CANADIAN LAW AND

LEGAL INSTITUTIONS
FAMILY LAW
CRIM 135 F2023
CAMIA WEAVER
FAMILY LAW IN CANADA
Family law, like criminal law, reflects changing societal values

Examples of areas where changes have occurred due to changing values:

• definition of “family”
• capacity to marry (age in particular)
• recognition of marriage between same sex partners
• recognition of spousal obligations in the absence of formal marriage (i.e. in common law
relationships)
• promotion of “no fault’ divorce
• promotion of shared parenting
• Spousal support
SPLIT JURISDICTION
Federal power:
Marriage and Divorce – s. 91(26)
- including support, property, custody, guardianship, property division in divorce

Provincial power:
Solemnization of Marriage – s. 92(12)
appointment of marriage commissioners

Property and Civil Rights – s. 92(13)

support of spouses
custody, guardianship and adoption of children
PROVINCIAL VS. FEDERAL JURISDICTION

Jurisdiction for family law is shared between the federal and provincial levels of
government:
the federal government has authority over divorce and custody, support, division of
property, etc. ancillary to divorce
the provincial government has jurisdiction over all other family matters where
there is not a divorce – including all of the same matters except an actual divorce
 types of relationship coming under : common law, parentage alone, adoption, legally married
but only separating not divorcing
CAN PROVINCIAL FAMILY COURT DEAL
WITH LEGALLY MARRIED COUPLES?
The short answer is yes – for the most part
Legally married couples may go to Provincial Family Court to resolve issues of
custody, access, support, property division, etc. – basically everything but the actual
divorce - and have the resulting order incorporated into a divorce
Why would they?
 Divorces are under the jurisdiction of the Supreme Court of BC; the process takes
longer to get to court, requires lawyers (usually), and is expensive
 Provincial Family Court is faster, cheaper, does not necessarily require lawyers (but is
less expensive even with a lawyer)
 Federal law (Divorce act) and Provincial law (Family Relations Act) are based on very
similar principles
DIVORCE
HISTORY: DIVORCE ACT 1968
• Historically, spousal obligations and rights only existed within the context of
legal marriage
• Divorces were only granted for a small number of reasons, mostly based on
the fault of one party
• Adultery, sodomy, bestiality, rape, bigamy
• Physical and/or mental cruelty
• Imprisonment, addiction (without prospect of rehabilitation), failure to
consummate
• Desertion (3+ years)
• Separation for 5+ years
CURRENT: DIVORCE ACT 1985

• Amendments in 1987 and 2015 regarding custody and shared parenting

• Introduced “no fault” divorce after separation of one year
• Periods of cohabitation up to 90 days for purposes of reconciliation did not
interrupt the period of separation
• A few other grounds still existed:
• Adultery – although difficult to prove if no admission
• Mental or physical cruelty rendering intolerable the continued cohabitation of
the spouses
SUPPORT
TYPES OF SUPPORT

There are generally two kinds of support in family law:

Child support – both parents are responsible for the financial

support of their children in all cases

Spousal support – spousal support (previously known as alimony) is

financial support of one spouse by the other in certain situations
CHILD SUPPORT
The Federal Government has created Child Support Guidelines that apply across the country
based on:
 income of the paying parent
 where the paying parent lives
 number of children
These guidelines apply under both Federal law (Divorce Act) and Provincial law (Family Law
Act)

the amount of support a parent pays is based only on their own income and circumstances,
not on the finances and income of the other parent. That is, even if the custodial parent is
rolling in money you would still pay the same amount of support based on your income.
This is based on the concept that each parent has a duty to contribute to the care and
support of their child(ren).
LIMITATIONS AND VARIATIONS OF CHILD
SUPPORT
Child support will be adjusted outside of the guidelines for special circumstances,
e.g.
Shared custody (minimum 40% of time with each parent)
Undue hardship to the Payor
Extraordinary child expenses
The Payor is a step-parent
Parents may make an agreement for support of children, but a court determine
whether the agreement is fair and that the support is in line with the guidelines

Child support generally ends when a child reaches the age of majority, but may be
extended if the child is disabled or is in school (usually the latter is to age 25 only)
SPOUSAL SUPPORT
“…the (spousal) support provisions in the
(Divorce) Act are intended to deal with the
economic consequences, for both parties, of the
marriage and its breakdown…

An examination of the economic position of single

mothers is …useful in assessing the effects of
dissolution of marriage since about 30% of single
mothers are divorced…in 1987, about 57 percent
of single mothers lived below the poverty line…”
Moge v. Moge (1992)
SPOUSAL SUPPORT
A Court may order one spouse to pay to the other such lump or periodic sums (or both) as
the court thinks reasonable for the support of the other spouse
Can be for a definite period, an indefinite period, or until a specific event occurs (e.g.
children reach adulthood or finish school, the payee parent completes education or
training, finds stable employment, etc.)

