuming the responsibility of providing for the child’s economic
and parenting needs
- Federal Child Support Guidelines:
- 5: Spouse in place of a parent
o Where the spouse against whom a child support order is sought stands in the place of a parent for the
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
Stepparent  stand in place of parent: (Chartier)

- Interpretation of “children of the marriage” should be given a large and liberal construction
- Test: does a person stands in the place of a parent within the meaning of the Divorce Act? Consider the
following factors:
o Intention: will not only be expressed formally; court must also infer intention from actions and take into
consideration that even expressed intentions may sometimes change.
o Actual fact of forming a new family  key factor in drawing an inference that the step-parent treats the
child as a member of his or her family, i.e., a child of the marriage.
o Whether the child participates in the extended family in the same way as would a biological child
o Whether the person provides financially for the child (depending on ability to pay)
o Whether the person disciplines the child as a parent
o 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
o Nature or existence of the child’s relationship with the absent biological parent
o Note: opinion of the child regarding the relationship with 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.
- What is the relevant time for determining whether someone stood “in the place of a parent”?
46
o The existence of a parental relationship under 2(2)(b) DA must be determined as of the time the family
functioned as a unit (i.e. NOT after separation – cannot unilaterally terminate the relationship and
thereby avoid obligations)
o Once a person is found to stand in place of parent, the adult cannot unilaterally withdraw relationship
- Policy: justification for imposing obligations on social parents  once someone makes permanent unconditional
commitment to child, child should be able to rely on that commitment
o BUT may incentivize stepparents not to engage with/support child  counter: don’t want that type of
parent anyway; good parent wouldn’t
- Does this constitute “double-dipping” if person is supported by 2 biological parents plus stepparent? NO – may
just affect amount owed by each parent but not the existence of an obligation
Chartier v. Chartier, [1999] 1 SCR 242: parties one child together; wife had one child from previous relationship –
husband took on parental role, never adopted but falsely changed birth certificate; separated and husband initially
acknowledged both children as children of marriage and granted access to both but only agreed to pay maintenance for
biological child; wife’s divorce proceedings included request for declaration that he stands as parent and for support;
husband tried to repudiate relationship; did he stand in the place of a parent? YES – showed intention to stand in place
of parent, took on parental role
Obligations to pay under the FLA:

- FLA s147: Duty to provide support for child
- (1) Each parent and guardian of a child has a duty to provide support for the child, unless the child
o (a) is a spouse, or
o (b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge,
except if the child withdrew because of family violence or because the child's circumstances were,
considered objectively, intolerable.
- (2) If a child referred to in subsection (1) (b) returns to his or her parents' or guardians' charge, their duty to
provide support for the child resumes.
- (3) If a guardian who is not the child's parent has a duty to provide support for that child, the guardian's duty is
secondary to that of the child's parents.
- (4) A child's stepparent does not have a duty to provide support for the child unless
o (a) the stepparent contributed to the support of the child for at least one year, and
o (b) a proceeding for an order under this Part, against the stepparent, is started within one year after the
date the stepparent last contributed to the support of the child.
o  Presumption that stepparents not obligated to pay child support
o  Note: shorter time to request child support
- (5) If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty
o (a) is secondary to that of the child's parents and guardians, and
o (b) extends only as appropriate on consideration of
 (i) the standard of living experienced by the child during the relationship between the
stepparent and his or her spouse, and
 (ii) the length of time during which the child lived with the stepparent.
Child age of majority:

- No substantive differences between FLA and DA re: support for children over majority – language almost
identical
- Divorce Act:
o s2(1) – “child of the marriage” means a child of two spouses or former spouses who, at the material
time,
47
 (b) is the age of majority (19 in BC) 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
- FLA:
o s146 – “child” includes a person who is 19 years of age or older and unable, because of illness, disability
or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or
guardians
- Sometimes support for children over age of majority is paid directly to the child
- Party seeking child support for a child 19 or older bears the onus of proving that the child remains a “child” as
defined by FLA/DA (MJL v GH)
- Parent may be ordered to pay support for child who is unable to achieve self-sufficiency for reasons of
“illness, disability or other cause” (MJL v GH)
Other Cause:
- The words “other cause” have been interpreted liberally (Pound v Pound)
o E.g., athlete, sport or unique talent  same examination of whether you compete at an important
competition, got extra scholarship, full time or part time training, whether parents previously supported
this kind of activity, etc.
- Pursuit of education = “other cause” that may cause child over 19 to require support  court considers whether
child’s educational pursuits are reasonable, and if so, whether it is appropriate for the parents to finance the
child’s education (MJL v GH)
o Note: no obligation to pay for education in typical parent/child relationship unless previously had to pay
child support
- Factors in considering whether educational pursuits justify adult child remaining a child for purposes of child
support (Farden factors):
o (1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time
course of studies;
o (2) whether or not the child has applied for or is eligible for student loans or other financial assistance;
o (3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is
simply going to college because there is nothing better to do;
o (4) the ability of the child to contribute to his own support through part-time employment;
o (5) the age of the child;
o (6) the child’s past academic performance, whether the child is demonstrating success in the chosen
course of studies;
o (7) what plans the parents made for the education of their children, particularly where those plans were
made during cohabitation;
o (8) at least in the case of a mature child who has reached the age of majority, whether or not the child
has unilaterally terminated a relationship from the parent from whom support is sought.
o  These factors less relevant when assessing child with disabilities (W(SM) v W(RE))
Illness/disability:
- Receipt of disability benefits by adult child does not absolve obligation for support (MJL v GH)
o Obligation for support should not be based on poverty level necessities
- 2 key factors to determine whether child can obtain necessities of life = employability and extent of disability
(MJL v GH)
48
MJL v GH, 2015 BCPC 208: ineffective co-parenting; father no relationship with child since age 12 but paid support to age
19; application seeking continued support bc learning disability, cannot live independently, FT student in education/skills
training, still in her care; still meet definition of child and still liable for child support? YES – child has significant
limitations; although education has been successful, unclear if has future prospects (note: bc disability, Farden factors
less relevant but support conclusion); child not responsible for breakdown of relationship
Child Support – Determining the Amount

- When over age of majority and/or receiving disability benefits, can depart from guidelines WT amount (MJL v
GH)
Federal Child Support Guidelines:

- Binding
- Apply to both FLA and DA child support orders
- Some basic premises/economic assumptions on which FCSG are based
o Spending on children isn’t fixed but changes as income of either parent changes
o Amount a family spends on children is directly related to means of both parents
o Spending on children increases as number of children increases, but incremental costs associated are
less w/ each additional child
o Child will have same standard of living as custodial parent b/c they live w/ them
o Custodial parent will also contribute to children in relation to their own means – custodial parent
expected to contribute amount similar to what a support-paying parent w/ similar income would be
required to pay
- In practice, a professional software would be used for calculations
Calculating with the FCSG:

- Presumptive rule: guidelines are binding  s3(1) Unless otherwise provided under these Guidelines, the
amount of a child support order for children under the age of majority is
o (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
o (b) the amount, if any, determined under s.7
- Monthly amounts are determined by adding the applicable basic amount (we get this from Tables) and the
amount calculated by multiplying the applicable percentage (get this from Tables) by the portion of the income
that exceeds the lower amount w/in that range of income (from table)
o E.g., basic amount x [basic percentage x (actual annual income – lower amount w/in range)]
- s7(1) – Special or extraordinary expenses
o In a CS 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 result of 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 exceeding insurance reimbursement by at least $100 annually,
including orthodontic treatment, professional counselling provided by 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
49
 (e) expenses for post-secondary education; and
 (f) extraordinary expenses for extracurricular activities
 NOTE: this list is exhaustive
o Factors
 Combined income of parents
 Fact that 2 households must be maintained
 Extent of expenses in relation to combined incomes
 Debt of parents
 Any prospect for decline or increase in parents’ means in near future
- Determining income
o s16 – Subject to ss17-20, a spouse’s annual income is determined using the sources of income set out
under heading “Total Income” in T1 General form issued by CRA
o Some situations are more challenging
 Self-employment
 Not working w/ steady income
 Where main income is derived from capital (e.g. rent of properties)
o S17 – Pattern of income: in such more complicated situations there are other ways to calculate income
 s17(1) – If the court is of the opinion that the determination of a spouse’s annual income under
s.16 would not be the fairest determination of that income, the court may have regard to the
spouse’s income over the past 3 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
- Child support orders in situations of shared custody**
o s9 – Where a spouse exercises a right of access to, or has physical custody of, a child for not less than
40% of the time over the course of a year, the amount of CS order must be determined taking into
account
 (a) amounts set out in applicable tables for each of the spouses;
 (b) increased costs of shared custody arrangements; and
 (c) conditions, means, needs and other circumstances of each spouse and of any child for whom
support is sought
o Many parents try over course of negotiation to seek shared custody even if not in BIOC in order to get
the other parent to settle WRT child support
o What courts do most often = “simple set-off”
 Determine Table amount from guidelines for each parent as if each is seeking child support from
the other and use the amount that’s the difference between these amounts
- s4 – Income over $150,000
o First $150,000: obligors with annual income over $150k must pay basic table amount of child support on
FIRST $150,000
o WRT income over $150k, court has one of two alternatives 
 1) can order additional amount prescribed by a percentage formula in the applicable provincial
or territorial table OR
 2) if it finds that additional amount inappropriate, the court can exercise its discretion to order a
different amount, having regard to child’s condition, means, needs, and other circumstances
and the financial ability of each parent to contribute to the support of the child
 Deviation from the table formula presupposes a finding that the amount thereby
prescribed is inappropriate
- s10 – Undue Hardship:
o Gives court discretion to deviate from normal guidelines
50
o Tough threshold to meet – applies only if undue hardship and person seeking adjustment resides in a
household with a lower standard of living than that of the other parent – hardship must be excessive,
extreme, improper, unreasonable, or unjustified
o Can be claimed either by recipient or payor
Enforcement
- 2 ways to enforce order for CS
o BC – enforcement program
 They have many tools they can use to collect like driver’s license cancellation
o Federal gov’t – can garnish federal payments, suspend passports, licenses, etc.
LAW OF PARENTAGE: ASSISTED AND NON-ASSISTED REPRODUCTIVE TECHNOLOGY, MULTIPLE PARENTS
Birth registration and presumptions of paternity
Marital presumption (FLA s26):

