@ Table of Contents

THE FAMILY LAW CONTEXT___________________________________________________________________________________________3

A BRIEF HISTORY OF FAMILY LAW________________________________________________________________________________________3
CONSTITUTIONAL AND PROCEDURAL CONTEXTS______________________________________________________________________________3
VALIDITY OF MARRIAGE______________________________________________________________________________________________4
DIVORCE______________________________________________________________________________________________________________7
HABITUALLY RESIDENT__________________________________________________________________________________________________7
RECOGNITION OF FOREIGN DIVORCE_______________________________________________________________________________________8
GROUNDS FOR DIVORCE_________________________________________________________________________________________________8
BARS TO PROCEEDING__________________________________________________________________________________________________11
UNMARRIED COHABITANTS__________________________________________________________________________________________12
PROPERTY__________________________________________________________________________________________________________12
UNJUST ENRICHMENT:__________________________________________________________________________________________________13
NET EQUALIZATION__________________________________________________________________________________________________14
TRACING AND COMINGLING_____________________________________________________________________________________________16
VARIATION OF SHARE__________________________________________________________________________________________________17
PENSIONS____________________________________________________________________________________________________________18
IMPLEMENTING EQUALIZATION PAYMENTS_________________________________________________________________________________19
THE MATRIMONIAL HOME____________________________________________________________________________________________20
EXCLUSIVE POSSESSION________________________________________________________________________________________________21
SALE OF HOME:_______________________________________________________________________________________________________22
CHILD SUPPORT______________________________________________________________________________________________________23
STEPPARENTS:________________________________________________________________________________________________________24
CHILD SUPPORT GUIDELINES_____________________________________________________________________________________________25
DETERMINING INCOME_________________________________________________________________________________________________26
SPECIAL AND EXTRAORDINARY EXPENSES (S7S)_____________________________________________________________________________27
ADULT CHILDREN:_____________________________________________________________________________________________________27
HIGH INCOME EARNERS:________________________________________________________________________________________________29
SPLIT CUSTODY:______________________________________________________________________________________________________29
UNDUE HARDSHIP_____________________________________________________________________________________________________30
REASONABLE ARRANGEMENT____________________________________________________________________________________________31
VARIATION:__________________________________________________________________________________________________________31
RETROACTIVE CHILD SUPPORT:__________________________________________________________________________________________32
SPOUSAL SUPPORT___________________________________________________________________________________________________32
LOW END VS HIGH END________________________________________________________________________________________________35
SSAGS:_____________________________________________________________________________________________________________36
VARIATION___________________________________________________________________________________________________________38
PARENTING__________________________________________________________________________________________________________39
PRESUMPTION OF SHARED PARENTING_____________________________________________________________________________________39
WHEN WILL COURT ORDER ASSESSMENT?_________________________________________________________________________________39
PARENTING PLAN______________________________________________________________________________________________________39
DECISION MAKING MODELS:_____________________________________________________________________________________________40
MATERNAL PRESUMPTION:______________________________________________________________________________________________41
PARENTAL CONDUCT___________________________________________________________________________________________________41
RELATIONSHIPS WITH NEW PARTNERS:_____________________________________________________________________________________42
GRANDPARENTS SEEKING ORDERS:________________________________________________________________________________________43
RACE AND CULTURE___________________________________________________________________________________________________43
VIEWS AND PREFERENCES OF THE CHILD:__________________________________________________________________________________44
NON-PRIMARY RESIDENCE PARENTS______________________________________________________________________________________45
HIGH CONFLICT SEPARATIONS:___________________________________________________________________________________________45
CO-PARENTING STRATEGIES____________________________________________________________________________________________46
VARIATION IN PARENTING:______________________________________________________________________________________________48
DOMESTIC VIOLENCE________________________________________________________________________________________________48
DOMESTIC CONTRACTS______________________________________________________________________________________________50
VARIATION OF AGREEMENTS____________________________________________________________________________________________53
APPENDIX: VALIDITY TABLE__________________________________________________________________________________________55
Topic 1a:
THE FAMILY LAW CONTEXT
A Brief History of Family Law

Timeline of Events:
 English Common Law (1750s): husband and wife are one person in law – husband could not be charged with rape, husband
had right to custody of children,
 Lady Caroline’s Act (1839): mother could seek custody
 English Matrimonial Causes Act (1857): introduction of judicial divorce
 Married Women’s Property Act (1880): right of women to own property and sue
 Law Reform (1960s/1970s): Divorce Act added no fault divorce, decriminalized homosexual acts, Family Law Reform Act
gave presumptive equal sharing of family assets, limited spousal status to unmarried cohabitants,
 Modern Day (1978-2023) Formal gender equality in marriage, either spouse can seek support, government enforced child
support, equal treatment for children in & out of wedlock

Topic 1b:
THE FAMILY LAW CONTEXT
Constitutional and Procedural Contexts

The Charter:

Section 91: Federal Powers Section 92: Provincial Powers

 Marriage and Divorce s91.26  Solemnization of marriage in the province s91(12)
o Capacity to marry o Custody access, child/spousal support,
 Divorce Act property rights
 Family Law Act

Both Federal/Provincial
 Child support
 Spousal support
 Parenting orders
Express conflict, paramountcy prevails

 Section 7: Security of the person gives indigent parents right to state paid counsel in child protection cases where state is a
party
 Section 15: end of illegitimacy claims, basis of claims to same sex marriage, influence on rights of unmarried cohabitants

The Court System:

Section 96 Courts (superior) Provincial Courts
Ontario Superior Court of Justice Ontario Court of Justice
 Divorce, custody under DA, child support under DA,  Enforcement of FLA child support, spousal support
spousal support, and exclusive jurisdiction over (CLRA), exclusive jurisdiction over adoption and
property issues child protection
 NOT orders under Divorce Act, or property related
matters
 Family Law Act
Unified Family Courts
 Divorce, FLA Property & Common law support,
Custody and Access, Enforcement and Variation,
Child Welfare and Adoption
Duty of Lawyers: discuss with spouse the advisability of negotiating the matters that may be the subject of a support order or a
parenting order and to inform the spouse of mediation facilities that might be able to assist the spouses in negotiating those matters
 Encourage clients to negotiate outside court process (negotiation/mediation) unless it would clearly not be appropriate to do so

Advantages to Settlement Disadvantages to Settlement

 Usually better for children/relationship  Potential for unfairness
 Cheaper, less stressful  Domestic violence concerns
 More flexible  Emotional vulnerability
 More likely to be respected  Desire to “get it over”
Topic 2:
VALIDITY OF MARRIAGE

Why does the law regulate marriage? Rights & obligations arise upon a marriage – support for a fundamental social
institution and protection for those that rely on marriage (women and children)
Should the State “get out of marriage?
o Argument: It should not be through controlled sexuality by marriage, the law and social policy should focus on the
positive role that relationships play in society and aim to provide the conditions for the establishment and maintenance of
adult relationships
 Issues: difficult to define “adult relationships” , marriage is a major profit for governments

Reference Re Same-Sex Marriage (2004)(SCC)

Q: Can officiants be required to perform marriages that are contrary to their religion?
A: NOT valid federal law (provincial solemnization of marriage). BUT in very strong obiter said freedom of religion guaranteed by
the Charter would protect priest, churches etc.. Never claimed by gay advocates that any priest etc. should be forced to perform
ceremony - but answer from SCC intended to assure religious groups.

Polygamous Marriage: having more than one spouse is illegal in Canada but group sex between consenting adults is not illegal
in Canada (1993, SCC)
o Legal in many countries under Sharia Law – many immigrants come to Canada without disclosing polygamous
relationship status
o In Canada concerns about FLDS under-age girls being coerced into marriage and concerns about “lost boys” from
Fundamentalist Mormon communities
o On one hand supporting women’s freedom to choose, on the other, protecting vulnerable youths

Statistics on Polygamous Marriages:

o Worse outcomes for women than monogamy
o Some women publicly support, but research raises significant concerns about competition between spouses, abuse &
exploitation
o Very few women in private interviews are enthusiastic, and most report varying degrees of pressure from
husband/community
o But some women clearly want this type of marriage
o Higher levels of spousal abuse
o Generally worse outcome for senior wives - economic, emotional and sexual “replacement

BC Reference Case on Polygamy 2011 BCSC 1588 (p. 111)

• upheld constitutional validity of Criminal Code s. 293. Court accepted that s. 293 is a restriction of freedom of religion BUT
justified under Charter s. 1 to prevent harm to women & children.
Annulment is a declaration that a marriage never legally existed- based on a defect that exists at the time of the marriage ceremony
and prevents marriage from coming into existence
 Void: decree of nullity declares there was never a marriage (ex lack of mental capacity). This can be applied for after
death of one party
 Voidable: marriage was valid until court declared it void (lack of ability to consummate) - only one party can seek
annulment and must be done while both alive

Presumption of Validity: law presumes marriage is valid – onus is on person attacking validity of marriage to rebut the
presumption
 Essential validity- legal capacity of the parties to marry (federal jurisdiction)
 Formal validity – ceremonial requirements (provincial jurisdiction)
o if you have a destination wedding, issue about the ceremony would be Cuban jurisdiction for
example but validity of the marriage would still be Canadian jurisdiction

Ability to Consummate - Voidable - Incurable ability to have sexual intercourse – very low bar for incurability – if
you've tried and failed a few times, that's enough – marriage is voidable. Only applies to heterosexual relationships.
(1) Impotence must exist at time of marriage
(2) Must render intercourse “impractical”
(3) May stem from physical, or mental or moral disability - may be “psychological repugnance” eg in arranged
marriage to person who turns out to have serious record of offending
(4) Must be “incurable”

Norman v Norman (1979)(ON)

Facts: parties were married at 64 and 65 years old – he was unable to achieve erection, she seeks annulment on grounds of inability to consummate
marriage
Issue: valid grounds for annulment?
Rule: court must be satisfied that the reason for annulment is impotency
Analysis: wife testified that main reason for relationship was companionship – they are separating because of a dispute but she would have stayed
with him if they couldn't have sex
Conclusion: no annulment

Prohibited Degrees - Void - Consanguinity: relationship by blood – in order for two persons to marry they can't be
within a prohibited degree of blood relation or relation by marriage (affinity). Prohibited if related lineally or
as brother/sister, half-brother/sister, including by adoption.

Prior Existing Marriage Degrees – Void- A prior existing marriage of either party at the time of second marriage
invalidates the second marriage

Meszaros v Meszaros (1969) (ON)

Facts: Wife married first husband – he deserted her and claimed he had a wife in Russia. She did not hear from him for over 7 years so she filed an
order declaring that he was dead. She then married her second husband and he kicked her out.
Issue: is either marriage valid?
Rule: strong presumption that parties who have lived together and held themselves out as man and wife are validly married – may be
rebutted by evidence of a prior marriage.
Analysis:
 Hearsay evidence to russian wife is insiffucient to rebut presumption
 Marriage certificate from first marriage is sufficient to rebut presumption of valid second marriage
 If first husband was still alive at time of second marriage, it would be void.
 No evidence to suggest he was alive at that time – second marriage valid
Conclusion: valid second marriage

Consent to Marry – Void- Marriage is a “very simple contract, one which does not require a high degree of intelligence
to comprehend. It is an engagement between a man and a woman to live together, and love one another, as husband and
wife, to the exclusion of all others.” Lack of capacity or voluntariness may result in annulment. – Durham v Durham

Tanti v Tanti (2020) (ON)

Facts: elderly man began relationship with younger woman who he hired as a caregiver. They dated for a significant period of time and he asked her
to marry him. His son protested because he stated she was just after his money. They eventually married anyway. Wife returned home, son had
changed the locks on her house and files for annulment.
Issue: is marriage valid?
Rule: to have capacity to marry, parties must understand the nature of the marriage contract and the duties and responsibilities that flow
from it
Analysis:
 Long-term relationship prior to marriage
 No evidence of cognitive incapacity prior to marriage
 Neither officiant or witnesses expressed concern about his ability to understand marriage vows
 Lawyer who issued POA saw no cognitive impairments that voided his consent
Conclusion: valid marriage

MA v BB (2018) (ON)
Facts: wife went through Muslim marriage ceremony in which her father gave her consent to marry her husband. She was never asked if she wanted
to marry. She testified that she was fundamentally opposed to the marriage but felt pressure to participate in the ceremony
Issue: can marriage be annulled?
Rule: incapacity to resus cultural or familial pressures to marry is grounds for annulment for non-consent
Analysis:
 Woman did not say any words acknowledging capacity to marry
 She acquiesced by signing the application for the marriage license and by going to the mosque
 She had no alternative but to participate in the marriage
Conclusion: no consent to marry

Limited Purpose Marriage - Valid: Marriage is valid unless fraud or mistake results in a operative mistake ie. As to nature of
ceremony or identity of person
 Mistake about quality, motive, pregnancy does not render a marriage voidable
 Immigration purpose marriage is valid under family law but for immigration purposes, must be a "genuine" marriage. -
valid marriage for family, not enough for immigration.

Formal Validity: If the parties married in good faith, intended to comply Ontario Requirements
with the Act, are not under a legal disqualification (have capacity and not 1. License or banns
within prohibited degree), and lived together as a married couple, the 2. Registered officiant or judge
marriage will be deemed valid despite missing a formal requirement. - 3. Ceremony of marriage
Ontario Marriage Act s31  Both present
 Capacity and consent
 Two witnesses
Good Faith: for all purposes of the FLA, “SPOUSE” means either of two 4. Registration
persons who:
a) Are married to each other [valid marriage]
b) Have entered into a marriage that is voidable or void in good faith on part of the person asserting a right under this Act
-Family Law Act s1.1(1)
 Isse v Said (2012) ON
Facts: Islamic wedding ceremony according to Sharia law without marriage licence – marriage not registered as required by Marriage Act
– separated 8 years later, husband disputes validity of marriage. Wife says it never occurred to her that it was necessary to have a license and be
registered in the province of Ontario
Issue: can the marriage be "deemed valid"?
Rule: 4 necessary elements for deeming provision to apply:
1. Marriage must have been solemnized in good faith
2. Marriage must have been intended to be in compliance with marriage act
3. Neither party was under legal disqualification to contract marriage
4. Parties must have lived together and cohabitated as a married couple
Analysis:
 It is conceivable that neither party would know the requirements of the Marriage Act – they would only be expected to know that there is some
law in effect in the province regarding solemnization of marriage
 #2 should be interpreted to mean in compliance with the law.
Conclusion: valid marriage - saved by s31 of Marriage Act
Hassan v Hassan (2006) (AB)
Facts: parties participated in a "vakil" - a proxy marriage ceremony valid under Sharia law in Alberta in 1984. Husband was in Saudi Arabia and
participated by proxy – wife was in alberta but not in the room, she was represented by a male relative. Alberta would not grant a marriage certificate
but they received a letter from Pakistan, and a marriage certificate from the Nikah register stating they were married in 1984. They separated, man
commenced application in Alberta for a share of matrimonial home – she took position marriage was a nullity
Issue: is the marriage valid despite not complying with provisions of Marriage Act of Alberta?
Rule: a marriage that does not comply with the formality requirements may be recognized as a valid common law marriage when:
(a) it is impossible to conform to the local form of marriage or
(b) where the parties have not submitted to the local law
Analysis:
 Parties clearly intended to contract a valid marriage and lived together – representing their status as married to government authorities but there
was a defect in formalities (unregistered officient and proxy marriage) so AB determined parties were never validly married in Canada –
declared marriage void.
Conclusion: judgement for wife – void marriage
Class Notes: Proxy marriage not saved under Marriage Act s 31

Topic 3:
DIVORCE

Habitually Resident: either spouse must have been habitually resident in the province
Divorce Act s3(1)
in which proceeding is brought for at least 1 year 3(1) A court in a province has jurisdiction to hear and
determine a divorce proceeding if either spouse has
Residency Factors: been ordinarily resident in the province for at least
 Where party works one year immediately preceding commencement of
 Spends most time proceeding
 Dwelling, furniture
 Intentions of party – connecting links (driver’s license, tax returns, family residence, other
property in jurisdiction)
 Relationships with others in jurisdiction
Hinter v Hinter (1996) (ON)
Facts: wife commenced two actions against husband in Florida and one in Ontario claiming a divorce – husband disputes jurisdiction of ontario court because she is not a resident of
Ontario
Issue: what does ordinarily resident mean for Section 3(1) of the Divorce Act?
Rule: ordinarily resident is to mean the location the individual "regularly, normally or customarily lives" the arrival of a person in a new locality with the intention of
making a home in that locality for an indefinite period makes that person ordinarily resident of that community
Analysis:
 Lived in florida since she left matrimonial home – not fixed any time limit
 Exclusive possession of condo in florida, relationship with man there
 Home in toronto is stripped of contents
Conclusion: wife is ordinarily resident of Florida
Bryn v Mackin: H&W lived in BC with children, he was transferred for work in Montreal, lived in apartment leased by company and spent most of
his time there. W & kids continued to live in BC, H filed tax returns in BC and he regularly spent time in matrimonial home in BC. H petitioned for
divorce in QC but was denied because was considered habitually resident of BC.
*if both parties move out of province of joint residence after separation, possible that there is no province of habitual residence, advice would be to wait to
file application.
 Recognition of Foreign Divorce: Canadian courts will recognize a foreign divorce if it was granted by a court taking
jurisdiction on the same basis as Canada (habitual residence for 12 months) Divorce Act s22(1)(2).
OR if it was granted by a court of a jurisdiction that has a "real and substantial" connection to either spouse. Powell v Cockburn
Canadian courts will NOT recognize a divorce if:
a) Divorce was not obtained consistent with rules of natural justice (notice & participation) Common Law
b) Public policy violated (gender equality) Recognition
Statutory
Recognition
Matter v Elbarbary: Spouses + children born & lived in Novikova v Lyzo Russian spouses + children immigrate to
Sudan but regularly visited Canada. H gets Sharia divorce in Canada, separate. H returns to Russia, obtains for divorce
Sudan – unilateral right of man, no spousal support. W + kids with no support provision but W (in Canada) did not get
move to Ontario, applies for divorce. Application denied – notice of proceedings. Divorce recognized on “real,
Canada recognizes Sudan divorce under s22(1). substantial connection” but denied because of lack of notice
to W.