Considerations for determining spousal support:

• the “condition, means, needs and other circumstances of each spouse”, which includes, e.g.:
 Length of cohabitation
 Functions performed by each
 Any order, agreement or arrangement relating to support of each spouse

But shall not take into consideration any misconduct related to the marriage
CONSIDER THE DIFFERENCES BETWEEN
A “TRADITIONAL” MARRIAGE AND A “MODERN” MARRIAGE

Traditional Modern
• One spouse works while the other takes • Both spouses work, “share” domestic
care of “domestic” duties, including child duties, hire and share childcare
rearing, household maintenance, shopping, • Presumably both/either can work overtime,
cooking, etc. get training/education, get promotions and
• Working spouse can work overtime, take raises, etc. – but depends on the particular
situation
training/education, get promotions and
raises, etc.
• Home spouse is out of workforce for
extensive periods, has no independent
source of income, has no current skills, is at
entry level of employment , may be older
and less likely to get education or good job
due to age
OBJECTIVES OF SPOUSAL SUPPORT: SS. 15(6)
AND 17(7)
The Divorce Act specifically lists as objectives for the court to consider:
a) Recognition of economic advantages/disadvantages from the marriage or its
breakdown;
b) Apportionment of financial consequences of childcare over and above child
support;
c) Relief of any economic hardship arising from the breakdown of the
marriage;
d) In so far as is practicable, promote economic self-sufficiency of each spouse
within a reasonable period of time;
Specifically excluded from consideration is any misconduct of a spouse in
relation to the marriage: s. 15.2 (5)
ECONOMIC ADVANTAGES/DISADVANTAGES

• the economic advantages/disadvantages may arise from the breakdown of marriage or from
the marriage itself.
• if A works to support the family while B completes years of education for a professional
qualification, A may have suffered economic disadvantage in not pursuing their own
education to further their own career while B gained economic advantage of being
supported during their education allowing them to progress in their career.
• The same goes for a spouse who has taken on most domestic and child rearing
responsibilities leaving the other spouse free to focus on career advancement (travel,
late meetings, overtime, etc.)
• Promoting “economic self sufficiency…within a reasonable period of time” is clearly a goal
but will take into account what is “practicable”. This will differentiate between the capacity of
each individual and what is reasonably practicable in their circumstances.
MOGE V. MOGE [1992] 3 S.C.R. 813
SCC Justice L’Heureux-Dube (for the majority of the Court):
a) Courts have traditionally distinguished between “traditional” and “modern” marriages
when determining spousal support
• The former being where the wife stays home to raise the children and is responsible for
domestic aspects of marital life
b) The court looks at the effect of the marriage in either impairing or improving each
party’s economic prospects
c) The analysis applies to both spouses, depending on how the division of labour is
exercised in a particular marriage
Justice McLaughlin (concurring):
When considering whether economic hardship arises from the breakdown of the
marriage, the starting point is the comparison of the spouse’s actual situation before and
after the breakdown
ECONOMIC HARDSHIP FROM
MARRIAGE BREAKDOWN
• What might these hardships look like?
• Lower standard of living for the spouse who earns less
For example:
• Loss of accommodations (home)
• Loss of transportation and other amenities
• Loss of income and/or greater income insecurity, e.g. when child is sick or otherwise
unable to go to childcare

Separate is more expensive than shared – everything costs more and is more difficult; the
standard of living after breakdown is seldom the same for both spouses, especially when
one is main custodial parent
ENFORCEMENT OF SUPPORT
• in BC the Family Maintenance Enforcement Program (a free service of the
Ministry of Attorney General) may enforce payment of child and spousal support
• Why?
• many single parents live in poverty which in itself is a serious social problem,
and one that should not occur where the other parent has the ability and
responsibility to support child(ren) and ex-spouse.
• A second factor may be that court orders should be enforced, and a parent in
poverty cannot afford to undertake enforcement themselves.
• A third factor is that those single parents who are not receiving support
payments may end up requiring government services and support (e.g. welfare),
becoming a burden on taxpayers when that is rightfully the responsibility of the
other parent/spouse.
ENFORCEMENT MEASURES