- Assumes women who are pregnant are pregnant by their husband (avoids illegitimacy)
- Significant evidentiary burdens to challenge marital presumption (particularly WRT same-sex couples)
- Rebuttable presumptions
- If more than one person may be presumed to be child’s biological father, no presumption of paternity made
FLA s26: Parentage if no assisted reproduction:

26 (1) On the birth of a child not born as a result of assisted reproduction, the child's parents are the birth mother and
the child's biological father.
(2) For the purposes of this section, a male person is presumed, unless the contrary is proved or subsection (3) applies,
to be a child's biological father in any of the following circumstances:
(a) he was married to the child's birth mother on the day of the child's birth;
(b) he was married to the child's birth mother and, within 300 days before the child's birth, the marriage was
ended
(i) by his death,
(ii) by a judgment of divorce, or
(iii) as referred to in section 21 [void and voidable marriages];
(c) he married the child's birth mother after the child's birth and acknowledges that he is the father;
(d) he was living with the child's birth mother in a marriage-like relationship within 300 days before, or on the
day of, the child's birth;
(e) he, along with the child's birth mother, has acknowledged that he is the child's father by having signed a
statement under section 3 of the Vital Statistics Act;
(f) he has acknowledged that he is the child's father by having signed an agreement under section 20 of
the Child Paternity and Support Act, R.S.B.C. 1979, c. 49.
(3) If more than one person may be presumed to be a child's biological father, no presumption of paternity may be
made.
Ordering paternity tests: (P(RJ) v W(NL))

- When considering whether to exercise discretion to order paternity test, consider:
o Recognition that DNA profiling provides evidence of a highly reliable kind when determining biological
parentage
o The interests of justice will generally best be served by obtaining such evidence so that the truth may be
ascertained
- Court need not be satisfied that outcomes of test will benefit child
51
- Should not treat application for order for paternity test differently depending on whether applicant is/has been
part of family unit
- FLA s33 sets out appropriate types of parentage tests and how court should decide
P(RJ) v W(NL), 2013 BCCA 242: appellants had on/off relationship; appellant wife began relationship with respondent;
wife pregnant – father could have been appellant husband or respondent; respondent wanted paternity test; should test
be granted? YES – interests of justice and the child involved often best served by ascertaining truth WRT paternity; court
need not be satisfied that outcomes of test will benefit child; shouldn’t treat application for paternity test differently
depending on whether applicant = member of family unit or not
Children conceived by assisted reproduction
Policy: Controversies with assisted reproduction:

- Genetic engineering commodifies reproductive process
o Choosing donor with particular traits
- To what extent should state subsidise these processes?
- Consent issues and enforcement of contract
Rules/prohibitions re: Assisted reproduction

- NOTE: legality/payment is federally legislated; everything else re: parentage is provincial (i.e. under FLA)
Parentage in assisted reproduction:
FLA s24: Donor not automatically parent:

24 (1) If a child is born as a result of assisted reproduction, a donor who provided human reproductive material or an
embryo for the assisted reproduction of the child
(a) is not, by reason only of the donation, the child's parent,
(b) may not be declared by a court, by reason only of the donation, to be the child's parent, and
(c) is the child's parent only if determined, under this Part, to be the child's parent.
(2) For the purposes of an instrument or enactment that refers to a person, described in terms of his or her relationship
to another person by birth, blood or marriage, the reference must not be read as a reference to, nor read to include, a
person who is a donor unless the person comes within the description because of the relationship of parent and child as
determined under this Part.
 Fact that you are a donor does not automatically give parental rights – gives force to intention of parents and frees
parents from fear that donor will ask for parental rights
FLA s 27: Parentage if assisted reproduction:

27 (1) This section applies if
(a) a child is conceived through assisted reproduction, regardless of who provided the human reproductive
material or embryo used for the assisted reproduction, and
(b) section 29 [parentage if surrogacy arrangement] does not apply.
(2) On the birth of a child born as a result of assisted reproduction in the circumstances described in subsection (1), the
child's birth mother is the child's parent.
(3) Subject to section 28 [parentage if assisted reproduction after death], in addition to the child's birth mother, a person
who was married to, or in a marriage-like relationship with, the child's birth mother when the child was conceived is also
the child's parent unless there is proof that, before the child was conceived, the person
(a) did not consent to be the child's parent, or
(b) withdrew the consent to be the child's parent.
 Deals with cases of non-surrogacy
52
 Where child conceived through AR, by method other than surrogacy, parents are biological mother and,
presumptively, mother’s married or marriage-like partner, provided her partner consents to being a parent
 Donor not automatically a parent
FLA s29: Parentage if surrogacy agreement:

29 (1) In this section, "surrogate" means a birth mother who is a party to an agreement described in subsection (2).
(2) This section applies if,
(a) before a child is conceived through assisted reproduction, a written agreement is made between a potential
surrogate and an intended parent or the intended parents, and
(b) the agreement provides that the potential surrogate will be the birth mother of a child conceived through
assisted reproduction and that, on the child's birth,
(i) the surrogate will not be a parent of the child,
(ii) the surrogate will surrender the child to the intended parent or intended parents, and
(iii) the intended parent or intended parents will be the child's parent or parents.
(3) On the birth of a child born as a result of assisted reproduction in the circumstances described in subsection (2), a
person who is an intended parent under the agreement is the child's parent if all of the following conditions are met:
(a) before the child is conceived, no party to the agreement withdraws from the agreement;
 If surrogate renegs, does not get to be a parent – courts must decide
(b) after the child's birth,
(i) the surrogate gives written consent to surrender the child to an intended parent or the intended
parents, and
(ii) an intended parent or the intended parents take the child into his or her, or their, care.
(4) For the purposes of the consent required under subsection (3) (b) (i), the Supreme Court may waive the consent if
the surrogate
(a) is deceased or incapable of giving consent, or
(b) cannot be located after reasonable efforts to locate her have been made.
(5) If an intended parent dies, or the intended parents die, after the child is conceived, the deceased intended parent is,
or intended parents are, the child's parent or parents if the surrogate gives written consent to surrender the child to the
personal representative or other person acting in the place of the deceased intended parent or intended parents.
(6) An agreement under subsection (2) to act as a surrogate or to surrender a child is not consent for the purposes of
subsection (3) (b) (i) or (5), but may be used as evidence of the parties' intentions with respect to the child's parentage if
a dispute arises after the child's birth.
(7) Despite subsection (2) (a), the child's parents are the deceased person and the intended parent if
(a) the circumstances set out in section 28 (1) [parentage if assisted reproduction after death] apply,
(b) before a child is conceived through assisted reproduction, a written agreement is made between a potential
surrogate and a person who was married to, or in a marriage-like relationship, with the deceased person, and
(c) subsections (2) (b) and (3) (a) and (b) apply.
FLA s30: Parentage if other arrangement:

30 (1) This section applies if there is a written agreement that
(a) is made before a child is conceived through assisted reproduction,
(b) is made between
(i) an intended parent or the intended parents and a potential birth mother who agrees to be a parent
together with the intended parent or intended parents, or
(ii) the potential birth mother, a person who is married to or in a marriage-like relationship with the
potential birth mother, and a donor who agrees to be a parent together with the potential birth mother
and a person married to or in a marriage-like relationship with the potential birth mother, and
 Typically relevant where 3 parent – lesbian partners want father to be involved but not have legal
rights as a parent
(c) provides that
53
(i) the potential birth mother will be the birth mother of a child conceived through assisted
reproduction, and
(ii) on the child's birth, the parties to the agreement will be the parents of the child.
(2) On the birth of a child born as a result of assisted reproduction in the circumstances described in subsection (1), the
child's parents are the parties to the agreement.
(3) If an agreement described in subsection (1) is made but, before a child is conceived, a party withdraws from the
agreement or dies, the agreement is deemed to be revoked.
 Allows 3 parents to be listed on birth certificate from birth – when genetic 3 rd party (surrogate OR sperm donor)
becomes parent with married or marriage-like couple
 Critique: “all or nothing” provision
- Only allows someone genetically related to be 3 rd parent
- Only applies where child is conceived through AR
- Only allows for 3 parties – doesn’t reflect reality that especially in LGBTQ arrangements there are often 2
couples (i.e. 4 parties)
o NOTE: Ontario All Families Are Equal Act recognizes 4 parent families w/o need for judicial intervention
 broader than FLA
- 30(1)(b)(ii) – only available to couples
Assisted Human Reproduction Act:

- S6(1) prohibits payment for surrogacy BUT can reimburse for certain expenses – lots of grey area
- Minimum age for surrogacy 21 (s6(4))
- Cannot purchase gametes, cannot purchase/sell embryos, cannot purchase other reproductive materials (s7(2)-
(3))
- Criticisms of AHRA prohibitions:
o Section is fairly broad and there are ways to work around this to find ways to still be paying basically the
same amount that you’d pay on the open market in the US (can be reimbursing for things from
cellphones, to prenatal yoga, and so on) – but this is still arguably very oppressive
o Prof A thinks this is a way of taking advantage of women’s services  you cannot pay them amount that
you could w/ an open market – thinks you should either ban it completely or permit it w/ some
regulation, but not a system like this that just disallows payments
o Criticized as disproportionately affecting LGBTQ people
Surrogacy:
- Assisted Human Reproduction Act s6(1) prohibits payment for surrogacy BUT can reimburse for certain expenses
– lots of grey area
- Minimum age 21 (s6(4))
Policy: Ethical issues with surrogacy:

- Surrogates often vulnerable/economically unstable women
- Surrogates often live far from family
- Model of “cheap” surrogacy bc not able to pay for surrogacy in Canada – does not respect women’s autonomy
to choose to be a surrogate
- Aloni: Significant impact on low income women whether you pay high or low (risk that if higher compensation,
economically unstable women will feel they have to) BUT with better regulations and better compensation could
have more positive impact
- Risky and physical work
Declarations of parentage:
- Benefits of a declaration of parentage (Re Family Law Act; AA v BB)
o it is a life-long immutable declaration of status;
54
o it allows the parent to fully participate in the child’s life;
o it determines lineage;
o it will determine other kindred relationships;
o the declared parent may obtain important personal and identifying documentation for the child, such as
a social insurance number, a health card, airline tickets and passports;
o it may determine Canadian citizenship;
o it will establish a parent’s right to register the child in school;
o the declared parent has to consent to any future adoption;
o it will allow that parent to assert rights as such under applicable legislation; and
o it will allow that child to assert rights as such under applicable legislation, including perhaps those
arising upon an intestacy.
- Court has inherent jurisdiction to bridge a legislative gap, including an order of parentage, per parens patriae
jurisdiciton
Re Family Law Act (G(K)), 2016 BCSC 598: KG and SG = married; LK = surrogate/donor; LK artificially inseminated with
SG’s sperm; oral agreement reached prior to conception that LK = surrogate; LK renounced all rights to child upon birth;
bc no written agreement, KG and SG apply to seek declaration that they are the child’s parents (FLA s31), that LK is not a
parent; relief available in absence of written agreement per FLA s29? YES – parentage declared; uncertainty exists bc LK
is parent under FLA but disclaimed rights of parentage; declaration of parentage has significant benefits
- Note: although court confirms declaration of parentage is important, court clear that they do NOT intend to
establish precedent that a s31 declaration of parentage will be used in cases where there is no written
agreeement
AA v BB, 2007 ONCA 2: BB(father) and CC(mother) = biological parents of DD; AA = CC’s same-sex partner; BB = friend
helping AA and CC have child; AA and CC primary caregivers, BB has some role; AA seeking declaration that she is also
DD’s parent to have rights/obligations of custodial parent (not seeking adoption bc don’t want BB to lose parentage);
does court have jurisdiction to declare AA parent? YES – using parens patriae jurisdiction (no jurisdiction under Child
Law Reform Act bc only contemplates two parents, doesn’t contemplate assistive reproductive technologies); can only
use parens patriae where legislative gap  gap in CLRA NOT deliberate
“All Families are Equal Act (Ontario)”

- The All Families Are Equal Act (AFAEA), which amends the CLRA, VSA, and several other statutes facilitates
parentage for ‘up to four intended parents’ where a surrogate carries a child (s 10).
o A surrogacy agreement must be written prior to conception of the child and each party must receive
independent legal advice (ss 10(2)1, 10(2)2).
o Where the surrogate relinquishes right to parentage in writing, the intended parents acquire parentage
automatically (s 10(3)).
o If the surrogate declines to do so, any party may apply for a declaration of parentage respecting the
child. The court may make the declaration sought or any other declaration it ‘sees fit’, the child’s best
interests being its ‘paramount consideration’ (ss 10(7), 10(8)).
o Where a surrogacy agreement includes more than four intended parents, parentage will not be
automatic, but a court may declare parentage (s 11).
Who owns gametes?

- Where donors are separated/divorced and have the same genetic relationship to the embryo (e.g., both
partners genetically connected OR neither genetically connected) need both parties’ ongoing consent – donor
has ability to withdraw consent (SH v DH)
o If just one partner was genetically connected, don’t need other partner’s consent
55
- Policy: to hold otherwise could lead to situations where people could have genetically related children born to
ex-spouses years after marriage breakdown (SH v DH)
- Policy: consent in the legislative context involving reproductive technology is fundamentally at odds with
contract law  an individual cannot simply contract out of the criminal law and cannot contract away the
protections afforded to them under the law (SH v DH)
Assisted Human Reproduction (Section 8 Consent) Regulations:

- Govern donor consent WRT use of embryos
- 10 (1) Subject to section 15, in this Part, donor means the following individual or individuals for whose
reproductive use an in vitro embryo is created:
o (a) the individual who has no spouse or common-law partner at the time the in vitro embryo is created,
regardless of the source of the human reproductive material used to create the embryo; or
o (b) subject to subsection (3), the couple who are spouses or common-law partners at the time the in
vitro embryo is created, regardless of the source of the human reproductive material used to create the
embryo.
o  s10(1) does not require genetic material to be a donor
- (2) If the donor is a couple, the consent of each spouse or common-law partner must be compatible in order for
the consent of the donor to comply with the requirements of this Part.
o  Need consent of both members of the couple
- (3) In the case of an in vitro embryo created using human reproductive material from only one of the individuals
in the couple that was the donor of the embryo at the time it was created, that individual becomes the donor of
the embryo under paragraph (1)(a) if, before the use of the embryo, the individual is no longer a spouse or
common-law partner in the couple.
SH v DH, 2019 ONCA 454: SH and DH married; created two viable embryos through in vitro; had one child, divorced, still
have one viable embryo which DH wants to use; SH originally consented to DH using embryo but withdrew consent; can
DH be granted order permitting use of embryo without SH’s consent on basis that SH signed contract? NO – not bound
by prior written consent bc statue and regs preserve donor’s inherent right to change their mind about embryo use;
Canada uses consent-based model not contract-based (so valid contract doesn’t matter WRT embryos – can still change
mind)
PARENTING OF CHILDREN – CUSTODY, ACCESS, GUARDIANSHIP, BEST INTERESTS OF THE CHILD, B C-78
Jurisdiction re: parenting

- If unmarried  only FLA applies
- If married  choice between FLA and DA (concurring jurisdiction)
o NOTE: spouses can seek orders under both DA and FLA, but it is best to pick one Act or the other to
determine issues re: care of children b/c the 2 Acts approach care of children w/ different attitudes and
use different language
- DA vs FLA: If an order is made under FLA and subsequently an incompatible order is made under DA, the latter
supersedes the former  paramountcy
o NOTE: most often DA and FLA are not incompatible  absent a contradiction, we should read them
together/in harmony/as supplementary to one another
o Often terms are used interchangeably but don’t contradict each other (e.g., custody and guardianship)
56
Terminology: Divorce Act – custody and access; Family Law Act – guardianship and contact
DA vs FLA Terminology:
FLA DA
Guardianship Custody
- Divided into “parenting time” and “parenting - Defined in s2(1) DA as including “care,
responsibility” upbringing and any other incident of custody”
- In narrow sense, this term means the mere
physical custody or day-to-day care and control
of the child
- In broad sense it means the full bundle of rights
and responsibilities of a parent to a child – this =
most typically the way it is used (i.e. as
equivalent to “guardianship”)
- Sometimes courts will say either “legal custody”
or “physical custody” to be clear (but not often)
Contact Access
- Not defined specifically, but per s16(5) DA at
least includes the right of the spouse w/ access
to make inquiries and to be given information re:
the child’s health, education, and welfare
- Spouse w/ access may also request an order that
he or she be notified of anticipated changes in
child’s residence (s16(7) DA) and that child be
given as much contact w/ each parent as is
consistent w/ child’s best interests (s16(10) DA)
- Young v Young – non-custodial parent retains
certain residual rights over child as one of child’s
natural guardians – includes: right to apply to
court for variation of custody and access terms,
right to access (subject to BIOC), right to contest
child’s adoption, right to claim guardianship
upon custodial parent’s death, right to succeed
to child’s property
57
Best interest principle
- When making agreements WRT custody/access/etc. must consider best interests of the child
Divorce Act Provisions re: Best Interests:

s16: Custody orders:
- 16(8): Factors – In making an order under this section, the court shall take into consideration only the best
interests of the child of the marriage as determined by reference to the condition, means, needs and other
circumstances of the child.
- 16(10): Maximum Contact - In making an order under this section, the court shall give effect to the principle that
a child of the marriage should have as much contact with each spouse as is consistent with the best interests of
the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is
sought to facilitate such contact.
Family Law Act Provisions re: Best Interests:

s37: Best interests of child:
- 37(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or
contact with a child, the parties and the court must consider the best interests of the child only.
- 37(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be
considered, including the following:
o (a) the child's health and emotional well-being;
o (b) the child's views, unless it would be inappropriate to consider them;
 FLA s202 gives court broad (arguably unlimited) discretion to decide how child’s evidence is
received in a proceeding
 Court in LCT v R(K) proposes ways in which children may participate in a family proceeding:
 FLA s211 report completed by a privately-funded child/family psychologist or related
professional (often very costly)
 FLA s211 report completed by Family Justice Counsellors (although lack of gov’t funding
means the delay in securing such reports can be very lengthy)
 “Voice of the child” report completed by professional trained to interview children and
provide verbatim reports through BC Hear the Child Society
 Appointing counsel for the child (in rare cases)
 Conducting judicial interviews of the children; and
 Admitting evidence of the child’s views from other sources
 In LCT v R(K) views of children were heard through 3 rd party interview w/ children’s
school principal
o (c) the nature and strength of the relationships between the child and significant persons in the child's
life;
 look at degree of bonding between child and caregiver
o (d) the history of the child's care;
o (e) the child's need for stability, given the child's age and stage of development;
o (f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks
parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
o (g) the impact of any family violence on the child's safety, security or well-being, whether the family
violence is directed toward the child or another family member;
 FLA s38 – Assessing family violence: For purposes of s.37(2)(g) and (h), a court must consider:
 (a) nature and seriousness of family violence
 (b) how recently family violence occurred
 (c) frequency of family violence
58
 (d) whether any psychological or emotional abuse constitutes, or is evidence of, a
pattern of coercive and controlling behaviour directed at a family member
 (e) whether family violence was directed toward the child
 (f) whether child was exposed to family violence that wasn’t directed toward the child
 (g) harm to child’s physical, psychological, and emotional safety, security and well-being
as a result of family violence
 (h) any steps the person responsible for family violence has taken to prevent further
family violence from occurring
 (i) any other relevant matter
o (h) whether the actions of a person responsible for family violence indicate that the person may be
impaired in his or her ability to care for the child and meet the child's needs;
o (i) the appropriateness of an arrangement that would require the child's guardians to cooperate on
issues affecting the child, including whether requiring cooperation would increase any risks to the
safety, security or well-being of the child or other family members;
o (j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
- (3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible,
the child's physical, psychological and emotional safety, security and well-being.
- (4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a
factor set out in subsection (2), and only to the extent that it affects that factor.
- Additional factors relevant to BIOC:
o Cultural heritage of child: race, culture, or aboriginal heritage should be given weight, but aren’t
determinative of BIOC
2011 Report on Best Interests  court relies heavily on this expert report in determining BIOC:
- Orders respecting reports
- 211 (1) A court may appoint a person to assess, for the purposes of a proceeding under Part 4 [Care of and Time
with Children], one or more of the following:
o (a)the needs of a child in relation to a family law dispute;
o (b)the views of a child in relation to a family law dispute;
o (c)the ability and willingness of a party to a family law dispute to satisfy the needs of a child.
- (2) A person appointed under subsection (1)
o (a) must be a family justice counsellor, a social worker or another person approved by the court, and
o (b) unless each party consents, must not have had any previous connection with the parties.
- (3) An application under this section may be made without notice to any other person.
- (4) A person who carries out an assessment under this section must
o (a) prepare a report respecting the results of the assessment,
o (b) unless the court orders otherwise, give a copy of the report to each party, and
o (c) give a copy of the report to the court.
- (5) The court may allocate among the parties, or require one party alone to pay, the fees relating to an
assessment under this section.
Approaches to BIOC and maximum contact: (Young v Young)

- Max contact principles is not absolute – only to extent it is consistent with BIOC
o But key difference between majority and dissent WRT BIOC
- Majority = focus on maximum contact  sees max contact as main factor in BIOC
o Test regarding access = BIOC (custodial parent has no “right” to limit access)
o Contact with each parent is valuable and should be maximized
o Failure of child to consent to instruction on the part of the access parent does not necessarily preclude
such instruction's being in the child's best interests.
59
o Policy favoring activities that promote meaningful relationship not displaced unless substantial risk of
harm to child (not knowing who father really is detracts from meaningful relationship)
o To limit access, must show substantial risk that the child's physical, psychological or moral well-being
will be adversely affected
 Introduces a sort of “risk of harm” test such that access/max contact = default UNLESS evidence
of harm/risk
o Conflict between parents on matters including religion cannot be assumed harmful unless produces
prolonged acrimonious atmosphere
- Dissent = max access is goal but just one factor in BIOC; BIOC is positive right
o Role of access parent = interested observer  right to know, no right to be consulted
o In the BIOC and parent to remove or mitigate sources of ongoing conflict that threaten to damage or
prevent meaningful relationship
o BIOC not just right to be free of demonstrable harm  positive right to best possible arrangements in
circumstances of the parties
Young v Young, [1993] 4 SCR 3: Mom has custody of 3 children, dad has access but not allowed to talk to children about
Jehovah’s Witness without mom’s consent bc 2 children begin developing stress from dad’s JW pressure; TJ found not in
BIOC so barred JW discussion; should restriction on religious limitation be removed? YES – Charter right to freedom of
religion only overridden if its exercise would lead to consequences more than inconvenience, upset or disruption to child
and incidentally to custodial parent; benefits to children knowing their father as he was – a devout JW; access may be
limited in some circumstances on grounds unrelated to harm, but these were lawful discussions and no evidence that
harm was caused to children
Making orders for custody and access – Divorce Act
Authority/types of orders:
DA s16: Custody orders
- s16(1) – authorizes court to make order  application by either spouse allows court to make order respecting
custody or access to children of marriage, including interim orders (16(2))
- 16(3) – Third party cannot make order without consent of court
- 16(4) – court may order joint custody or grant access
- 16(8) – only factor to consider in making orders under s16 is best interests of child, considering condition,
means, needs and circumstances of child
- 16(9) – past conduct irrelevant unless affects present ability to act as parent
- 16(10 – maximum contact consistent with best interests and child’s willingness
Policy: Critiques of joint custody arrangements:

- Requires significant contact between divorced parties – challenging to move on
o Can create source of increased hostility and sometimes violence for some families
- Young v Young dissent – joint custody arguably a “triumph of optimism over prudence”
- Typically doesn’t work well for low-income families
- Parenting coordinators may be useful in this context, but accessing their services can be very costly (recall guest
lecture John and Rebecca)
- Young v Young dissent – idea that it is a misnomer to assume joint custody really results in joint custody –
substantively still sole custody (care and control really still remain w/ one person)
Considerations in making orders – BIOC:

- Per s16(8), BIOC is the ONLY consideration a court should weigh in making an order for custody or access – BIOC
to be determined by reference to the condition, means, needs and other circumstances of the child
60
o s16(10) – Maximum contact - in making an order for custody/access, court shall give effect to the
principle that a child of the marriage should have as much contact w/ each spouse as is consistent w/
BIOC
 Young v Young recognizes that this is the only factor Parliament has noted as informed BIOC –
but notes that the goal of maximum contact is not absolute – won’t be appropriate where
evidence suggests that maximum contact would otherwise conflict w/ BIOC
 Rationale for maximum contact: psychologically valuable for children to have contact w/ both
parents; beneficial for everyone if there’s more care available for children; preservation of
family bonds
o Can rely on FLA s37(2) BIOC factors by analogy when doing BIOC analysis under DA, but need to note
that they are not legislated under DA
- Per s16(9), in making a custody/access order, 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
Denial or limit of access:

- Custodial parent’s wishes aren’t the ultimate criteria for access limitations and a custodial parent has no right to
limit access unless the court considers the limitation to be in the best interests of the child (Young v Young)
Custody orders in difficult parenting scenarios:
L(DM) v L(DB), 2016 BCSC 925: parents had tumultuous relationship since birth of son; mother talks badly about father in
front of son; father claims son at risk of emotional abuse; how should parenting arrangement be made? Joint custody –
on custody consideration, courts only consideration = BIOC; past conduct not relevant unless affecting current ability to
act as parent; max contact principle not absolute; child shows attachment to both parents
Variation of custody/access orders:

- DA s17 – Variation, Rescission or Suspension of orders
o (1) A court of competent jurisdiction may make an order varying, rescinding or suspending,
prospectively or retroactively,
 (b) a custody order or any provision thereof on application by either or both former spouses or
by any other person
o (2) Only spouses may make application under (1)(b) w/o leave of the court
o (5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself
that there has been a change in the condition, means, needs or other circumstances of the child of the
marriage occurring since the making of the custody order or the last variation order made in respect of
that order, as the case may be, and, in making the variation order, the court shall take into consideration
only the BIOC as determined by reference to that change
Making orders for custody and access – Family Law Act

- Use terms “guardianship” (instead of “custody”) and “contact” (instead of “access”); create “parenting
arrangements”
Establishing/ordering guardianship:
- FLA s39 – Presumptions re: guardianship – Parents are generally guardians
- (1) While a child’s parents are living together and after child’s parents separate, each parent of child is child’s
guardian (i.e. child’s biological parents are presumptively guardians w/o needing a court order)
o H(ST) v G(RM), 2013 BCPC 114: provincial court interpreted section 39 as creating default position. Court
stated that “in circumstances where parents lived together after the birth of their child and then
separated, there is no need for the parents to apply for guardianship bc they are statutorily deemed to
be the child’s guardian”
61
o Rashtian v Baraghoush, 2013 BCSC 994: court further clarified that “s39(1) creates a default position of
joint guardianship unless court orders or parties agree otherwise”
- (2) Despite (1), an agreement or order made after separation or when parents are about to separate may
provide that a parent isn’t child’s guardian
- (3) A parent who has never resided w/ his/her child isn’t child’s guardian unless one of the following applies:
o (a) a person is a parent under s30
o (b) parent and all of the child’s guardians make an agreement providing that the parent is also a
guardian
 NOTE: only a parent can become guardian through agreement (FLA s50) everyone else needs
a court order (see FLA s51 below)
o (c) parent regularly cares for child
 This = most common way
 This section intended to refer to a parent who has demonstrated a continuing willingness to
provide for the child’s ongoing needs and a record of “usually” or “normally” doing so in fact
(M(AAA) v BC)
 A once-a-year visit will not qualify as “regular” (M(AAA))
 NOTE: in M(AAA), the fact that the father did not “regularly care” for child in the
requisite sense was the result of circumstances beyond his control – he tried to do so,
and cannot have been reasonably expected to do more than he did  in the
circumstances, the court said that he had brought himself w/in s39(3)(c) and declared
him a guardian – suggests that showing your intention to “regularly care” may be
sufficient
- (4) Marrying/entering marriage-like relationship w/ child’s guardian doesn’t automatically make you a guardian
- FLA s51 – Orders respecting guardianship:
- (1) On application a court may
o (a) appoint a person as a child’s guardian, or
o (b) except in case of a director who is a child’s guardian under Adoption Act or CFCSA, terminate a
person’s guardianship of a child
- (2) Applicant under (1) must provide evidence to court re: best interests of child as described in s37
- (3) Sub (2) applies regardless of whether there’s consent to the application under s.219
- (4) If a child is 12 or older, a court must not appoint a person other than parent as child’s guardian w/o child’s
written approval, unless satisfied that the appointment is in best interests of child
- (5) A person who has custody of a child under 54.01(5) or 54.1 of CFCSA is deemed, for purposes of this Act, to
be a guardian appointed under (1)
M. (A.A.A.) v. British Columbia (Children and Family Development), 2015 BCCA 220: Father from Saudi Arabia on temp
working visa; met drug addict, took her in, relatively long relationship, had child together; mother said good person but
could not be a father, should continue studying; mother didn’t put his name on birth certificate and gave up her rights;
father had genetic testing and later name added to birth certificate BUT already had another guardian listed by that
point (Director); child put into fostering family where father saw child 3-10 times then put up for adoption in AB with
half-sister; father initially not given access, asked to provide parenthood plan, eventually getting some supervised
access; should father be granted guardianship status? YES- parent per FLA s26(1) BUT not under s39 UNLESS (c) regularly
cares for child OR s51 in BIOC; fulfilled s39(c) bc even though very limited visits/care, this was due to limitations on
access, not for lack of trying; demonstrated willingness
Parenting arrangements (FLA s40):

- Only a child’s guardians have parental responsibilities toward and parenting time with a child (s40(1))
- Each guardian may exercise all parental responsibilities WRT a child and must do so in the BIOC and in
consultation with child’s other guardians, unless an order or agreement provides to contrary (s40(2))
- Per s.40(3) parental responsibilities may be allocated under an agreement or order so that they are exercised by
62
o (i) one or more guardians only, or
o (ii) each guardian acting separately or all guardians acting together
- No particular parenting arrangements should be presumed to be in BIOC, including that parental responsibilities
or parenting time should be shared equally or that decisions should be made separately or by more than one
guardian together (s. 40(4))
o But NOTE: s39(1) creates default position that when parents separate, both are guardians with extensive
set of parental responsibilities, unless agreement or order provides otherwise
Parenting time (FLA s42):

- 42 (1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under
an agreement or order.
- (2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise,
the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control
and supervision of the child.
Parenting time in contested divorce: (Van Kooten v. More)

- May order parties to maintain common exchange journal
Van Kooten v. More, 2013 BCSC 1076:

Parties cohabitated for almost 11 years; V left family home with son and never returned; V alleged M hit her or tried to,
M denied violence; V gave some access to M over time but when no supervisor available for supervised visits, cancelled
and did not look to restart; eventually child with mother during the week and father on weekends but V preventing
access for 3 weeks; equal parenting time in best interests of child bc:
- V’s inability to engage with M and attempts to thwart communication
- V’s attempt to block access – equal parenting in BIOC
- Final decision-making to M bc V non-cooperative
Contact agreements/orders:
- FLA s58 – Agreements respecting contact
- (1) A child’s guardian and a person who isn’t a child’s guardian may make an agreement respecting contact with
a child, including describing the terms and form of contact
- (2) An agreement respecting contact with a child is binding only if the agreement is made between all of a child’s
guardians having parental responsibility for making decisions re: with whom child may associate
- (3) A written agreement re: contact with child that is filed in court is enforceable under this Act as if it were
order of the court
- (4) On application by a party, the court must set aside or replace w/ an order made under this Division all or part
of an agreement re: contact w/ child if satisfied the agreement isn’t in best interests of child
- FLA s59 – Orders respecting contact
- (1) On application, a court may make an order re: contact wtih a child, including describing terms and form of
contact
- (2) A court may grant contact to any person who isn’t a guardian, including w/o limiting the meaning of “person”
in any other provision of this Act or a regulation made under it, to a parent or grandparent
- (3) Court may make an order to require the parties to transfer the child under supervision of, or require contact
w/ the child to be supervised by, another person named in the order if the court is satisfied that supervision is in
best interests of the child
Considerations in making orders – BIOC:

- FLA s37 – Best interests of child
- (1) In making an agreement or order under this Part re: guardianship, parenting arrangements or contact w/ a
child, the parties and the court must consider the best interests of the child only
63
o See above for factors to consider in assessing BIOC
Parents gender or sexual identity:

- The fact that a person has transitioned is not a material reason to vary a custody order (Forrester)
o However, may be “back door methods” where transitioning leads to mental health issues such as
depression that affect ability to parent/put child first
- Once mental illness enters into remission or under control, should nto affect a custody determination bc does
not impact child (Forrester)
Forrester v. Saliba, 2000 CarswellOnt 2835: parties cohabitated for approx. 3 years, had one child; F disclosed she was
trans and relationship broke down; F suffered from depression; is gender identity sufficient to constitute a material
change warranting changes to custodial agreements? NO – fact that a person has transitioned has no bearing on a
custody order BUT claims existing about mental state may be relevant; although there were mental health issues with F,
at this point child doing well, healthy relationship with both parents, psychiatrist opinion says F is doing well and
continue to be good parent
PARENTAL ALIENATION
Alienation = situations where parent’s hostility and negative feelings toward a former partner influence the child and
lead the child to reject a parent, thereby making access difficult or impossible to exercise
- Highly gendered
- Per FLA s37, view of the child matters  more relevant the older the child gets (LCT v RK, 2018 BCSC 1016)
o Even where alienation, child’s view still matters
- WRT expert testimony, social science journals not enough – need evidence that can be investigated (LCT)
- Remedies where court finds alienation: (LCT)
o Detailed case management
o Court ordered therapeutic intervention
o Change custody orders
- Even where alienation found, as long as alienating parent remains custodial parent, not much court can do (LCT)
Parental Alienation Relevant to Trans Parents:

- Despite positive precedent (Forrester v Saliba), overwhelming majority of participants who were parents before
coming out or transitioning reported challenged with child custody and access.
- Some custody battles took place in formal family court settings, but were other means through which
participants’ access to their children was limited or denied. For some participants, this was through
discriminatory divorce agreements.
- Parental alienation = informal/practical barrier: not specific to trans parents; describes situations when a child’s
attitude toward a trans parent worsens through ongoing exposure to another parent’s transphobia – often the
parent the child is residing with.
- Parental alienation used as a weapon for years
-
GUEST LECTURES
Indigenous Individuals and Family Law: Property Division and Adoption
FHRMIRA (Family Homes on Reserves and Matrimonial Interests or Rights Act):