Al Sabki v Al Jajeh (2019) (ON)

Non-Recognition of Foreign Divorce
Facts: parties were married in Syria and had children there, husband moved to Kuwait then Canada then UAE, then husband moved to Singapore
and wife moved to Canada with children – husband filed for divorce in Syria – paid $4500 per month in child support then stopped paying when
children graduated post secondary.
Issue: should the Syrian divorce be recognized in Canada?
Rule: there is a presumption that a foreign divorce is valid and the onus is on the party alleging its invalidity to adduce evidence to show that the
divorce was not properly obtained.

A court may refuse to recognize a foreign divorce on the grounds of fraud, denial of natural justice or public policy

The fact that the parties were born, raised and married in a country does not satisfy the "real and substantial connection" test when they
have not resided in the country or had any active involvement therein for almost 20 years
Analysis:
 Neither party had domicile in Syria at the time of initiation of divorce – wife was canada, husband was singapore
 Syrian rule does not correspond to Canadian rule – Syria does not require either party to be present to have jurisdiction, in Canada you
need ordinary residence in a province for one year immediately prior to commencement of divorce proceeding
 Parties owned no property or other significant assets in Syria since they left – the only involvement they had was visiting family that
resided there
Conclusion: divorce not recognized here

Grounds for Divorce: Divorce will be granted only if breakdown of marriage - s8(1) Divorce Act
 Living Separate and apart for one year or more – s8(2)(a)
 Adultery of other party – s8(2)(b)(i)
 Cruelty of other party – s8(2)(b)(ii)
 Living Separate and Apart: Most common grounds. Can commence divorce process as soon as parties separate and
only obtain actual divorce after 12 months.

Rushton v Rushton (1968) (BC)

Separate and Apart in Same Dwelling
Facts: couple had a job as caretakers of an apartment complex which required them to live in the building under the same roof. Filing for divorce on
the basis of living separate and apart for one year -
Issue: do they meet separate and apart criteria?
Rule: "separate and apart" mean there must be a withdrawal from the matrimonial obligation with the intent of destroying the
matrimonial consortium as well as physical separation
Analysis:
 The mere fact that they are living under one roof does not mean they are not living separate and apart within the meaning of the act
 they moved into separate rooms, ceased sexual relations and did their own shopping, cooking, laundry – W performed no domestic activities
and led separate, individual lives.
Conclusion: meet criteria for separate and apart

Dupere v Dupere (1974) (NB)

Not Separate and Apart in Same Dwelling
Facts: parties were married with two kids, separated with written separation agreement and moved out of the home then moved back in together and
resumed marital relations for one month. They then occupied separate bedrooms, had no intercourse and stated they only stayed together for the kids.
They did have communication regarding the children.
Issue: do they meet criteria for separate and apart?
Rule: it is likely to find that spouses are living separate and apart where:
A) spouses occupy separate bedrooms
B) absence of sexual relations
C) little if any communication between spouses
D) wife providing no domestic services for husband
E) no social activities together
Analysis:
 separate bedrooms, no sex, separate social lives
 BUT operating as family unit for some purposes – joint care of kids, joint decision making, domestic activities
 Not confident that parties met the above criteria
Conclusion: divorce not granted

Greaves v Greaves (2004) (ON)

Facts: wife left matrimonial home in 91 claiming she was fleeing for her safety, husband continued living in the family home. Parties continued
having some kind of relationship with each other including regular, ongoing sexual relations. Husband claims they separated in 91, wife claims
2003
Issue: when did separation occur?
Analysis:
 Wife intended to separate in 91 – it was clear that there was no reaosnable prospect of reconciliation
 Filed taxes as separated
 8 years with repeated requests to return home and no positive responses
Conclusion: separated in 91
 Adultery: historically required voluntary acts of heterosexual intercourse but now more focus on moral and emotional
betrayal. Defined by case-law.
 Opportunity + Inclination (more opportunity requires less inclination & vice-versa)
 Letters, emails, texts, witness sightings

P.(SE) v P. (DD) (2005) (BC)

Includes same-sex acts
Facts: wife petitioned for divorce on basis that her husband committed adultery – stating he had voluntary sexual intercourse with another man
Issue: is same sex intercourse considered adultery
Rule: adultery is not defined in the Act- it is no longer defined as solely an act of sexual intercourse between a man and a woman where one or both are
married to another person. It should now be defined on a case-by-case basis

Adultery may include same-sex sexual acts.

Analysis:
 Individuals of same sex can now marry and divorce – they should be bound by the same legal and social constraints against extra-marital
sexual relationships that apply to heterosexual spouses.
 Evidence of intimate sexual relationship outside of marriage is sufficient to grant divorce on grounds of adultery
Conclusion: adultery committed, divorce granted

Shaw v Shaw (1971) (NS)

Facts: married man spent a lot of time with a single woman – wife files on the basis of adultery
Issue: is there enough evidence to find adultery?
Rule: proof of adultery depends on the particular facts of the case – it must be fair and reasonable to infer adultery on a balance of probabilities.
Showing opportunity for adultery raises a prima facie case that it has been committed but the inference should not be drawn unless there is some
proof of an inclination to commit adultery
Analysis:
 The fact that the two were seeing so much of each other that there were opportunities to commit adultery is not enough – more is needed to
infer
Conclusion: no adultery
Class Notes:
 The more opportunity you have, the less inclination you need and vice versa

Cruelty: physical or mental cruelty of such a kind as to render intolerable Test for Cruelty
the continued cohabitation of the spouses The cumulative effect of overall course of conduct
must establish:
1. conduct was “grave and weighty” (objective
component)
Knoll v Knoll (1970) (ON) 2. applicant must have some real suffering that
renders cohabitation
Facts: husband drank heavily, and was abusive when he drank - threatening her and being disrespectful. intolerable
Doctor testified (subjective
that it ruined her nerves –
she had high blood pressure, lost 19 pounds component)
Issue: do the actions constitute cruelty?
Rule: causing wanton, malicious or unnecessary infliction of pain or suffering upon the body, feelings, or emotions of the other spouse may
constitute cruelty if it renders intolerable the continued cohabitation of the spouses

•“grave and weighty acts” (objective)

•must take into account the effect of the behaviour on the alleged victim (subjective)
Not necessary to establish intent to be cruel
Analysis:
The cumulative effects must be taken into account – coming home to find husband drunk and absusive, insulting her continuously amounts to mental
cruelty
Conclusion: cruelty

A(I) v D(s) 2009 (AB)

Facts: couple married when she was 17, he was 25 – she files for divorce based on cruelty for several instances of mental and physical abuse. Her
testimony was coroborated by her cousin and friend regarding the physical abuse incidents
Issue: cruelty?
Rule: Test for cruelty is both subjective and objective – before defendant's conduct is considered, the court must first be satisfied that such conduct
itself is capable of causing physical or mental hurt – then the subjective effect of the conduct on the affected spouse must be considered
Analysis:
 Judge did not accept wife's testimony over the husband's because she was "immature" - found no evidence of physical abuse
 Mental abuse was not objectively severe enough to be cruelty
Conclusion: divorce not granted

*refusal to have sex for a younger couple can be considered “cruelty” – Delaney v Delaney

Bars to Proceeding court must satisfy itself that no bars to granting the divorce exist:
Collusion: agreement to fabricate or suppress evidence or to deceive the court – s11(1)(a)

Condonation: express or implied and usually conditional forgiveness of a spouse's wrong – s11(1)(c)

Connivance: act done with corrupt intention to promote or encourage adultery– s11(1)(c)

Reasonable Arrangements for Children: the court must be satisfied that reasonable arrangements have been made for
the support of any children of the marriage. – s11(1)(b)

Savoia v Savoia (2009) (AB)

Facts: husband and wife separated – husband with full custody of children, wife to receive alternate weekends. Wife claims husband makes good
enough money on his own that she does not need to provide support
Issue: are there reasonable arrangements for support?
Rule: to determine where there are reasonable support arrangements:
1. evidence of parties' income is required but not sufficient to establish arrangements
2. information pertaining to social assistance payments is to be considered
3. any agreements reached as to child support must be reasonable in the circumstances
4. evidence as to reasonable arrangements must be fact based. Not subjective opinion
Analysis:
 Husband and wife both provided incomplete or out of date financial statements
 Wife submitted no evidence as to social asssistance of support from her current fiance
 No proposed arrangement for child support
Conclusion: no reasonable arrangement made.

Effective Date of Divorce: generally the divorce automatically takes effect on the 31st day after the day on which the judgment
is granted (unless appeal launched) s.12(1)
BUT if there is an appeal on the issue of the granting of the divorce the divorce takes effect when the time for any further appeal has
expired - s.12(3)
 Responsibilities

Parents
 Parents must exercise parenting time & responsibility in child’s best
interests
o Including each spouse’s willingness to support the
development and maintenance of the child’s relationship
with the other spouse”
 Parents “shall, to the best of their ability, protect any child of the
marriage from conflict arising from the proceedings”
o “To the extent is it appropriate”, parties “shall” try to
use non-court “family dispute resolution process”
o In divorce application, parents must sign statement
confirming that they are aware of these duties on
every document that “commences” a proceeding or
responds to a proceeding.
Lawyer/Court:
Duty of Lawyer: s.7.7(1) unless “clearly not appropriate”:
 (1)(a)draw attention to provisions with the object of
reconciliation:
 s. 8(3)(b)(ii) the 1 year sep & apart not stopped for 90 days
 s. 11(3) not condonation if 90 days cohabitation
 (1)(b) discuss possibility of reconciliation & counselling
facilities known
Duty of Court - s.10 of Divorce Act
 court to satisfy itself “no possibility of reconciliation”
 for affidavit divorce, there is standard printed clause on divorce
application that there is no possibility of reconciliation ->
virtually meaningless.

Topic 4:
UNMARRIED COHABITANTS

PROPERTY At the end of a long-term relationship, there may be a statute-based claim to spousal support but any property claim
can only be made based on unjust enrichment.
1. Property resolution for married spouses presumes equal sharing of financial rights – much more difficult settlement for
unmarried

COMMON LAW Charter Challenges

DEFINITIONS  Excluding unmarried cohabitants from definition of "spouse" was contrary to s15
 Federal legislation: living
together for one year
(immigration, Canada
Pension Plan)
 BC: spousal support and
Walsh v Bona (SCC) (2002)
Female in long-term opposite sex common law
relationship – 10 years with 2 kids claiming that it
was unconstitutional to omit CL partners from statutory
property scheme in NS
 Majority held that it did not violate s 15 – partners
made a choice not to get married, we should respect
freedom of choice
 LHD Dissent: it's not clear that people chose
anything, or that it wasn't the decision of both
parties – end result is going to be that women and
children suffer financially
of the Charter – as a remedy, court "read into" definition of a spouse, the category
of common law partners cohabitating for at least 3 years
o Two decisions have confirmed it's not unconstitutional for province to
distinguish between married and unmarried cohabitants when it comes to
property rights and dissolution of relationship:
Eric v Lola (2013) (SCC)
challenge to QC laws that deny spousal support to common law spouses on basis of
s 15 equality rights.
Majority: violation of s15 but allowed under s1
 Choosing de facto union permits spouses to opt out of mandatory regime
for marriage
 Can enter cohab agreements to opt in to provisions they want
Abella: not saved under s1
 Shouldn't be looking at formality – should be looked at the substance –
they were in a marital relationship at substance
 Legal protections for marriage aren't contractual – they are statutorily
imposed
 Outright exclusion of de facto spouses cannot be said to be minimally
impairing – prefers an opt-out option
 Claim for unjust enrichment is inadequate as a substitute for statutory
presumptive division of property
Unjust Enrichment: judicially developed property remedy for unmarried Test for Unjust Enrichment
partners. Applies in all common law provinces – remedy can be monetary (most 1. Defendant was enriched.
often) or constructive trust 2. Plaintiff suffered corresponding deprivation
(of the exact same thing)
HISTORY: 3. Transfer was not attributable to any
1. Rathwell v Rathwell (1978) (SCC) established categories of juristic reason*
 Married people can also be entitled to unjust enrichment
 Constructive trust could encompass all property – not just family
homestead
 Spousal support is not a substitute for Factors in determining a Joint Family Venture:
an interest in property Mutual Effort: did the parties work collaboratively towards common
goals?
2. Becker v Pettkus (1980) (ON) Pooling of effort
 No longer presumption that an unmarried Decision to have children
woman's contributions are a "gift" to man – Length of relationship
there is now a presumption of fair treatment Economic Integration: economic interdependence?
 Unjust enrichment can be recognized in Existence of a joint bank account
common law relationships Actual Intent – did they intend to share wealth (subjective)
Priority of Family –
3. Sorochan v Sorochan (1986) (AB) priority to family in decision making
 Two different remedies for unjust detrimental reliance for sake of family?
enrichment: Foregoing career, relocation.
o Constructive trust that gives Presence of children is often a major factor
interest in property
*merely living together does not give rise to a JFV
o In personam monetary award JFV is a more difficult test to meet compared to a test for cohabitation

Peter v Beblow (1993) (SCC)

Facts: 12 year relationship, H separated from 1st W with 2 kids – paid caregiver to watch then fall in love – she moves in and he stops paying her.
House was paid off – she isn't contributing anything monetarily. After a couple years, he kicked her out. She claims interest in total accumulated
wealth of the CL husband – including house he owned before she moved in
Issue: was there unjust enrichment? What is the remedy?
Rule:
Value received approach: monetary compensation for the value of work done (less value of support)
Value survived approach: percentage interest in the economic gain belonging to the spouse with the assets – preferred approach

Analysis:
 CL husband was unjustly enriched since he paid for her childcare before she moved in but then stopped during relationship
 SCC awards value survived approach because it more closely accords with expectation of parties in relationship
Conclusion: awarded interest in pre-owned asset

Kerr v baranow (2011) (SCC)

Facts couple lived together for 25 years without marrying- Ms Kerr suffered a stroke and was partially paralyzed for 15 years – Mr Baranow
terminated their relationship and sent Kerr to an extended care facility. Kerr sued for declaration that she was entitled to a share in the residence- that
Baranow would be unjustly enriched if he kept the property entirely for himself
Issue: Is wife entitled to property interest based on a constructive trust for unjust enrichment:
Rule: see unjust enrichment
Analysis:
Evidence does not support a joint family venture
Conclusion: new trial ordered with new considerations below
Class Notes: JFV found, monetary award of $250k, 25% value of house
Vanasse v Seguin (2011) (SCC)
Facts couple lived together without marrying for 12 years – Ms Vanasse gave up her employment so Mr Seguin could pursue an employment
opportunity. They had two children – she stayed home, he got rich. He purchased a home in both their names as joint tenants but his net worth was
over $8mill at the end of their relationship. She is suing for
Issue: Is wife entitled to property interest based on a constructive trust for unjust enrichment:
Rule: see unjust enrichment
Analysis:
 Trial judge found that Vanasse was at least an equal contributor to the family enterprise throughout the relationshi which significantly
benefitted Seguin
 Seguin leaves the relationship with a disproportionate share of the wealth accumulated as the result of their joint efforst
Conclusion: Vanasse is entitled to ½ interest in the prorated increase in Seguin's net worth during period of unjust enrichment

When is a CL spouse going to get the house? Need causal connection or nexus of contributions to acquisition or maintenance of the
home AND need to establish that monetary award would be insufficient.
 Psychological ties to home or concerns

Reiter v Hollub (2017) (ONCA)

Facts M bought house, W later moves in and parties live together – sexual & social relationship, shared household tasks, equal sharing of household
expenses but no joint accounts, financially separate. W paid $400 monthly as “rent” and he paid mortgage, insurance, taxes. House value increased
by $410k during time of cohabitation
Issue: Is wife entitled to property interest based on a constructive trust for unjust enrichment:
Rule: see unjust enrichment
Analysis:
 Parties were cohabitating but there was no JFV – no economic sharing and no “unjust enrichment” because she would have been paying
rent either way. $ that was paid towards mortgage was entitled to be returned
Conclusion: no JFV

Topic 5:
NET EQUALIZATION

Equalization Payments
1. Determine the value of the spouse's interest in all items of property as at valuation date

2. Subtract deductions
 Debts owed by a spouse at valuation date
 Net worth of each spouse at marriage date
 List all property owned as of date of marriage – doesn't need to be owned at separation

3. Subtract exclusions – specified in s4 of FLA

 Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the
marriage.
 Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the
spouse's net family property.
 Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.
 Property that the spouses have agreed by a domestic contract is not to be included in
the spouse's net family property
4. This gives you the Net Family Property for Each Spouse – subtract the lower from the higher and divide that result in half to get
the equalization payment
1. Valuation Date: list all assets at the date of separation with no reasonable prospect of resuming cohabitation.
 Assets get attributed to the party who owns them
 Jointly Owned: If any asset is jointly owned, ½ value goes in column of each spouse
 Matrimonial Home: if only one party owns matrimonial home, it goes on their side. If both own, it gets split between both.
 Disposition Costs: the value of some assets may be reduced by things like taxes, commissions etc.