• FMEP has the power to:

 attach wages, EI, bank accounts, and other sources of income
 cancel or prevent renewal of a driver’s licence
 prevent a motor vehicle registration being issued or renewed
 suspend a passport or federal licence such as pilot’s licence
 report unpaid maintenance to a credit bureau
 summons the payor to a default hearing in court
 issue a lien against the payor’s personal property or land
 CUSTODY
NOW KNOWN AS
“PARENTING ORDERS”
UNDER THE DIVORCE ACT 1985
Custody of and access to children of a marriage have until now been
covered very briefly in the Divorce Act, and did not provide much
guidance to courts

The sole consideration for decisions on custody and access was:

“the best interests of the child…as determined by reference to the
condition, means, needs, and other circumstances of the child”

And specifically could 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
RECENT IMPORTANT CHANGES TO THE
DIVORCE ACT
Changes were made to the Divorce Act in effect March 2021
These changes:
• promote “the best interests of the child” by providing a list of specific factors to consider, by
making the language more child focused, and dealing with change of residence issues
• address family violence by taking violence into account when making parenting orders, and
by considering any other court proceedings or orders (e.g. criminal “no contact” orders) to
avoid conflict
• help to reduce child poverty by providing more tools for enforcement of support orders and
reducing costs of going to court
• make Canada’s family justice system more accessible and efficient by using provincial
services rather than court for calculating and varying child support orders, and by requiring
legal advisors to promote the use of mediation and similar services to resolve disputes
outside of court
1. PRIMARY CONSIDERATION:
BEST INTERESTS OF THE CHILD
Specific factors that a court must now consider:
• The main considerations are the child’s physical, emotional and
psychological safety and wellbeing
• other factors include:
• the nature and strength of the child’s relationships with parents,
grandparents, and other important people in their life
• the child’s linguistic, cultural and spiritual heritage and upbringing,
including Indigenous heritage, and
• the child’s views and preferences
• There is no one-size-fits-all parenting arrangement. Courts will be
required to order parenting time to each parent based on the child’s
best interests.
2. FAMILY VIOLENCE
Previously, family violence was not specifically named as a consideration in parenting
arrangements, unless it was toward the child
• In the Divorce Act family violence is now defined as any conduct that is:
• violent
• threatening
• a pattern of coercive and controlling behaviour
• causes a family member to fear for their safety
• directly or indirectly exposes a child to such conduct
• Therefore any of these – even if not directed at the child – may now be taken into account
• Before making parenting, contact or support orders, courts will need to consider
any other proceedings or orders involving any of the parties, including criminal
domestic violence charges, restraining orders, etc.
FAMILY VIOLENCE (CONT’D)
 Physical abuse – except in self defence or defence of others
 Sexual abuse
 Threats to kill or injure another person
 Harassment and stalking
 Failure to provide the necessities of life
 Psychological abuse
 Financial abuse – includes forcing someone to work or not letting them work,
blocking someone from accessing their bank account, withholding money or controlling
how they spend it, incurring debts in someone’s name without their knowledge
 Threats to kill or harm an animal or damage property
 Actually killing or harming an animal or damaging property
A NEW FAMILY LAW FINANCIAL CLAIM?
The case of Ahluwalia v. Ahluwalia, 2022 ONSC 1303 the Petitioner made a novel claim: for damages in
relation to the Respondent’s alleged abuse during the marriage

Justice Mandhane accepted the claim, awarding the Petitioner $150,000 on this basis:
“The marriage was violent. The damages suffered cannot be compensated through spousal support. The
Divorce Act prohibits family violence from being compensated through an award of spousal support. In
light of recent trends and current research, it is important that our law recognizes the tort of family
violence. Family violence is a social issue that has been criminalized. There needs to be a corresponding
civil remedy.” (@ para 4)
And:
“allowing a family law litigant to pursue damages for family violence is a matter of access to justice. It is
unrealistic to expect a survivor to file both family and civil claims to receive different forms of financial relief
after the end of a violent relationship”
AWLUWALIA DECISION APPEALED