- Purpose = allowing equal division of assets between parties on reserve; ensure that spouses residing on an
Indian reserve obtain a fair division of real property assets upon the breakdown of a marriage
o One party MUST be status Indian
- FHRMIRA in place until band creates its own laws re: family property on reserve
64
- EPOs not available in BC b/c of lack of “designated judges”
o AG has said that FLA is sufficient to cover EPOs and therefore appointment of DJs isn’t necessary
o Denial of EPO remedy per s. 16 FHRMIRA to class of persons in BC = Charter violation based on class
 3 provinces in Canada have appointed designated judges
Toney v Estate of Toney, 2018 NSSC 179: applicant wife married to Indian band member at time of his death; applicant
wife held certificate of possession for property left to her in husband’s will; due to non-Indian, non-band member status
applicant was not eligible to inherit the certificate of possession; applied under FHRMIRA for order of indefinite
exclusive occupation of property; ORDER GRANTED; RATIO: exclusive possession of a home on reserve land can be given
to someone who is not a band member under certain circumstances  factors to consider in granting exclusive
occupation in this case:
- Applicant’s age, medical condition (she had MS), financial situation, and years spent living at the property;
- Deceased had left his entire estate to the applicant, with the property being the only property of significant
value in the estate; and
- Deceased and the applicant had put significant effort and money into improving the property in a permanent
way over a period of 30 years
Bradfield v Bridges, 2016 BCSC 189: TB executor of mothers estate; TB seeking declaration that NB vacate property bc
NB is non-Indian and not entitled to live on reserve without permit; NB claims as common-law spouse of TB’s mother,
entitled to half of her estate at that as vulnerable person entitled to remain on property for remainder of life; TB
successful – DECLARATION TO VACATE GRANTED  relevant FHRMIRA provisions nto applicable to NB bc came into
force after spouse died
LS v BC, 2018 BCSC 255: shows that removal of children based on aboriginal heritage/assumption that indigenous pe
rsons cannot parent properly still happens; Director of Child, Family and Community Services “must establish that she
has been active and diligent in attempting to find other alternatives to removing a child before a final determination that
there are no other less disruptive means of protecting the child”, and that the “least disruptive means” must be viewed
from the child’s perspective, which includes that the child be “spared as little disruption and emotional distress as
possible; decision to place the baby in care was based on a racist, paternalistic approach to child welfare – called the
ruling a win for the newborn and said such judgments are rare at this stage of the legal process
Child protection legislation:

- “Jordan’s Principle” = basically: fund the needs of a child now and let government figure it out who is
responsible (i.e., feds vs. province) later; key = first and foremost, fund children’s needs
- FN communities continue to struggle to provide adequate housing, necessities, etc. – even in urban centres we
still have these problems of inadequacy  leads to removal of indigenous children at crazy high rates
Alternative Dispute Resolution

- Allows parties to have hand in negotiating fundamental agreements
- Clients need healthy holistic approaches that minimize stress and long-term effects
- Key benefit to collaborative approach = leaving it to experts  lawyers don’t try to act as financial experts, child
experts, etc.
ADR under the FLA:

- FLA s1 sets out definition of “family dispute resolution” (including mediation, arbitration, collaborative family
law and other processes) and “family dispute resolution professional”
- FLA explicitly encourages the use of conflict dispute resolution mechanisms
o FLA Part 2: Resolution of Family Law Disputes – s4(b) states purpose of Part 2 is to encourage parties to
family law dispute to resolve dispute through agreements and ADR
o Explicit encouragement to use ADR will be added to new DA (see below)
- Party to family law dispute must disclose all relevant info – need frank and full disclosure(FLA s5(1))
65
- Agreements made by parties in family law disputes should generally be respected (FLA s6)
- Family dispute resolution professionals have duty to conduct family violence assessments – if family violence
appears to be present, must consider extent to which it will affect safety of party and ability to negotiate
agreement (FLA s8(1))
- Family dispute resolution professionals have duty to discuss different options for dispute resolution that are
available (FLA s8(2))
- Family dispute resolution professional must consider best interests of child (FLA s9(3))
- Time Limits:
o 2-year time limit for parties who qualify as spouses under the FLA WRT claims for property or spousal
support
o If parties are participating in formal ADR process with professional, timeline is suspended
Divorce Act s7.7(2): Duty to discuss and inform

(2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce
proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support
order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to
assist the spouses in negotiating those matters.
 This provision will be amended in the new Divorce Act to clarify specific duties – legal advisors must:
- encourage clients to try a family dispute resolution process, unless inappropriate
- inform clients of family justice services that can help to resolve matters or comply with their obligations under
the Act
- inform clients about their duties under the Act
ADR options:
- Kitchen table agreements
o Essentially couples just talking with each other directly and try to come to agreement themselves
o May cut/paste separation agreement from internet (bad idea!)
o Instead, should take an informal agreement (kitchen table agreement) to a lawyer who can draft that
into a separation agreement
o If parents have made an informal agreement that has become routine for children, that cannot be
changed without consent (of who?)
o Both parties should be getting independent legal advice to be sure they know what they’re signing, and
should have lawyer drafting the agreement
- Mediation
o Couple may jointly retain a mediator (neutral third party) to help resolve things – just the 3 people
involved – parties will jointly retain/share costs of mediator
o Good mediators will advise parties to get independent legal advice
o Lots of ppl do this with family justice councillors (free resource)
o Lawyer mediators may actually draft the agreement w/ parties, but won’t sign it with them (go get other
lawyers to do that)
o Non-lawyer mediators can’t do this?
 May specialize in parenting, finances, etc.
o Interest-based mediators will be seeking/asking about what the parties are actually seeking/wanting
(the motives, objectives, etc.)
o Evaluative mediators – trying to move the 2 goal posts closer together – can be somewhat arm-twisting
- 4-Way settlement agreement/lawyer negotiated agreements
o The success of this process will highly depend on who opposing counsel is
o Can resolve issues via letters, phone-calls or 4-way settlement meeting
o Counsel assists with disclosure and difficult areas
66
- 5-way
o Parties, their lawyers, and a mediator
o Often good where other side is being unreasonable or opposing counsel is being difficult
o Need to note expense: client then paying for lawyer and half the mediator
- Arbitration
o Must have at least 10 years’ experience as family lawyer
o Often arbitrators = mediator-arbitrators
- Parenting coordinators
o Often where agreement has been reached between parties, but still need assistance going forward w/
parenting
o Very helpful where things arise in course of executing the agreed shared parenting arrangement, and
the parties can’t agree on that issue – PC can make decision
- Unbundling services
o Can simply be to provide some legal advice to person while they’re in mediation (e.g. mediator tells
parties to go get some advice on SS calculations)
o May be attending mediation w/ someone
o Can just be sending a demand letter
o Can be just drafting pleadings
Collaborative law:
- All collaborative lawyers must be mediators (must do that formal training), must have specialized collaborative
training, and must maintain their professional training
- Uses multidisciplinary model with divorce/parenting coaches, child specialists, and financial neutrals
- Focussed on settlement model – lawyers commit to procedure that avoids litigation
- MUST have a Participation Agreement
o Key elements
 Parties agree no court proceedings
 Agree to good faith negotiations, honest/full disclosure
 Good faith requirement binds the lawyer as well as client (still can’t breach
confidentiality but need to be pushing client to put everything on the table, and
can/should w/draw if they refuse)
 If client tells lawyer something they do not want shared with other party, lawyer MUST
withdraw from process – cannot withhold info but cannot violate lawyer-client privilege
 If one/both parties withdraw or lawyer must withdraw, neither lawyers (or firms) may continue
to act as counsel going forward
 Communications and negotiations in the “spirit of settlement”
 Outside professionals used to assist (e.g., child specialists, business valuators)
 Only completed and signed agreements can be enforced  only once you have final signed
agreement is process complete
o NOTE: some people use the word “collaborative” to refer to something that isn’t actually this process –
unless there’s a PA signed by parties and lawyers, you’re not technically engaged in this process
- Who is eligible?
o Low-conflict couples may only need basic independent legal, financial and/or counselling advice
o May be some high conflict cases, or situations shrouded w/ significant domestic violence or mental
health issues, where the collaborative process may not be a realistic option
o Majority of cases in middle of conflict resolution spectrum – collaborative process ideal bc:
 Maintains a tone of respect between the parties
 Focuses on best interests of the children
 Acknowledges past while recognizes future goals and needs
67
 Prioritizes parties needs through listening and communication
 Allows parties to control process and outcome
 Requires creativity and cooperation to ethically resolve matters
 Removes “threat” of court/adversarial process (“if you don’t take what I am offering you, I will
just take you to court”)
- The process
o Both parties retain collaborative lawyers
o Individual and 4-way meetings
o Coaches
 Divorce coaches can be useful even where there are no kids
- Structure of the meetings
o Agenda – try to exchange this ahead of time – usually up to parties to determine how meeting proceeds,
but lawyers will help guide
o Safety – always ensure safety of the room
o Respectful/functional communication
o Outside professionals
o Interim and final agreements may be reached
- Challenges
o IAPC stats say 90% of collaborative processes will conclude successfully w/ settlement agreement
o 10% fall out of process (litigation, ADR)
o Domestic violence
 Jon says he hasn’t yet had a case where there is too much domestic violence to still handle a
case collaboratively
o Mental health issues
o Cost
 Some criticisms that it is cost ineffective – Jon says yes, it is expensive, but argues that compared
to litigation process, etc. it is still better than going to court
Domestic Violence
- Advocates for contextual approach to assessing/addressing claims of domestic violence
- Historically great skepticism re: credibility of women and children making complaints about violence by
father/husband
- 1985 Divorce Act – still in force
o Physical and mental cruelty continue to be evidence of marriage breakdown justifying divorce
o Domestic violence may be considered in relation to best interests of child, but still not explicitly named
as concern re: post-separation orders/parenting, etc.
o Introduction of “maximum contact” – often the “as is consistent w/ best interests of child” provision
here gets minimized – can be problematic where there’s domestic violence/risk thereof
 Cannot blindly follow “aspirational beliefs” that maximum contact is ideal
 Tension between co-parenting and protection from family violence
o We still lack provisions linking domestic violence to post-separation parenting or safety, security, and
well-being generally  left to the discretion of individual judges and lawyers
o There’s a general view that violence ends after separation and that it isn’t relevant to post-separation
parenting
 Family violence, especially coercive, controlling violence, often does not end w/ separation
 Can escalate and increase risk at time of separation
 There’s significant overlap between family violence and child abuse
 Perpetrators of family violence can be poor role models
 Victims may be undermined in their parenting roles
68
- Takes serious issue with the idea of women being mandated to attend mediations or participate in negotiation
processes – in her lecture, she cited professor Susan Boyd’s argument that women should have the ability to
choose the dispute resolution mechanism that best protects their interests, including going directly to court
o She emphasizes the impacts of family violence on women in these contexts – family violence is likely to
exacerbate women’s tendencies to agree to things out of intimidation
o Often women will give up valuable things in negotiations in order to get custody, as a violent partner is
likely to use this as a bargaining tool
o Many women don’t raise the issue of violence b/c they’re afraid that they’ll be accused of trying to
alienate the father from the children, rather than trying to protect them, and end up losing custody
o NOTE: see notes re: Rebecca and Jon’s lecture – re: s. 8 FLA – family dispute resolution professionals
have obligation to assess extent to which family violence may adversely affect party’s ability to negotiate
a fair agreement – arguably helps to mitigate this concern
- Very strongly advocates for participatory rights of children in proceedings
New provisions under bill C-78:

- Similar definition of family violence as FLA
- Factors to be considered
o Talks about impact
- No presumption of joint parenting (unlike the FLA)
o Some view as shortcoming
- Controversy of maximum parenting time/maximum contact
o Not substantially different but more nuanced now
o Child should have as much contact as is consistent with the best interests (new provision says this) – this
is better but still concerned bc sometimes decisions will just say “TJ didn’t take maximum parenting time
into account”
- Duty of legal advisors – issue bc women need to have a way to go directly to the court if that is what they
choose to do after proper legal advice
LEAF (Women’s Legal Education and Action Fund) brief on C-78:

- Positive aspects of C-78:
o S16(1) Courts only to take into consideration best interests of child in making parenting orders
o S16(2) courts to give primary consideration to child’s physical, emotional and psychological safety,
security and well-being
o S16.92(2) relocation
o Listing “history of care” and requiring consideration of family violence in best interests of child factors
o S16(3)(e) requirement to consider child views and preferences  perspectives of children inextricably
linked to best interests
- Revisions still required:
o Assumption of maximum time with each parent where women cannot show risks of future harm (in
family violence situations)
o Recommend revising definition of family violence and rewording some factors in s16(3)  remove or
adjust factors (c) and (i) to account for situations of family violence
o Revise any wording addressing past conduct to ensure consideration of pat practices relating to
parenting
o Remove maximum parenting time s16.2(1) – fear it will trump focus on safety, security and well-being of
children
o S16.2(3) day to day decisions may impose parallel parenting as a default position which is an issue in
family violence cases – current section makes it difficult for one parent to complain about inappropriate
use of other parent’s parenting time
69
o Some concern with relocation provisions
o S7.3 and 7.7 WRT family dispute resolution process discourage access to courts and require women to
prove entitlement to access courts; duties imposed on lawyers to encourage women to attempt to
resolve matters through ADR unless clearly not appropriate conflicts with ethical responsibility to
effectively represent legal interests – already a sufficient ethical duty on lawyers to encourage
settlement
 Generally a great thing to encourage mediation but…
 Numerous concerns identified WRT willingness or ability of women to participate in negotiation
process
 Women need to have a choice about which dispute resolution method they want to use
- Recommend additional consultation with family violence experts prior to implementation
ADDITIONAL POLICY MATERIALS
Privatization - the “private welfare function”

- Arguably most important function of family law
- Families function to care for those that cannot care for themselves – in so doing, they privatize the support – if
families were not doing this, the gov’t would have to intervene (especially key re: aging population, for e.g.)
- Important to think of this as driving force behind many family law policies (e.g. providing for surviving spouse,
etc.)
Topics relating to privatization

- Decline of the nuclear family
o Much of our law is premised on an assumption of the normalcy of the nuclear family, but this is arguably
not responsive to or reflective of actual circumstances
 2016 Census Report told us that one-person households = most common type of household for
the first time ever  the law has largely tended to require spouses to care for one another in
many circumstances  we may need to reassess the privatization of care and support if fewer
people are engaging in marriages/marriage-like relationships
 Movement away from nuclear family
 Role of the state in determining who is a family
 Beyond Conjugality – see s. on Nonmarital Families re: idea of gov’t recognizing status of non-
conjugal co-habitants as means of privatization
 Margaret Wente article – see p. 4
- Legalization of same-sex marriage
o Same-sex marriage consistent w/ value of privatization (even though basis for this = Charter)  we
place significant burdens of care on spouses, so this codified recognition of the legitimacy of same-sex
partnerships and marriages is consistent w/ the state’s desire to shift the burden of caring for individuals
onto intimate partners
- Property division schemes
o FLA’s presumption of equal division – strives to ensure that both spouses have assets and means to fall
back on following the dissolution of marriage, in order to avoid state responsibility for either party’s
welfare
 This equal division presumptively applies regardless of contribution
o L’Heureux-Dube’s dissent in Nova Scotia v Walsh alludes to the state desirability of privatization as a
reason to extend the applicability of provincial matrimonial property division regimes to unmarried, CL
70
couples – doing so is a way of shifting state responsibilities onto private parties following the dissolution
of a marriage-like relationship
 NOTE: majority in Walsh held that it did not violate s. 15 to exclude CL couples from these
schemes b/c doing so is a means of recognizing and respecting the choice of such couples to
remain outside that regime
o Unjust enrichment as means of making sure ppl are getting property/being cared for even where they’re
not falling under FLA scheme
o *State has a stake in how much contractual freedom to allow parties in negotiating agreements re:
property division, etc. in event of separation/divorce  want to limit the extent to which the burden
will fall on the state if a party isn’t self-sufficient as a result of an agreement (s. 93 FLA)authorizes court
to set aside agreements on basis of either procedural or substantive unfairness)
 Similarly, s. 95 allows courts to divide property unequally where equal division would be
“significantly unfair”
 Lahdekorpi
o Court ordered unequal division – more money for wife b/c she didn’t have
means to support herself and didn’t have same funds as husband
- Spousal support obligations
o Spousal support orders are recognized by L’Heureux-Dube J in Moge v Moge as a means of preventing
poverty that may otherwise flow from divorce or relationship breakdown, typically experienced most
gravely by women – economic hardships (gender income/wealth gaps) stem from occupying the role of
primary caregiver in a relationship  following divorce or relationship dissolution, support orders are a
means of placing the burden of alleviating the effects of poverty on the other spouse, rather than on the
state, at least to some extent
o This is reflected especially in situations like that in Bracklow, where the court turns to order support on
the basis of need rather than compensation – non-compensatory support
 Privatization supports and informs an understanding of marriage according to a Social obligation
model  consistent w/ idea that marriage is a potentially permanent obligation – parties have
promised to support each other forever  this theory supports basis for need-based support
- Child support obligations
o Especially note that courts can award support for children over age of majority in some circumstances
 In cases of illness/disability - fact that they have disability benefits doesn’t mean parents don’t
have to support them too
o Imposition of CS obligations on step parents in some situations, despite some compelling arguments
against this (although there is arguably a good balance being struck re: when these obligations will be
imposed)  providing for children is a social good
 What are some arguments for NOT finding that step-parents should have to pay?
 Often parties will marry for short periods of time – should they be responsible for long
term obligations stemming from a short-term marriage?
 Arguably imposing obligations for step-children is disincentivizing of taking on a parental
role in step-child’s life – idea that we don’t want to dissuade ppl from getting into
blended families for fear of obligations
- Indigenous child welfare
o Interesting that despite the state interest in privatization, more is not being done to address the crisis of
overrepresentation of indigenous children in care
- Adoption
o Struggle to find homes for older children, those w/ disability, those of racial minorities (see p. 37)
Gender
- Spousal support
71
o Feminist arguments re: non-compensatory support
o Compensatory being recognition of women’s contributions
- Custody
o “Joint custody” can still end up being basically sole custody
o No presumptions that mom should automatically be custodial parent
- Domestic violence
- Negotiations/agreements/bargaining power
- Presumption of advancement
- Recognition of work in the home
- Property division – presumptively equal regardless of contribution
o But note that courts have discretion to order unequal division
- Surrogacy
Vulnerable persons
- Surrogacy – current regime of criminalization
- Polygamy – criminalization
- Women (see above re: gender)
- Trans parents still worse off
- Plural relationships – 3rd parent sometimes left in vulnerable positions
- Indigenous ppl on reserve w/o access to EPO
- Indigenous children and child welfare system
- Immigrants/marginalized persons – differing cultural values/perspectives (Agnes’ lecture)
- Self-reps
- Children
o Donna Martinson discussed the need for child-centred approach
o Rarity of appointing lawyer for child
o Different ways of getting the views of the child
Autonomy/choice
- Expanding definition of spouse
- Plural relationships
- Freedom of contract
- Opt-in vs. opt-out
Terminology of bill c-78 – An Act to amend the Divorce Act