2. Deductions: the net value of all assets and debts as of the date of marriage OR debts as of the valuation date.
 MD Deductions: (1) make a list of all ASSETS which were owned as of the date of marriage for each party (even if not
owned anymore), give each asset a value.
(2) Make a list of all DEBTS which were owed as of the date of marriage for each party
(3) Subtract MD DEBTS from MD ASSETS (it’s ok if value is negative)
(4) Subtract positive MD# from total assets, OR add negative MD# to total assets
 Matrimonial Home: if one party owned the matrimonial home on the date of marriage, it’s excluded from the MD
calculation – you list it but cross it out or [bracket it]. You also don’t include any mortgage or loan as a debt as of the MD
 Valuation Debts: make a list of all debts for each party as of VD – include every possible debt owed by either party on that
date (including family loans) – joint debts are shown as ½ equally on both sides

3. Exceptions: determine if there are any exclusions for
either party according to 4(2) FLA
 If an asset is excluded, its entire value as of the date of
separation is excluded – including any growth in capital
value
 Income from a gift or inheritance is NOT EXCLUDED
unless specified in a Will
 There can be tracing and proportional exclusion
Excluded Assets s4(2) FLA
The value of the following property that a spouse owns on the valuation date does not
form part of the spouse’s net family property:
1. Property, other than a matrimonial home, that was acquired by gift or
inheritance from a third person after the date of the marriage.
2. Income from property referred to in paragraph 1, if the donor or testator has
expressly stated that it is to be excluded from the spouse’s net family property.
3. Damages or a right to damages for personal injuries, nervous shock, mental
distress or loss of guidance, care and companionship, or the part of a settlement
that represents those damages.
4. Proceeds or a right to proceeds of a policy of life insurance, as defined under
the Insurance Act, that are payable on the death of the life insured.
5. Property, other than a matrimonial home, into which property referred to in
paragraphs 1 to 4 can be traced.
6. Property that the spouses have agreed by a domestic contract is not to be
included in the spouse’s net family property.
7. Unadjusted pensionable earnings under the Canada Pension Plan.

Topic 6:
OWNERSHIP, DEDUCTIONS, EXCLUSIONS

Rawluk v Rawluk
What do you do when there is a BIG increase in value post-valuation date?
Facts: 29 year marriage with children, W helps with business of H but all property acquired in name of H. There was a huge increase in
value of home post-separation
Issue: is W entitled to any increase value?
Rule: Ordinarily an increase in value between valuation date and trial is not shareable but sometimes there is an exception in the form of a
constructive trust

Analysis: W was basically able to establish JFV and got a constructive trust in the home
Conclusion: W got share of ownership of home.
Class Notes:

Resulting Trusts: in considering beneficial ownership vs legal title, court
should take account of situation if one spouse contributes money to acquisition
of assets and other has sole title. There is a presumption of resulting trust
rather than a gift, if acquirer is the sole owner. BUT taking title as joint tenants
establishes strong presumption of sharing, even if no contribution.
*concepts are only relevant for married couples if post-separation increase in value of asset –
otherwise rely exclusively on equalization scheme
Presumption of Resulting Trust (FLA s14)
14 The rule of law applying a presumption of a resulting trust shall
be applied in questions of the ownership of property between
spouses, as if they were not married, except that,
(a) the fact that property is held in the name of spouses as
joint tenants is proof, in the absence of evidence to the
contrary, that the spouses are intended to own the
property as joint tenants; and
(b) money on deposit in the name of both spouses shall be
deemed to be in the name of the spouses as joint tenants
for the purposes of clause (a).

Korman v Korman (2015) (ONCA)

Facts: husband made a lot of money but had significant risk of creditors taking his assets. Couple decided was JTs on first home but sold and decided to put only wife's
name on new matrimonial home
Issue: was there a resulting trust in ownership?
Rule: Section 14 of FLA presumes resulting trust in determining questions of ownership between spouses in the context of gratuitous property transfers – the party
resisting the resulting trust has the onus of disproving the presumption
Analysis:
 Presumption applies such that husband is beneifical owner of ½ interest in mat home
 H in contributed ½ of acquisition price for 2nd home from his share of proceeds of jointly owned 1st home, and both expected that value would be shared -> so
she holds beneficial interest in trust for both
 Wife failed to show that husband gifted his interest to her
 Motivation to shield property from creditors does not rebut presumption
Conclusion: resulting trust
Class Notes:
Generally, resulting trust arguments will only apply if both parties have directly contributed in an asset – for example, the mat home, or if both were involved in a
business together – restricting the scope of the constructive/resulting trust schemes

Notional Disposition Costs costs such as commission and taxes should be taken into account to reduce market value in
determining NFP under the FLA only. Need to show disposition is necessary or likely.

Sengmueller v Sengmueller – we're only going to allow you to take notional disposition costs into accout if it is clear that the asse will be sold and
such costs will be inevitable. If you're holding the asset for a long time, you can't subtract those costs

Folga v Folga (1986)(ON)

What is a matrimonial home?
Facts: at time of marriage, husband owned Frederick street, parties lived there for three years after marriage, then sold it. Husband purchased a new
home which became mat home
Issue: can Frederick street property be deducted from NFP
Rule: for a property to be treated as matrimonial home, spouses have to either be living in the property or have been living in it at time of separation
Analysis:
While frederick street was once matrimonial home, it no longer is under ss4(1) since the parties were not ordinarily resident at time of separation
Conclusion: Frederick street property entitled to be deducted from NFP

Tracing and Comingling: Section 4(2) 5 permits a spouse to trace the proceeds of an exclusion into other assets and thereby
preserve exclusion, or part of it
 When funds are put into a joint account and then taken out quickly after to purchase something, that asset will be
considered excluded
 Where funds are comingled – usually use a pro rata approach
o If excluded funds comprised 4/5 of bank account when deposited, 4/5 will be able to be excluded from
amount in account at separation date, even if funds were spen
 Where excluded funds are in a joint bank account, they are no longer only the property of the receiving spouse. The
receiving spouse can still exclude 50% of the funds but the other spouse cannot. Other spouse must include it in the NFP
– which means receiving spouse keeps ¾
Olivia v Olivia (1988) (ON)
Facts: post-marriage H gets gift from his family of rental property worth $100,000, but with $75,000 mortgage when gifted • 25% down payment
was gift, and at time of gift the total value of property worth $100,000 ($25 K down payment & $75K mortgage). Then due to increase in market
values (including inflation), worth $800,000 at VD, with mortgage fully repaid as a result of rental income
Issue
Rule: gift is only 25% of intial value (MD) so the entitled exclusion would be 25% of value at VD
Analysis:
 Instead of allowing a 25,000 exclusion, CA allows 25% of value at VD = 200,000
 Rental income increased the value and there was no clause stating it was to be excluded so 75% gets included
Conclusion: 200,000 exclsuion

Cartier v Cartier (2007)(ON)

Facts: H received gift of farmland from mother, sold the land and bought 4 investments, which were in his and his wife's names jointly.
Issue: can husband exclude investments from his NFP?
Rule: When gifted property is transferred to joint ownership, receiving spouse is entitled to exclude their share of the asset from NFP
Analysis:
H allowed to exclude his half interest in the assets
Conclusion: ½ traceable to inheritance and excluded

Variation of Share: the court may award a spouse an amount that is more or less than half the difference between the NFPs if the
court is of the opinion that equalizing the NFPs would be unconscionable having regard to:
(a) a spouse’s failure to disclose debts existing at the date of the marriage;
(b) the fact that debts were incurred recklessly or in bad faith;
Ex: Recreational gambling that got very heavy and out of control – beyond personal recreational levels that would be reasonable for the income
levels of the parties Naidoo v Naidoo
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
Ex. W's father gave her $200,000, H convinced her to give him $180,000 to pay down the mortgage on the matrimonial home and then two
months later he left. Court said H should not get the benefit of 90,000
(d) a spouse’s intentional or reckless depletion of his or her net family property;
Ex. H gifting property to a friend through series of transactions before separation to reduce NFP Von Czieslik v. Ayuso
Ex. Bad investments (Nortel) - no unconscionability unless there was improper or at least reckless disregard townsend v townsend
Ex. Bad investments made secretly knowing wife would object can be unconscionable Lamantia v Solarino
(e) the amount is disproportionately large in relation to a period of cohabitation that is less than five years;
Ex. Parties dating in 2007, moved in to house in 2009, married in 2013 and separate 2014 so 7 months cohabitating in marriage but
cohabitating 4 years total – she argues she should get 48/60monthsx50% of value, court says not applying mathematical formula, it's
discretionary to the court – he determined it would be unconscionable to give her that much Gomez v McHale
(f) one spouse has incurred a disproportionately larger amount of debts for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property
Ex. Abdication of Responsibilities: Married for 20 years, W supports H through 7 years of uni and also took care of children and house, even
after H got degree he didn't fully share financial support – court decided it would be patently unfair to award equalizing claim of ½ difference
in nfp so excludes value of W's business from NDP (sullivan v sullivan)

Ex. Changes in Property Value: Serra v Serra – husband had shares in his business worth around $10M at valuation, NFP ordered of $4M –
post-separation stocks tanked and his net worth reduced to $2M. Court allowed change to NFP to $1.5M *easier to make unjust enrichment
claim

What is unconscionable? The result of the division would need to be unconscionable, not the conduct of the parties. It’s a focus on the
results and economic effects of the division.

*does not allow claim against excluded property, does not allow revocation of a gift to another
*very difficult to make out a 5(6) claim.
Topic 7:
Pensions

Canada Pension Plan: mandatory for all in labour force & in addition to private plans. On separation, right to apply for equal
division of all CPP credits accumulated by spouses during cohabitation.
 Excluded from NFP equalization in ON because of s4.2 of FLA but can be taken into account for spousal support

RRSP: used by self-employed or those without employer plan. At any point in time you know value but does not take into account
the eventual tax rate on withdrawal (usually about 25%) need to take that into account for purposes of exam

Employer Plans:
Defined Contribution Plans: contributions are set at a fixed amount or rate. (risk on employee)
o The eventual payout is dependent on the contributions + the investment return
o At separation – value at any point of time can be determined by statement
o Need to discount for tax purposes -25%

Defined Benefit Plans: annual benefit amount is set at % of salary and years worked (risk on employer)
o At separation you need to know present value – function of what employee will get when they retire as an income
stream
o Pension plan administrator gives you imputed value for family law purposes (IVFLP) which includes deduction of value
earned before marriage
o Need to discount for tax purposes -25%

Remedies
Immediate Settlement Method Immediate Transfer Method
Determine the present value of pension Determine the present value of pension
Treat like any other asset – equalizing payment in cash that Satisfy the pension portion of the equalizing claim by
reflects after-tax value transferring a portion of the pension to a LIRA (locked in
*employee spouse likely to resist if pension is large retirement account), bank will manage the $ so they can’t
access until retirement.

Pension in Pay
if employee spouse is retired and receiving pension as of valuation
date, then it can be dealt with as part of NFP or division of pension
income – ie sending ½ to non-employee spouse
 You need valuation to include in NFP – court will order pension
plan administrator to divide pension at source (employee spouse
gets at least 50%

ITM or ISM?
10.1(4) In determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred,
the court may consider the following matters and such other matters as the court considers appropriate:
1. The nature of the assets available to each spouse at the time of the hearing.
2. The proportion of a spouse’s net family property that consists of his or her interest in the pension plan.
3. The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.
4. Any contingent tax liabilities in respect of the lump sum that would be transferred.
5. The resources available to each to meet needs in retirement and the desirability of maintaining those resources

*neither spouse has unilateral right to choose pension remedy if not in pay – Spurgeon v Spurgeon
 Larger pension (50+ spouse) relative to other assets  ITM
 Smaller value (younger spouse)  ISM
Boston v Boston (SCC) (2001)
Facts: H was well-paid, W did not work – they had 7 children, he moved out with younger woman. They had property settlement where they agreed
on value of pension, other major asset was the home – he gave her EP of a little less than half mathematical calculation but she stayed in the home
and was much more liquid bc he kept the pension.
He retires 6 years later of DFP getting about $7600/month and $400 CPP – there was a large gain in the pension for the last 6yrs worked. He makes
application to reduce spousal support because he's no longer making same income
Issue: can husband exclude investments from his NFP?
Rule: No double dip unless hardship: if there has been a property settlement that deals with the pension, the pension can’t also be dealt with for
spousal support
Analysis:
 To the extent the value of pension was divided by NFP, W got her share – she can’t now look to the pension as a source of spousal support
Conclusion: : significant reduction in spousal support because she's already had her interest in the pension bought out but she's entitled
to a share of post-marital pension increase

Topic 8:
Implementing Equalization Payments
9. (1) In an application under section 7, Rearranging Property to Satisfy Payment (NOT done):
the court may order  May be difficult or unfair to transfer or divide assets that have a particular
(a) that one spouse pay to the
other spouse the amount to which the psychological value
court finds that spouse to be entitled  Valuation problems: you need a fair valuation as of the trial date to do this
under this Part;  Varying tax liabilities or costs/difficulty of sale
(b) that security, including a charge on
property, be given for the  If transferring property, most likely as a result of a settlement, not court order.
performance of an obligation imposed
by the order; Jointly Owned Property (matrimonial home)
 Used when a court  Each spouse has the right to have home sold and proceeds divided equally (10(1)(c)),
orders deferred subject to claim for exclusive possession under FLA s24.
payment or payment
by installment and  Chattels like clothes, furniture, appliances have limited value and are ignored for NFP
there is concern that but owner of property will keep it.
money will not be  Property purchased from joint account is divided by parties.
paid
 More valuable personal property (vehicles, art, jewelry) – treat like other property,
 Court can order sale of
identify owner and value.

Payments over time: equalizing payments shall not be made so as to require the sale of an operating business or farm, or so as to
seriously impair its operation, unless there is no reasonable alternative method of satisfying the award.
 If necessary to avoid hardship, court may order EP to be paid in installments not exceeding 10 years – Mcdougall v
McDougall
 Matrimonial Homes for Part I but Not Part II
Topic 9: Non-Ontario Property  include in NFP, but possession/title
The Matrimonial Home can only be dealt with by other jurisdiction
House on Indian Reserve  can’t give possession orders,
subject to Federal Jurisdiction/Band By-Laws
Matrimonial Home every property in which the parties "ordinarily
occupied" as their family residence at the time of separation (s18)
 Includes homes owned by corporations 18.2
 If on larger tract of land, only part that is reasonably necessary to use and enjoyment 18.3
 Can have more than one mat home 18.1

Possession (FLA Part II): both spouses have an equal right to possession (s19) unless there is an exclusive possession order
under s24, which terminates one spouses’ possessory right.

*reminder: “spouse” includes good faith void or voidable marriage but NOT common law spouses.

Can common law spouses get possession? Very difficult if not a joint owner or strong constructive trust claim.

Leasehold Interests: s18.1

 Can qualify as matrimonial home
 Non-tenant does not have any greater right to possession than tenant spouse
 Typically no value – it's not transferrable and not likely to be included in an NFP

Condominium: buying a share in condo corporation which entitles you to exclusive occupancy of a unit and an undivided interest in
the common elements
 Shares become matrimonial home for purposes of part 1 and part 2

Debora v Debora (ON) (2006)

Facts: husband was sole shareholder of corporation that bought a cottage in which the spouses ordinarily resided. Trying to argue it cannot be
considered as a matrimonial home.
Issue: is the cottage owned by the corporation a matrimonial home?
Rule: if the owner of shares has a controlling interest so as to enable him to give him a right of residence, the owner has an interest in the property
for the purposes of FLA
Analysis:
Holding a home in a corporate name would deprive other spouse of rights associated with matrimonial home – defeat desired effect of FLA
Conclusion: matrimonial home
Class Notes:
 It's relatively easy to pierce corporate veil in context of a small, privately owned corporations.
 Could have made her sign a lease and pay expenses from corporate account to make it clear they only had leasehold interest but didn't – no
lease, expenses paid from family account.
 Court is prepared to pierce corporate veil in the family context – allow the non-share holding spouse to claim the value of the shares as part
of NFP

What is ordinarily occupied?

 Question of fact – do they leave clothes or possessions, do they regularly sleep there?
 If one spouse was essentially a guest – doesn't leave any personal items there, it will not be mat home- Farnsworth v
Chang
 H's company purchased Florida condo for rental purposes. There were vague plans that family would spend more time in
future but at separation family only occupied it for a couple weeks. No clothes left there – not matrimonial home,
intention to convert is not enough –Taylor v Taylor
Ledrew v Ledrew (1993) (ON)
Facts: parties had 3 homes – principal residence, brown cottage, white cottage. W inherited white cottage s/t life interest of her father. When her
father moved out they rented it and then used it a bit themselves on the odd weekend or during the summer. She then started going up by herself or
with her kids
Issue: is cottage mat home?
Rule: ordinary occupation requires that a significant part of the spouses' time together be spent in and around the home and that the
occupation of the home is not merely occasional or casual
Analysis:
 Spouses never went up to the cottage together in the 5 years prior to separation
 Spent no time together there after 1985
 No evidence that they occupied premises together as family residence
Conclusion: not mat home.

Goodyer v Goodyer (1999) (ON)

Facts: part of matrimonial home was a "granny suite" occupied by W's mother – with own bathroom, kitchen, living room. Spouses sometimes used
part of the areas.
Issue: can the granny suite be excluded
Rule: portions of matrimonial home occupied by other members of the family do not get excluded from mat home valuation
Analysis:
 Spouses did occupy the area as part of ordinary life
 "family" does not mean exclusive – can't leave out parents, children or other relatives who are living there
Conclusion: can't exclude any part of home
Class Notes:
 You can have situations where you divide up a property in mat home vs non-mat home – for example if there was a business being run
downstairs and the home upstairs – there must be a clear separation of family residence use vs not. That wasn't the case here

Hollinger v Wang (2019) (ON)

Facts: H & W seeking divorce, W operates business from home. H keeps interrupting her clients to talk about family dispute
Issue: is W entitled to exclusive possession of mat home
Rule: the compatibility of co-habitation with a home-based business is not a relevant factor under FLA
Analysis:
 Would be different if W was seeking to exclude part of home used for her business or limit H's use when she had clients
 Possession of the whole home is not necessary in the situation
Conclusion: not entitled to exclusive occupation

Exclusive Possession: can only be ordered by Superior (s96) court. Will take into consideration:
 the best interests of the children affected;
 any existing orders under Part I and any existing support orders;
 the financial position of both spouses;
 any written agreement between the spouses;
 the availability of other suitable and affordable accommodation; and
 any violence committed by a spouse against the other spouse or the children -s24(3)
Alsawwah v Afifi (2020)(ON)
Facts: parties separated. F was arrested for violence & mischief. Bail release prevented F from coming w/in 500m of home – was later amended to
let him move back in. M kept 4bdrm mat home with three kids, F lived in 1bdrm basement apartment. M had incident with oldest kid, suicide
attempt. Kids moved into H's 1 bdrm basement apartment. F brings motion for exclusive possession of home.
Issue: should H get mat home?
Rule: in determining best interests of child, court must consider:
a. Possible disruptive effects on child of a move to other accommodation
b. Child's views and preferences
Analysis:
 Child's best interests to return to matrimonial home – living with 3 kids in 1bdrm apartment with little privacy space, remote school,
cancelled extracurriculars is not in best interests.
Conclusion: father gets mat home

Menchella v MEnchella (2012)(ON)

Facts: Married 15 years, W did not work – was primary caregiver of 12yo daughter. W exclusively owned home – marriage contract excluded home
as family asset for NFP purposes. Daughter caught F having affair with lady in Sweden. W claims daughter is distressed, having anxiety attacks and
needs H out of the house – exclusive possession
Issue: can W get exclusive possession
Rule: Primary care parent is typically granted exclusive possession when:
a) there is conflict in the home that is adversely affecting the child;
(b) the stress in the home has become unbearable and leaving the home would be disruptive to the children;
(c) it is not in the children's best interests for the parents to continue living under the same roof; and,
(d) an order for exclusive possession is otherwise justified

Violence in my view includes psychological assault upon the

sensibilities of the other spouse to a degree which renders continued sharing of the
matrimonial dwelling impractical
Analysis:
 Child does not meet criteria for unbearable and disruptive stress
 No counseling , no link of distress to father's presence
 Appeal: father sent series of text messages constituting violence – no longer capable of living quietly and discretely in the home
Conclusion: trial: no grant of exclusive possession; appeal: mother granted exclusive possession

Sale of Home: court will order sale of jointly owned home under Partition Act before resolution of all issues but they may postpone
sale, giving one spouse possession for an indefinite period under FLA s24 if there is a significant concern about the effect of move
on children and financially realistic.

Keyes v Keyes (2015) (ON)

Facts: only major asset is matrimonial home. H is paying all expenses, W living in the home. W does not work. H is in significant debt. W claims
right to exclusive possession on basis of violence, H wants partition and sale
Issue: is W entitled to exclusive possession
Rule: Section 24(3) reads as follows:
(c) the financial position of both spouses;
Analysis:
 W has not satisfied that there is threat of violence, no kids in the home.
 Financial position of both parties suggests maintaining mat home is not feasible –
o House worth 1,2M with 700k mortgage & 500k equity – evidence w will not be able to afford with spousal support – she has taken no
steps to finding employment
o H has significant health issues and income is declining
Conclusion: court ordered sale and partition of home

Topic 10:
Child Support
Rights and Obligations of Biological Fathers - if man & woman have intercourse, it would be contrary to public policy
to inquire into “private matters” such as intent to have a child, contraception, deception of woman or failure of woman to have an
abortion  for biological parent of child conceived by intercourse, child support obligation was always absolute

PP v DD (2017)(ONCA)
Facts: woman potentially lied to man about being on birth control when they had sex. She got pregnant. He is suing her for
fraud/deceit/misrepresentation and for sexual battery
Issue & Analysis 1: Fraud/Deceit/Misrepresentation
 Man could not point to recoverable damages – alleged damages do not relate to a physical or psychiatric illness, just the man's emotional upset,
broken dreams, possible disruption to lifestyle and career.
 Would be against public policy and essence of non-fault based FLA to attribute fault for pregnancy
Issue & Analysis 2: Sexual Battery
 For consent to be vitiated by fraud there must be dishonesty and a deprivation or risk of deprivation in the form of serious bodily harm
 Poking holes in condom does not go to the "nature and quality of the act" but can vitiate consent because pregnancy imposes a significant risk of
bodily harm
 Does not apply to men who suffer no bodily harm
Conclusion: both claims dismissed
Class Notes:
 Victims of deception, fraud aren't taken into consideration for child support – courts don't want to get into this "private sphere"
 Situation of man is much different than woman – men are committing civil and criminal assault by exposing her to the risk of pregnancy,
woman don't have the same consequences

Presuming Paternity: Unless the contrary is proven on a balance of probabilities, there is a presumption in respect of a child
conceived through sexual intercourse that a person is, and shall be recognized in law to be, the parent referred to in subsection (1) if
any of the following circumstances applies:
 Spouse of mother at time of birth 7(2) 1 OR within 300 days of birth 7(2) 2
 Living in conjugal relationship at time of birth OR within 300 days of birth 7(2) 3
 Indicated as parent on child’s birth certificate 7(2) 4.

Proving Paternity (17.2 CLRA) court can make an order for blood, DNA or other testing to determine parentage – not required but
allows for results to be submitted to evidence and for court to make inferences if test is not partaken

All Families are Equal Act:

gives rights and obligations to families that use assisted reproduction
 Historically, the courts did not go "behind" the birth certificate – if a father signed the birth certificate, they were
presumed to be legal parent. Lesbians challenged this and had it expanded to include any partner that signs the birth
certificate
 Any spouse of a biological parent who consents to conception by assisted reproduction is a parent
 Any donor of sperm or ova for child conceived by AI is not a parent (unless specific consent)
 Up to 4 people can enter into a written pre-conception parentage agreement

SH v DH (2019)(ON)
 Use of gametes is not governed by property law or contract – it's governed by federal legislation - Assisted Human
Reproduction Act (AHRP)
 Consent to use of gametes must be informed and voluntarily given at the time of use
 Either spouse (or ex-spouse) can at any time withdraw their consent for the use of an in vitro embryo. Without consent
of both donors, embryo cannot be used.
R(MR) v MJ (2017)(ONSC)
Facts: man and woman had agreement that he would help her conceive but not be a parent. She got pregnant, they put agreement in writing and then
she sued for child support
Issue: does agreement release him of support obligations
Rule: Amendments to CLRA move focus away from biology towards preconception intentions of parents – supports parties to determine family
regardless of # of parents – one parent family is still a family
Analysis:
 Pre-conception intentions show the parties had an agreement that he would act as sperm donor and not be a father to the child
Conclusion: no support obligation

Surrogate Motherhood Adoption

 People can enter into pre-conception surrogacy agreement  Casual fornicator – male person who impregnates a woman S
for bio mom to give up legal rights but it's not legally t but demonstrates no sense of responsibility for the natural ep
enforceable until 7 days after the birth of the child consequence of the intercourse – not considered a parent.
p ar
 Mother can only be paid reasonable expenses (including lost  Allows mother to place child for adoption without the
wages) e biological father's consent or knowledge nt
s :
can have rights and obligations for financial support, welfare
where standing in place of parent. Factors to establish "standing in place of parent"
 Divorce Act s2(2): includes any person for whom one stands in  Financial support
 Discipline
place of parent
 Participation in extended family – grandparents?
 Family Law Act s1: a parent is a person who has demonstrated  Length of time
“settled intention” to treat child of his or her family  Called "Dad"
*Virtually the same test  Relationship to biological parent – not determinative but if
strong relationship, might mean not SIPP
Chartier v Chartier (1999)(MAN)
Facts: H&W were married, W had child from previous marriage, then they conceived second child together. H considered adopting child – they
never told child that he was not her father. H&W separate- he seeks to terminate relationship to older daughter without support
Issue: is older daughter a child of the marriage?
Rule: a person cannot unilaterally withdraw from a relationship in which he or she stads in the place of a parent – the court must look to the nature
of the relationship to determine if a person does stand in the place of a parent.

The existence of a parental relationship must be determined as at the time the family functioned as a unit
Analysis:
 Only father she knew
 Fact of forming a new family - older sister as much a part of relationship as younger
 Participation in extended family the same way as a biological child
 Person provides financially for child
 Disciplines child as a parent
 Represents to child/family/word that they are a responsible parent to the child
Conclusion: child of the marriage – support owed
Class Notes: Fact that he signed birth certificate leads to presumption that he's the father but can be rebutted
 The legislation would have no meaning if you could "end" SIPP relationship on separation from other parent
 Spouses are entitled to divorce each other, but not the children who were part of the marriage. The interpretation that will best serve children is
one that recognizes that when people act as parents toward them, the children can count on that relationship continuing and that these persons
will continue to act as parents toward them.”

How much are they paying? Where the person stands in place of a parent, the amount of child support will be an amount the court
considers appropriate, having regard to the Guidelines and any other parent’s legal duty to support the child.
 Amount of child support payable by biological parent will never be reduced by presence of stepparent
 Obligation of stepparent may be reduced below Table Amount if bio parent is able to pay
Paternity Fraud: what happens when a man mistakenly believes he's biological father, demonstrates settled intention to treat child as
his own and then discovers he was not the father? Converse Approaches.

Day v Weir (2014)(ON)

Facts: parties both believed W was the father of D's son. He paid child support for 14 years before D got an order increasing the support payment
and W demanded a paternity test – found out he was not the father. W exercised access to son for at least 2 years continuously but did not have a
significant parent-child relationship.
Issue: does W get child support refunded
Rule: in cases of paternity misattribution, an intention to treat as child is still sufficient to require child support payments
Analysis:
 Sufficient contact and involvement along with payment of child support and belief in being child's father to conclude Weir had
intention to treat as his son.
Conclusion: support not refunded
Class Notes:
 Approach is that although he was mistaken or deceived, he has assumed a parental role, it's the best interest of child that this role continue and
so we enforce that he was SIPP
 Focuses on the actual relationship and best interest of children, even if you were deceived you have obligation to pay

Collis v Wilson (2003) (ON)

Facts: Collis lived with Wilson and she had two children – Collis wanted DNA testing on the second kid – it revealed he wasn't the father. He was
ordered to pay child support for both boys
Issue: does he need to pay child support for son that isn't his?
Rule: if there is no intention to treat as a child of the family at any time when the man knows he is not the biological father, he will not have to pay
child support
Analysis:
 When Collis got DNA results, he had very limited access and financial support towards son
 Total failure to have any contact with child after separation
Conclusion: child support owing only for biological son
Class Notes:
 Different approach to Day v Weir - you can't have an intention to treat child as your own if you are missing important information such as
whether he is the father
 More recent case from CA – knowledge of paternity is a factor – not determinative.

*which approach to follow? Most commenters prefer Day approach as suggests a more “child focused perspective” but no definitive CA rulings.

Child Support Guidelines: more consistency, predictability and less litigation over child support  average justice. Canadian
model is based on payor income – so no direct regard for recipient income – on average, this makes it fair so that recipients get all
support they need.

Priority to Child Support: where a court is considering an application for a child support order AND an application for a
spousal support order, court shall give priority to child support – Divorce Act s15.

The Tables: amounts are based on economic studies of average spending on children in families at different income levels in
Canada – critique is that there is no single set of figures for “ordinary spending”, amounts are arbitrary.

2. Is there a primary caregiver?

Requirement to have kids at least 60% of time 1. How many kids in care of PC?

3. What is the income of payor?

Defined in s16-20 CSG 4. Apply the Guidelines
Determining Income use “total income” for taxes (line 15000) but will have issues with fluctuations, closely held corporations, or
business deductions.

Assessing
income: Cour
t can add
income to the
payor
when: (Sectio
n 19.1)
(a) the payor
is
intentionally
under or
Drygala v Pauli (2002)(ON)
Facts: F earned 33k as tool maker but quit his job before separation. He enrolled in university part-time to become a teacher. He had no income and
expenses of 48k that were paid by his mother
Issue: can court imput income?
Provision: 19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances
include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of
a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse
Rule: No requirement of bad faith to find a payor is intentionally unemployed – simply that a payor intentionally chose under-employment.

Burden of proof is on spouse pursuing education to show whether part time employment can reasonably be obtained in light of educational
requirements
Analysis:
 3 hours of classroom time per week for each of the 3 courses = 9 hours per week
 With allowance for study time, it's reasonable he could work 50% of normal time
 Since past income was $33k – appropriate part time income is $16.5k
Conclusion: income imputted

Lavie v Lavie (2018)(ON)

Facts: W worked as teacher and left after second child was born, she started child play center – income went from over $70k to about $15k. H
worked as TV editor and was making $64k-$140k before he was terminated.
Issue: can either spouse have income imputed?
Rule: mutual decisions during marriage that one party should not work full time to take on more childcare, do not prevent imputing of
income
Analysis:
 W was intentionally unemployed – even though family decision to stop teaching, she did not meet criteria for required by needs of a child
 H was not intentionally unemployed
Conclusion: income imputed equally to both of them - 70k each, no child support owing
Class Notes:

Cozzi v. Smith, 2015 ONSC 396

 F gets primary custody, M making $62k per year – she is pregnant with new H, income will be going down from mat leave &
then taking time off after – argues should be paying no support for consideration of needs of new child
 Court says you get lower income for mat leave period but after that it's your choice to stay home, child support based on
previous income

Special and Extraordinary Expenses (s7s) must be necessary in Section 7 Expenses

relation to the child's best interests and reasonable in relation to the means of
the spouses and those of the child and to the family's spending pattern prior to
separation
 Special Expenses: childcare, health-related expenses, expenses
for post-secondary education
7 (1) In a child support order the court may, on either spouse’s request,
provide for an amount to cover all or any portion of the following
expenses, which expenses may be estimated, taking into account the
necessity of the expense in relation to the child’s best interests and the
reasonableness of the expense in relation to the means of the spouses and
those of the child and to the family’s spending pattern prior to the
separation:
(a) child care expenses incurred as a result of the employment, illness,
disability or education or training for employment of the spouse who has
the majority of parenting time;
  Extraordinary Expenses: extracurriculars, primary or secondary education
o Expenses custodial parent cannot be expected to reasonably cover, considering their income. OR
o Court considers extraordinary taking into account of the amount of expenses in relation to recipient parent's
income.

What is Extraordinary? s.7(1.1) 1d & 1f 

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that
spouse’s income and the amount that the spouse would receive under the applicable table

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account:
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive
under the applicable table
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities,
(v) any other similar factor that the court considers relevant.
o Applicable for multiple activities ie. extracurriculars

Adult Children: Canada Divorce Act and FLA impose obligations on parents who have separated reflecting the reality that in most
intact families, parents try to support adult children for social and moral reasons whereas separated parents are less likely to do so.
Fundamental that lifestyle of child should suffer as little as possible- Lewi v Lewi

Child of the Marriage: a child who 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.  other cause includes reasonable
educational program, unemployment, NOT drug addiction, high level athletes. Divorce Act s2(1)

Children with disabilities – will end if the court concludes the child is able to withdraw from "parental charge" - living
independently, holding down part-time employment, receiving disability benefits

Coates v Watson (OCJ,

2017) FLA s. 31 (p. 505)
Exclusion of “disabled adult child”
from FLA s.31 violated Charter s.
15, as discriminated
against children of unmarried
parents, so father of disabled adult
child born out of wedlock obliged
to pay support (just as under
Divorce Act). This resulted in
s.31(1)(c) being added in 2017
 Children engaged in post-secondary education: children ought to be allowed to have the opportunity of pursuing a
bachelor's degree or diploma program but as age of child increases, courts more closely scrutinize child's abilities,
engagement, effort and future potential.
o where child is serious about the program and field of study offers a reasonable prospect of employment,
disapproval of payor parent will not affect court's decision.
o Not unreasonable to expect university student to contribute a gradual increased portion of their university
costs as they age – Cook v Plante.
o Support usually ends before 25 but may go beyond (to 28 for PSE)
o Expectation that there will be some kind of relationship with kids to payor.

How much are adult children getting?

o The guideline amount as if child were under age of majority OR
o The amount the court considers appropriate with regard to the condition, means, needs and other circumstances of
child AND financial ability of each parent.
o If over age of majority and living with residential parent, usual to have table amount + portion of s7 expenses (for
total PSE costs, less student contribution)
o If away for school, table amount awarded only for time while living with home-base parent (1/3)

Guidelines for Adult Child Education Support: (Menegaldo v Menegaldo)

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.
2. Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and
if so, the amounts received.
3. The ability of the child to contribute to their own support through part time employment.
4. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational
program because there is nothing better to do.
5. In reviewing the child's education and career plan, important factors include the nature and quality of the plan, the duration of the proposed
study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.
6. The child's academic performance, and whether the child is demonstrating success in the chosen course of studies.
7. The age, qualifications and experience of the child.
8. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.
9. Whether the child is performing well in the chosen course of studies.
10. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering
this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.
11. The means, needs and other circumstances of the parents and the child; and.

12. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress.
If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have
difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education
High Income Earners: you take the table amount for first $150 of payor’s income and + x% of income above 150k.
o Court has ability to award what it considers appropriate, if it considers Guideline inappropriate.

Francis v. Baker (SCC 1999, p. 522) that in principle, amount could be less than Guideline amount, but there is a “presumption
in favour of the Table amounts” & onus on payor to justify reduction.

R v R Ont CA, 2002,

Facts: Wealthy family who emphasized not spoiling children. F always had large income and they lived reasonably but not extravagantly in
proportion to $. F got major pay increase post-separation. TJ awarded 16k per month which was 75% less than table amount based on past lifestyle
Issue: should court deviate from CS guidelines?
Rule: Table amount is presumed to be correct, challenging spouse has burden to show why it would not be appropriate

Previous lifestyle is relevant but not determinative – husband's income increased dramatically since separation, child support will increase

“Table amounts that so far exceed a child’s reasonable needs that they become a transfer of wealth between the parents or spousal support under the
guise of child support will be inappropriate
Analysis:
o Need to take into consideration budget change post-pay increase.
o Some vacation and sports requests reasonable but ski chalet, sailboat, horses and florida condo were extravagant
Conclusion: 36k awarded

Split Custody: at least 1 child with each parent  not common, usually keep siblings together. Reasons for splitting include
significant age gap, special needs, abuse between siblings.
o Child support is the difference between the amount that each parent would otherwise pay if a child support order were sought
against one of the parents section 8 CSG
Shared parenting time
Shared Parenting: one or more children spend roughly equal time with 9 If each spouse exercises not less than 40% of parenting time with a
each parent – at least 40% shared by each parent. CSG s 9 applies. child over the course of a year, the amount of the child support order
 Research to support positive correlation of shared custody and good must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the
child outcomes but probably more correlation than causation – parents spouses;
that tend to get along better will have shared custody, also parents with (b) the increased costs of shared parenting time arrangements; and
more education and higher income and have residences close to each (c) the conditions, means, needs and other circumstances of each
other spouse and of any child for whom support is sought.
 No universally accepted way to count time – up to the judge to
determine how to calculate
 Overnights: child needs to be there 146 nights per year
 Hours: 3504 hours per year

Shared Parenting and Child Support: more a parent is with the child, more expensive it is for parent. Hard to measure – if custody
is shared and one parent needs to get bigger apartment, it's not like other can downsize.
 40% is a threshold, not a cliff but it often is a cliff – results in very strategic behaviour of one parent.
 Difficulty: The data informing the tables is an average – not based on one particular study – hard to tell the actual costs of
raising a child so it's hard to tell what the increase in cost is
 Theme: Try to focus on child – it's the child's property so should be shared between households if it makes sense, even if one
parent paid for it.
 School Time: look at which parent has responsibility if kid is sick, or school closes or who provides lunch etc.
 Contino v Leonelli-Contino
 At separation, F had 5/14 days but increased to 7/14 when M went to night school – he uses s9 to seek reduction F wanted to
pay the difference between M paying him support and him paying M support – he would pay her 128/m (section 9a)
 M appeals – makes it to SCC – 9a is a starting spot but not determinative, they still say judge discretion – you need to
consider increased cost of shared parenting including detailed budget for each home – want to try to keep an equal standard
of living in both homes (not complete, won't go beyond table amount) to ensure child does not experience decline when
changing households - they kept 500$/month
o Critique is not very realistic – budgets are hard to maintain and aren't that accurate - courts will often just use 9a

Reform? Why don't we split the difference between 9a amount and the actual table amount – government has not acted – very
controversial
Undue Hardship On either spouse’s application, a court may
award an amount of child support that is different from the amount
determined under any of sections 3 to 5, 8 or 9 if the court finds that
the spouse making the request, or a child in respect of whom the
request is made, would otherwise suffer undue hardship.
 High standard to meet – typically low income payors
 For claims you also need to show that payor's standard of
living is lower than recipient's
 Only allowed if recipient’s household has a higher
standard of living
(2) Circumstances that may cause a spouse or child to suffer undue
hardship include the following:
(a) the spouse has responsibility for an unusually high level of debts
reasonably incurred to support the spouses and their children prior to the
separation or to earn a living;
(b) the spouse has unusually high expenses in relation to exercising
parenting time with a child;
(c) the spouse has a legal duty under a judgment, order or written separation
agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the
marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness,
disability or other cause, to obtain the necessaries of life; and
(e) the spouse has a legal duty to support any person who is unable to obtain
the necessaries of life due to an illness or disability.

Tahir v Khan (2019)(ON)

Facts: M has primary custody of 5 kids – F has access . He pays child support on income of 20k – M seeks to increase to his current income of 42k –
she works part time but is on welfare. F claiming s10 because he has significant debt and has to pay high access costs
Issue: does s10 apply?
Rule: standard is hardship that is exceptional, excessive or disproportionate, not merely awkward or inconvenient
Analysis:
 F filed for bankruptcy, has been discharged – not sufficient for s10
 Cell phones, food are not unusual access costs
 M lives in 2bdrm apartment w 5 kids, F lives alone, has car and took vacation in 2017 to pakistan
Conclusion: no basis for s10
Class Notes:

Guenette v Morrisey (2019)

Facts: M has full custody – income is 42k, F income is 56k but paying support based on income being 25k. He claims s10 against increase because
he has other children for whom he provides financial support
Issue: undue hardship?
Rule: legal duty to support other biological children is sufficient for s10 claim
Analysis:
 5 children that ne needs to support – 262/m for two other children, 3000/y for other child\
 F's standard of living is lower than M's
Conclusion: $400/month granted

Reasonable Arrangement: sometimes parties contract for a child support amount that is lower than the table amount. Will only
prevail if there is a special provision that benefits child and it's inequitable not to give effect to agreement – payor has onus to
prove
 Other economic benefit: one party keeps house, other party pays lower support – sometimes tax benefits behind that
 Threat of litigation: unless you agree to less than table amount, I'll harass/drag litigation out etc. (not an acceptable
reason)
 Wright v Zaver: waiver of child support in exchange for an agreement to not see one's child will not be binding
Variation: if there has been a change in payor income (or other circumstances) either party may seek variation. Those entitled to
support often delay seeking variation or making claim due to lack of resources, not wanting to engage or argue with other parent, lack
of awareness of legal rights etc. SCC gives considerable recognition to legitimate reasons for delay, prepared to order retroactive
support.

Colucci v Colucci (2021)(SCC)

Facts: F to pay $115/week, two years post separation he requested support be reduced claiming income reduction but provided no evidence. He
made no voluntary payments to 2016 (after obligation ended in 2012) and had no contact with kids – he owed $170k. He requests amount owing be
retroactively reduced.
Issue: can support be retroactively decreased?
Rule: when a past material change in payor's income is established, the amount set out in child support order no longer reflects content of payor's
legal obligation to pay support.

Once material change is established, presumption arises in favour of retroactively decreasing support to date payor gave recipient effective notice (up
to three years) - requires clear notice & documentation

When no effective notice given, support should be varied back to date of formal notice
Court retains discretion to depart from presumptive date when result would be unfair.
Analysis:
 Not enough for F to advise without any further steps
 No notice means no entitlement to decrease in support
 Even if he gave notice, it was in 2016 so 3 year rule applies – no variation in support
Conclusion: support not varied
Class Notes:
 There is an obligation of full and timely disclosure but in the case of an increase, a failure by payor to disclose financial information allows
court to draw adverse inferences – informational asymmetry – payor knows more about income – we go back to time when they should have
disclosed
 Payor seeking reduction also has obligation of full and timely disclosure – needs to bring an application within 3 years of that notice of change.
Court will look for understandable reason for reduction in income and why payor didn't immediately disclose – fairly high standard (in jail,
mental facility, homeless)

Michel v Graydon (2020)(SCC)

Facts: F & M were common law and separated when C was 3. F seriously understated income for purposes of support – once c was in post-
secondary M applied for order for retroactive support
Issue: is child support allowed given she is over 18
Rule: retroactive child support can be ordered even if child is no longer child of the marriage
Analysis:
 Payor parent who knowingly avoids/diminishes his/her support should not be allowed to profit from such conduct
 M's delay was reasonable – she suffered injury and minister was responsible for support
Conclusion: support granted

Retroactive Child Support: Discretionary – court can award retroactive support if significant amount of time has passed and it
would be fair
 In the absence of blameworthy conduct, support should go back to the effective date of the request for information or three
years, whichever is longer
a) The recipient must meet the
threshold of establishing a past Topic 11:
material change in Spousal Support
circumstances. While the onus
is on the recipient to show a
material increase in income, When? Child support has clear priority over spousal support (DA s15.3) so only considered if
any failure by the payor to it’s realistic taking into account child support. Often the most contentious issue. More likely
disclose relevant financial when:  Longer
information allows the court to term
impute income, strike marriage
pleadings, draw adverse  No new
  Higher income payor
 Large income differential between spouses
 Children

Spouse: expands definition of spouse to include unmarried cohabitants that have cohabitated continuously for three years or more or
who are the natural or adoptive parents of a child together and have cohabitated in a relationship of some permanence
 Continuously: short separation after a fight does not interrupt continuous habitation (Sanderson v Russel)
 Cohabit: live together in conjugal relationship whether within or outside marriage
o Conjugal: live like husband and wife (not very helpful)

Cohabitation Factors (Moldowich v Penttinen)

1. residence; shared? same room?

2. sexual & personal behaviour; fidelity?
3. services; cooking, etc.
4. social; families & friends
5. societal; attitude & conduct to community - a “couple”
6. economic, sharing of expenses? Joint purchases? Support of the other?
7. children - discussed, born
 Jackson v Moore
Facts: J & M had a baby, M purchased rental property and moved J and baby in – there was tenancy agreement for $700/month rent. M would come
over once a week to visit baby and would engage in sexual relations with J – M never lived at the property and had a long term partner
Issue: is J considered spouse for purposes of child support
Rule: Burden is on J to establish spousal relationship – criteria outlined above
Analysis:
 M did not stay overnight at property or move any clothing/personal effects
 M continued to date other women, J dated at least one other man
 Little evidence from any witness that supports J being spouse
 No meals together, no exchange of gifts, holidays etc
 No domestic services
Conclusion: not a spouse

Climans v. Latner, 2020 Ont CA, p. 595,

Facts: both H&W had children from previous marriage, H was rich and provided financial support but never "merged finances". Maintained separate
homes but spent summers and winter vacations together – man proposed but said he would not marry her unless she signed domestic agreement –
contract was never signed.
Issue: are parties spouses for purposes of support?
Rule: although cohabitation requires that partners live together, lack of shared residence is not determinative
Analysis:
 During relationship he provided her + her kids with lavish lifestyle
 Personal/social lives were closely interwoven
 Sexually faithful, presented as couple in public
Conclusion: spouses
Class Notes:

Divorce Act: Objectives 15.2(6)

a) recognize economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
b) apportion between the spouses any financial consequences arising from the care of any child of the marriage...
c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
 Hardship is relative to the accustomed standard of living – if used to rich lifestyle, hardship could be moderate lifestyle
d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time

Divorce Act: Factors 15.2(4)

a) the length of time the spouses cohabited;
b) the functions performed by each spouse during cohabitation;
c) any order or agreement relating to support of either spouse.

Entitlement: Technical Entitlement  spouse must establish valid marriage or form of marriage
Substantive Entitlement  is the claimant actually entitled to support?

Trilogy of Pelech, Caron & Richardson (no longer good law): causal connection – emphasis on self-support and clean break –
important to recognize end of relationship and only allow spousal support if there is a need that is causally connected to spousal
relationship

Moge v Moge (1992) (SCC)

Compensatory basis for support
Facts: The parties were married in the mid-50’s in Poland and moved to Canada in 1960. They separated in 1973 and divorced in 1980. The wife has
a grade seven education and no special skills or training. During the marriage, she cared for the house and their three children, and except for a brief
period, worked six hours per day in the evenings cleaning offices. After the separation, she was awarded $150 per month spousal and child support
and continued to work cleaning offices. The husband remarried in 1984 and continued to pay support to his former wife. She was laid off in 1987 and
as a result of an application to vary, her spousal and child support was increased to $400. She was later able to secure part-time and intermittent
cleaning work. In 1989, the husband was granted an order terminating support
Issue: Is W entitled to continuing support?
Rule: Roles in marriage and length of marriage are critical to the determination of spousal support. Lost opportunity is an important basis for
compensatory spousal support
Analysis:
Continuing support is in order in this case since the four objectives set out in s. 17(7) are met: (1) the wife has sustained a substantial economic
disadvantage “from the marriage or its break-down” (s. 17(7)(a)); (2) the wife’s long-term responsibility for the upbringing of the children of the
marriage after the spousal separation in 1973 has had an impact on her ability to earn an income (s. 17(7)(b)); (3) the wife continues to suffer
economic hardship as a result of the “breakdown of her marriage” (s. 17(7)(c)); and (4) the wife has failed to become economically self-sufficient
notwithstanding her conscientious efforts (s. 17(7)(d)).
Conclusion: support to continue
Class Notes:
 Recognition that it is usually women who sacrifice their career/income prospects for the family especially if children
 recognize that if woman takes time out of the labour force or works part time or moves to accommodate her husband’s career, this may have
a permanent negative effect on her lifetime earnings, and may establish claim for compensatory support
 “Marriage should be regarded as a joint endeavor, the longer the relationship endures, the
closer the economic claim, the greater will be the presumptive claim to equal standards of
living upon its dissolution.”
Bracklow v Bracklow (1999)(SCC)
Needs Based Support
Facts: W was originally financial earner and paid most of living costs because of two children she brought into marriage – had health issues, was no
longer able to work and suffered seriously financially
Issue: W entitled to support?
Rule: There are three bases for support in Canada – compensatory (Moge), contractual (based on agreement), and non-compensatory (Bracklow).
 Non-compensatory support orders are needed where there is a disparity of needs/means after marriage breakdown, even if that disparity is not
causally connected to the marriage.
 Where the support is non-compensatory, it may be that only part of that need can be addressed by spousal support
Analysis:
 when two spouses are married they owe each other a mutual duty of support, upholding the "joint venture" idea from Moge. When a marriage
breaks down, however, the presumption of mutual support no longer applies, as reflected in ss. 15.2(4) and (6) of the Divorce Act
 While the early years of the parties’ union might indicate strict independence, by the end the parties had established a more interdependent
relationship. In addition to adjusting their expenses to a more even ratio, it is evident that the respondent covered the appellant's needs in the
early stages of her illness, thus it follows that divorce did in fact cause the wife economic hardship pursuant to s. 15.2(6)(c).
 based on the length of cohabitation, the hardship marriage breakdown imposed on her, her palpable need, and the respondent’s financial ability
to pay, the wife was entitled to at least some level of support, however the determination of the quantum of support was felt better able to be
addressed by the trial judge.
Conclusion: remitted to trial – 7 years of cohabitation = 7 years of support
Class Notes:
 Exchange of promises can count as consideration but marriage vows include no intent to actualy be bound
 Moge v Moge set up marriage almost as a tort – SCC here says not accurate – we have a legislative scheme – interdependency or need may be
in itself a justification for support
 Non-compensatory: Where there is need, there may be a right to support, even if there is no compensatory claim [s. 15.2(6)(c)], but the length or
amount of that support is related to length of cohabitation

Contractual basis – Cart-Pusey v Pusey – sponsoring immigrant spouse to come to Canada – H promises her 3 years support. W leaves H not
long after arrival after abuse – court upholds support

Leksun v Leksun (2006) (SCC)

Marital misconduct not a factor in determining support
Facts: H&W both worked at TD, had decent paying jobs, H went back to school for MBA – W cashed in pension/RRSPs to support family during
that time, she then suffered back injury and her job at TD was eliminated. H increased income substantially. He moved to Chicago for work, had an
affair and just left her before she moved to join him there
Issue: does misconduct play a role in support?
Rule: spousal misconduct was irrelevant to support outcomes, but the consequences are relevant if it affects the other spouse's ability to become self-
sufficient. There is a difference between ordering support based on misconduct and the consequences arising from it.
Analysis:
 W’s age, length of marriage, support of H for his MBA, family deaths & back condition also factors
Conclusion: support continues indefinitely
Class Notes:
 Misconduct does not form basis for entitlement but the effect of misconduct may affect support

Low End vs High End

1. Compensatory, needs-based, a combination or no entitlement?

Compensatory  HIGH END:

 Usually not a short marriage.
 Takes on primary responsibility for children
 Given up job opportunities (moves for H's career)
 Assisted payor in obtaining education or credentials for job

Needs-Based  LOW END:

o Drop in the standard of living as an effect of the breakdown of marriage
o Standard of living is relative rather than absolute need
o Recipient may be unable to work (disability/physical complications)
o Payor income is substantially higher than recipient

2. Length of Marriage?
 15-20 is viewed as longer  HIGH END (more likely to be compensatory)
 ~10 years is average
 under 5 years is short  LOW END

3. Self Sufficiency? Factor in the Divorce Act, it's not going to be determinative
 Where the marriage is medium or shorter term, and the spouse is not close to retirement age, entitlement to spousal
support is likely to viewed as needs-based, with expectation that over time the recipient will take steps to become self-
sufficient. The failure to do so may result in stepped down or terminated support, even if self-sufficiency is not achieved
 Court may impute income to recipient if no reasonable efforts to earn income

TAX  When spousal support is payable it is tax deductible for the payor and taxable in hands of recipient – example of tax subsidy
 NFP equalizing payments are not deductible or taxable  paid after tax $
 Child support is not deductible or taxable – it's paid from after-tax dollars
SSAGs: more consistency and predictability since implementation.
Without children: “partnership over time” – both quantum & duration increase substantially with length of marriage.
Applies if NO children or after children have become adults.

 Amount = 1.5-2% of income differential per year of marriage

o Up to a maximum of 50%
o Maximum if 25 years or longer at 37.5-50% of income difference
 Duration - .5 to 1 year for each year of marriage
o Support will be indefinite if the marriage is 20 years or longer
o Even if indefinite, subject to variation.
o Rule of 65: if marriage is at least 5 years, & age + years of cohabitation in marriage =65 or more, support
will be indefinite
Ex. Is 20 year marriage, 1 child now adult, H is bank manager, they moved several times. W out of labour force 6 years then mainly part time
until recently, now has full time job. H has gross income of 90K, W has gross income of 30K, both in mid-forties.
 Gross Income Difference =60k
 Percentage = 20years = 1.5% = 30% OR 20 years x 2% = 40%
 30% of 60k = 18k/year OR 40% of 60k = 24k/year
 Range of 1,500-2,000 per month for indefinite duration.  compensatory element, higher end, longer duration

Restructuring (NO CHILDREN): may be agreed or court ordered – allows the amount and duration to be traded off against
each other so long as the overall value of the restructured award remains within the total or global amount generated by the
formula when amount and duration are combined.
(i) to front-end load awards by increasing the amount beyond the formula’s range and shortening duration;

(ii) to extend duration beyond the formula’s range by lowering the monthly amount; or

(iii) to have a lump sum by combining amount and duration (discounting to reflect advance payment and no taxes to
recipient

Ex. Karl and

With children: “parenting partnership” – applies if child support being paid. There is no simple way to
Beth were
construct a formula for spousal support where payor is also paying child support.
married for
eight
years. They  Amount: given by computer program
had no 1. Child support must be determined as it takes priority.
children. Beth 2. Determine individual net disposable income (INDI) of each spouse
was 32  PAYOR INDI  Payor’s Guideline income minus Child Support minus taxes and
when they deductions
met, and Karl  RECIPIENT IND  Recipient Guideline income minus Notional Child Support minus
was 35. When taxes and deductions plus Government child benefits and credits
they married, 3. Add together individual net disposable incomes, determine the range of spousal support amounts
Beth was a that would be required to have the lower income recipient spouse with between 40-46% of
struggling combined INDI
artist. Karl
is a music  Duration: the longer of:
teacher at a a. Length of marriage test: .5 to 1 year for each year of marriage but support will be indefinite if the
high school marriage is 20 years or longer
with a gross b. Age of Children Test: lower end is until youngest child starts full time school, upper is until
annual youngest child finishes highschool
income of
Ex. T&A Beth
$70,000.
married
now for
earns
11 years
$20,000 per–T
earns $80k
year, selling
gross, A
earns 20k
gross. A has
 Ceiling & Floor: SSAG doesn’t necessarily apply if payor’s income is more than 350k/year. Can look to SSAG but usually an
individualized budget model. If payor income level is below $20k, no support is to be paid but there is discretion where income is
between 20k-30k.

Exceptions: court may determine it’s not appropriate to use SSAG if:
 VERY strong compensatory claim (short term marriage, W puts H through dental school then he leaves her
(caratun) )
 Heavy debt assumption by one spouse
 Unequal property division in favour of recipient

Fisher v Fisher (2008)(ON)

Facts: H&W had no kids, married for almost 20 years. W worked and paid expenses initially when H was in school, then stopped working full-time. H becomes
teacher, gets some promotions, moves to Toronto. H tells her he's leaving her and now has new family w 2 kids to support. W has reactive depression, she faces
significant drop in standard of living
Issue: what is the appropriate support award?
Analysis:
 Length of cohabitation: lengthy marriage but realtively young couple, both still employed – no reason for indefinite support
 Functions in cohabitation: both contributed to household chores, W was not held back bc of imbalance
 Other Circumstances: second family – voluntarily supporting, no new biological children, already two parents supporting those kids.
 Economic (dis)advantage: no disadvantage during marriage but on breakdown – smaller home, reactive depression
 Self-Sufficiency: W not considered self-sufficient based on current income – can't maintain pre-separation standard of living
Not a strong compensatory basis for support
Conclusion: support awarded $3000 monthly for ~4 years and then $1,500 monthly for ~2.5 years. Enables W to become financially independent or adjust to lower
standard of living
Class Notes: Not much of a compensatory claim going for her, mostly a needs-based claim – doesn't mean she doesn't get anything but she's at the mid to low end of SSAG
 First case where the CA says the SSAGs are the law- bring certainty and predictability – we are using the SSAGs unless there are strong reasons not to
 Early contributions to the payor’s education, such as helping him get through university and get teacher’s certificate, not enough for compensatory claim
 Retroactive support to separation date
Mason v Mason (2016) (ON)
Facts: H&W worked and then bought a business – W owned 30%, H 70%. Business does very well then W stopped working at the business in 2013.
Cohabitated for 20 years with 2 children who were in university at time of trial. H income determined to be $215,000 and W $110,000 plus child
support for college kids. H kept business.
Issue:
Rule: Avoid midpoint default – the midpoint of SSAG range should be not treated as default outcome – the appropriate quantum of support should
be determined by the support factors and objectives in the DA and FLA
Analysis:
 Range of spousal support based on income - $0-1,678
 Wife has strong compensatory claim – cohabitated for over 20 years, worked with H at business and is no longer in a position to work and
receive benefit from business, used to a high standard of living – all favour high support
 High equalization payment – lowers support
Conclusion: $1500 awarded indefinite
Class Notes:

Variation requires a material change in circumstances – onus is on the party seeking variation to establish material change and
justify variation.
TEST: what the parties actually contemplated at the time of the initial order, rather that what was known or could have
reasonably been foreseen. We care about what was actually taken into account at the time, not whether circumstances were
“foreseeable”.

 Child Support when child support ends as child ages out, there will be change in formula to no-child. If long term marriage,
might see increase in spousal support resulting from increase in ability to pay but amount will be less than child support.

 Re-Partnering of recipient is less significant if compensatory – support will usually continue but may be reduced and
eventually end. But if original award is needs-based and new partner can provide for recipient, support entitlement will end.
Longer relationship with new spouse, greater new spouse’s obligation – Politis v Politis

 NOT increase in Payor Income if needs based.

Hersey v Hersey, 2016 ONCA 494 Review occurs only if the initial order or agreement provides for review after a stated period –
(p. 722)
no onus to show change.
If income goes up relatively soon
after end of relationship and seems  Rare – SCC restricted use of review orders – only if there is real uncertainty about the
related to events happening during circumstances of either party. Usually only if uncertainty about future income or self-
relationship, may be grounds for sufficiency. – Leskun / Fisher
variation
o H is corporate
lawyer making
192k, W is a teacher
 Topic 12:
Parenting

Best interests of the child test Based on assessment of circumstances of each individual child – it’s a value-based, and
predictive exercise with potential for each parent to claim that their plan promotes the child’s “best interests. In reality, very
broad/vague, difficult to predict effects of plan on child, decisions about what is in a child's best interests is subjective

In practice: Usually preserves pre-separation pattern of child care – primary caregiver gets interim custody which
becomes primary residence.
o Usually have some form of joint decision making with more time with one parent
o Increasingly common to have equal parenting roles and shared parenting time
o Parenting plans almost always change over time

Role of Parents/Lawyers

s. 7.7(2) imposes duty on lawyers encourage

7.2 A party to a proceeding under this Act
shall, to the best of their ability, protect
any child of the marriage from conflict
arising from the proceeding
7.3 To the extent that it is appropriate to do so, the
parties to a proceeding shall try to resolve the
matters that may be the subject of an order under
this Act through a family dispute resolution
process
divorce clients to “attempt to
resolve the matters” through non-court “family
dispute resolution process, unless the
circumstances of the case are of such a nature that
it would clearly not be appropriate to do so.

Presumption of Shared Parenting: NOT implemented in Canada.

 Pros: studies show that kids with high involvement of both parents have better outcomes
 Cons: most intact families do not have equal parenting, research tends to be from families where parents are more co-operative, concerns
where conflict is high, concerns about motivations re child support.
 Stats: 70% of separations involve some type of shared parenting or joint decision making. 1/3 cases involve shared parenting time

When Will Court Order Assessment?

Mediation Judges are not trained to identify "clinical issues" - the presence of a "clinical issue" or "issue of
Neutral third party who attempts to facilitate
settlement
pathology" is not a pre-requisite for the making of an order pursuant to s30 Criteria that should apply:
 Not mandatory to attempt Parenting Relationship
 Government subsidized for lower and middle  Before separation The Children
income groups.  is relationship dysfunction?  Are they acting out?
 Are there “clinical issues”?  Any special needs or diagnosis?
Assessment/Investigation Cooperation  How old is the child? Is assessment in the
Court appointed mental health professional as an o Can parents make decisions together? children’s best interests?
expert. Blame Throwing Other Factors
 Often results in settlement, influential if trial
 Do they blame each other?  Can the parents afford it?
 Expensive (10-25k)
o Do they see each other as bad parents?  Is this about litigation actually about
 Not always sound
something else, like sale of the home?
- Glick v Cale (2013) (ON)

Parenting Plan: focus on parental role and responsibilities

rather than rights. Often a result of a parental agreement, not
judicially imposed. Incorporates flexibility as circumstances
change – can be varied without lawyers or courts, if appropriate.
Decision Making Models:
 Good Co-Operation & Communication = shared decision making on all significant issues with consultation and joint decisions
 Divided Decision Making = parents consult but divide final responsibility for significant decisions
 Consultative Decision Making = one parent responsible for final decisions but obligation to consult
 Sole Decision Making = one parent gets final decision but must inform other after decision

Factors affecting judicial decisions on parenting:

 Legislation & appellate jurisprudence
 Expert evidence - including assessments
 Values & life experience of judges (common sense)
 Social science literature – can take judicial notice of family violence/developmental issues
 Parenting Plan Guide - not binding on courts but helpful for child-developmental research

Status Quo: both parents have a right to parental decision making (s20.4 CLRA) unless:
 A separation agreement is negotiated
 A court order is issued
 Implied consent or acquiescence causes a parent to forfeit decision making (more than a few weeks)

Courts will look to status quo of primary care when together and after separation – whether it’s consensual or unilateral (is
one parent stealing the kid?), how long it has been in place? Etc. But may reverse the status quo and shift to equal parenting.

Interim Parenting Motions: a parent can seek interim custody order while separate and apart in the same dwelling but judges are
reluctant to order exclusion of parent from home unless significant, independent evidence of abuse or harm to children.

Nissen v Nissen (2019)(AB)

Facts: H&W have two young children, H is a patent agent, W had a masters degree and was working full time but decided to be a stay at home mom.
W argues she should retain primary custody because that is status quo for children. H arguing for joint custody
Rule: The only standard is the best interests of the child – no presumption in favour of joint custody, no presumption in favour of
maintaining status quo.
Analysis:
 No evidence as to why status quo is in best interests of children other than change would be difficult
 H has appropriate residence for children, can easily adapt shared parenting routine
 W will be afforded more time to go back to work
Conclusion: joint custody ordered

N(M) v B(M) 2000 ON

Facts: parents from Iran, during war parents decided to move with their children from war zone to Canada. Children stayed with B family – neither
parent saw kids for years. Parents applied for custody – kids expressed wish to stay with B family.
Issue: Biology vs Status Quo?
Rule: where there is a risk of harm in removing children from their present surroundings, court will maintain status quo arrangement
Analysis:
 Likely outcome would be for kids to have to move to denmark to reunite with H
 Leaving kids with Bs there is no risk of uprooting them, they are happy and successful
 Significant weight to be given to kids wishes based on age
Conclusion: remain with Bs
Class Notes:
 Status quo is more relevant the longer it goes on
Maternal Presumption: there is huge history and socio-biological arguments supporting mothers being primary caregivers,
especially for young children – tender years doctrine is rejected in Canada
 evidence about breastfeeding over bottle feeding isn't hugely positive – not clear how much better breastfeeding is over bottle
feeding.
 Now considerable evidence to establish babies psychologically attach to any consistent, attentive caregiver.
 SCC rejected tender years doctrine – but evidence that it still shapes thinking of judges, lawyers, parents

Primary Caregiver Presumption: not adopted in Canadian law – especially as kids get older.

Warcop v Warcop (2009) (ON)

Facts: H&W had son that was a year old on separation, W didn't allow overnight access following separation – H applied for joint custody, W
applied for sole custody with generaous visitation because child was young and needed mother
Rule: Tender Years doctrine is dead – no longer a presumption that mother is entitled to custody of young age child (7 years or less) giving
preference to the primary caregiver must be considered objectively, based on the evidence, and not from the perspective of any predisposition..
Analysis:
 Infants form attachment to both parents at approximately the same age – both parents are decent human beings and perfectly capable of raising
son on their own
 Rejects that W should keep custody because she has been primary caregiver
 Son is bonded with both parents, enjoys time with extended families of both parents
Conclusion: joint custody

Presumption Against Overnights for young Children

 Kelly & Lamb REJECT the concept of overnights not being desirable infants aged 6-18 months- they argue it is too
restrictive. Father asking court to take judicial notice of this theory – court rejects it absent expert opinion -Benko v Torok
 Dominant View: even if a child is under the age of 1 or 3, there is no presumption against overnights, it's important for
children to have overnights to establish better relationship with father. Prefer theory which promotes early contact between
the access parent and child. -Burley v Bradley

Parental Conduct: The past conduct of a person is not relevant to a determination of an application ... in respect of parenting unless
the conduct is relevant to the ability of the person to act as a parent.
 Adultery is not a factor to be considered unless it affects wellbeing of a child
 Spousal abuse is now considered a factor even if not directed at children – exposure is enough to affect parenting

Isakhani v Al-Saggaf (ON 2007) 24 (4) In assessing a person's ability to act as a

parent, the court shall consider whether the person
Facts: H from Yemen, W from Iran – met in Dubai, had son in Canada, lived in Dubai for 4 years. Whas
leftat H because
any he was abusive
time committed violenceand an
or abuse
alcoholic, took son to Canada against,
(a) his or her spouse;
Issue: was there reasonable likelihood of violence and abuse? (b) a parent of the child to whom the application
Rule: types of evidence that are important for establishing abuse in family context relates;
(c) a member of the person's household; or
Analysis: (d) any child.
 Relatives in Toronto attested to abusive behaviour, witness in Dubai, photographs of injuries
 Two significant emails that provided compelling confirmatory evidence of abuse
Conclusion: satisfied that h's misconduct exposes child to serious harm
Class Notes:
Photographs, emails, texts – very important for establishing abuse

What is Family Violence? Pattern of coercive and controlling Bill C-78 – Family Violence
16(2) specifies that “the court shall give primary consideration to
behaviour including: the child’s physical, emotional and psychological safety, security
 Physical abuse and well-being.”
 Threats to kill or harm
 Harassment, including stalking S. 16(3) Best interests of the child includes:
 Failure to provide necessaries of life (j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the
 Psychological abuse family violence to care for and meet the needs of the child, and
 Financial abuse (ii) the appropriateness of making an order that would require
 Threats to kill or harm animal or damage property persons in respect of whom the order would apply to cooperate
on issues affecting the child;
 Killing or harming animal or damaging property ie both direct effects on child and effect of violence on other
parent

Barendregt v Grebliunas (SCC) (summary)

  Parents living together in relationship with evidence of emotional abuse- H was controlling and then there was an assault
but he was not criminally charged. She left with two children
 TJ gave permission to W to relocate with children to live with her family. H still had access but needed to drive 10 hours
to be where kids are.
 SCC: significant recognition of the effect of family violence on children – critical consideration in the best
interests analysis even if the children aren't directly involved in the violence.
 Family Violence: Supreme Court upheld the decision of the trial judge to allow a mother to relocate with her children
some 10 hours’ drive from the father, in significant measure because she had been a victim of his abuse and violence'

Factors relating
to family
violence (DA
s16(4))
(4) In considering
the impact of any
family violence
under paragraph
(3)(j), the court
shall take the
following into
account:

Coercive Control: pattern of abuse over time that maintains the power of one partner over another – physical, sexual, emotional
abuse etc. - there are also post-separation consequences so needs to be identified for the purposes of shared parenting. Need to
consider both during cohabitation and post-separation conduct.

Relationships with new partners: parents should exercise judgement about introducing new partners to children – best to inform
other parent before introducing them. But a court will not prevent the involvement of the new partner unless evidence of concerns for
abuse, drug addiction etc. – Pelletier

Pelletier v Pelletier (2010) (ON)

Facts: H filed for separation and moved in with new partner. W states she wants H to have time with kids but no overnight visits and had concerns
about his ability to parent for a week-long stretch. She was seeking only contact with the children in the absence of his new partner
Issue:
Rule: Courts are generally unwilling to restrict parenting time as a result of a new partner unless there is evidence to support it is not in the
best interest of child welfare
Analysis:
No evidence that either H or new partner lacks parenting skills – judge found concerns were related to mother's feelings toward new partner
Conclusion: overnight access allowed
Class Notes:

Dix v Thomas (2006) (ON)

Facts: W moved child from Kingston to Ottawa to live with her parents. H had back condition and was quick to anger, W suffered from
depression.
Rule: a court can take into account a new partner in decisions regarding parenting time
Analysis:
 Both parents have significant challenges they must overcome
 H has a new partner who is more stable, the primary breadwinner and primary caregiver and has children of her own
 Best interest of child is to live with H due to strong positive influence of new partner and close relationship with her kids
Conclusion: primary custody to H

Grandparents seeking orders: have a right to apply for access (CLRA s21.1) but usually only parents get access rights.
Grandparents do not get direct access but often will be factored in for visiting time – they can seek “contact order” with leave of court
(Bill c78).
 If one parent is dead, grandparents will usually get parenting time, especially if close relationship (KEL v SAL)
 If child is left with grandparents for months or years, can make claim based on psychological parent, especially if there are
questions about the parent’s fitness (drug addiction).

BJT v JD (SCC) (summary)

  M moved to PEI without informing F that she was pregnant. M suffered from mental illness and child was placed in
grandmother's sole care. Director alerted father to son's existence
 TJ ordered child to be in care of grandmother due to closer attachment
 SCC: it's not an error to consider a biological tie in itself, but should have minimal weight in assessment – judges are not
obliged to treat biology as a tie-breaker. It should just be one factor in determining best interests of the child.
Grandmother got custody.

Best Interests – Psychological Parents:

 KK v LG (SCC) awarded custody to adoptive parents when biological mother revoked consent to adoption less than
three months after birth. Importance of child attachment to long term caregivers , biological ties are just one factor in
determining best interests of child

Race and Culture Racial identity is one factor that may be considered in determining personal identity, the relevancy of this factor depends on
context – Van De Perre

Van de Perre v Edwards (2001) (SCC)

Facts: F was a black NBA player who had a series of affairs, M was white and the basketball equivalent of a puck bunny, was immature but child
was primarily attached to her. Psychologist found child was also attached to F and his wife, who wanted to add the child to their family. TJ awarded
custody to M
Rule: Racial identity is one factor that may be considered in determining personal identity, the relevancy of this factor depends on context. Other
factors are more directly related to primary needs and must be considered in priority
Analysis:
 Here there are two biological parents, each of whom shares a part of the child's race and culture.
 There were limited findings at trial relating to race – reflective of minimal weight parents put on the issue
 TJ was of view that even if F provided some benefits in fostering positive racial identity, these did not outweigh negative findings
related to him
Conclusion: custody to M, access to F .
 Racine v Woods (1983)(SCC)
 M of indigenous child places child with non-indigenous couple – they have her for 3 years, M comes back
 Law no longer treats children as property – the only home she knows is the current parents. As important as her indigenous
heritage might be, the duration and strength of her attachment to the parents was more important
 In recent developments, courts today might place greater weight on indigenous heritage – decision referred to as a "decolonizing
perspective"
UN Convention on Rights of Child
Views and Preferences of the Child: children often have (1) State parties shall assure to the child who is capable of forming
better outcomes if they participate, they have a right to do so under UN his or her own views the right to express those views freely in all
conventions of the child matters affecting the child, the views of the child being given due
 All children have legal rights to be heard weight in accordance with the age and maturity of the child.
 No exception for DV cases, or parental alienation
(2) For this purpose, the child shall in particular be provided the
 Applies at all parts of judicial process opportunity to be heard in any judicial ... proceedings affecting the
 Must be determination of the method by which child will child, either directly, or through a representative or an appropriate
participate (if they want) BJG v DLG body, in a manner consistent with the procedural rules of national
law.
Methods:
Hearsay – child’s statements to parent or other
CLRA
• Reliability? Depends who child made statement to
Child entitled to be heard
Video or letters of child’s statements 64(1) In considering an application under this Part, a court where
• Reliability, especially if parent provides? possible shall take into consideration the views and preferences of the
• Judges very reluctant to allow parents’ recordings (p.822) child to the extent that the child is able to express them.
Social worker or psychologist assessment (court-ordered)
• CLRA s. 30 & CJA s. 112 (OCL) Interview by court
Views of Child Report (VCR) (2) The court may interview the child to determine the views and
Lawyer for child tells court about child’s views preferences of the child.
• Limits to lawyer “giving evidence” from counsel - Strobridge (3) The interview shall be recorded.
Child meeting with judge (4) The child is entitled to be advised by and to have his or her
Child testifies in court (judges often won’t allow in family case counsel, if any, present during the interview

Office of the Children’s Lawyer: no charge to parents, most

extensive program in Canada. OCL will act on only half of parenting disputes where court makes a request but court may order OCL
where there is a child protection issue.
 Job is to ensure child’s views are known by the court.
 Can tell court about the “clarity, consistency and independence” of child’s views and can advocate a position on the
child’s interests (Ludwig)
 Cannot give evidence about a child's wishes and preferences unless the parties agree otherwise
 Counsel is to advocate for an outcome based on counsel's assessment of the child's interests

Stefureak v Chambers (2004) (ON) there are concerns about judge meeting with child – due process, is this evidence? But most
judges are prepared to consider meeting the child.
 Allows child to ask questions, understand process
 Gives judge context for other evidence, and is also “evidence” itself’
 Judges should be cautious about placing too much weight on child’s expression of preferences
 If dispute about facts, more reliable info will be from mental health professionals.

Confidentiality? No clear rules about whether judge can disclose child’s statements – should be decided before interview. General
rule: only give parents a summary and try to respect child’s desire for confidence (Demeter v Demeter)
 Potential to harm child – undermining relationship with parent
 Want to encourage child to be honest
 Want to test for accuracy and completeness. Summary
 Harm to children comes from stress of conflict but
Voice of Child Report prepared by social workers or experienced child lawyers no evidence to support harm from involvement in
after 2 interviews with child (brought once by each parent)– mainly for children at the process – usually better outcomes when
involved (esp. if older)
least 7 years of age. No recommendations but summarizes the child's statements
 No single “best way” to engage children. Will
about perceptions and preferences.
depend on nature and stage of case, age &
 Helped settle about 70% of cases where used. capacity, views of child, resources of family.
 Divorce Act 16(10) Maximum Contact
Non-Primary Residence Parents: significant involvement with both 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
parents generally has value for both child and parent. Access is only totally contact with each spouse as is consistent with the best interests of
denied in 1% of cases (serious domestic violence or abuse concerns) the child and, for that purpose, shall take into consideration the
willingness of the person for whom custody is sought to facilitate
Young v Young (1993)(SCC)
Facts: H was Jehovah's witness, W was not. W had custody, H had access with a court order limiting his ability to engage kids in religious activities
during his time following evidence that kids were reacting negatively to his religious discussions
Rule: When the issue is quality of access – what the parent may say or do with child, it will be generally relevant to consider whether the conduct in
question poses a risk of harm to the child which outweighs the benefit of a free and open relationship - maximum contact is a significant factor -
the custodial parent gets to decide on religion but doesn’t have a right to limit the access parent in sharing religious views as long as it’s not contrary
to child’s best interests.
Analysis:
 Evidence that the kids were functioning normally and had not been adversely affected
 The concern that the relationship with H would deteriorate is not better than the alternative that prevents kids from knowing him as he
is – perceived harm does not outweigh benefits
Conclusion: unrestricted access allowed
Class Notes:
 LHD dissent: custodial parent should decide. Their decisions should be respected
High Conflict Separations: characterized by distrust, anger, resort to courts, repeated litigation. 30% are high conflict at
separation but may resolve with time. 10-15% are high conflict after 3 years.
 more likely with children
 increasing trend in Canada

Alienation: one parent influencing the child to express unreasonable negative feelings toward the other parent that is
disproportionate to their actual experience of that parent. Key aspect is that child becomes an independent actor.
 In contrast to realistic estrangement where there is an actual basis for a child to avoid contact with one parent, not as a
result of influence by favourite parent
 For a judge to tell, they need to consider factors:
• directly and indirectly denigrate or instill fear
• not permit child to take (or return with) phones, clothing, toys, pets
• arrange conflicting activities; talk about activities missed
• induce guilt about visits, good times with other parent
• make unfounded abuse allegations – report to CAS/police
• tell child:“It’s up to you”(which effectively devalues importance of relationship with other parent) ng term

Why intervene? Children often suffer long term harms – initial confusion and anger at separation then leads to taking sides and
distorted perceptions of parent, often alienated from whole side of family. Eventually interefers with normal developmental autonomy,
social and peer relationships – low self esteem, depression and substance abuse in adulthood.

What happens when a parent is not respecting a parenting schedule?

 application for enforcement (not ordered lightly)
o If violation of court ordered time, could be contempt of court (not ordered lightly) – result is imprisonment, fines,
penalty, costs, "anything else court decides is appropriate" requires:
o Order must be unambiguous
o The acts must be willful, deliberate or intentional (not accidental)
o Contempt must be proved beyond reasonable doubt
 Court ordered therapy or counselling
o Child and parent engage in counselling – Leelaranta
o In severe alienation cases, likelihood of positive outcome for reunification therapy is low.
 Custody Reversal
o Most drastic remedy, must demonstrate it’s in the best interests of the child
o Not always effective – some children run away.
 Brazeau v Lejambe (2020)(ON)
Facts: W & H had joint decision making, resided primarily with W – W took kids on vacation to Mexico in March 2020 and had to quarantine for 14
days on return. W then informed H that kids no longer wanted to see him and she would not force them to go to his home. H brings urgent motion for
enforcement of prior order.
Rule: A party who does not wish to comply with terms of a court order has obligation to bring motion to address concerns. Courts do not
look favourably upon self-help litigants.
Analysis:
 W claims the kids are scared to go to H's house because partner works at a long term care home and she won't force them to go. -
court takes issue since she contravened medical directives and took kids to mexico during pandemic
 W is empowering kids to believe they have the authority to disregard a court ordered term
 Would require more evidence to overturn custody order than W's account of kids' views
Conclusion: variation of order not allowed
Class Notes:
 Parenting is an essential service – you can't just use COVID as an excuse to defy parenting orders

Bors v Beleuta (2019)(ON)

Facts: H granted access but was having difficulty seeing kids due to youngest refusing to go with him. Youngest kid started acting out at school. W
brought a lot of allegations including abuse, neglect, sexual abuse etc. Child protection workers, youth workers, teachers and child psychologists
were retained and none supported W's evidence. Report from OCL social worker stated W was not supporting kid's relationship with H and was
causing kid confusion and upset.
Rule: custody reversals can be ordered where there is an extreme case of alienation
Analysis:
 W failed to abide by court order – severe alienation of children from H and W shows no understanding in her role in affecting kids
relationship with H
 Court has no faith in ability to support children in their reunification with H
Conclusion: change of custody ordered

When to stop enforcing?

 Sometimes need to accept that “courts cannot fix every problem” – AM v CH
o when causing stress to child and rejected parent
o consider resources and capacity of alienated parent (financial, social, emotional)
o when not in child’s best interests
o emphasize “leaving the door open” so that there is possibility for continuing communication (discrete
attendance at sporting events)

Co-Parenting Strategies:
(a) Joint Legal Custody (40-50%): shared decision making, most time with one parent (primary residence)with regular and
significant access to other parent but joint responsibility for decision making.

(b) Joint Physical Custody (30%): shared parenting time and joint legal responsibility for decisions about education, recreation
and religion and child spending equal time with each parent.

(c) parallel parenting: higher conflict cases but significantly involved parents. Each parent has sole care for stated period and
detailed rules to decide which parent decides which issue. There is specified, structured communication (ie only by email)

Benefits
 Generally positive study outcomes but difficult comparison
because parents are more cooperative and tend to have higher
incomes
 Maximize contact with both parents
 Increase likelihood of child support payments
 Children less distressed, better outcomes
Concerns
 Requires signficiant co-operation/proximity/resources
 Should not be the judicial default – esp where not appropriate
 Lawyers shouldn’t pressure to accept shared parenting
 What are the remedies if it doesn’t work out?
Kaplanis v Kaplanis (2005) (ON)
Facts: H&W were awarded joint custody with an order to attend counselling to improve parenting skills – decisions were to be made by a counsellor
if parties were unable to agree. W applies for sole custody
Issue:
Rule: where parties cannot communicate with each other because of conflict, a hope that communication will improve once litigation is over does
not provide a sufficient basis for joint custody
Analysis:
 H uttered death threat on separation, never attempted to return to mat home, attempts at counselling were unsuccessful
 Both parents acknowledge each other to be "fit" but doesn't warrant joint custody if there is an inability for them to communicate
Conclusion: W sole custody

Ladisa v Ladisa (2005)(ON)

Facts: H&W have 3 kids – court awarded joint custody. W challenges on basis that parties have repeatedly been in conflict.
Rule: One parent should not be able to “veto” shared parenting where there is a history of reasonable cooperation between parents
Analysis:
 Evidence that parents can behave in child emergencies and in public when necessary
 Both have supported children financially without consideration of reimbursement
 Both are permitted to medical information, travel etc. With children
 Satisfied that parents could communicate effectively and put interests of child before their own
Conclusion: custody maintained

Divorce Act
Parenting time consistent with the best interests of child
16(6) 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.
Factors to be considered
16(3)(i) In determining the best interests of the child, the court shall consider all factors related to the circumstances of
the child, including....the ability and willingness of each person in respect of whom the order would apply to
communicate and cooperate, in particular with one another, on matters affecting the child;

Pereira v Ramos (2021) (ON)

Maximum Contact Dead
Facts: H bringing motion to increase parenting time to a 2-2-3 alternating week schedule. W requests parties continue to follow current plan where
children reside primarily with her and visit H on alternate weekends. Both parties describe relationship as contentious
Rule:The "maximum contact principle" is now the "maximum parenting time" principle. It is important to note that above all else, this principle is
subject to the "primary consideration" that the court must consider a child's physical, emotional and psychological safety, security and well-being.
This is especially significant in cases of family violence. Lastly, none of the above creates a presumption of equal time because if the contact
conflicts with the best interests of the child, the court may impose restrictions
Analysis:
 Police were called to respond to conflict early in separation but neither party alleges pattern of conflict that is coercive or controlling
or causing fear for own safety
 Conflict was not directed towards children but children were exposed to it
 Parental conflict and family violence that has occurred is not in the nature, seriousness or frequency that would negatively impact a
shared parenting time order
 Both parents have deep love for their children and strong relationship with them – both can meet children's needs
Conclusion: shared parenting time granted
Class Notes:
 Knapp v Knapp (2021)(ONCA)
Maximum contact still alive
Facts: H&W are very religious – during counselling with church, H submitted bible passages related to "wives submitting to their husbands". Two
weeks later, W took kids to women's shelter stating fear H would hurt her or children
Issue:
Rule: Judge not required to accept OCL recommendations – they are just recommendations. Permitted to make own assessment as to best interests
of the children
Analysis:
 CAS and OCL investigated H and found he was no risk of harm to himself or children, no red flags in psych eval. But OCL
recommended W get sole custody
 TJ rejected majority of W's evidence – found no evidence of H abuse, neglect etc.
 While taking into account views of children, must consider the context – in women's shelter with W claiming they should fear for their
safety – this will influence their views.
Conclusion: TJ judgement upheld – split parenting time.

Variation in Parenting: some adjustment is common and desirable as children get older – usually negotiated by parents without
going back to court
 Court can only vary if material change in circumstance:
 High conflict/alienation
 Shift below/above CSGs
 Relocation

Topic 13:
Domestic Violence

Abuse may involve physical violence of threats, financial or sexual abuse – often emotional effects are very significant

Spousal Abuse: more likely if younger, lower income, common-law (not married), aboriginal, certain immigrant communities, rural
communities and separate
 Violence initiated by men poses greater risk of injury and emotional trauma
 Male perpetrators more likely to engage in “coercive controlling violence” & escalate violence after separation.

(a) Coercive Controlling Violence (battered woman) = most serious, 10-20% of cases
 Male violence with emotional control
 May be violent only within family or outside as well
 Violence may be repetitive or less frequent but still emotionally controlling
 Intensity and danger may escalate after separation – even if physical violence ends, coercive control may continue.

(b) Violent Resistance by woman towards abusive partner (self defence)

(c) Common Couple Violence (situational or conflictual couple violence) = most common
 couple often stays together, counselling may help
 low intensity, limited frequency, not escalating, occurs while arguing
 either spouse may initiate, neither is dominated

(d) Separation-instigated violence: only a few acts around the time of separation due to feelings of anger, betrayal

(e) Psychotic, Paranoid or Drug-Induced: relatively rare but dangerous unless treated
Effects of Abuse: more abuse  greater effects but even a single incident can be emotionally destructive and result in coercive
control.
 Extent & frequency is important but not always determinative of degree of control of psychological harm.
 Victims may have heightened depression, fear, drug abuse, lowered self-esteem

Effects on Children: children often witness or hear spousal abuse- they are psychologically harmed by spousal violence and are more
likely to be abused by violent spouse. Often better off after separation but even if spousal abuse, most children want to see father.
 Girls  depression
 Boys  behavioural problems

Social Resources:
 Transition houses & shelters (only about 10% of female victims use)
 Doctors, nurses, hospitals (only for emergency – identification, treating injuries, referral for safety plan)
 Counselling for batterers (PAR program)

Why do women stay? Social or community pressure, economic reasons, wanting father present for children, love and emotional
attachment (esp if raised in abusive household), great fear of abuser and has been intimidated (I will get kids, police won’t protect you,
retaliation if tries to enforce rights), mistrust of police & courts.

What happens when women leave?

 High risk of harassment/violence escalating, especially if coercive control but in other types of cases, violence usually falls
with separation
 Risk of abuser not respecting family court order or bail release terms
 Disruption to children  should victim and children move?

Parenting Arrangements:

Tort Actions: tort of family violence

and tort of coercive control NOT recognized but court accepts that the “cumulative” effect of abusive behaviour is to be considered
when awarding damages for assault and intentional infliction of mental suffering. – Ahluwalia v Ahluwalia

Criminal Process: benefits  fast, no contact provisions, de facto exclusive possession of home (even if not matrimonial), police
enforcement, de facto primary parent.
Detriments  $ expensive, CAS is not your friend, delay

Family Law Remedies: restraining orders (s46), exclusive possession of home, urgent motions

Domestic Violence Screening: mandatory for judge to consider whether person seeking parenting time or decision making has
committed violence against certain people (spouse, parent of child, member of household, child). When screening, get some history,
watch body language, ask had questions, track how many texts/calls from partner during meeting, get client “off-script”
H: have initial discussion about family violence
E: explore immediate risks and safety concerns
L: learn more about the violence to help determine what to recommend to client
 P: promote safety throughout family law case.

What does violence look like?

 TEXTS: Go fuck yourself”; “Fuck you and don’t talk to me. I hope you get a horrible disease and die a slow and brutal
death.”; “Spoiled rotten little lying bitch. Fuck right off”; “Compulsive Liar – rot in hell”; “Selfish piece of shit horrible
loser”; “Fucking selfish piece of shit”; “lying cheating selfish lose
 CONDUCT: Go through mother’s household garbage. Reporting his findings to friends, family and the children; 3 a.m.
intoxicated visits; Refusing to leave mother’s home when requested.; Refusing to return the children after his visits unless
mother promises to allow children to spend Christmas with father.; Lego jail game with children.; Threatened a Family
Court Judge

Topic 14:
Domestic Contracts

Types of Contracts:
(a) Marriage contract (planning)
 Primarily for property & NFP
 CANNOT waive Part II possessory rights to matrimonial home
 CAN waive all Part I claims (including pre-owned mat home)
 CAN provide for “education and moral training” of children but can’t deal with parenting issues like custody or access

(b) Cohabitation agreement (planning)

 More important than marriage contracts because more uncertainty about property on separation or death
 No FLA PT2 issues because there is no matrimonial home – so can waive possessory and ownership/unjust enrichment
claims
 CAN provide for “education and moral training” of children but can’t deal with parenting issues like custody or access
Why have? Why NOT have?
 Certainty, value of discussion  Not romantic
 Don’t like default regime  One partner trying to bully other
 Especially if second marriage  Difficult to foresee and agree to issues

(c) Separation agreement (Dispute Resolution),

 Lawyers are to encourage clients to resolve family disputes outside court process (s33.2 CLRA) unless it would
clearly not be appropriate to do so.

Why have? Why NOT have?

 Usually better for children
 Cheaper
 Self-directed, more likely to be respected
 Potential for unfairness- risk aversion,
litigation resources
 Domestic violence
 Emotional vulnerability
 Desire to “get it over with”
Formal Validity: needs to be (i)Written, (ii) Signed, (iii) Witnessed (FLA s55)
 May be “relaxed” where court is satisfied that the contract was in fact executed by parties, terms are “reasonable”
and there was no oppression or unfairness in the circumstances surrounding the negotiation and execution of the
contract.
 Family lawyers may be authorized to make a binding settlement to actual or pending litigation, even if parties do not
sign. Courts will generally uphold agreement that counsel has clearly negotiated even if one party does not sign
later. Technically not a domestic contract but a contract to settle litigation, that may later be incorporated into a court
order – Geropoulos / Pastoor

Gallacher v Friesen:
Facts: man moved into woman’s house and paying ”rent” (tenant with benefits), signed cohabitation agreement waiving any claims to house based
on unjust enrichment, after getting ILA but his signing was not witnessed

Held: Both parties signed the contract; the respondent’s signature was witnessed by Ms. McKnight; both parties certified they had received ILA
before singing the domestic contract; there was full financial disclosure before execution of the domestic contract; both parties are sophisticated and
educated; and there was no duress, lack of capacity, vulnerability or any other circumstance that would vitiate the domestic contract – contract
enforceable

Substantive Validity: needs to refer to exclusion from NFP specifically, not just ownership.

Bosch v Bosch
Facts: parties signed prenup in Netherlands in 1976 in anticipation of living in Ontario – agreed that “all property shall remain the property of the
respective parties”. W knew that H wanted the house he owned before marriage to remain his exclusive property
Held: Part 1 claim of W was not barred (including value of the house) but H gets ownership. -importance of careful, Ontario drafting.

Negotiation: a court may set aside a domestic contract or provisions IF:

a) Failure to disclose assets or liabilities
b) Party did not understand nature OR consequences of the contract OR
c) If not in accordance with the law of contract (unconscionable, under duress etc.) FLA s56.4

Hartshorne v Hartshorne (2004)(SCC)

Facts: Two lawyers: older man & younger woman. 2nd marriage for both. Man “adamant” that he would not marry without marriage contract to
protect his pre-marital assets. Man’s lawyer drafted agreement. Woman consulted a lawyer who said it was “grossly unfair” and court would likely
not uphold it (broader statutory jurisdiction in BC if “unfair” than Ontario common law “unconscionable”), but some amendments after she consulted
lawyer – no waiver of spousal support.

Woman waived most of property claim, but 3% of value of home for each year of cohabitation. During 10 yrs of marriage, woman’s debts paid and
some assets acquired by her. She stopped working and had 2 children, but after separation she again worked as lawyer. W had career sacrifice, but
entitlement to support not waived in agreement and she had compensatory claim
Issue: should the contract be upheld?
Rule: in a framework within which private parties are permitted to take personal responsibility for their financial
well-being upon the dissolution of marriage, courts should be reluctant to second-guess their initiative and
arrangement, particularly where independent legal advice has been obtained.
Analysis:
 marriage contract is valid. Woman knew man’s position: no contract, no marriage. Although she got less than statutory property regime, this
does not mean “unfair” (let alone unconscionable)
 Sophisticated woman, full disclosure, more property over time, some negotiation and no support waiver. [Got about 20% of assets under
agreement vs 46% without marriage contract + later $350,000 lump sum spousal support.
 (Like Miglin): consider both situation at time of signing (ILA) and at time of separation
Conclusion: domestic agreement upheld
Class Notes:

Levan v Levan (ON)(2008)

Facts: Husband from a very wealthy family. Father of husband wanted each of his 4 adult children to have a marriage
contract that provided that in the event of separation, the spouse would have no claim against shares of company in
which each child had shares family had controlling interest.

By time of engagement, husband said: no contract, no marriage, but that marriage contract was only intended to
ensure that if they split up, there was no possibility of an outsider getting his shares of company. Wedding date set 6
mo ahead, and woman says let’s get going on marriage contract. Husband delays saying his lawyers are “working on
it.”
About a month prior to marriage, he goes to family lawyer at company’s law firm. His lawyer drafts agreement, given
to wife and she is told to get a lawyer to review it with her. Agreement effectively waived almost all equalization claim
and purported to limit H’s income for support purposes (employment income only, not trust or dividend income).
Much broader than waiver of claim to shares and what father wanted.

Wife retained home-town lawyer, who asked for disclosure. Husband’s lawyer failed to provide the information. Said
value of property “$80,000 +” but did not disclose it was actually more than $13m. Wife’s 1st lawyer advised her that the agreement was
“unconscionable”, and she should not sign it.

Man told fiancée that her 1st lawyer was “an idiot” and arranged for a new lawyer recommended by his own Toronto
lawyer (who represented his lawyer on her divorce.) New lawyer, from another big Toronto firm, met with wife for
about 1 hour, two days before the wedding and without asset disclosure. Wife signed the agreement. Wife’s lawyer
has very few notes, and at later trial could not identify her client. Marriage. 2 children, wife at home with kids; then separate after 10 years.

Rule: Where ineffective ILA, or failure to disclose wealth, court will set aside domestic contract
Analysis:
marriage contract set aside as court concluded that husband had deliberately breached his statutory obligation to disclose “value” of assets in s. 56(4)
(a), and other factors led court to exercise its discretion, including:
 H deliberately failed to disclose wealth; non-disclosure was enormous.
 Wife did not receive effective independent legal advice. H undermined relationship to first lawyer and helped steer wife to lawyer
who failed to meet adequately advise her.
 Wife did not understand nature and consequences of the contract; H and family kept saying contract “to protect” family business, but
did much more; also purported to limit spousal support and very little property compared to wealth

Remedy: Court does not just give wife enough so that situation “not unconscionable” or “not unfair,” but gives nfp award as if no agreement
($5.3m). Also spousal and child support; and $647,000 in costs to trial (plus $28,000 for appeal)
Conclusion: Contract set aside

Rick v Brandsema (SCC)(2009)

Facts: Parties separate after 27 yrs of marriage with 5 children. After mediation, sign separation agreement. Wife consulted a lawyer, who told her
that without full disclosure, he could not properly advise, but she seemed to be settling low, and should consider litigating.

Because mediation used, no real financial disclosure and H failed to disclose some significant assets. As husband aware, wife was “mentally unstable
and vulnerable” at time of signing
Rule: Exploitation is not rendered anodyne merely because a spouse has access
to professional advice.”
Analysis:
 SCC upholds trial decision to set aside agreement and award damages that effect equal division of property.
 Terms poor; H aware of W’s vulnerability & H did not fully disclose assets, so SCC concludes “unconscionable.” Fact that vulnerable W had
legal advice did not save the agreement.
Conclusion: contract set aside
Class Notes:
 Laderoute v Heffernan (ON)(2020)
Facts: Parties separated after 19 years (cohabit & marry after 3 yrs), with 3 children (17-24 yrs at trial). Domestic violence
between both parties; most serious was assault on woman after husband discovered wife’s infidelity in 2006, but no
pattern of violence. Separate in 2013. Both worked at pubs that husband operated. His value in pub business never
established.

Initial separation agreement in 2014. Drafted by lawyer for husband, which husband presented to wife 1 year after
separation. Wife understood key terms but did not have ILA or carefully read. Wife had good idea of husband’s assets,
but she did not get formal disclosure or know exact value of business (pub). He bought her share in house for $180,000.
She was “aware of shortcomings in disclosure.”

She later consulted a lawyer, and in 2015 an amending 1st agreement signed, providing wife with annual “salary” of
$52,000 for five years at one of husband’s pubs (reduced 50% if she cohabits), plus child support. She signed 2nd agreement in pub where both worked. She had
ILA before signing, but her lawyer did not negotiate for her.

5 months after 2nd agreement, she applied to set aside both agreements
• FLA s. 56(4)(a) gives court discretion if not full disclosure. 20

Rule: where a competent spouse chooses not to request full disclosure and limited ILA, courts have discretion to uphold contract
Analysis:
 Here overall situation “not unfair,” having regard to decision of woman not to request full disclosure and her general knowledge of business, so agreement
not set aside.
 Evidence did not establish that wife was unduly influenced, pressured, or under duress when she signed agreements. Wife was aware of shortcomings in
disclosure when she signed agreements, and terms not unconscionable, though she might have got more if she litigated. At that time “she did not want to
fight.”.
Conclusion: agreement upheld
Variation of Agreements:
(a) Contractual Variation: not uncommon to have clauses in separation agreement that allow for contractual variation.
 ex. termination of spousal support if recipient remarries or cohabitates
 ex. tie amount of spousal support to payor’s income or recipient’s income
 clauses about variation of parenting and child-related provisions
 clause for negotiation/mediation/arbitration/court in the event of a material change
*even if no provision for variation, courts have jurisdiction to vary agreements related to child or spousal support or parenting

(b) Child-Related: Parenting: courts may disregard any provision in a separation agreement related to parenting that is not in
the best interests of the children (FLA 56(1)

(c) Child-Related: Support: courts may disregard any child support provision that is “unreasonable” having regard to the CSGs
(FLA 56(1.1) AND an agreement that provides for lower than CSG amount is only binding if there is a “special provision”
made to compensate and it would be inequitable NOT to give effect to the agreement (ex transfer interest in home instead of
child support) (FLA 37(2.2 to 2.6)

Wright v Zaver Ont CA 2002

Facts: Mother and the father separated shortly after the child's birth. When child 5 months old, agreement that the father would pay lump sum child-
support of $4,000; waiver of future claim for child support; custody was to the mother and no access specified.

A year later, father began access application, but discontinued as mother remarrying and
opposed any contact, and mother wanted bio father out of child’s life. Mother and stepfather live with child for 9 years, then separate. Stepfather “stood
in place of parent” and agrees to pay CSG amount for this child and their bio child. Mother seeks support from biological father for his son, despite
agreement.
Rule: Test for special provision is “objective” (ie economic) not “subjective.”
Analysis: father's lump sum of $4,000 did not constitute a “special provision” as it was not sufficiently large to replace the child's ongoing need for
support and his obligation. Not “inequitable” to disregard agreement. • No reduction for support of biological parent even though step-father also paying
(CSG s.5), but no basis for retroactive support
Conclusion: Ont CA orders biological father to also pay CSG amount ($509):
Miglin v Miglin (SCC, 2003)
Facts: Married in 1979, with 4 children. They were equal shareholders in a corporation that owned and
operated a summer lodge where both worked. Separate in 1993; after 15 months negotiation, they sign comprehensive separation agreement. Both parties had good
lawyers. Agreement settled all claims and included a spousal support release clause. All 4 children to have their primary residence with their mother in the
matrimonial home. The husband agreed to pay child support of $60,000 per year (pre CSG) Husband transferred his one-half interest in the home to wife in
exchange for her interest in business (both assets valued at $500,000).
• “consulting agreement” with wife to get annual “salary” of $15,000 for 5 years from the business.
• waiver of all other claims to spousal support. Divorce in 1997. Decree silent as to spousal support etc

when the 5 years of spousal payment expired, wife sought spousal support under Divorce Act, despite waiver of spousal support in agreement. Oldest of 4 children
living with father by then; she had custody of 3 younger children and “no intention or working.” Ont CA awarded spousal support of $4,400 per month for another
5 years, but SCC said no – gave effect to waiver of further spousal support in agreement. 27
Issue: can agreement be varied?
Rule: Application for spousal support inconsistent with a pre existing agreement requires a- “two stage investigation”- into all the circumstances surrounding that
agreement.

1. the time of its formation; “Unimpeachably negotiated agreements” that represent the intentions and expectations of
the parties and that substantially comply with the objectives of the Divorce Act as a whole should receive “considerable weight.” Consider circumstances in which
the agreement was negotiated to determine whether there was there was “substantial compliance with the general objectives of the Act.” Take account of entire
agreement: e.g may get more property but less spousal support. Jurisdiction broader than unconscionability. Availability of legal advice significant, but not
determinative

2. the time of the variation: Court must assess whether the agreement still reflects the original intentions of the parties & the extent to which it is still in
“substantial compliance with the objectives of the Act.” Party seeking to set aside the agreement needs to show that these are “circumstances not contemplated.
Analysis:
At the time of its formation:
 nothing in the surrounding circumstances indicated that the negotiations or execution of the separation agreement were fraught with vulnerabilities.
 Both parties had engaged the services of expert counsel and negotiations persisted over a lengthy period.
 Nothing in the substance of the agreement demonstrated a significant departure from the overall objectives of the Act.
 Division of assets in the agreement reflected the parties’ needs and wishes at the time and fairly distributed the assets acquired and created by them over the
course of their marriage.
 Quantum of child support was arrived at in full contemplation of the wife’s spousal support release. The quantum of child support established in the
agreement was intended to provide the wife with a minimum amount of income in contemplation of her not working.
At time of variation:
 change to the obligations regarding childcare did not take the wife’s current position outside the reasonable range of circumstances that the parties
contemplated in making the agreement.
 consulting contract reflects the parties’ intention to provide the wife with a source of employment income for a limited time. The nonrenewal of the contract
did not render continued reliance on the original separation agreement inappropriate.
 The contract stipulated that renewal required the consent of both parties, and there is no evidence of any damaging long-term impact of the marriage on the
wife’s employability or that, at the time of negotiation, she underestimated how long it would take to become self-sufficient.
Conclusion: agreement upheld

For second Stage: Some degree of change in the circumstances of the parties is always foreseeable, as agreements are
prospective in nature. Parties are presumed to be aware that health, job markets, parental responsibilities, housing markets, and values of assets are all
subject to change. It is only where the current circumstances represent a “significant change in the parties’ circumstances from what could reasonably
be anticipated at the time of negotiation.” -> no longer the 1987 SCC Trilogy standard of a “radical change in circumstances causally connected to
marriage.” Some parts of para. 89 seem to suggest that almost any change is “reasonably anticipated,” but other parts seem to give somewhat broader
discretio
Appendix: Validity Table
Nullity of Marriage in Canada: Summary of Grounds and Remedy
Impediment or Defect Effect on the Marriage
Polygamous Marriage Prior Existing Marriage Marriage void Marriage void
Relationship within the Prohibited Degrees Marriage void
Failure to comply with specific statutory requirements for formalities Marriage valid if governed by saving provision, such as
Ontario Marriage Act s. 31
Non-age: either party below the marriageable age of 16 years. Marriage void but capable of ratification by continued
cohabitation after
Polygamous Marriage Prior Existing Marriage Marriage void Marriage void
Age: Must be at least 16 years of age. Marriage contracted by a minor of Marriage valid in Ontario. (In some jurisdictions the
marriageable age of 16 years but below the age of marriage majority without applicable marriage legislation provides such a marriage
the required consent of parent or guardian would be invalid.)
Lack of mental capacity Marriage void but arguably capable of ratification by
continued cohabitation if recovery
Drunkenness or drug intoxication depriving party of reason and volition Marriage void