The decision was appealed to the Ontario Court of Appeal, where it was overturned
The Court was reluctant to create a new tort in these circumstances, saying that rapid and
dramatic changes are the work of the legislature, while changes in the common law are
slow and incremental
Moreover, courts cannot recognize novel torts where there are adequate alternative
remedies – here, the appellant’s abusive conduct could be adequately addressed through the
existing torts of battery, assault, and intentional infliction of emotional distress.
Even so, the appeal court found that the divorce action was an appropriate forum for raising
torts arising from the relationship, and that a pattern of abuse will result in higher awards.
- the court awarded the respondent $100,000 in compensatory and aggravated damages.
B.C. PROVINCIAL LEGISLATION
THE FAMILY LAW ACT 2011

The Family Law Act makes the best interests of the child the only consideration
when decisions affecting the child are made. The act expands the best interests
of the child test to include:
• The history of care of the child
• The impact of family violence on the child’s safety, security or well-being
• The child’s views, unless it would be inappropriate to consider them, and
• Any civil or criminal proceedings relevant to the child’s safety and well-
being
 OTHER NOTABLE HIGHLIGHTS OF
THE FAMILY LAW ACT

1. An emphasis on supporting parents in resolving family matters out of court :

• Establishment of Family Justice Centres to provide
• free services to families going through separation or divorce
• Staffed by specially trained Family Justice Counsellors
• Help families with parenting arrangements, contact with a child,
guardianship, and support issues
• Provide short-term counselling, mediation, emergency and community
referrals and other free services.
 OTHER NOTABLE HIGHLIGHTS OF
THE FAMILY LAW ACT
2. Increasing the ability of the court to deal with family violence by:
• Defining family violence
• Legislating risk factors considered in parenting cases involving violence
• Making the safety of children a key goal of the “best interests of the child” test
• Creation of “protection orders” – limiting contact and communication
between family members where there is a safety risk and making breaches of
these orders a criminal offence.
• defining “weapon” and “firearm”
• specifically authorizing judges to prohibit individuals from possessing
documents necessary to legally own or possess a weapon or firearm.
 OTHER NOTABLE HIGHLIGHTS OF
THE FAMILY LAW ACT
3. Time with a Child
• helps ensure children have time with their parents
• Provides a range of remedies and tools for non-compliance that will ensure
parents receive – and follow through on – parenting time they are given,
including:
 participation in family dispute resolution or counselling;
 reimbursing expenses such as travel, child care, lost wages by the parent unable to
have time with the child; and
 payment of a fine by the parent denying time with a child by the other parent.
 OTHER NOTABLE HIGHLIGHTS OF
THE FAMILY LAW ACT
4. Determining Parentage
establishes a much needed framework for determining a child’s legal parents,
including where assisted reproduction is used.
With the advent of surrogacy*, in vitro fertilization, freezing of eggs, sperm,
and fertilized embryos this has become a complicated area of law
Some of the issues that arise include:
 who owns frozen embryos upon breakdown of the relationship?
 does a surrogate ever have rights in relation to the child?
 Does it matter whose sperm and egg are used?
 Parentage in polyamorous relationships
CHANGES TO THE BC FAMILY COURT RULES

An Order in Council made June 2020 made changes to the Family Court Rules
The purpose of these rules (per s. 1) is to encourage parties to resolve their cases by agreement
or to help them obtain a just and timely decision in a way that
(a) takes into account the impact that the conduct of a case may have on a child and family,
(b) minimizes conflict,
(c) promotes cooperation between the parties, and
(d) provides processes for resolution that are efficient and consistent with the complexity of
the cases to be resolved.
The new Rules include requirements for parties to participate in a variety of processes in an
attempt to resolve family matters by consent without going to court. These processes include
“early resolution”, needs assessment, parenting education, and consensual dispute resolution.
SOCIETAL CHANGES AND THE IMPACT ON
FAMILY LAW
Society and the nature of family has changed significantly over the past 50 years
resulting in new legal issues
• The issues and considerations outlined in the 1970s cases regarding the sexual
orientation of a parent are no longer notable or exceptional
• Defining parentage has become more complicated:
• Surrogacy and sperm donation lead to issues of defining parentage and parenting rights
• The same is true for new forms of family – including e.g. polyamorous* arrangements
• Reproductive science – including the freezing of eggs, sperm, and embryos - has led to
new challenges in family law to deal with ownership and “use” of same
• The one standard that does and likely shall remain stable however is the
paramountcy of the best interests of the child