- Includes definition of family violence
- Primary consideration to child’s physical, emotional, and psychological safety, security and wellbeing while
considering what is BIOC
- One factor is each spouse’s willingness to support the development and maintenance of child’s relationship w/
the other spouse
- Presume that we consider child’s views/preferences, giving due weight to child’s age/maturity unless views
cannot be ascertained
o Instead of “unless it would be inappropriate”
- Doesn’t include specific things that aren’t to be presumed (unlike FLA) and retains maximum contact
- New duty on lawyers to encourage the person to attempt to resolve matters through a family dispute resolution
process, unless the circumstances of the case are of such nature that it would be clearly inappropriate to do so
o I.e. would require lawyers to be more pushy than they are now
Best interests of the child:
72
- Bill c-78 has exclusive focus on best interests of child in parenting matters
- Definition of best interests of the child updated in new Act
o Current DA: s16(8) Factors – In making an order under this section, the court shall take into
consideration only the best interests of the child of the marriage as determined by reference to the
condition, means, needs and other circumstances of the child.
o Revised DA: s16 Best interests of child:
 16(1) – The court shall take into consideration only the best interests of the child of the
marriage in making a parenting order or a contact order.
 16(2): Primary consideration – When considering the factors referred to in subsection (3), the
court shall give primary consideration to the child’s physical, emotional and psychological
safety, security and well-being.
 16(3): Factors to be considered – In determining the best interests of the child, the court shall
consider all factors related to the circumstances of the child, including…
- Introduces list of factors  best interest criteria (s16(3)):
o 1) Child’s needs, given the age and stage of development, such as child’s need for stability
o 2) Nature and strength of the child’s relationship with each spouse, siblings, grandparents and other
important persons
o 3) Each spouse’s willingness to support the development of the child’s relationship with the other
spouse
o 4) History of care of the child
o 5) Child’s views and preferences
o 6) Child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous
upbringing and heritage
o 7) Any plans for the child’s care
o 8) Ability and willingness of each person in respect of whom the order would apply to care for and meet
the needs of the child
o 9) Ability and willingness of each person in respect of whom the order would apply to communicate and
cooperate
o 10) Any family violence
o 11) Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security
and well-being of the child
Changes in parenting terminology:

FLA Present Revised DA
DA
Guardianship (FLA s. 39) Custody Decision-making responsibility DA 2(1)
Contact (FLA s. 58) Access Parenting time
The actual job of parenting: exercise of “parenting order” s. 16.1(1) allocating decision-making
“parental responsibilities” (FLA s. 41) responsibility and parenting time;
Guardians’ time with a child: “parenting Parenting time: the allocation of access to a parent including
time” (FLA s. 42) exclusive authority to make day-to-day decisions affecting a
child
2(1) “decision-making responsibility”

”decision-making responsibility” means the responsibility for making significant decisions about a child’s wellbeing,
including in respect of
(a) health;
(b) education;
(c) culture, language, religion and spirituality; and
73
(d) significant extra-curricular activities;
 Shared decision-making desirable but in high conflict situations one parent has final say
2(1) “parenting order”, “parenting time”

”parenting order” means an order made under subsection 16.1(1);
 Can set out parenting time
”parenting time” means the time that a child of the marriage spends in the care of a person referred to in subsection
16.1(1), whether or not the child is physically with that person during that entire time;
Maximum contact/maximum parenting time:

- New act preserves principle that child should spend as much time with each parent as is consistent with best
interests BUT principle now subject to primary consideration:
o Court must consider a child’s physical, emotional and psychological safety, security and well-being above
all else. This may be particularly important in cases of family violence.
- Current DA: s16(10): Maximum contact – In making an order under this section, the court shall give effect to the
principle that a child of the marriage should have as much contact with each spouse as is consistent with the
best interests of the child and, for that purpose, shall take into consideration the willingness of the person for
whom custody is sought to facilitate such contact.
- Revised DA: s16(6): Maximum parenting time – In allocating parenting time, the court shall give effect to the
principle that a child should have as much time with each spouse as is consistent with the best interests of the
child
- Policy: pros/cons of retaining presumption of max contact
o Pros: new Act, need time to determine parenting schedule based on circumstances; men disadvantaged
bc entrenches prior view favouring mother rather than BIOC  “tender year presumption” that children
under age 7 should go to the mother
o Cons: puts burden on one party to show not in best interests; puts pressure on women; connection
between child support and custody which leads to push to equal parenting even where not in BIOC
Past Conduct:
- Current DA: s16(9): Past conduct – 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.
- Current DA: s16(5): Past conduct – In determining what is in the best interests of the child, the court shall not
take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their
parenting time, decision-making responsibility or contact with the child under a contact order.
74

Family Law Can: Professor Aloni - December 2019

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Family Law Can: Professor Aloni - December 2019

Uploaded by

Copyright:

Available Formats

Professor Aloni – December 2019

FAMILY LAW CAN

DISSOLUTION OF RELATIONSHIPS - DIVORCE...............................................................................................16

NONMARITAL FAMILIES, CHARTER AND INCLUSION IN PROPERTY REGIMES................................................27

Why should the state intervene?

5 Functions of family law (Carl Schneider):

Marriage today vs. Marriage in past:

Four trends in history:

Why are demographics/family composition relevant?

2016 Census Report:

JURISDICTION & SOURCES OF FAMILY LAW

Federal and provincial family law

Constitution Act 1867 - Division of Powers

Federal government control over marriage and divorce:

Other sources of jurisdiction

ESSENTIAL AND FORMAL VALIDITY:

Essential validity: same-sex marriage

Landmark cases prior to Reference Re Same-sex Marriage (2004):

Divorce for non-resident same-sex couples:

Essential validity: multiple partners

Bigamy vs. Polygamy:

Annulment vs. divorce:

FLA s. 21: Void and voidable marriages:

Void vs. voidable marriage:

Duress – forced and arranged marriages:

Misrepresentation and Mistake:

Prohibited degree of consanguinity & affinity:

Marriage (Prohibited Degrees) Act s2-3:

Civil Marriage Act s2.2: Minimum Age:

Marriage Act s28-20:

Marriage Act s2, 7-9, 15-18, 25, 28-30:

Name Act s3: Use of surnames on marriage:

DISSOLUTION OF RELATIONSHIPS - DIVORCE

Ordinarily resident = discretionary question

Per s11 of Divorce Act: 4 bars to divorce:

Living Separate and Apart per s8(2)(a) Divorce Act?

FLA has own definition of what constitutes separation per s3:

Date of separation under FLA:

Adultery – Divorce Act s8(2)(b)(i):

Cruelty – Divorce Act s8(2)(b)(ii):

Removal of barriers to religious marriage

Divorce Act s21.1(1): Definition of spouse

Divorce Act s21.1(2): Affidavit re removal of barriers to religious marriage

Duty of legal advisor

Per s9 of Divorce Act: Duty of legal advisor

FLA working scheme – property and debt:

Prerequisites for claims under FLA Part 5 – Property Division:

Definition of family property

FLA s84: Family property

Examples of Family Property:

Per FLA s 85(1) excluded property includes:

Dividing excluded property per FLA s96:

FLA Tracing Provision:

Transfers of excluded property between spouses

Cases finding presumption of advancement still exists:

Cases NOT following presumption of advancement:

Valuation of property and debt and unequal distribution

FLA s86: Family debt:

FLA s87: Valuing family property and family debt:

Determining fair market value: Maguire v Maguire, 2016 BCCA 431

FLA s95: Unequal division by order:

Methods of dividing a pension plan: