Family Law Fall 2014 - Mossman (Long Summary)

PART I: LAW AND FAMILY FORMATION_________________________________________35 “Families” and “Law”____________________________________________________________35 Parens patriae______________________________________________________________________35

Sefton Holdings v Cairns____________________________________________________35 [1988] 2 FLR 109 (Eng CA Civ Div)___________________________________________35 Ratio: The definition of 'family' requires a broadly recognisable de facto familial nexus through marriage, adoption of a minor (de jure or de facto), or where the link is 'step', or where the link is 'in-law' by marriage. Two strangers cannot artificially establish fam nexus 35

Jane Doe v Alberta (2007) 35 RFL (6th) 265 (Alta CA)___________________________36 Ratio: A dom K that indemnifies partner of a parent in an intimate relationship against parental or support obligations in re: to a child that partner did not bio parent unenforceable if not in BIC. 36 Critique of Jane Doe 36 History of Legal Interventionn in Fams: public policy fostering legal intervention 36 Residential school sys__________________________________________________________36 Chinese immigrants -__________________________________________________________36 1910 leg_____________________________________________________________________36 Japanese internment camps____________________________________________________36 Contractual domestic workers__________________________________________________36 lack of recognition of gay and lesbian family relationships___________________________36 Canada (Attorney General) v Mossop 36 [1993] SCR 36 Held: SSP was not entitled to spousal bereavement_________________________________36

Family Law & Its Processes: The Constitution, Legislators & Judges & Clients____________37 Other jurisdictions_________________________________________________________37 UK – unitary jurisdiction, Australia: Federal gov’t legislates re: FL________________37 Access to justice & client sense of justice_______________________________________37 ADR Processes____________________________________________________________37 Law Reform of Adult relationships : The LCC report (2001)______________________37 Marriage in the Context of Cohabitation__________________________________________________38

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Constitutional and legislative authority re marriage

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Federal – legislative authority wrp to marriage (i.e. inherent capacity to marry) & divorce (s 91(26) of CA) incl corollary matters (CS, SS)__________________________38 Legislative auth wrp to solemnities and formalities (S 92(12) & 92(15) Prop & civil rights____________________________________________________________________38 Validity Requirements for Marriage__________________________________________38 Statutory_________________________________________________________________38 CML – Parliament has not legislated re: requirements except for persons, prohibited degrees and age____________________________________________________________38 Federal (Substantive)_______________________________________________________38 Legislative Formalities(Prov)________________________________________________38 1. be "2 persons" - Hyde no longer applies 38 2. have capacity to consent to the marriage, i.e. - to understand, to be free from duress & w/o taking account of reservations about or limited purposes of marriage. 38 3. have capacity to consummate the marriage. 38 4. not be w/in prohibited degrees of consanguinity and affinity (as defined b statute see left) 38 5. must not be a partner to an existing valid marriage . 38 6. The parties must have attained the age required for a valid marriage 38

(Dutch v Dutch (1977) CML marriage does not have legal import except as defined in some statutes) but may exist where Aboriginal peoples marry in according to customary practices but w/o complying with statutory requirements_______________38 (Kerr v Kerr ; AG of AB v Underwood SCR) Prov auth extends to legislating a requirement of parental consent as solemnization req.___________________________38 Annulment – marriage never existed absent one or more requisite criteria above (typically sought to avoid religious problems)___________________________________38 Divorce – dissolution of existing valid marriage to_______________________________38 establish a divorce action, one must prove "marriage breakdown" under DA_______38 SS marriage – Parliamentary reform of opposite sex requirement 38 Halpern v Canada (AG) (2002)__________________________________________________38 SS Reference_________________________________________________________________39 Conflicting Laws SS Marriage 39 S 5(1) designed to permit couples (mainly SS couples) who married in a Canadian province to obtain a divorce in that same province ; (S 5(2))retroactive________________________39 S 7(1) SS parties can apply for divorce jointly or one spouse w consent of other party under CMA if separate and apart in their home jurisdiction(s) for one year (s. 7(1));__________39 DA does not apply to couples divorce under Civil Marriage Act (s 8) in CDA____________39 Critique - no provision for orders for corollary relief in relation to a divorce, leaving these issues to be negotiated according to jurisdiction of the parties’ domicile._______________39

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Critique_____________________________________________________________________39

Issues about capacity to consent to marriage :__________________________________39  Age, maturity, and emotional state & vulnerability of party in question 39  Consummation of marriage, cohabitation bt/w parties ? 39  Time period bt/w (1) conduct alleged as duress & marriage ceremony, (2) marriage & annulment request 39  Physical force or threat of physical force is not required 39

Caselaw – Mental Capacity _________________________________________________39 Durham v Durham (1995)_______________________________________________________39 Webb v Webb (1968)____________________________________________________________39 Banton v Banton (1998)________________________________________________________39 re Sung Estate (2004)__________________________________________________________39

Caselaw- Capacity to consent in relation to undue influence and duress____________40 Scott v Sebright_______________________________________________________________40 Cooper v Crane_______________________________________________________________40 Buckland v Buckland__________________________________________________________40 Pascuzzi v Pascuzzi [1955]______________________________________________________40 Thompson v Thompson, 1971____________________________________________________40 HIrani v Hiran 1982 UK CA_____________________________________________________40 Note on arranged vs forced marriages_____________________________________________40

Requirements – consummation, no prior subsisting marriage prohibited degrees of consanguinity, age ,________________________________________________________40  Capacity to consummate the marriage - test no longer applied, inconsistent w modern CDN law 40  Prohibited degrees of consanguinity (see Prohibited Degrees Act) - Persons now permitted to marry relatives - aunt, uncle, niece, nephew ; relationships of affinity - may marry fam members of a div spouse, step-relationships 40  No prior subsisting marriage 40  in case of spouse disappearing, S can be declared as dead for purposes of remarrying (Declarations of Death Act)_____________________________________________________40  Polygamy CC, s 293_______________________________________________________40

Age and validity of marriage - Matter of formality, within provincial authority______40 Legebekoff v Legebokoff________________________________________________________40

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Alspector v Alspector [1957]_____________________________________________________40 Debora v Debora (1999) ONCA__________________________________________________40 Isse v Said 2012, ONCA________________________________________________________40

Transgender marriage______________________________________________________41  

(Re Kevin in Australia ) (Corbett v Corbett) 41

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Parent/Child Relationships re Family Formation___________________________________________41

 Fineman’s proposal - to make the mother-child bond the primary basis for “family status” in law______________________________________________________________41 Birth registration - father has rights to put name in birth registration forms________41 Trociuk v British Columbia (Attorney General) [2003] 1 SCR 835 (supports autonomy) capacity to make decision about how one meaningfully participates in the life of one's own child 41 Decision_____________________________________________________________________41 Held: Father is entitled to register his name as father on birth registration forms, new trial to determine name change (children already know their name, not necessarily in BIC)___41 S 3(1)(b) and 3(6)(b) were invalid b/c they infringed s 15, not saved by s 1 , drawing explicit distinction on enumerated ground of sex and that this distinction gives rise to differential treatment; children’s name not changed, contrary to BIC___________________________41 Critique_____________________________________________________________________41 Gallant v Lewis 2008 ONSC – PPJ is invoked to grant application of father to hyphenate children’s last name to include his b/c considered to be in BIC. Unlike Trociuk, dad exercised access daily 41 GES v DLC 2005 SKQ- CA denies access order b/c he is not a parent. TC’s decision underpinned by assumptions about a good dad, i.e. non traditional family unit 41

Adoption and “best interests”________________________________________________42 Context 42 Current approach 42 Process 42 Consent 42 CFSA, s 156 2(b) & 157(1) – Consent & Policy goals 42 Statutory Regime 42 s 137: Consent to adopt (and definition of “parent” for consent purposes)___________42 Consent of child’s mother expressly included or of father if under CLRA 8(1) (copied into statutory provisions) if father does not fall into s 8(1) then NO right to give consent______42 s 136(2) The “best interests of the child” test for adoption__________________________42 s 136(3) The “best interests of the child” test for adoption of an Aboriginal child_______42

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s 143 Termination of access orders for an adopted child__________________________42 s 158 Status of an adopted child and adoptive parents___________________________42 s 145.1(3) Disclosure arrangements: “openness”__________________________________42 Re Attorney General of Ontario and Nevins (1988)64 OR (2d) 311 (HC) 42 Ratio________________________________________________________________________42 There must be clear evidence that male who wants to be involved in making decisions must fit into the existing criteria under s 137(1), otherwise he cannot claim his consent I srequired.____________________________________________________________________42 Re SS (2009)64 OJ No 1148 (Ct J) 42 Ratio________________________________________________________________________43 Adoption order allowed; Law does not require the bio mum to info bio father of pregnancy, birth of the child or the adoption, even if known and easily found. S 137 excludes_________43 bio father fathers unless they have married/cohabited w mother or parent, or otherwise demonstrated responsibility for the child___________________________________________43

ADOPTION RECORDS AND DISLCOSURE__________________________________43 Policy challenges 43 Recent disclosure amendments in Ontario legislation

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Adoption in relation to race and culture_______________________________________43 ANR & SCR v LWJ (1983) 36 RFL 2d 1 (SCC) – BIC lay with de facto adoptive parents rather than Indian birth mother, duration & strength of relationship with them trumped child’s race & heritage 43 H v M [1999] SCR 1 SCR 328 – SCC awarded custody of FN child to adoptive parents of his birth mother , reversing TJ decision, concluding that CA should not interfere with TJ finding unless overriding & palpable error 43

Assisted Reproduction and Parenthood________________________________________44 Comparing adoption & AR_____________________________________________________44 OLRC report_________________________________________________________________44 1988 Baby M_________________________________________________________________44 93, Royal Commission_________________________________________________________44 2004, 2011 AHRA, large part of Act invalid________________________________________44 2009 report, ON______________________________________________________________44 Donors______________________________________________________________________44 BC FLA_____________________________________________________________________44

Property and/or contract approaches:_________________________________________44 JCM v ANA 2012 BCSC 584 : Reproductive material like sperm straws can be considered property for purposes of property sharing/division at relationship breakdown. 44

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WW v XX (case settled ) K would probably not have been enforceable absent ILA, no proprietary interest in sperm gratuitously provided. Contrary to BIC?(Jane Doe; GES) 44 A Human Rights Code challenge: Gill v Murray [2001] BCHRTD o. 34 (OL) 45 Ratio________________________________________________________________________45 Partners of birth mothers in a co-habiting relationship are entitled to be registered as parents of children born to their partner without being required to prove a biological connection to the infant child.___________________________________________________45 A Charter challenge: Rutherford v Ontario (2006) ONSC 45 Ratio________________________________________________________________________45 The definition of parent under VSA for purposes of registering children’s parentage contravenes Charter. Child's parents at birth need not be its bio parents._________________45 A stat and PP challenge: AA v BB and CC (2007) 35 RFL (6th) 1, ONCA 45 Ratio________________________________________________________________________45 Courts may invoke PP jurisdiction to make a determination in the best interests of the child where there is a legislative gap and may do so to recognize a 3rd parent of child in context of AR or fam w three parents.____________________________________________45 C(MA) v K(M) , 2009 ONCJ 18 - Rethinking Parental Status in relation to Adoption 45 Ratio________________________________________________________________________46 Father's right to consent under s 158 will not be dispensed with if not in BIC to sever bio PCR relationship (in context of 3 parent family), dom K not enforced re: arbitration_____46

Disclosure versus anonymity in assisted reproduction____________________________46 Pratten 2011, BCCA - openness in AR , woman conceived using anonymous sperm & OS couple 46

PART II: LAW AND “INTACT” FAMILIES_________________________________________47 Child Care: CC is a private matter, deficient state intervention________________________________47

Stat______________________________________________________________________47 Childcare Policies – a private concern_________________________________________47 Gendered impact of CC deficit ______________________________________________47 Child Protection- legal intervention, primary goal is to paramountcy of BIC when children are at risk of harm vs. subsidiary goal of promoting privacy, integrity and autonomy of intact family unit_________47

Financial resources_________________________________________________________47 Aboriginal children________________________________________________________47 CP & divorce______________________________________________________________47 CFSA – Statute____________________________________________________________47 CFSA, s 1(1) Paramount purpose 47 Other purposes s 1(2)____________________________________________________________47

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Child protection, s 37 (2) 47 s 37(2): Defining a child “in need of protection”______________________________________47 s 37(3): BIC of a child - mandatory factors for consideration, including any other relevant circumstance”_________________________________________________________________47 s 37(4) – Where Child an Indian or Native person (not determinative, ANR) 48

Winnipeg South CFS Agency v S (DD) (1990) … (Man QB) (Fam Div), s 37(2)(f)(v)__48 1. Witness credibility a factor_______________________________________________48 2. Home of natural parents & best interests____________________________________48 3. Presumptive right of natural parents to care for their children__________________48 4. Temp orders, exceptional__________________________________________________48 6. It is sufficient if there be a reasonable apprehension that physical injury may occur, the court should interfere before it has happened_______________________________________48

Abuse and Violence in Intimate Relationships - relatively clear - where there is spousal abuse, escalates at the juncture of family______________________________________49 Abused women & disadvantaged communities_____________________________________49 IDV_________________________________________________________________________49 Critique_____________________________________________________________________49 Torts re Spousal Violence_______________________________________________________49 The Behrendt case 49 Facts________________________________________________________________________49 Wife claims H's anti-social behaviour, who suffered from mental health issues, created psychological violence, also incidents of violence towards 1 of daughter living home. 3 months after court rejected app, H murdered wife & took his own life. Wife filed app for interim exclusive possession under 24 of FLA & for divorce .__________________________49 Analysis_____________________________________________________________________49 The nature of the allegations, the contradictory view presented by one of the children &the age of the children living in the home all militate against granting order. Parties are making completely different assertions based on evidence, difficult for parties to live under same roof____________________________________________________________________49 H/C_________________________________________________________________________49 Material presented… does not warrant granting exclusive possession MH to Mrs. B Court should only exercise its power to make such an order with great care. No live testimony, court should to delay adjudication until trial.______________________________________49

Protection for Vulnerable Elders_____________________________________________50 Def_________________________________________________________________________50 any violent / abusive harm done to an order person, cause by a person who has control over that person (spouses, children, other caregivers), many elder persons are at risk for violence_50 Physical abuse (physical assault, sexual assault, forced confinement)___________________50 Financial abuse (forced sales stealing possessions or money, fraud, forgery, extortion and wrongful use of a POA)_________________________________________________________50

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Neglect (abandonment or withholding of food or health services failing to give a dep person what they need); and___________________________________________________________50 Mental abuse (humiliation, insults, threats, or treating an older person like a child)________50 Most prevalent________________________________________________________________50 Task Force findings____________________________________________________________50

PART III: LAW & FAMILY DISSOLUTION________________________________________50 The Context for Family Dissolution_____________________________________________________50

Divorce as a “complex” legal process__________________________________________50 Law creates post-divorce/separation family unit that is economically tied by ongoing financial obligations for their former spouses. 50 Divorce as a social process & Statistics 50 The rate of divorce in Canada is 38%-40%,_________________________________________50

The Legal Regime for Divorce_______________________________________________50 Shared constitutional authority Statutory provs (exam) 50 Divorce Act, 1985 RSC_________________________________________________________51 s 3: Residence requirement_____________________________________________________51 s 8: No fault “Ground” for divorce separate and apart for one year, cruelty, adultery; “joint” applications and “desktop” divorces ______________________________________51 Marriage breakdown as sole ground for div S 8 (2) Grounds for marriage breakdown____51 S 8(2)(b)(ii)__________________________________________________________________51 S 8(3) excludes short periods of reconciliation from separate and apart calculation______51 ss 9 -10: Reconciliation obligations for lawyers and judges___________________________51 ss 11 and 21.1: Bars to divorce__________________________________________________51 Commencement of 2 similar proceedings; Doctrine of paramountcy___________________51 Family Law Act, s 36 ; CLRA s 27_______________________________________________51 Children’s Law Reform Act, s 27________________________________________________51 FLA proceedings or CLRA proceeding will be stayed._______________________________51

The “Ground” for Divorce (note requisite element that marriage must be valid)_____51 Note: It is necessary to establish Ground for Divorce: Marriage Breakdown_________51 Interpreting Separate and apart

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Rushton v Rushton (1968) 66 WWR 764 (BSSC) – Circumstances where parties are living physically separated in same HH and abstain from conjugal relations falls w/in meaning of sep & apart under s s 2(a); Separate and apart requires (i) withdrawal from matrimonial obligation w intention of destroying matrimonial consortium, ii) physical separation_____________________51 H____________________________________________________________________________51 PE entitled to remedy under the Divorce Act_________________________________________51 Dupere v Dupere (1974) 19 RFL 270 (NBSC (QB) – judicial approach of familialism – If parties are living in the same HH and have children, it is more difficult to use sep& apart ground as reason for marriage breakdown__________________________________________51 (Cooper v Cooper) Spouses were living sep and apart where circumstances where the following circumstances were present, not necessary to establish all six elements in each case, depends on facts of case___________________________________________________________________52 Spouses occupying sep bedrooms__________________________________________________52 Absence of sexual relations_______________________________________________________52 Little if any comm between spouses________________________________________________52 Wife providing no dom services for her husband______________________________________52 Eating meals separately__________________________________________________________52 No social activities together_______________________________________________________52 Spouses not share living room and recreational facilities together, such as TV______________52 Calvert v Calvert______________________________________________________________52 Ratio_________________________________________________________________________52 Three capacities relevant to a divorce proceeding, that P/R must demonstrate in order to be held to have_______________________________________________________________________52 (1) Capacity to separate - simplest__________________________________________________52 (2) Capacity to divorce - req more understanding_____________________________________52 (3)Capacity to instruct counsel____________________________________________________52 Note it is not necessarily to prove capacity at each point beyond the above_________________52 Adultery & Cruelty as proof of marriage breakdown, can only be used by innocent spouse, is used infrequently 52 Orford v Orford (1921) 58 DLR 251 (Ont HC)- adultery by a woman involves the possibility of introducing into the fam of the husband a false strain of blood. And that on grounds of public policy, donor insemination constituted adultery in law_______________52 Maclennan v Maclennan, [1958] sess Cas 105 (Scotland Ct Sess), donor insemination did not constitute adulterly in law___________________________________________________52 Thebeau v Theubau (2006) 27 RFL (6th_ 430 (NB QB) - invokes s 15 of Charter - people are equal and should be treated equally. Def of adultery in DA incl SS acts outside of the marriage____________________________________________________________________53 P(SE) v P (DD) (2005), 259 DLR (4th_ 358 (BCSC)- A husband’s homosexual acts with another man outside of the marriage constitutes adultery.___________________________53 Ratio_________________________________________________________________________53 Intimate sexual activity outside of marriage may represent a violation of the marital bond & be devastating to the spouse &marital bond regardless of the specific nature of the sexual act performed.____________________________________________________________________53 Proof of Adultery: Burbage v Burbage (1985 ) 46 RFL (2d) 22 (Ont HC)- how courts determine adultery has taken place______________________________________________53

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Ratio_________________________________________________________________________53 Prima facie case of adult is established where there is (1) evidence of opportunity (here overnight stays), (2) evidence of inclination (R and Co-R agree to be good friends), and onus moves to other party rebut this presumption on sufficient evidence (Under no leg, test would not be applied in same way, no fault divorce)____________________________________________53 Cruelty in Marriage – Basis for Marriage Breakdown 53 (Knoll v Knoll)________________________________________________________________53

Statutory Bars to Divorce (permit court to deny divorce even though div grounds provided)_________________________________________________________________53 Collusion - (s11(1)(a), absolute bar to div, defined in s 11(4), also applies to immigration marriage (Johnson v Ahmed) 53 Condonation and connivance (s 11(1)(c)53 Absence of reasonable arrangements for the support of children of the marriage (s11(1)(B)) adequate child care arrangements have been made in accordance with child support guidelines, court must stay granting a div if such arrangements have not been made ; 53 Religious Bars to Divorce S 21.1 permits court to take action in a context where one spouse refuses to remove religious barriers to the remarriage of the spouse as part their div negotiations under s.21.1(3)(c)(d) 54

Economic Consequences of Divorce and Separation and General Trends- FL, in principle, is incapable of solving the problem of poverty of women and children. We've moved from patriarchy to individual responsibility model. The latter is premised on gender equality____________________________________________________________54 Assessing models (individual and social) for alleviating economic dependency of family members post separation: 54 individual responsibility” model__________________________________________________54 Social responsibility model (Eichler)______________________________________________54 How does intactness of fam mask dependency?______________________________________54 FL reform and mutual consent___________________________________________________54

Family Dissolution: Litigation and its “Alternatives” – depends on significant amounts of FL bargaining___________________________________________________________55 Family law courts (and jurisdictions) 55 SCJ - federally appoint judges ( s 96)____________________________________________55 Jurisdiction - Divorce and Property, Custody, Access, Spousal and Child Support (if part of a divorce decree)______________________________________________________________55 Pursuant to the constitution s. 96, with federally-appointed judges____________________55 ONCJ (provincially appointed judges)____________________________________________55 Jurisdiction: Custody and Access, Spousal & CS, (if not part of divorce application, or re separation of cohabitees), enforcement of support, child protection, and adoption_______55 Unified Family Court: judges appointed jointly by both government__________________55 Jurisdiction: All family law matters re separation and divorce for married and cohabiting couples______________________________________________________________________55 Judges often FL experts, policy reports have recommended their expansion, but recommendations have not been implemented_____________________________________55 Barriers to expansion of UFC – resourcing issues for remote locations outside metropolitan centres______________________________________________________________________55 Litigation Processes: The FL rules (default – 98% cases are settled via FL bargaining, courts tend to defer to private agreements absent issues relating to power inequality or domestic violence)55

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Goals_______________________________________________________________________55 Before motion, Case Conference__________________________________________________55 Settlement conference___________________________________________________________55 Trial negotiation_______________________________________________________________55 At Separation, Interim Motions_________________________________________________55 Attendance at Mandatory Information Program to pursue divorce proceeding__________55 Issues about legal representation________________________________________________55 Underlying policy rationales of FL bargaining_____________________________________55 FL matters & privacy matters___________________________________________________55 CML tort of invasion of privacy_________________________________________________55 Alternative FL Processes 56 Negotiation__________________________________________________________________56 Collaborative law_____________________________________________________________56 Mediation (TP)_______________________________________________________________56 ON gov’t project streams relationship breakdown out of negotiation into mediation____________56 Arbitration (FLA, ss 59.1 to .8)__________________________________________________56 Process for Resolving Custody and Access claims s 31, CLRA (recall ss 9(1-2), DA & ADR) 56

Family Law Bargaining – FLA 2(10) A dom K dealing with a matter that is also dealt with in this Act prevails unless this Act provides otherwise (accorded substantial authority)________________________________________________________________57 Balfour v Balfour: At CML dom K not legally binding. They are now statutorily enforced. 57 In what circumstances will a court set aside a separation or marriage agreement?____________57 Part IV, s 51 (FL Ks)___________________________________________________________57 stat def incls Cohabitation , Arbitration Marriage, Separation agreement, Marriage, Paternity__57 SS 52,54,59 - legal scope for dom Ks_____________________________________________57 S 52: definitions of marriages KS___________________________________________________57 S 54: identify rights and obligations about which spouses may K__________________________57 S 59.1 to 8 (detailed provs re content and procedures for negotiating family arbitration awards)_57 SS 55-57 – formalities, judicial review, grounds for setting aside K____________________57

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s 55(1) formalities : -Enforceable dom K must be in writing, signed by parties, witnessed . Parties are not required to receive ILA prior to K signing, other than fam arbitration awards____57 s 55(2) – minor has capacity subject to approval of court________________________________57 s 56(1): Judicial review re provs respecting child incl moral training, custody, access BIC (and see s. 56(1.1) re child support arrangements)_________________________________________57 s. 56(4): Judicial review r e failure to (a) disclose significant assets and debts; (b) understanding nature and consequences of L , encourages ILA (c) according to law of K - misrepresentation, lack of consideration, undue influence, duress, coercion, unconscionability, illegality)_________57 s. 56(5): Court may set aside K if barrier to remarriage used as bargaining chip in negotiations_57 s. 33(4): court may set aside K provisions re support if prov is unconscionable, if it results in a dependent qualifying for public support, or if there is default in payment of support pursuant to K. _____________________________________________________________________________57 S 56(4)(c), Dochuk v Dochuk (1999)_______________________________________________57 court upheld validity of K provs where there was evidence that husband had wilfully failed to disclose relevant info b/c it would not have affected the wife's decision to sign the K; # of factors court must consider when being asked to exercise discretion under s 56(4)_____________________________57 Whether there had been concealment of asset or material misrepresentation___________________57 Whether there had been duress or unconscionable circumstances____________________________57 Whether petitioning party neglected to pursue full legal disclosure (Party must do the ask for information and pursue it)___________________________________________________________57 Whether she moved expeditiously to have agreement set aside______________________________57 Whether she received substantial benefit under agreement_________________________________57 Whether other party had fulfilled his or her obligations under agreement______________________57 It is desirable that parties should settle their own affairs if possible/ In doing so parties should know that the terms of such settlement will be binding and recognized. The CA was clear that approach is NOT applicable to Ks that are unconscionable._______________________________57 S 56(4)(b), Rosen v Rosen________________________________________________________57 ILA not required in ON, K provs may be set aside if either party did not understand nature and consequences of K. However, court will decline to set aside provs of K where party seeking to set aside K refused or decline ILA unless terms are unconscionable. Court here concluded that______57 W had acted voluntarily in deciding not to obtain legal advice b4 signing a sep agreement. Court also determined no inequality in bargaining power______________________________________57 S 56(4)(c) Claims about duress and vulnerability_____________________________________57 Courts may set aside K if party seeking remedial action can demonstrate circumstances surrounding negotiation of K disclose consider unconscionability, duress, undue influence, fraud, misrepresentation and mistake_______________________________________________________57 Puopolo v Puopolo - Held: Ct expressed concern about such legal advice that W may be able to set aside K in future. Court held W was not under duress when she signed agreement. It was her wish to buy peace w/ her husband and there was no basis for setting aside the K______________________57 Saul v Himel (1989) – Crt upheld a sep agreement even though H claimed misrep & nondisclosure re provs for supporting a child of whom H was not bio father. Crt decided that he had been aware @ time of negotiating agreement, that he might not be bio father. W had no duty to disclose facts_____58 Barton v Sauvé (2010 ONSC) , cohabitation agreement - Court examined cohabitation agreement in detail, rejecting all grounds for setting it aside .Presence of vulnerability alone will not justify ct intervention (W had no ILA)_________________________________________________________58 S 33(4) & support provs Salonen v Salonen (1986)___________________________________58 Held: Court upheld sep agreement, although it meant W & children would require social assistance. Facts of this case: Sep agreement required H to take responsibility for all couple’s debts, so he was not able to pay much CS or SS._______________________________________________________58 S 56(5) & removal of barriers to remarriage_________________________________________58 Similar to s 21.1 of Divorce Act, offers assistance to parties who cannot access Divorce Act_______58

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Family law bargaining: Case studies of marriage contracts 58 Hartshorne v Hartshorne [2004] 1 SCR 550 (favours Choice/Autonomy)- explicit use of fairness in stat lang 58 Rule________________________________________________________________________58 Court should defer to dom that spouses make for division of their ppty on the breakdown of their relationship, unless found to be unfair after considering s 65 factors of FLA_____58 Analysis - Central to any analysis under s 65(1) of FRA is (1) accuracy of parties’ contemplation at time of K formation, of their circumstances at time of distribution, (2) whether they considered the impact of their decision, and, (3) whether parties subsequently adjusted K to meet demands of a change in circumstances or, or implications inadequately addressed/un realistic__________________________________________________________58 Ratio_________________________________________________________________________59 To determine whether a marriage agreement operates unfairly:___________________________59 a) Apply the agreement, assess and award financial entitlements provided to each spouse under agreement, & other entitlements incl CS & SS____________________________________59 b) Were there any procedural irregularities that might be reason to set it aside; Were parties aware of substantive entitlements, and sign K anyway?__________________________________59 c) Consider facts in light of stat provs, determine whether K is unfair having regard to personal and financial circumstances& how they evolved over time_______________________________59 d) Did parties know their lives unfold in way it would?________________________________59 e) P’s onus is heavier if current circumstances were within contemplation of parties at time K formation, and circumstances surrounding it reflect consideration and response to those circumstances,_________________________________________________________________59 Holding_______________________________________________________________________59 Marriage agreement was fair at time of triggering event considering all circumstances, and s 65 factors________________________________________________________________________59 Diss____________________________________________________________________________59

LeVan v LeVan (Ont CA 2008)(TJ decision upheld: K set aside)S 56(4) TEST 59 Analysis______________________________________________________________________59 W did not receive effective ILA, did not understand nature and consequences of MK, H misrepresented nature and terms of MK to W, H's failure to disclose was deliberate, H had interfered with wife's receipt of legal assistance from 1 st L – breach of set 56(4)(A) & (B) (B at part two application)________________________________________________________________59 Ratio_________________________________________________________________________59 Determine whether claimant has met s 56(4) (2) Determine whether it is appropriate to exercise discretion to set aside fairness having regard to fairness of K ,overall circumstances such as intention, is breach such that it counteracts objectives of underlying policies_________________59 Virc v Blair ONCA 2014 Unless there is proper ILA and full financial disclosure, the dom K may be set aside under s 56(4). There is no duty on a spouse to investigate veracity of financial disclosure made by other spouse. The fact that W knew K was not in best interests is not sufficient to find that spouse does not understand nature and consequences of K. (Decision here: new trial ordered)_______________________________________________59 McCain v McCain (2012) ONSC 7344 (SCJ)(marriage agreement) 59 The circumstances regarding its execution, the improvident result for the Wife and the extent of the Husband’s now wealth, are sufficient to have the spousal support provisions of the Contract set aside. Bargain was unacceptable in longer term marriage of 15 years after K was signed, did not provide for H’s future earnings projections. Circumstances surrounding K formation incl psychological duress, minimal disclosure._______________59 Marriage contracts and the enforcement of religious obligations: (enforceability of Mahr has been upheld in BC cases). The courts tend to enforce religious obligations in MK unless inconsistent with ON law._______________________________________________________60 Kaddoura v Kaddoura;_________________________________________________________60 Mahr was unenforceable obligation pursuant to ON law___________________________________60 Hermann v Charlesworth - Mahr is a religious matter so the resolution of any dispute relating to it are religious in context and context. Like Balfour v Balfour, contracts of affection and love are not binding__________________________________________________________________________60 13 | P a g e

Khan v Khan_________________________________________________________________60 ON court upheld validity of a nika namma(MK) of Pakistan as a domestic K pursuant to ON's FLA. Court upheld Muslim marriage K, but did not enforce W’s waiver of SS right__________________60

Yahr v Yahr___________________________________________________________________60 Issues of evidence are complicated and often a need for expert evidence to be able to litigate them_60

The Jewish get: Bruker v Marcovitz SCC upheld CA decision. 60 Ratio_________________________________________________________________________60 An agreement between spouses to take necessary steps to permit each of them to remarry in accordance with their religious beliefs constitute a valid and binding agreement that did not represent a harm to the husband's religious freedom by requiring damages__________________60 Analysis______________________________________________________________________60  International law - use of damages as compensation for spouse whose spouse has refused to provide a get (D v France)________________________________________________________60

 Public interest in protecting equality rights, dignity of Jewish women in their inability to div and remarry, as well as public benefit in enforcing valid and binding contractual obligations are among interests and values outweighing Marcovitz' claim that enforcing para 12 of Consent would interfere with his religious freedom____________________________________________________60

Covenant marriage and (less) access to divorce (USA)- If parties were married in LA/AZ, domiciled in CA, courts would probably grant civil divorce, but conflict of laws principles may apply (look for reform ideas here)___________________________________________60

FAMILY PROPERTY____________________________________________________________60 The Legal and Social Context of Family Property_______________________________60 Murdoch v Murdoch (1974), the catalyst to legislative reform 60

Who is a Spouse for Purposes of Property Sharing (s 1-2, FLA)___________________61 S 2 - Polygamous marriages_____________________________________________________61 Nova Scotia v Walsh (SCC 2002) (Walsh v Bona), and constitutionality of def spouse for ppty sharing 61 Ratio________________________________________________________________________61 The definition of spouse is confined to married spouses for purposes of provincial marital ppty statutes and complies with s 15 of the Charter_________________________________61 Diss, LHD___________________________________________________________________61 a) Perception of “choice” focus on the formation of relationships__________________61 b) a couple’s initial intentions are not relevant at the end of an interdependent economic relationship;_________________________________________________________61 c) both partners must choose to marry, so that it is not a matter of individual choice. responsibility for post separation dependency should be assigned to former family members, rather than the state._________________________________________________61 d) SCC rejected the argument that cohabitation was mainly the result of a choice in__61 e) , marital status often lies beyond the individual's effective control (para 153)________61 The policy recommendation - OLRC report recommend co-habiting couples should have access to ppty regime under FLA. Despite cases and LI, recommendations have not been implemented 61 Quebec v A [2013] SCJ No 5 – Claimant’s constitutional challenge wrp to her exclusion under QC Civil Code is rejected. SCC held that she was entitled to what the dom K offered 62

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Ratio________________________________________________________________________62 QC’s Civil Code entitlements do not apply to unmarried spouses, and does not contravene s 15 of Charter. Therefore, unmarried spouses cannot claim stat ppty rights under Civil Code (5-4)___________________________________________________________________62 Dissenting___________________________________________________________________62 Thompson Critique___________________________________________________________62 It is lawful to exclude cohabiting couples from access to the ppty sharing regime at relationship breakdown; Decision marks the end of era in FL. . A formalistic vs. functional approach was taken save for Abella J who used functional approach to conclude that access should be extended on basis that what matters is not choice or consent, but what the family does at sep_____________________________________________________________62

Legislative Regimes for Property-Sharing at Marriage Breakdown________________62 What is the underlying rationale for property sharing? : a presumption of equal contributions to acquisition & maintenance of fam assets 62 S 5 – Policy Framework 62 ON FLA definitions of “spouse”:________________________________________________62 Parts I and II (s 1) re : “married spouses” ONLY___________________________________62 Part III (s 29) re SS“expanded definition of ‘spouse’ to include cohabiting spouses”______62 Legislative object_____________________________________________________________62 Each spouse shares equally in economic wealth of marriage @ breakdown, without any change in ppty ownership_______________________________________________________62 Section 5(7)__________________________________________________________________62 Purpose of equalization regime__________________________________________________62 (1) to recognize that child care, household management and financial provision are the joint responsibilities of the spouses, (2) and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, (3) entitling each spouse to the equalization of the NFPs (4) subject only to the equitable considerations set out sub (6)__________________________________62 Section 5(6) and policy considerations____________________________________________63 “Unconscionability” test and specific factors ; permits a court to award something more or less than the equalization payment.______________________________________________63 Policy rationale________________________________________________________________63 Practical benefits_______________________________________________________________63 Disadvantages_________________________________________________________________63 OLRC________________________________________________________________________63 Recommendations_________________________________________________________________63 BC ppty sharing regime__________________________________________________________63

Default Regime - The Equalization Process in Ontario (FLA, Part I (1986)) – Note, parties can K out of FLA, s 2(10), subject to 52(2)_______________________________63 S 2(10) – Opting out 63 S 52(2) no K re MH rights

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63

Default Regime - Definitions s (4, FLA)________________________________________64 Valuation date : (s 4), earliest of five dates_________________________________________64 (Usually) date the spouses separate and there is no reasonable prospect that they will resume cohabitation___________________________________________________________________64 Broadly interpreted, ppty______________________________________________________64 (any interest, present or future, vested or contingent, real or personal) as encompassing both equitable and legal interests, excludes professional licences (Caratun), includes a negative balance (Menage)______________________________________________________________64 Excluded ppty (s 4(2))_________________________________________________________64 NFP, s 4(1)___________________________________________________________________64 Value of all the property, that a spouse owns on V-day, except property described in subsection (2), after deducting “debts & other liabilities not related to directly to acquisition or significant improvement of MH ” and “pre-marriage property – not MH, owned at date of marriage, calculated at date of marriage ”___________________________________________________64 S 4(5) If a spouse's NFP results ina negative value, deemed to be 0________________________64

Steps of Analysis___________________________________________________________64 1. Determine V-day or valuation date (ct may exercise discretion if factual context is unclear ) 64  Oswell v Oswell (1992)______________________________________________________64  Caratun v Caratun (1987) - V-day refers to date when there was no reasonable prospect of resumption of cohabitation, when H left with no intention to return (wife's expectation of reconciliation was not reasonable in circumstances)____________________64  Rawluk v Rawluk__________________________________________________________64 2. Determine what ppty was owned by each spouse on V day (If there is a beneficial interest giving rise to RCT for UR claim, engage here FIRST)_______________________________64  Excludes professional licences, CT can be attached to licence b/c its not ppty (Caratun),____________________________________________________________________64  If applicable, apply trust principles to determine beneficial ownership (b/c ppty cannot be excluded if beneficially owned by someone else) (McNamee;Rawluk)________________64 3. Determine whether any ppty constitutes excluded ppty (s 4(2) and note tracing in s 4(2)), and is deducted from NFP______________________________________________________65  Post-V day Increase in value of excl real or personal ppty not include in NFP calculation___________________________________________________________________65  Silverberg v Silverberg: S may not change a represented characterization of ppty. Mrs S tells her H that boss gave her jewellery in lieu of wages, later argues it was a gift, was included in NFP.______________________________________________________________65  Lefevre v Lefevre: Gifts or funds (otherwise entitled to be excluded)used for purchase of MH may be included in spouse’s NFP calculation, if traced to ppty of MH at V-day___65  Harrington v Harrington: Standard for meeting s 4(3) onus - BOP_________________65  Cartier v Cartier: When a spouse transfers gifted or inherited ppty into joint names, conferring an interest in the other spouse, the transferring spouse loses the exclusion ONLY to the extent of the gift he or she made to the other spouse, provided that the result intended by the transfer is joint ownership________________________________________65 4. Assign value to the property (involves judicial discretion if there are competing claims about value)__________________________________________________________________65  Montague v Montague : court assigns $0 value to a ppty that was so polluted, clean cost exceeds inherent value of ppt___________________________________________________65  Oswell v Oswell :Court exercises discretion to determine which valuation measure to use in valuing W's furs and jewellery - fair market value at V day? Replacement value? Wear & tear?________________________________________________________________65 5. From total ppty value, deduct 1) (any contingent tax) debts & liabilities of ppty owned at V-day, AND 2) pre-marriage ppty value of assets spouse calculated at date of marriage (even if sold after marriage, difficulties of proof)___________________________________65 16 | P a g e

 MH - S cannot deduct pre-marriage ppty value of MH, even if owned at date of marriage ; or value, debts and liabilities of MH, incl those related to acquisition/sig improvement_________________________________________________________________65  Sengmuller v Sengmuller - Non-speculative, actual disposition costs if supported by evidence of a plan for disposition, TEST : (1) apply overriding principle of fairness, 2) case-by-case__________________________________________________________________65  Zafarella v Zafarella 2013, ONCA – Presumption - S’s debts at date of marriage will affect that spouse’s entitlement in the equalization calculation, unless evidence to the contrary , frustrates policy objectives____________________________________________65  Stein v Stein SCC : contingent tax liabilities constitute liabilities in relation to NFP___65  H retained business interests; W acquired MH, and contingent tax liabilities deducted 65  Abella J, dissenting - unfair to make deduction due to manifest unfairness resulting from inequality created by division bt/w both parties_______________________________65  Folga v Folga if spouse's asset not MH at Vday, though once was, then spouse may redeem right to deduct pre marriage value________________________________________65 Step 6 - Calculate each spouse's NFP , determine amount that is 1/2 the difference bt/w greater and lesser (S 5(1)) - represents a debt owing, not an entitlement to property; neg NFP shall be "0" (s 4(5))_______________________________________________________65  Menage - A spouse's indebtedness, negative balances, is added to a spouse's assets a V day 65  Where a PMV is a negative amount, it becomes a positive amount, that is added to value of NFP_________________________________________________________________65 Step 7- Assess any claim for entitlement to more than one half the difference (s 5(6)) permits court to exercise discretion to award an amount that is +/- than 1/2 difference bt/w NFP IF court is of opinion that equalizing NFPs would be unconscionable – higher threshold than inequitable______________________________________________________65  Step 7 continued with case law "unconscionable represents higher threshold than inequitable; In this case equal sharing would be grossly unfair, unreasonable, repugnant to anyone's sense of justice to the level of unconscionability" (Braaskma)_________________66  (Waters v Waters) deemed equality of contribution - As a matter of public policy, contributions are deemed equal (even when they are not) - ‘compelling public policy reason by departure from equality should be uncommon. Court concluded here there was no basis for revising EQ claim___________________________________________________66  Skrij v Skrij: Reckless depletion of NFP (s 5(6)(h) Ct awards unequal sharing on basis that H took $6,330 more than W from joint account. 1/2 of that amount award to W's EQ payment_____________________________________________________________________66  (Sullivan v Sullivan) Ct preserved business as asset for wife and her future ability to support herself & children; "patently & grossly unfair: to permit H to share in equity of this bus; 'dismal "_____________________________________________________________66  (LeBlanc v Leblanc) W awarded unequal share, her contributions extensive, his negligible____________________________________________________________________66 (Futia)It would be unconscionable for Petitioner to receive an equal division when she contributed virtually nothing to acquisition of MH whose value increased substantially bt/w purchase date & date of sep ; Short marriage b/c spouse claims other spouse was abusive; Ct awarded unequal share to responded even though P argued R's cruelty was reason for duration of short marriage____________________________________________66  (Macneill)5(6)(e)Cohabitation period interpreted to include pre-marital + marital cohabitation periods___________________________________________________________66 Serra v Serra, interpreting s 5(6)(h), includes spousal misconduct and unconscionable results of the EQ process High unconscionability threshold does not preclude ct from taking into account a post separation date change in value of spouse's assets and the circumstances surrounding for purposes of s 5(6)h)_____________________________________________________________66 17 | P a g e

 TEST Ct should only award an unequal division if (i) circumstances giving rise to change in value relate to the acquisition, disposition, preservation maintenance of improvement of ppty, AND ii) where equalizing NFP would be unconscionable, having regard to those circumstances (alone or in conjunction w 5 (6) factors)_____________________________________________66  (Serra @ Separation, H's principal asset deceased from 11 million to 2) court decreased EQ payment - permits a focus on result of EQ process of s 5(1); distinguished that market driven decline NOT related to economic downturn, not sufficient w/o more to award unequal sharing___66  (Kean v Clausi) Unconscionable result for wife to have to bear entire burden of a decrease in asset value created at instigation of H, for purpose of maintaining MH, out of equity of MH, and largely managed by H____________________________________________________________66 Equalization at death or divorce (spousal rights re marital ppty constitute enforceable legal obligations)__________________________________________________________________66  Stone v Stone (1999) 46 OR (3d) 31___________________________________________66  F: wealthy husband who knew he was fatally ill transferred assets worth $1.3 million to children to avoid equalization w wife @ his death. Following death, widow successfully challenged transfers as contrary to Fraudulent Conveyances Act, RSO, 1990___________66 Ratio: FLA created a creditor debtor relationship which takes form of an open or running account which becomes a settled account on separation or death ; consistent with goal of spouses sharing their net accretion in wealth during marriage__________________________________________66

Property & Professional Degrees – spousal contributions to PPDs can be compensated via SS awards___________________________________________________________________66 Corless v Corless_______________________________________________________________66 Caratun v Caratrun:____________________________________________________________66 Legal update: Defining “property” JCM v ANA 2012 BCSC 584 - Donor sperm straws should be treated as property for the purposes of dividing them upon the dissolution of the spousal relationship. 66  Held: BC court divided sperm straws , 7 and 6. JCM payed $125 value to ANA for extra straw received.__________________________________________________________66  illustrates difficulty of ppty sharing v. ppty division_____________________________66  ON court may invoke s 9(1)(a) to have JCM pay our ANA or (d(ii) to partition the property if 1 spouse makes a s 7 application request dcourt determine spouses’ entitlement to sperm straws in question_____________________________________________________66 Ppty & beneficial (equitable) ownership, Rawluk v Rawluk (s 4 2, FLA)- If claimant can establish RCT for UR claim, then C will be entitled to share in value at date of trial, not V day. The consideration of RCT claim for UR occurs before determination of NFP and before EQ___________________________________________________________________67 Ratio_________________________________________________________________________67 Spouses are not precluded from CT remedy for UR claim. S 4 is includes beneficial (equitable) ownership. (1) Court must consider trust principles to determine whether claimant has beneficial ownership at first step of determining NFP of each spouse (2) court must perform equalization calculations. Third, court assesses whether given facts of particular case, equalization is unconscionable & may exercise discretion____________________________________________67 S 4(3) Definition of gift, McNamee vs. McNamee – affirms Rawluk analysis remains significant; Shares were a gift in law & excluded from H's NFP. The conditions imposed on transfer of gift were invalid b/c donee accepted a gift on the assumption there were no conds attached. However, W’s alternative claim of RCT for UR in relation to gift of shares required a new trial (BC TC did not hear evidence re: W's claim____________________________________________________67 Valuation of pensions, s 4(1)(c)____________________________________________________67 FL Stat Amendment ts 2009______________________________________________________67 Property and pensions–s 4(1)(c) FLA , s 4 ppty def incls "a spouse's rights under a PP that have vested.__________________________________________________________________67 The Matrimonial Home: FLA Parts I and II 68 Ward v Ward, [2011] OJ No. 344, ONSC 570 (Ont Sup Ct J) – CA affirmed TJ decision to permit unequal sharing and awarded wife EQ payment of 90K on basis of s 5(6)(c)(h). Unconscionable result in award of equal sharing invoked s 5(6)_______________________68 Rule(s)_______________________________________________________________________68 18 | P a g e

Courts should not deviate from presumption of equality of contribution unless award of equal sharing would shock the ct's conscience; CA should not intervene in a TJ discretionary decisions “unless there is an error of law or an egregious error of fact.”____________________________68 Spencer v Riesberry, [2012] ONCA 418) – A FH that is a trust asset may not qualify as a MH,________________________________________________________________________68 Ratio_________________________________________________________________________68 A spouse's beneficial interest in a family trust does not constitute a MH where spouse has no ppty interest in any specific trust asset , and an interest in the trust alone(distinct from the context of a corporation, where a trust ppty is can be trusted back to sole sharedholder who is spouse in a marriage - Debora)_____________________________________________________________68 Statutory Provisions___________________________________________________________69 Scope_______________________________________________________________________69 *Parts I and II of the FLA do not apply to cohabitees, Spouses may K out of Part default ppty sharing regime, but may not K to limit a spouse's possessory rights in the MH: FLA s 52(2)________________________________________________________________________69 Section 18(1)__________________________________________________________________69 (1) Every property in which a person has an interest and that is or, if the spouses have separated, (2) was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is MH (at V-day)__________________________________________________69 Caselaw re S (18(1))_______________________________________________________________69 Nahatchewitz – H owned a home at time of marriage, H& W lived in it for some time. H went away, and then H sold it. Parties separated. MH was not “ordinarily occupied by the spouses as their family residence” at separation (V-Day), it was not a MH, and thus H was entitled to deduct it as PMV._____________________________________________________________________69 DaCosta : H received an inheritance of money after his marriage, used it to purchase Cedar Dee Farm in part. Court traced the funds to the farm. Held: H was entitled to exclude the inheritance value from NFP total b/c it was not considered a MH the court held that W did not spend time at the farm to meet s 18 test._________________________________________________________69 Exclusions & Deductions________________________________________________________69 S 4(1)(b)Deductions on MH - If pre marriage property is a house that is the matrimonial home at V day, it cannot be deducted.__________________________________________________________69 S4(2)#1 Property, other than a MH, that was acquired by gift or inheritance, from a third person, after the date of the marriage______________________________________________________69 S 19__________________________________________________________________________69 Possessory Rights – requisite element of entitlement is s 18(1)___________________________69 Spouses have equal rights to possession, regardless of title (potentially to a non-titled spouse): it is a personal right, not enforceable against TP______________________________________________69 S 24__________________________________________________________________________69 Section 24(1)(b):__________________________________________________________________69 S 24(3) interim order for exclusive possession, usually a time-limited order. Statute is silent about how much weight to accord each factor.”In determining whether to make an order for exclusive possession, the court shall consider,”_______________________________________________69 (a) the best interests of the children affected; (includes psychological stresses and strains affected by separation of parents arising out of daily frictions bt/w parents, protection of children may outweigh financial issues - Pifer)___________________________________________________69 (b) any existing orders under Part I (Family Property) and any existing support orders; or other enforceable support obligations_____________________________________________________69 (c) the financial position of both spouses; (Rosenthal - typical, H left home cannot support W and kids in M and himself @ same time, W wants everything to stay the same without any changes; Wilson)________________________________________________________________________69 (d) any written agreement between the parties;_________________________________________69 (e) the availability of other suitable and affordable accommodation; and_____________________69 (f) any violence committed by a spouse against the other spouse or the children (incl psychological violence, warfare - Hill)___________________________________________________________69 Section 24(4): Definition of BIC for applications for exclusive possession of the MH.__________69 (a) the possible disruptive effects on the child of a move to other accommodation; and___________69 (b) the child’s views and preferences, if they can reasonably be ascertained.___________________69 Evidentiary consideration under s 24(3) – expert & TP_________________________________69 Financial resources & s 24(3)_____________________________________________________70 19 | P a g e

Wilson v Wilson – key factor in granting interim excl possession to wife – DV, drinking problem on part of H, BIC, affordable accommodation___________________________________________70 Applications for exclusive possession of MH - Caselaw 70 Rosenthal v Rosenthal (1986) 3 FL (3d) 126 (Ont HC) – S 24 application refused________70 24(3)(c) - Per financial statements filed by both parties, apparent that there are not sufficient funds to continue occupation of marital home, ; it is in best interests of both parties that MH be sold for best price available, and excess moneys to be divided bt/w them and form a portion of each NFP_70 S 24(3)(a) Child's best interests - No legal obligation upon R to maintain two older sons in a style to which they are accustomed ; each of the 3 boys owns and operates a motor vehicle__________70 Pifer v Pifer (1986) 3 FL (3d) 167 (Ont Dist. Ct)- Application granted – Fault based conduct, heaving drinking and tobacco consumption, TP evidence of R’s behaviour, BIC affected by parental friction______________________________________________________________70 Hill v Hill (1987)-_____________________________________________________________70

Cohabiting Couples and the Use of Trust Doctrine (Pettkus v Becker; Peter v Beblow, Kerr v Baranow ;Vanasse Seguin)____________________________________________________________71

UR principle (Pettkus) onus on PL____________________________________________71 1) Substantial benefit conferred upon responding party by contributions of claimant relating to maintenance or acquisition to ppty in question 71 2) Corresponding deprivation suffered by claimant for which no compensation was received 71 3) Absence of juristic reason rebuttable by evidence on part of D to show why enrichment should be retained (reasonable expectations considered here (Kerr; Vanasse) 71 4) Determine corresponding remedy – 3 gradations: QM(value received); RCT(value survived), JV (value received NWS value survived) 71 (Beblow)Onus on PL to show that QM would not appropriately compensate person for for services rendered by claimaint in the circumstances (Sansome) If Y – then QM awarded. Consider probability of award being paid. Responding party will attempt to show it’s appropriate – bargain, reasonable expectations____________________________________71 I. If No, then CT determination - Is there a nexus between claimant's contributions and acquisition of ppty in question w/in which claimant seeks proprietary interest? A direct contribution is not required (Sorochan) (Rawluk, McLachlin J in Peter v Beblow)________71 II. If Yes, then CT and determine award. If No, proceed to JV._____________________71 III. IF, CT, interest awarded, determine portion of value of ppty in question that is attributable to to direct or indirect contributions of claimant. Actual value conferred by C is irrelevant. Where contribution is unequal, shares are unequal._____________________71 IV. (Kerr;Vanasse) If JV, which, does not mandate a presumption of equal sharing, then claimant must demonstrate (1) parties have been engaged in JV – joint efforts of parties & accumulation of family assets or wealth (2) that responding party has retained an inappropriately disproportionate amount of wealth (3) a contribution to the accumulation of family assets or wealth – consideration of:______________________________________71 a) ME - pooling of effort & team work? Decision to raise children together? Length of relationship?_____________________________________________________________________71 b) EI - the more extensive the integration of couple's finances the more likely a JV will be found_71 c) Actual intent, subjective standard - express or inferred ; whether they held themselves as married, joint title to ppty?__________________________________________________________71 d) PF - Have parties acted on shared assumptions or understandings for the future, express or impliedly? - foregoing career or educational advancement for fam benefit, accepting underemployment to balance dom and financial needs_____________________________________71

If JV established, award should be proportion to accumulation of family assets and compensation received should be discounted from overall award. 71

Pettkus v Becker [1980] 2 SCR 37- RCT for UR claim is available to cohabiting spouses at relationship breakdown___________________________________________________72 Sorochan v Sorochan[1986] 2 SCR – A claimant may establish RCT by UR through demonstrating a nexus bt/w contribution and ppty in question; a contribution to actual acquisition is not required___________________________________________________72 20 | P a g e

Monetary remedy (Quantum meruit) - George v Hassanali (1989) (Ont HC)_________72 Ratio 72 P may be entitled to monetary award where UR is established, but is not appropriate to award remedy of CT, and may impose CT until monetary award is paid in full 72

Peter v Beblow[1993] 1 SCR 980 – expands the scope of work required under CT____72 Joint Family Venture - Kerr v Baranow; Vanasse v Seguin_______________________73 Quasi Spousal Relationships : Nowell v Town Estate [1997] ONCA 73 Ratio________________________________________________________________________73 A claimant in a quasi-spousal relationship that establishes UR claim may be entitled to (QM)_______________________________________________________________________73 Pelechaty SK QB______________________________________________________________73 PL awarded CT of 20% interest in D’s house & the home in which she lived. UR and CT may be available to couples who are not "cohabiting"_______________________________73 PL & deceased in 17 year relationship. D purchased a house for PL to live in, charged her rent and he lived separately. PL’s contributions incl cooking dinner regularly for D, HH services of deceased’s houses. PL claimed D stated she would never have to worry about the house in which she lived._______________________________________________________73 Knoll SK_____________________________________________________________________73 Ct denied claim , relying on prenuptial agreement barring her from making claims against H’s estate; & extra responsibility attached to an ill spouse, is a marital undertaking out of love & affection_______________________________________________________________73 UR & SS Relationships 74 Forrest v Price (1992) BCSC____________________________________________________74 PL was entitled to remedial CT, given history of relationship and D's assurances throughout, P reasonably expected to receive an actual interest in various ppties & D either was or ought to have been cognizant of that expectation (considered D's debts, increase of value of ppty since sep, process for ppty sale)____________________________________________________________74 Buist v Greaves [1997] OJ No. 2646 (Gen Div)______________________________________74 Partner that was the lawyer brought an UR claim. Which was rejected by reason that there wasn't sufficient evidence of deprivation by absence of juristic reason. Ms B was not worse off personally or professionally due to relationship________________________________________________74 Cohwdhury v Argenti Estate, 2007 BCSC__________________________________________74 P's claim for remedial CT failed. PL found to have made no contribution of value to D's home, either in money or services , claim that PL had "contributed to MR A's happiness & made him joyful was irrelevant"____________________________________________________________74 Martin v Sansome 2014 ONCA – CRT for UR claim re to married couples : If claimant seeks UR claim remedy, court must consider if award of higher EQ payment under s 5(6) redresses remedy before engaging in RCT anaylsis_________________________________74

SPOUSAL SUPPORT____________________________________________________________75 "Spouses" in provincial legislation in relation to support_____________________________________75

DA______________________________________________________________________75 FLA, III__________________________________________________________________75 s 29, def of spouse__________________________________________________________75 dependant: a person to whom another has an obligation to provide support 75 spouse: 1(1) either of 2 persons/unmarried & have cohabited (to live together w/in a conjugal relationship, inside or outside marriage), (a) continuously for a period of 3 years or are (b) natural or adoptive parents of a child in relationship of some permanence 75

S 36_____________________________________________________________________75 Paramountcy

75

S2 (10)___________________________________________________________________75 Interpreting S 29(a): Continuous and conjugality_______________________________75 Moldowich – factors to determine whether 2 parties are in cohabiting relationship_______75  Shelter (a)Did parties live under the same roof? (b) What were the sleeping arrangements? (c)Did anyone else occupy or share the available accommodations________________________75 21 | P a g e

 Sexual and Personal Behaviour (a)sexual relations? If not, why not? (b) attitudes of fidelity? (c) feelings towards each other,(d)communicated on a personal level?______________________75  (e)ate meals together? (f) Did they do anything assist each other w/probs or illness? (g) Did they buy gifts for each other on special occasions______________________________________75  Services - (a) What was the conduct of the parties in relation to: a)preparation of meals, b) washing and mending clothes, c) shopping, d) household maintenance, and e) any other domestic services ?_____________________________________________________________________75  Social - (a) Did parties participate together or separately in neighbourhood and community activities? (b)What was the relationship and conduct of each of them toward members of their respective fams and how did such fams behave toward the parties?________________________75  Societal -What was the attitude & conduct of the comm toward each& as a couple?_______75  Support (economic): What were arrangements re (a)food, clothing, shelter, recreation,(b) acquisition of ownership of ppty, (c) as to determinant of overall relationship________________75  Children - What was attitude & conduct of parties concerning children?________________75 Sullivan v Letnik 75 Whether couples are separated is a matter of intent, not geography. (We're not looking at geographical location, co-residence, but rather intention of parties)___________________75 Sanderson v Russell 75 In some cases the test should be realistic and flexible enough to recognize that a brief cooling off period does not bring the relationship to an end. Such conduct does not convincingly demonstrate ... that the relationship is at an end________________________75

Interpreting S 29(b): A touch of permanence___________________________________75 Mahoney v King 75 An intimate relationship in which one party is married, and spouses are living apart, may constitute a relationship of some permanence______________________________________76 H: A entitled to SS, falls under def of spouse under s 29(b)___________________________76 Labbe v McCullough 76 Brebic v Niksic 76 Legislative Principles________________________________________________________________76 history of SS 76 SS models 76 SS to provide income security for a dependent spouse (“need”); 76 Compensatory for econ loss during M/COH 77 SS as (clean break) 77 Evolution of Legislative Principles About Spousal Support 77 former principle______________________________________________________________77 DA, 1968 1(1), spousal support ordered on basis of:_________________________________77 conduct, condition, means and other circumstances [of the parties]____________________77 Who bears obligation of providing financial support?_______________________________77

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Messier v Delage [1983] 2 SCR 401_______________________________________________77 Ratio: A divorced man bears the responsibility of supporting a former W who cannot provide for her own needs . Held: H must pay reduced SS indefinitely to former S. SCC upheld CA_________77 Pelech Triology_______________________________________________________________77 (sep Ks)______________________________________________________________________77 Ratio: The state bears the responsibility to support former spouses post separation, not former spouses, unless applicant can demonstrate causal connection economic disadvantage & marriage breakdown (b) designed to promote certainty & to facilitate clean break; (c) focus on individual autonomy, (d) respect for Ks; Held state should pay social assistance to support applicant wife in all 3 cases_____________________________________________________________________77

Family Law Act, RSO 1986__________________________________________________77 s 30 77 s 33 77 s 33(3 77 ss 33(4) 78 s 56(4) 78 Setting aside domestic K re (a)unconscionability, (b)dependant who waivers SS and qualifies for welfare_______________________________________________________________________78 Scheel v Henkelman, ONCA)._____________________________________________________78 S 33(8) 78 s 33(9) 78 33(10) 78 s 36 78 s 37 78

Divorce Act , RSC 1985 – S 15.2, 15.3(1), s17___________________________________78 s15.2(1) 78 s15.2(2) 78 s15.2(3) 78 s15.2(4) 78 (discretion) factors court must consider needs, means and other circumstances of each spouse incl: (a)length of time, (b)functions performed by each spouse during cohabitation, (c) any order, agreement or arrangement relating to support of either spouse 78 s15.2(5) 78 S15.2(6) (reflects Rogersonmodels) 78 Objectives of SS orders – need, compensation and self sufficiency____________________78

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Critique- crt cannot accomplish all goals, makes factually driven choices, wide exercise of discretion_____________________________________________________________________78 s 15.3(1) 78 s 17 78 SSAG 78 Principles of SS, Judicial Views of DA, 1985 , SS as compensation 79 Moge v Moge & s 17 a-d (broadens basis for SS to incl compensatory) 79 Ratio - Courts have an overriding discretion when making SSO, and will be exercised according to the particular factors of each case, having regard to factors and objectives in DV_________________________________________________________________________79 i) The clean-break objective is not pre-eminent, attenuated, in determination of SSO , ii)compensatory model adopted by Parliament attempts to ensure equitable sharing of eco consequence at marriage breakdown; iii)_________________________________________79 consider short term vs. long term marriages; childless marriage; 2 income household?___79 Keast v Keast (Caratun; Linton) issue of sharing prof degrees resolved through compensatory support rather ppty provisions) 79 Ratio: SSO can be used to compensate a spouse's efforts towards the other spouse's profl degree_______________________________________________________________________79 Stevens v Stevens 2012 ONSC 70 79 Ratio: reaffirms Moge ... economic consequences of marriage breakdown must be shared equally, given that work inside the home has an undeniable value.____________________79 Bracklow (SS as social obligation, recognizes 3 models of marriage –social, independent, mutual, s 15.2(6)(d) is a stat limitation on the obligation to become self sufficient) 79 Ratio: Law recognizes 3 conceptual grounds for entitlement to SS: (1) compensatory, (2) Kual, (3) non-compensatory; Thus, A payor spouse may be held to bear a social obligation to support a former spouse beyond compensation for loss incurred as a result of marriage and its breakdown____________________________________________________________79 Expanding rationale for SS obligations - non compensatory support 80

Fault and SS (DA, s15.2(5))__________________________________________________80 Court is precluded from relying on spousal misconduct, may look to impact of spousal misconduct_______________________________________________________________80 Leskun v Leskun [2006] 1 SCR 920 80 Ratio: (Emo) Consequences of spousal (mis)conduct may be considered in looking at needs and circumstances to determine entitlement to SS. Here dep S’s failure to achieve employment in part due to emotional devastation caused by ex-H’s spousal misconduct, wife’s age, poor health._________________________________________________________80 Ungerer v Ungerer (1998) 80 Ratio: Spousal misconduct may establish an application for an order to terminate SS if misconduct alleged is of such a morally repugnant nature, as would cause a RP to say S is no longer entitled to support of ex-H or to judicial assistance in compelling H to pay ; Held, SS terminated 6 years after divorce.______________________________________________80 Stewart v Stewart 2000 NSSC 80 Ratio: A dependant or payor spouse’s abusive post-separation conduct, does not fall under conduct in relation to marriage, and thus is a factor in determining whether to deny, grant or vary an order for SS________________________________________________________80

FLA Provisions about conduct and SS (s 33(10)_________________________________80 Morey v Morey (1979) 24 OR factors relevant to determining a spouse was disentitled to SS on basis of conduct that constituted unconscionability - as an obvious and gross repudiation of relationship, claimant must show 80 (a) exceptionally bad conduct___________________________________________________80

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(b) conduct reasonably expected to destroy marriage_______________________________80 (c) conduct must have persisted in the face of innocence & virtual blamelessness on part of other spouse,_________________________________________________________________80 (d) commission of so-called matrimonial offence not necessarily sufficient;_____________80 (e)party raising issue of relevant conduct should be prepared to undertake that there is a bona fide belief that the test ..can be satisfied [w risks of punitive costs if crt finds issue is frivolous]; and________________________________________________________________80 (f)pleadings...should set out a summary of conduct relied on to meet the test...__________80 Ratio: S 33(10) "unconscionable conduct" interpreted to include post-separation conduct, & relationship incl co-parent relationship, therefore post-separation misconduct is a basis for termination of SS order; Conclusion: FW’s conduct reflects intent to destroy fatherdaughter relationship, amounts to hideous repudiation of relationship bt/w former spouses as co-parents for daughter. ;Mother's alienation of daughter and FH must be condemned ,made effective by way of terminating SS_______________________________81 Rethinking Pelech & the Role of Family Agreements, Miglin v Miglin 2004 ,SCC 82

Abella, JA________________________________________________________________82 CA______________________________________________________________________82 Agreements is not a pre-eminent s 15.2 factor. Courts should treat sep agreements & crt orders equally. Higher threshold should not be required to warrant judicial intervention in setting aside sep agreement vs. a SS order. A SS order determination should be made w regard to "overall scheme & support provs" considering there is no stat direction re: agreements_________________________________________________82 Ratio(s) 82  DA, s 15.2(1) Statutory objectives: (1) certainty, (2) finality, (3) autonomy, (3) equitable of sharing of economic consequences flowing from marriage breakdown 82  The court is to treat family agreements as “Ks nonetheless” ,unlikely to intervene to set aside a separation agreement absent extraordinary circumstances like illness or disability of a child (market forces, job loss, health issues, house pricing fluctuations do not quality, failing businesses or remarriage) ; (para 89) 82  Pelech test dead no longer appropriate for interfering with a pre-existing agreement 82  Two-stage test to be used to determine whether a court will uphold an agreement that limits/waives a party’s SS rights under s 15.2(1). (1) Look at circumstances in which agreement was negotiated, and see whether it should be discounted in those circumstances (reasons like vulnerabilities or oppression/pressure, duration of negotiation, legal representation) , (b) there was pressure on the signor or was 1 party vulnerable? (2) If no, asses, whether the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of DA 82 Analysis/C 82 Key Paras 82 Dissenting Paras______________________________________________________________82

Legacy of Miglin___________________________________________________________83 Cooper v Cooper – Y___________________________________________________________83 Held; Follows Migliin to deny W’s application for SS in context of sep agreement.. Parties negotiated a fair settlement, change in circumstances, it did not result in agreement being unfair pursuant tos 15.2(6),DA__________________________________________________________83 Rick v Brandsema2009 SCC – N_________________________________________________83 relies on CML uncons. vs. ON, a leg principle______________________________________83 Ratio : The settlement agreement must ensure a fair distribution of assets, and the absence of exploitation within the singularly emotional environment in which family bargaining takes place_83 Reasoning: Distinguished from Miglin Starting point is not s 9 or 15.2, but CML principle of equity, Corollary to the finality of separation agreement in Miglin, that there be a duty to make full disclosure & not to take advantage of other spouse's vulnerabilities . In Levan, W as under pressure to sign K, here W suffered from mental instability , note mental vulnerability is a factor_83 25 | P a g e

S 17 Issue: Variation 83 LMP v IS 2011 SCC 64-N_______________________________________________________83 Held/C: Appeal allowed. Consent judgement treated as order. TJ erred to consider material change in circumstances, so there was no basis for change in variation. Applications refused, SS reinstated._____________________________________________________________________83 Ratio: Miglin principles apply to an application for SS under s 15. Determination of an application under S 17 orders for variation on existing SS order engages a diff treatment of agreements in light of statutory lang, “agreement, order, arrangement”, not used in s 17_______83 Bhupal v Bhupal (2009)OR______________________________________________________83 F: Ex-H applied to vary obligation to pay on basis that W had remarried, close friend of ex-H. Minutes of settlement provided for review of SS obligations in 5 years or based on “material change in circum”______________________________________________________________83 Held: CA upheld TJ decision that remarriage did not constitute change in circumstances b/c at time of signing minutes of settlement, H knew W was in new and serious relationship as supported by evidence____________________________________________________________________83 Reform Initiatives: the Spousal Support Advisory Guidelines 83 Purpose_____________________________________________________________________84 Content_____________________________________________________________________84 Objectives___________________________________________________________________84 Role in courtroom_____________________________________________________________84 Reisman v Reisman , ONCA 2014________________________________________________84 Reasoning [29]: (a) long marriage: it lasted 20 years. (b) W primarily responsible for maintaining the household and raising the children. [b] W has not been employed FT since before birth of children. (c) (d) marital Standard of living – lived, well; “ did not worry about income, (e) Wife will be 56 when SS order ends_________________________________________________84 Held: CA removed impose time limit of 10 years, and change to of indefinite duration. SSAGS support this view, guideline that duration for marriages of 20+ years should be “indefinite”____84 Limitations___________________________________________________________________84 Privatizing Responsibilities for Dependency Post-Separation 84 Obligation child to support parent 84 S 32 FLA Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so______________________________84 S 33(1) Order for support - A court may, on application, order a person to provide support for his or her dependants and determine the amount of support 84 S 33(9) –Determination of amount for support of parents, spouse_____________________84 In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,__84 (a) the dependant’s and respondent’s current assets and means; (b) the assets and means that the dependant and respondent are likely to have in the future; (c) the dependant’s capacity to contribute to his or her own support; (d) the respondent’s capacity to provide support; (e) the dependant’s and respondent’s age and physical and mental health; (f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;________________________________84 (g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;____________________________________________________________________84 (h) any legal obligation of the respondent or dependant to provide support for another person;______________________________________________________________________84 (i) the desirability of the dependant or respondent remaining at home to care for a child;_84 (j) a contribution by the dependant to the realization of the respondent’s career potential; ____________________________________________________________________________84 (m) any other legal right of the dependant to support, other than out of public money.___84 Dragulin v Dragulin___________________________________________________________84

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Ratio: S 32: Parent must have cared for OR provided support (conjunctive test); Act includes no defence of fault or misconduct in award of parental support, nor does it consider nature and quality of current relationship bt/w parent-child._________________85 Skyrzpacz____________________________________________________________________85 Immigrant mother sought interim support from son. App dismissed. Mother never primary caregiver did not file any evidence as to support entitlement under sponsorship agreement._____85 Children and Family Dissolution_______________________________________________________85

The statutory framework___________________________________________________85 DA 85 Married spouses who initiate a divorce action (with corollary relief pursuant to the Divorce Act) and 85 CLRA 85 cohabiting couples who separate (and married couples who do not initiate divorce), whose issues about custody, access and child support are determined pursuant to provincial legislation. 85 Federal Jurisdiction , DA 86 General authority s. 16(1)_______________________________________________________86 Joint custody (discretion) s. 16(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.____86 Maximum contact (“friendly parent”) s. 16(10)the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. (not absolute and always subject to BIC, Gordon)_______________________________________________86 Terms and conditions s. 16(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.___________86 Change of residence (7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.____________________86 Factors (BIC-no details) s. 16(8) court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.______________________________________________________86 Conducts. 16(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.____________________________________________86 Variation S 17(1)______________________________________________________________86 Ontario legislation: Children's Law Reform Act, sole or joint custody arrangements 87 s. 20(1) Equality of parents the father and the mother of a child______________________87 s. 20(2)Custodial rights and duties_______________________________________________87 s. 20(3) Joint rights and duties__________________________________________________87 s. 20(4) Assumed custodial rights________________________________________________87 s. 20(5) Access________________________________________________________________87 s. 20(7) Contracting out________________________________________________________87 CLRA , s 21, s 24(2)-(4) Access claims by GPs or others – care plan, criminal check, affidavit_____________________________________________________________________87 S 21(2)Factors (BIC)__________________________________________________________87

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The court shall consider all the child’s needs and circumstances, including,_____________87 (a) the love, affection and emotional ties between the child and,_______________________87 (i) each person entitled to or claiming custody of or access to the child,_________________87 (ii) other members of the child’s family who reside with the child, and_________________87 (iii) persons involved in the child’s care and upbringing;____________________________87 (b) the child’s views and preferences, if they can reasonably be ascertained;____________87 (c) the length of time the child has lived in a stable home environment;________________87 (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;_______________________________________________________________________87 (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;____________________________________________________87 (f) the permanence and stability of the family unit with which it is proposed that the child will live;_____________________________________________________________________87 (g) the ability of each person applying for custody of or access to the child to act as a parent; and__________________________________________________________________87 (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application___________________________________________87 s. 24(3) and (4)Past conduct_____________________________________________________87 S 24(4)Violence and abuse______________________________________________________87

Types of Custody Arrangements______________________________________________88 S 20(2) Custodial parent : legal auth to decide about child re health, education and welfare usually, choice of religion;______________________________________________________88 S 20(5) Access person__________________________________________________________88 Joint custody: Both parents have legal auth to make decisions for children re health, education,welfare, religion______________________________________________________88 Physical custody and caregiving responsibilities; May be negotiated , and reflect a range of responsibilities_______________________________________________________________88 Parenting plans: IBID_________________________________________________________88 Parallel parenting Incl detailed parenting plans & auth for parent with physical custody to make decisions about child during the time that child is in that parent's care ; order may be requiredfor parents to cooperate_____________________________________________88

The Legal Principle: The “Best Interests of the Child”___________________________88 Carson v Watts 1998 - An approach about what decision will result in the least harm vs. the BIC? typical analysis, mother was accused of drug use, alcohol abuse, father's claim - she messed up one child (no expert evidence required, witness credibility) 88 Held: Not in BI of Teague to grant sole or joint custody to Mr C, subjected to life w/ controlling rigid ind, sole custody to mum, who will ensure and facilitate access (friendly parent), not confident Mr C would do same w/ attaching strings to perpetuate emo abuse she has endured______________________________________________________________88 Assessing best interests in trial court 88  (Haider v Malach 1999 Sask CA;Perron v Perron) - Appeal courts will not intervene in relation to custody and access decisions unless there is an error in principle or a clear or factual error in a matter of significance (759) reasoning of evidence in relation to factors used to identify child's best interests_____________________________________________88  Geremia v Harb 2008: Crt may make an order to preclude either parent from commencing further legal proceedings w/o leave of crt b/c it's in the BIC where satisfied that a person “has persistently and without reasonable grounds…institutes vexatious proceedings in any court under s 140(1) of Courts of Justice Act . They separated in 2001. At time of divorce order 2002, crt awarded custody to mother. 2002-8. 8 diff judges made at least 24 orders, # of contempt orders.-____________________________________________88

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 Convention on Right of Child , Art 3 - BIC shall be a primary consideration in all actions concerning children, considered in Baker ; scope for change when used as an interpretive guide? (still indeterminate)___________________________________________88 BI & Identity: Sig of Race 89 Van de Perre v Edwards – which parent will foster understanding of child’s heritage from both parents is a relevant consideration in determining custodial parent_______________89 Ratio_________________________________________________________________________89 Race is not a critical factor in custody and access cases, and importance of this factor will depend greatly on many factual considerations, determined w/discretion on a case-by-case basis incl, parental ability to foster racial identity pride, need to develop a means to deal w racism and need to develop a positive racial identity_________________________________________________89 Race and BI custody cases - Courts are attentive as to which parent will ensure child's continuing contact with racialized heritage (Ffrench;Camba v Sparks)__________________89 BI & Identity: Sig of Religion/Culture 89 Libbus v Libbus – A court may accord weight to a parenting plan that is supported by expert evidence, mother submitted expert evidence in case that court accepted re: issues of religion______________________________________________________________________89 Reason_______________________________________________________________________89 Issue to address is despite father's efforts and intentions, whether Jewish identity of children can be better fostered in present school or at a school in Thornhill. To successfully raise the children in Jewish and as cultural Jews something more than strong fam values are needed. Value is enhanced especially as children get older not only by family but also from peers and wider comm.________89

Best Interests & Access: A Child's Right_______________________________________89 Parental access is determined by application of BIC test; No presumptive entitlement to access; Access may be withheld if facts disclose apprehension of harm to child 89 Craig v Antone 1987 Ont Prov Ct (784-5)- father refused access_______________________89 No statutory presumption of entitlement to parental access for non-custodial parent exists where onus falls on other parent resisting access to rebut that presumption. Determination of parental access made on basis of BIC (Courts consider conduct of applicant towards custodial parent; child-access parent relationship, general lifestyle in relation to child____89 Access is often suspended or denied of deemed contrary to BIC of child (S v S, Gorgichuk) ____________________________________________________________________________89 Custody access claims by non parents DA, ss 16(2)(3) 89 Arnink v Arnink 1999 Grandparents were appropriate parties for purposes of custody and access claims in divorce proceedings between spouses_______________________________89 Legal Update, GP access to CLRA________________________________________________90 Access &religion 90 Bachor v Lechmann Bachor (2001 ABCA)Custodial parent's auth has sole and primary responsibility to oversee all aspects of a child's daily life and long term well being and is not subject to access______________________________________________________________90 Young v Young SCC: test for determining if access parent can share religion with child is BIC_________________________________________________________________________90 Access and relocation of the custodial parent: legal principles and judicial interpretation 90 Carter v Brooks 1990 ONCA_____________________________________________________90 Custodial parent did not have an inherent right to move. Each parent bearsan evidential burden to show move is in BIC. Mother was not permitted to move from ON to BC._____90 MacGyver v Richards 1995______________________________________________________90 Cts must have deference to custodial parent's decision to relocate absent exceptional circumstances like bad faith or unreasonableness (relationship w custodial parent more important that w non custodial parent; courts should acknowledge BIC & cust parents' interests inextricably linked____________________________________________________90 Gordon v Goertz_______________________________________________________________90

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Mother wanted to move to Australia to pursue educational goals, while access father remained in SK_______________________________________________________________90 Principles applicable to relocation by custodial parents in circumstances where relocation may affect access parent's contact w child pursuant to s 17 of Divorce Act______________90 Approach: threshold requirement of a material change in circumstances; judge must embark on fresh inquiry; focus is BIC involved, not rights/interests of parents, no presumption for cust parent____________________________________________________90 a judge should consider: (a) existing custody relationship & cust parent-child relationship; (b) existing access arrangement and access parent-child relationship; (c) desirability of maximized contact bt/w child & both parents; (d) views of the child; (e) cust parents' reasons for moving only if relevant to cust parent's ability to meet child's needs; (f) disruption to the child of a change in custody; (g) disruption to child consequent on removal from fam. schools and community________________________________________90 Virtual access_________________________________________________________________90 FJN2004 ONSC - mother was allowed to move to Cali but father was entitled to exercise access through unlimited telephone, email webcam and post communication @ all reasonable hours/ Mum was ordered to purchase necessary equipment and supply it to the father_______________________________________________________________________90 Legal Update: Perron v Perron – consider imposing custody order w conditions when children’s language of education is engaged_______________________________________90 Conclu______________________________________________________________________91 It was an error under the circumstances not to consider the option of ordering Frenchlanguage schooling as a condition of awarding sole custody to the respondent. Children have been in French immersion school for 2 yrs now and would not be in BIC to revise custody order. As per s. 24(2)(d) CLRA, the children's language of education should be taken into account when considering BIC.________________________________________91 Interpreting and applying the BIC test in relation to abduction, abuse and alienation 91 Conclusion___________________________________________________________________91 It was appropriate to vary terms of sep agreement eliminating father's access to his daughter & was in her BIC b/c it was not possible for daughter to overcome her severe alienation from father_________________________________________________________91 Sharing custody and care: joint custody, parenting plans and “parallel parenting” 91 Buist v Greaves, precedes AA, BB, CC, court holds Simon can only have one legal mother. Court rejects assessment recommendation of joint custody in light of high level of conflict bt/w parties, exacerbated by litigation. He grants Ms. G’s relocation claim from ON to BC. 91

Processes for Decision Making and Legal Arrangements_________________________92 s 30 CLRA – auth court to order a parenting assessment 92 Criteria (1) not to be ordered in every case, will not decide what is in BIC, crts do; (2) routine order iof assessments is discouraged absent clinical issues, (3) role of assessor is not mediate bt/w parties 92 Hearing children’s voices in custody and access decisions 92 OCL : Stat Auth92 Courts of Justice Act, ON provides for OCL to assist court: (S 89(3.1)__________________92 crt may order OCL to provide legal representation for a child (tend to be limited) ; and__92 (2), S 112 OCL may undertake an investigation, report and make recommendations in a custody and access proceeding (DA or CLRA)_____________________________________92 OCL has discretion in whether to respond to a request________________________________92 when courts order OCL assistance, crt must regard limits of resources , and is permitted to make a request________________________________________________________________92

"Sharing Custody and care" : Joint Custody, Parenting Plans, Parallel Parenting____93 Baker v Baker : A realistic and practical approach was required in resolution of custody litigation and joint custody should be ordered only in exceptional circumstances which are rarely if ever present in cases of disputed custody 93 30 | P a g e

Kruger (Diss, Wilson JA) Alt view: Court should order joint custody circumstances where it is in the best interests of the children short and long term. should assess preferably w prof assistance, ability of parents to co-operating in upbringing of their children in light of that assessment and to choose range of options from it ( often referred to when making JC order)__________________________________________________________93 Most Custody and Access disputes are litigated in relation to decision making auth

93

joint custody - parents share auth to make decisions about a child in relation to health, education, welfare incl religion ; joint physical custody - child spends equal amounts of time in care of each parent, possible to also have joint legal custody OR one parent to have legal custody and other have access_______________________________________93 Kaplanis v Kaplanis 2005_______________________________________________________93 Ratio: Court must determine courts must assess ability of parties to communicate to determine whether to make a joint order for custody; Joint custody is not appropriate if parties were unable to communicate/co-operate effectively. There was evidence here to the contrary. (TJ assumed comm would improve)_____________________________________93

CA Held: allowed appeal. New trial ordered. Evidence found did not address bonds bt/w child and each parent and ability to parent her, father's caring plans & benefits of such arrangements; TJ erred in order for joint custody and counselling bt/w parties, not spec auth by leg________________________________________________________93 Parallel parenting orders - critics skeptical of its utility; judges remain enthusiastic, allows for balancing? 93 involves det arrangements for decision making by parent in re: to the child most important to that parent on an ongoing basis; ordered by many courts to avoid ongoing litigation in high conflict parental disputes post dissolution, both parents have equal status but exercise rights & responsibilities associated with custody independently of one another ____________________________________________________________________________93 Child Support: “Public” and “Private” Responsibilities – Context______________________________94 SUMMARY OF STEPS of ANALYSIS 94  Initiate application under S 33(1) FLA or s 15.1(1) depending on whether application part or divorce proceeding 94  Entitlement - Determine whether child falls w/in statutory meaning under DA or FLA 94  Obligation - Determine whether parent falls within statutory meaning under DA or FLA (demonstrated settled intention – social parent) & CLRA (biological parent or presumptive paternity) 94  Determine Quantum and Duration by Reference to CSGs 94

Paras v Paras 1970 Ont CA__________________________________________________94 CS should be set at a level that would maintain the child at (1)the pre-divorce standard of living (2)and that the costs of achieving that standards should be apportioned bt/w parents in proportion to their respective incomes________________________________94 Step or blended fams 94 created after the death of a spouse, after the dissolution of marriage or cohabiting relationship, a fam with at least 1 child from a prev relationship of M or F or both, + 1 created in current relationship; stepparents have been ordered to pay CS following longstanding relationships 94 Determining whether a respondent is a parent for CS purposes, Parent & Child Defs______________94

s. (2)1: DA________________________________________________________________94 “child of the marriage” - child two spouses or former spouses who, at the material time,_____________________________________________________________________94 (a) is under the age of majority and who has not withdrawn from their charge, or

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94

(b) is the age of majority or over &under their charge but unable, by reason of illness, disability or other cause (incl post-secondary education), to withdraw from their charge or to obtain necessaries of life; 94

s 2(2) (Social parents)_______________________________________________________94 (2) For the purposes of the definition “child of the marriage” in subsection (1), a child of two spouses or former spouses includes (Place of parent test Chartier) 94 (a) any child for whom they both stand in the place of parents; and 94 (b) any child of whom one is the parent and for whom the other stands in the place of a parent. 94 FLA ,s 1, 29 Definitions:, parent, dependant, spouse________________________________________95 S 1“parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody 95 S 29 dependant” means a person to whom another has an obligation to provide support under this Part 95 S 29 “spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited, 95 (a) continuously for a period of not less than three years, or 95 (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child 95 FLA s 30 Obligation of spouses for support_______________________________________________95 Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so 95

FLA s 31, Obligation of parent to support child_________________________________95 31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so ; 95 (2) eliminates parental obligation to support a child 16 + who has withdrawn from parental control 95

FLA, s 33 Order for support_________________________________________________95 A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.____________________________________________95

CLRA s 1(1) & 1(2, (4), s 8__________________________________________________95 S 1(1) Rule of Parentage Subject to sub (2), for all purposes of the law of ON a person is the child of his or her natural parents and his or her status as their child is independent of whether the child is born within or outside marriage. 95 S 1(2_) Exception for adopted children Where an adoption order has been made, section s 158/9 of CFSA of applies and the child is the child of the adopting parents as if they were the natural parents. 95 S 1(4)Common law distinction of legitimacy abolished - Any distinction at common law between the status of children born in wedlock and born out of wedlock is abolished and the relationship of parent and child and kindred relationships flowing therefrom shall be determined for the purposes of the common law in accordance with this section 95 S 8(1) Presumptions of paternity - Unless the contrary is proven on BOP, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances: 95 1. The person is married to the mother of the child at the time of the birth of the child. 95 2. The person was married to the mother of the child by a marriage that was terminated by death or judgment of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child. 95 3. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father. 95 32 | P a g e

4. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit. 95 5. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada. 95 6. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child. 95 Impact of dom Ks 95 Ks entered into by parents should not preclude subsequent applications for CS, at least in re: to children attending post-secondary educational institutions; Court may not uphold a dom K prov in relation to a matter affecting a child if not in BIC (Jane Doe; Hyde; Lastman) 95 Hyde v Lange 1996____________________________________________________________96 Decision: The crt granted support on the basis that the child was entitled to support pursuant to s31(1). Stating the FLA was rooted in dependency, the court held that the child's right to support should not be affected by the fact that parent did not exercise access ,nor from any arrangement entered into by her parents that compromised her right to support___________________________________________________________________96 Louis v Lastman 2002 ONCA____________________________________________________96 H: Appeal dismissed. Adult children not entitled to retroactive CS b/c on the grounds that R dod have a FD to ensure the quality of life of his adult biological children.____________96 F: Adult children bring an application for retroactive child support b/c they did not have benefit of bio father's wealth while growing up. Mother had a relationship for several years with bio father who was married & had two other boys. Mother signed agreement releasing Lastman from all obligations for payment. Applicant male children argued that there was a FD on part of bio father to ensure their their quality of life. TC denied claim.___________96 If application had been brought before boys came age of majority, app may have succeeded ____________________________________________________________________________96 Parsons v Parsons_____________________________________________________________96 (1996)_______________________________________________________________________96 Quality of PC relationship is one of many factors, not determinative in a 2(1) determination of whether respondent is a parent___________________________________96 Held: Daughter was a "child of the marriage" pursuant to s 2(1) of the DA, 1985, and that she had not disentitled to herself from assistance. F was ordered to pay CS to wife of $400 for 1 year for 24 yr old daughter, who had no ongoing relationship with her father.______96 Parent-Child Relationships: "Standing in the Place of Parent" or "Settled Intent" Parents___________96 Chartier v Chartier [1999] 1 SCR 242 96 A social parent who "stands in place of parent under s 2(2) of DA will have CS obligations, cannot terminate PCR when the intimate relationship with child's bio parent ended. 96 Most judges accept that it it is appropriate to interpret the DA and FLA 96  Ratio: (Note. Key that person stepparent forms a new family is key factor in drawing inference) Whether a person stands in the place of a parent is a facts-based, objective determination made by looking to relevant factors that define PC relationship, among which is intention, express or implied, include but not limited to______________________96  whether the child participates in the extended family in the same way as would a bio child;_______________________________________________________________________96  whether the person provides financially for the child (depends upon ability to pay)___96  whether the person disciplines the child as a parent;____________________________96  whether the person represents to the child, the family. the world either explicitly or implicitly that the or she is responsible as a parent to the child_______________________96  the nature or existence of the child's relationship w the absent bioparent___________96 Gardiner96

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court less likely to impose CS obligations on support parent for child w disability (if bio parent is involved, the respondent is not a primary caregiver, here the children had a nanny) 96 H applied for declaration that W stood in loco parentis to 2 sons (one had cerebral palsy, other had behavioural problems) from prev relationship; Held: W was not loco parentis under s 2(2) b/c she would then carry support obligations for rest of 1 child's natural life 97 Monkman v Beaulieu MBCA (cohabiting spouses): Held, In loco parentis is the same phrased used by DA, therefore Charter principles apply to determination of whether respondent is in loco parentis. Crt will not sever PCR where it is contrary to BIC in question 97 Cheng v Cheng ONCA: FLA does not exclude GPS as persons who might be responsible for support of children, assuming they are significantly involved w children, and may be joined to app for CS support 97 CLRA - ss. 4, 5, 8, and s. 10, Maternity and Paternity Declarations____________________________98

PART II ESTABLISHMENT OF PARENTAGE________________________________98 S 3 - Court under ss. 4 to 7 The court having jurisdiction for the purposes of sections 4 to 7 is, 98 (a) the Family Court, in the areas where it has jurisdiction under subsection 21.1 (4) of the Courts of Justice Act; (b) the Superior Court of Justice, in the rest of Ontario. 98 S 4 (1) – Paternity and maternity declarations Any person having an interest may apply to a court for a declaration that a male person is recognized in law to be the father of a child or that a female person is the mother of a child. (Note AA BB CC – PP may be invoked to declare a person a 2nd mother) 98 S 4(2) Declaration of paternity recognized at law - Where the court finds that a presumption of paternity exists under section 8 and unless it is established, on the balance of probabilities, that the presumed father is not the father of the child, the court shall make a declaratory order confirming that the paternity is recognized in law. 98 S 4(3)Declaration of maternity - Where the court finds on the balance of probabilities that the relationship of mother and child has been established, the court may make a declaratory order to that effect 98 S 4(4) Idem - Subject to SS 6-7, an order made under this sect shall be recognized for all purposes. 98 S 5(1) Application for declaration of paternity where no presumption Where there is no person recognized in law under section 8 to be the father of a child, any person may apply to the court for a declaration that a male person is his or her father, or any male person may apply to the court for a declaration that a person is his child. 98 S 5(2) Limitation - An application shall not be made under subsection (1) unless both the persons whose relationship is sought to be established are living. 98 S 5(3) Declaratory order - Where the court finds on the balance of probabilities that the relationship of father and child has been established, the court may make a declaratory order to that effect and, subject to sections 6 and 7, the order shall be recognized for all purposes. 98 s 10(1) - Leave for blood tests and DNA - On the application of a party in a civil proceeding in which the court is called on to determine a child’s parentage, the court may give the party leave to obtain blood tests or DNA tests of the persons who are named in the order granting leave and to submit the results in evidence. 98 S 10(4) Inference from refusal If a person named in an order under subsection (1) refuses to submit to the blood test or DNA test, the court may draw such inferences as it thinks appropriate 98 Re Rhan and Pinsonneault (1979) OR 98 Factors for consideration in making a s 10(1) determination_________________________98  Were applicant and respondent married at time the child or children were born?____98  Did parties cohabit in a CML relationship of some duration which time or shortly thereafter a child was born?____________________________________________________98 34 | P a g e

 did R admit sexual intercourse with applicant at or near time calculated to be point of conception but now denies he is actual father of child but alleges another is?____________98  although there was not a CML union, did R admit to an extramarital relationship w the applicant wherein sexual intercourse occurred from time to time thus making it possible he is the putative father?________________________________________________98 CS and the CS Guidelines - Statutory Framework__________________________________________99 CS Guidelines adopt a model usually determining CS amt by reference to payor's income & # of children 99

FLA, Purpose and determination of order for CS_______________________________99 S 33(7) Purposes of child support - CS support order should, (a) recognize that each parent has an obligation to provide support for the child; (b) apportion the obligation according to the child support guidelines 99 CS guidelines s 33(11) to (15) 99 (11) Application of child support guidelines - A court making an order for the support of a child shall do so in accordance w CS guidelines 99 (12)Exception: special provisions Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance w CS guidelines if the court is satisfied, 99 (a) that special provisions in an order or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and 99 (b) that the application of the child support guidelines would result in an amount of child support that is inequitable given those special provisions. 99 (13) Reasons Where the court awards, under subsection (12), an amount that is different from the amount that would be determined in accordance with the child support guidelines, the court shall record its reasons for doing so. 99 (14) Exception: consent orders 99 Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance with the CS guidelines on the consent of both parents if the court is satisfied that, 99 (a) reasonable arrangements have been made for the support of the child to whom the order relates; and 99 ( b) where support for the child is payable out of public money, the arrangements do not provide for an amount less than the amount that would be determined in accordance w CS guidelines 99 (15) Reasonable arrangements (determining whether arrangements are reasonable) 99 For the purposes of clause (14) (a), in determining whether reasonable arrangements have been made for the support of a child, the courts shall 99 (a) have regard to the child support guidelines; & (b) court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance w CS guidelines 99

DA, CS principles, s 15.1___________________________________________________100 S 11(1)(b) Bar to divorce – failure to satisfy the court that reasonable arrangements have been made for CS for children of the marriage, having regard to the applicable guidelines 100 s. 15.1(1) CS order - A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. 100 (2) Interim order - Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1). 100 35 | P a g e

(3) Guidelines apply A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines. 100 (4) Terms and conditions - The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just. 100 (5) Court may take agreement, etc., into account - NWS subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied 100 (a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and 100 (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. 100 (6) Reasons - Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so. 100 Consent orders (7) NWS subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates. 100 (8) Reasonable arrangements - For the purposes of subsection (7), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines. 100 15.3 (1) Priority to CS - Where a court is considering an application for a CS order and an application for a SS order, the court shall give priority to child support in determining the applications. 100 (2) Reasons - Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so. 100 (3) Consequences of reduction or termination of child support order- Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be 100 Steps of Analysis___________________________________________________________________101 Step 1: -s. 3: Using tables of annual “gross income”, determine table amount: [CSGs provs that permit a court to determine “a pattern of income” (s 17), to incl corporate income (s 18) & to impute income (s 19) 101 Step 2: Adjustments for special expenses: ss 7(1) and 7(1.1) 101 childcare, medical and dental insurance premiums, health-related expenses “extraordinary expenses” to meet educational needs , post-secondary education (Lewi v Lewi) “extraordinary expenses” for extracurricular activities:(definition in s. 7 (1.1) 101 Step 3: Special considerations (note judicial discretion) 101 * s. 5 “Standing in place of a parent” (Wright v Zaver; and Cornelio v Cornelio) 101 * s. 8 Split custody 101 *** The Child Support Guidelines- O Reg 391/97 Support Guidelines_________________________102 CSG objectives 102 36 | P a g e

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation; 102 (b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective; 102 (c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and 102

Amount of Child Support__________________________________________________102 s 3(1)Presumptive rule Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,______________102 (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and__________________________________________________102 (b) the amount, if any, determined under section 7._________________________________102 S 3(2)Child the age of majority or over__________________________________________102 Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,__________________________________________________________102 (a) the amount determined by applying these guidelines as if the child were under the age of majority; or_______________________________________________________________102

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child_________________________________________102 s 5 - Spouse in place of a parent (applies where more than 1 person may have obligation to pay, primary obligation of bio parent) 102 Where the spouse against whom an order for the support of a child is sought stands in the place of a parent for a child or the parent is not a natural or adoptive parent of the child, the amount of the order is, in respect of that parent or spouse, such amount as the court considers___________________________________________________________________102  Wright v Zaver 2002 ON CA - S 5 does not diminish a bio father's obligation for CS. S 5 focuses on person who stands in place of parent - The obligation to pay CS is not related to the right access & must be determined according to BIC; Domestic K can be set aside in relation to CS obligations if not in BIC.______________________________________________________102  Cornelio v Cornelio 2008 ONSC : relies on Jane Doe ; The mistaken belief must be balanced w BIC ; Mistaken belief as to being a biological father of a child does not negate a finding that the party has demonstrated a settled intention to be a parent.______________________________102  BB v BCP 2005 (FLA s 31) Determination of settled intent turns on whether the relationship that exist @ time that the fam was functioning as a unit to separation was one in which father treated child as his own_________________________________________________________102  Right to CS is the right of a child and is independent of a parent's own conduct, whether it be delay in pursuing support, an attempt to K out of support (Jane Doe)or the failure to disclose an extramarital affair that may have led to the conception of the child. Father is a social parent, demonstrated settled intention____________________________________________________102 S 7 – Special or extraordinary expenses (great deal of evidence and litigation for wealthier families) 102 7(1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, 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 parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:__________________________________________________________103 (a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;________________________________103 37 | P a g e

(b) that portion of the medical and dental insurance premiums attributable to the child;_103 (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;_________________103 (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;________________________103 (e) expenses for post-secondary education; and___________________________________103 (f) extraordinary expenses for extracurricular activities.____________________________103 Definition, “extraordinary expenses”____________________________________________103 For the purposes of clauses (1) (d) and (f),________________________________________103 “extraordinary expenses” means_______________________________________________103 (a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or______________________________103 (b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,__________________________________________________________103 (i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,__________________103 (ii) the nature and number of the educational programs and extracurricular activities,__103 (iii) any special needs and talents of the child,_____________________________________103 (iv) the overall cost of the programs and activities, and_____________________________103 (v) any other similar factors that the court considers relevant_______________________103 (2)Sharing of expense_________________________________________________________103 The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.______103 (3)Subsidies, tax deductions, etc. except UCCB in (4)______________________________103 Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense,___________________________103 (4)Universal child care benefit_________________________________________________103 In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit_103 S 8 – Split custody (CS amount is offset, i.e. diff between CSG determinations for each spouse, less than 40% of time) 103 Where each parent or spouse has custody of one or more children, the amount of an order for the support of a child is the difference between the amount that each parent or spouse would otherwise pay if such an order were sought against each of the parents or spouses. ___________________________________________________________________________103 S 9 – shared custody 104 Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,________________104 (a) the amounts set out in the applicable tables for each of the parents or spouses;______104 (b) the increased costs of shared custody arrangements; and________________________104 (c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.___________________________________________104

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 LL v CC : The court held that when deciding CS obligations, the hours spent in care of each parent should be considered, not minutes &seconds. Father payer did not meet 40% threshold, so was required to pay amount according to tables .S 9 only takes effect w shared parenting if parent has child for 40% of the time._____________________________________________________104  Billark v Billark 1998: school and sleep time may be excluded from calculation_________104  Rosati v Dellapenta (1997): in determining calculation, court may have prefer to nature & quality of time spent by each parent________________________________________________104  Leonelli-Contino v Contio [2005] SCR 21: how to assess s 9 support obligations:_______104 (1) Determine simple set off amt under s 9(A) of each parent's table amount for # of child involved in shared custody arrangement;___________________________________________________104 (2) Review Child Expense Budgets: crts must look at all expenses of both parents based upon child expense budgets. ;_________________________________________________________104 (3) Consider ability of each parent to bear increased costs of shared custy & standard of living for children in each house - crt should consider income levels of each parent, disparities in income, assets and liability of each ;______________________________________________________104 (4) Distinguish bt/w Initial Orders or Agreements & Variations - b/c recipient parent may have validly incurred expenses based on leg expectations about how much child support would be provided_____________________________________________________________________104 S 10 Undue hardship_________________________________________________________104 10. (1) On the application of either spouse or an applicant under section 33 of the Act, 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 parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.___________________________________________________________________104 (2)Circumstances that may cause a parent, spouse or child to suffer undue hardship include,_____________________________________________________________________104 (a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;________________________________________________________________104 (b) the parent or spouse has unusually high expenses in relation to exercising access to a child;______________________________________________________________________104 (c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;______________________________________________104 (d) the spouse has a legal duty to support a child, other than a child of the marriage, who is,_________________________________________________________________________104 (i) under the age of majority, or________________________________________________104 (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;_________________________________________________104 (e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;__________________________________________________________________104 (f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability____________________________________104 (3)Standards of living must be considered________________________________________104 (3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse._________________________________________104 (4)Standards of living test_____________________________________________________104 (4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.____________105 Reasonable time_____________________________________________________________105

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(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time. O. Reg. 391/97, s. 10 (5).___________________________________105 Reasons (6)_________________________________________________________________105 Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so____________________________________105 Schmid v Smith 1999 ONSC: Crt dismisses application b/c he finds HH ratio of W is lower than that of H applicant (H supports 1 child, has ER vehicle not incl in income; W has to support 2 children)_____________________________________________________________________105 s 19 imputed income- permits exercise of judicial discretion to impute income to a CS payor, creates huge tensions___________________________________________________105 19(1)(a)where parent "is intentionally under employed or unemployed_______________105  Drygala: Intentionally refers to voluntary where parent chooses to earn less than capable of earning, excludes situations where spouses are laid off, terminated, given reduced hrs of work__105  Middleton v MacPherson - crt struggled to determine what payor's incomeIt is not equitable to impute income to W equal to that of H were W is upgrading educational qualifications. Income/ CS obligation should change as income changes (here W was taking up internship which would temporarily reduce income earnings)_______________________________________________105  Riel v Holland (2003) Payor chose to cease working as an independent electrical Kor, and take a salaried position instead ONCA appeal court confirmed TJ's determination to impute the prev higher income to him for puporses of determining his CS obligations (ss 17-19)_________105  A v A (1999 45 RFL (4th) 5 (Alta QB) The payor won 1 million dollars, in lottery, cease to work and earn income, an AB court imputed both employment and investment income to him___105  Odendahl v Burle (1999) Crt imputed overtime income to payor for purp of determining CS support______________________________________________________________________105  Baldini v Baldini: payor was dismissed from employment for cause, BC court imputed his income to him_________________________________________________________________105  Bak v Dobell ONCA - payments made by father to disabed son did not count as income for purposes of determining son's CS obligation to this children_____________________________105

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PART I: LAW AND FAMILY FORMATION “Families” and “Law” Parens patriae Sefton Hol din gs v Cai rns [1988] 2 FL R 10 9 (En g CA Civ Div )

it refers to the public policy power of state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection Familial approach, what fam ought to be. If she is vulnerable, she should be supported by the State. Consequences of the decision not considered in judicial analysis Facts: P is landlord of the premises at issue who leased it to a Mr G bt/w 1939-41, and Mr G died in 1965. His daughter Ada succeeded to tenancy in 1965, who died in 1986. D, MRs C came to live w G family in 1941, at 23 years of age. Her bf had died in the war and both her parents had died. Mr & Mrs G treated P as their own daughter, who called them Mo and Pop. After Ada died, P served d with notice to quit. D claims she is entitled to remain on in house as stat tenant Issue: Is D a statutory tenant under governing statute? What is stat meaning of family here?

Ratio: The definition of 'family' requires a broadly recognisable de facto familial nexus through marriage, adoption of a minor (de jure or de facto), or where the link is 'step', or where the link is 'in-law' by marriage. Two strangers cannot artificially establish fam nexus Analysis: Ada and D regarded each other as sisters, but D is legally a strange. . D cannot be regarded as being a member by de facto adoption b/c question is whether she was member of Ada’s fam, not G’s fam. No precedent of Rent Act protecting adult adoption Conclusion: Appeal allowed, Mrs C is not a stat tenant b/c she does not fall w/ stat meaning of fam

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Jane Doe v Albe rta (200 7) 35 RFL (6th ) 265 (Alt a CA) Critique of Jane Doe

History of Legal Interventio nn in Fams: public policy fostering legal interventio n Canada (Attorney General) v Mossop [1993] SCR

Familial approach Facts: M and F cohabitees enter into dom K stipulating that P has neither parental rights nor any obligation to support child, of whom he is not the bio father. JD impregnated via AI. Issue: Is dom K legally enforceable?

Ratio: A dom K that indemnifies partner of a parent in an intimate relationship against parental or support obligations in re: to a child that partner did not bio parent unenforceable if not in BIC.

Analysis: (a) As challenge constitutionality of ss 53, 85-6 of FLA Act, which permits a court to override agreements entered into w regard to parenting incl Cs obligations (b)K not legally enforceable b/c M’s express intention is not dispositive, is merely a factor to determine if he is in loco parentis. (c) SS do not engage s 7 b/c s 7 does not apply to purely economic rights; not a personal & fundamental right, which is what s 7 protects ,(d) S 48 def of parent incls person standing in place of a parent if person was in a relationship of interdependence of some permanence w mother...of child, and has demonstrated a settled intention to treat child as person's own child). (e) applies Chartier analysis – M’s subjective intent not to assume a parental role will inevitably yield to the needs (not merely the physical needs) of the child in the same household, otherwise child would likely suffer harm, perception of parental figure is a s 48 factor (f) Public policy arguably does not enforceability of dom K in light of BIC ,(g) child’s interests not represented No assessment of relationship bt/w John Doe and child Rights and responsibilities in relation to the child and new partner may still arise despite clear evidence of intention to abstain from default imposition of rights and responsibilities Policy implications – people hesitate to form new relations where new partner has a child .”JD & any mother like her - would be at risk of losing her exclusive parental rights simply by virtue of cohabiting with a partner regardless nature of relationship bt/ him & child. Residential school sys – Removing FN children from families and placing into edu instituions Chinese immigrants - prohibitively expensive1885 head tax imposed on Chinese immigrants so many men immigrating left their wives behind in China 1910 leg – requiring every SA immigrant have sum of $200 and therefore disrupted fams Japanese internment camps whereby men and older boys were separated in work camps from women and children were relocated to different encampments Contractual domestic workers permitted to immigrate to Canada, and leaving families in home countries for many years (Black Caribbean and Filipina women) lack of recognition of gay and lesbian family relationships until late 20th century Issue: Is SS partner entitled to "spousal" bereavement leave to attend the funeral of his partner's father?

Held: SSP was not entitled to spousal bereavement

In order to define "family status", it is no error to examine the underlying families so that ...actual families, rather than theoretical stereotypes, may enjoy their protected status" (Lisa R Zimmer)

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Family Law & Its Processes: The Constitution, Legislators & Judges & Clients Other UK – unitary jurisdiction, Australia: Federal gov’t jurisdiction legislates re: FL s Access to justice & client sense of justice

Clients may experience a strong sense of injustice when they are provided no opportunity to "tell their story" Lack of fit between client stories and legally relevant facts, particularly in context of no fault divorce where no legal purpose is served by the details of the reasons for marriage breakdown

ADR Processes

Becoming the norm, defaults , info and advice becomes as important as right to litigation in relation to substantive rights

 Marriage should become civil institution – to legally marry, you must and Law Reform of meet civil or secular requirements (i.e. in front of a judge) Adult  relationship Civil union or registered partnerships – important for former litigation re: SS marriage, b/c it gave parties of civil partnerships, same rights & s : The LCC responsibilities as married people (NS) report  Extend rights and responsibilities of marriage to registered partnerships (2001) – initiate union not required, marriage need not be the core family status for the purposes of defining econ dependent relationships?

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Marriage in the Context of Cohabitation Constitutional and legislative authority re marriage

Federal – legislative authority Legislative auth wrp to solemnities wrp to marriage (i.e. and formalities (S 92(12) & inherent capacity to 92(15) Prop & civil rights marry) & divorce (s 91(26) of CA) incl corollary matters (CS, SS) Validity Requirements for Marriage Statutory CML – Parliament has not legislated re: requirements Federal Legislative except for persons, (Substantive) Formalities prohibited degrees and (Prov) age Civil Marriage Act RSC (2 persons, ss 1-4, 4&8) 1) Consent: 2) Capacity, free from duress, unlimited purpose Prohibited Degrees Act 3) Parties must not be w/in prohibited degrees of consanguinity & affinity (lineally related, (half)siblings, incl by adoption) 4) Capacity to consummate 5) No prior existing valid marriage 6) Age

Marriage Act RSO 1) S4: Licence 2) S 5-6: Age 3) S 7: Mental capacity 4) S 17 Banns 5) S 20-24 Solemnization 6) S 25 Witnesses 7) S 31 Curative provisions 8) Solemnization via religious ceremony 9) Registration of marriage certificate, marriage by officer with authority

A valid marriage requires that the parties meet the following six CML criteria according to these common law requirements (as amended by Parliament) OR the provincial solemnization requirements, parties must:

1. 2.

3. 4.

5. 6.

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be "2 persons" - Hyde no longer applies have capacity to consent to the marriage, i.e. - to understand, to be free from duress & w/o taking account of reservations about or limited purposes of marriage. have capacity to consummate the marriage. not be w/in prohibited degrees of consanguinity and affinity (as defined b statute see left) must not be a partner to an existing valid marriage . The parties must have attained the age required for a valid marriage

(Dutch v Dutch (1977) CML marriage does not have legal import except as defined in some statutes) but may exist where Aboriginal peoples marry in according to customary practices but w/o complying with statutory requirements Annulment – marriage never existed absent one or more requisite criteria above (typically sought to avoid religious problems)

(Kerr v Kerr ; AG of AB v Underwood SCR) Prov auth extends to legislating a requirement of parental consent as solemnization req.

Divorce – dissolution of existing valid marriage to establish a divorce action, one must prove "marriage breakdown" under DA

SS marriage – Parliamentary reform of opposite sex requirement Issue: Does CML opposite sex requirement contravene s 15 of Charter? Halpern v ONCA: claimants were the subject of differential treatment b/c CML marriage def creates a Ca formal distinction bt/w opposite sex & SS couples on the basis of orientation, contravened na s 15 of Charter, not saved by s 1 da Important Quotes: (A Procreation is an untenable basis for institution of marriage, marriage not dependent upon G) the presence of children;, or incapacity or an unwillingness to have children, nor is it a bar (20 to marriage or a ground for divorce... 02) Marriage is .characterized by pivotal child rearing role, ... attendant obligations and

SS Ref ere nce Conflicting Laws SS Marriage

Critique

offerings of mutual care and support of companionship and shares social activities, of intellectual and moral and faith based stimulation as a couple, & of shared shelter & econ and psychological interdependence – indicia of purposes of marriage in CDN society Speaks to anachronic def of marriage in Hyde (para 22)"Hyde spoke to a society of shared social values where marriage & religion were thought to be inseparable, no longer the case. Canada is a pluralistic society. State policy is marriage is a civil institution. our Constitution is a living tree which, by way of progressive interpretation, accommodates and address the realities of modern life… (rejects frozen reasoning principle)

S 5(1) designed to permit couples (mainly SS couples) who married in a Canadian province to obtain a divorce in that same province ; (S 5(2))retroactive S 7(1) SS parties can apply for divorce jointly or one spouse w consent of other party under CMA if separate and apart in their home jurisdiction(s) for one year (s. 7(1)); DA does not apply to couples divorce under Civil Marriage Act (s 8) in CDA Critique - no provision for orders for corollary relief in relation to a divorce, leaving these issues to be negotiated according to jurisdiction of the parties’ domicile.  By buying into this institution, they lost the ability to redefine intimate adult relationships  Useful development for governments that do not want to provide support for family responsibility  Legal abstraction may invisibilize vulnerable classes

Issues about capacity to consent to marriage : Mental capacity(implied underlying presumption of marriage) – party will be considered not to have capacity if spouse has mental illness or diminished mental capacity ; Test Onus on party asserting that 1 spouse lacks capacity ; test is person is capable of understanding the nature of the K & duties & responsibilities that it creates it 45 | P a g e

Duress and undue influence in relation to consent – onus lies on party seeking annulment to establish on BOP that a party lacks consent by showing if mind of party in question was so overcome by oppression so as to constitute an absence of free choice; Consider all circumstances,

 Age, maturity, and emotional state & vulnerability of party in question  Consummation of marriage, cohabitation bt/w parties ?  Time period bt/w (1) conduct alleged as duress & marriage ceremony, (2) marriage & annulment request  Physical force or threat of physical force is not required

Consent and limited purpose marriage If parties marry for the limited purpose of a non-citizen acquiring immigration status in Canada, they will be regarded as married for purposes of family law , subject to immigrant sanctions (like deportation)(Iantsis v Papatheodorou)

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Caselaw – Mental Capacity Durham v H sues for an annulment on ground that marriage was invalid b/c W lacked capacity, at time of D proceedings, hopelessly insane, Held: W had capacity @ time of marriage, gave consent u r h a m ( 1 9 9 5 ) Webb v

A party may be considered to have procedural capacity to consent even absent capacity to

W discharge responsibilities flowing from marriage; 2 schizophrenic patients in NS hosp married e and permanently separated when W year after child was born b b ( 1 9 6 8 )

Banton v B a n t o n ( 1 9 9 8

Elderly man and young waitress in his nursing home marry. Children contest validity of marriage on basis of lack of capacity, elderly man had been declared financially incompetent. He had capacity to marry, but not make will – Muna exercised undue influence

)

re Sung E s t a t e ( 2 0 0 4 )

Doctor testified Sung did not have capacity, in Banton – DR said he probably did understand capacity of decision to marry, but no presumption of capacity to make a will (reliance on expert evidence)

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Caselaw- Capacity to consent in relation to undue influence and duress Scott v S e b ri g h t Cooper v C r a n e Buckland v B u c kl a n d S(A) v. S(A) non physical duress

Undue influence test is subjective, not objective. H threatened to shoot W if she suggested at ceremony she was not acting freely, marriage was annulled few months later

Test is mixed objective-subjective test; marriage held as valid, woman did not understand what she was doing or that her powers of volition were paralyzed.

Held: Consent vitiated by duress Husband agreed to marriage b/c of his “reasonably entertained” fears, reasonably entertained; arose from external circumstances for which he was not responsible - “falsely charged” for corrupting a minor, impregnated W of Maltese family

Held: Consent of daughter, party seeking annulment, overborne by pressure of a nonphysical nature that parents imposed, who sought to obtain benefit from marriage (H had left Canada, and they never consummated marriage)

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Pascuzzi v P a s c u z zi [ 1 9 5 5 ] Thompson v T h o m p s o n , 1 9 7 1 HIrani v H ir a n 1 9 8 2 U K C A Note on a rr a n g e d v s f o

Held: Wife lacked capacity to consent, strongly pressured by H’s parents to marry after having sexual relations, ages 15 & 19 . Her only home at the time was that of H’s

Held: Marriage was valid, not vitiated by pressure of mother & and urging of H. Marriage was consummated reluctantly, but PL (W) was not member of vulnerable class

Held: Marriage was invalid, Parents arranged for W to marry Hindu who had wanted to marry a Muslim. Test: Party lacks capacity to consent where threats or pressure is such as to destroy the reality of consent and overbears will of individual

Difference bt/w social cultural or parental pressures vs legal requirement of duress : fear caused by threat of immediate danger to life, limb or liberty

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r c e d m a rr ia g e s

Requirements – consummation, no prior subsisting marriage prohibited degrees of consanguinity, age , 

Capacity to consummate the marriage - test no longer applied, inconsistent w modern CDN law  Prohibited degrees of consanguinity (see Prohibited Degrees Act) Persons now permitted to marry relatives - aunt, uncle, niece, nephew ; relationships of affinity - may marry fam members of a div spouse, step-relationships  No prior subsisting marriage  in case of spouse disappearing, S can be declared as dead for purposes of remarrying - (Declarations of Death Act)  Polygamy CC, s 293 – criminal offence to have a marriage or conjugal union w more than 1 person @ same time

Age and validity of marriage - Matter of formality, within provincial authority

Legebekoff v Leg ebo ko ff Alspector v Als pec tor [19 57] Debora v De bor a (19 99) ON CA Isse v Said 20 12, ON CA

Held: Marriage was valid (long period of cohabitation)W petitioned for annulment b/c she was only 15 at the time of religious ceremony conducted. Lived tog 16 yrs, 3 kidsen.

Held: Declaration of marriage valid according to s 31 MA. marriage ceremony requirements of Jewish faith but they did not obtain licence, b/c they did not believe it was necessary though H was told it was required. Their intention was to live in Israel . They lived in ON for 7 years, H died for trial intended to live together in Israel.

Held: EQ calculation from date of valid marriage. Procedurally invalid marriage did not count, s 31. Parties married in ceremony that they knew did not comply w MA. They married 7 yrs later in valid ceremony. Cred question

Held: W’s evidence disclosed intention to have a valid marriage according to ON law, thus a valid marriage pursuant to s 31 of the Marriage Act. The court also held that the parties were “spouses” for purposes of the EQ provs of FLA Both parties agreed to have an Islamic wedding ceremony , knowingly w/o marriage license & that marriage was not registered in Ontario. Wore trad wedding dress

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Transgender marriage

(Re Kevin in Australia )Legal definition of man incls post operative F to M transsexual, and is

 

recognized for purposes of declaring validity of marriage (AUS only recognized opposite sex marriages) (Corbett v Corbett) Gender and sex is defined at birth and is unchangeable (overruled in UK per ECHR 8,12)

Parent/Child Relationships re Family Formation parenthood is forever for so long as parent and child exist. formation of “families” in relation to the creation of parent-child relationships, created in the absence of a recognized conjugal relationship between two people  Biological relationship  By operation of law, fam relationship created bt/w adoptive child & parent, and bio PCR is extinguished  Assisted reproduction arrangements - legal uncertainty in this area since AHRA  Fineman’s proposal - to make the mother-child bond the primary basis for “family status” in law v. the intimate adult relationship? Dos not consider “alternative fams , where there is no "mother" within a parent-child relationship (child-grandfather, childfather/father)

Birth registration - father has rights to put name in birth registration forms Trociuk v British Columbia (Attorney General) [2003] 1 SCR 835 (supports autonomy) capacity to make decision about how one meaningfully participates in the life of one's own child Familial Engaged rights of the father with respect to giving consent for adoption so he is permitted to register approach his name, reaffirms PCR , Presumption - both parents involved must be in BIC Note: Father rarely exercised right to access Facts

T & E are parents of triplets. Children's mother registered the birth and marked father as unacknowledged by the mother, and registered their surname as hers alone. S 3(6)(b) precluded father from altering registration .Couple cohabited for short periods of time &became estranged after children's birth. T petitioned for : order to compel VS director to register his name as father on birth registration forms, to change surname of children to Ernst-Torciuk, relying on PP, S 15 challenge of s 31 of VSA on groundsof sex discrimination

Analysis

Provs allow perm exclusion of a father's particulars form birth registration if a mother for any or no reason chooses to unacknowledged him, and preclude him from altering particulars thereby to exclude him from process of determining surname of his children (no recourse provided for father)

Decision Held: Father is entitled to register his name as father on birth registration forms, new trial to determine name change (children already know their name, not necessarily in BIC) S 3(1)(b) and 3(6)(b) were invalid b/c they infringed s 15, not saved by s 1 , drawing explicit distinction on enumerated ground of sex and that this distinction gives rise to differential treatment; children’s name not changed, contrary to BIC Critique

Looks at formal vs substantive equality b/c merely status if bio relationship is what establishes T as a father for purposes for being allowed to put his name on the birth registration. Case is similar to scenario someone has contributed genetic material and wants that genetic connection to be recognized at law. Nature of relationship bt/w E & T s much more common that SCC might have

Gallant v Lewis 2008 ONSC – PPJ is invoked to grant application of father to hyphenate children’s last name to include his b/c considered to be in BIC. Unlike Trociuk, dad exercised access daily. F: Mum registered child in her own name. Parents dated in Apr 2006, cohabited in Oct 2006, separated in Dec, child born in 2007. Father continued to exercise access daily. Mother opposed application on 51 | P a g e

basis she was primary caregiver and that child lived with her.

GES v DLC 2005 SKQ- CA denies access order b/c he is not a parent. TC’s decision underpinned by assumptions about a good dad, i.e. non traditional family unit Facts TC CA

M & W not in an intimate relationship, M refuses to provide sperm for woman for AR but man paid part of her treatment. Attended prenatal classes, present when twins were born. Bio mother eventually denies him access. M applies for access order accepted evidence that M& W & twins constitute a non trad fam unit and there was an emotional benefit to children maintaining relationship w/ man, Mother appealed Appeal allowed, man was more than a babysitter, much less than a parent

Adoption and “best interests” Context Current approac h Process

Consent

Adoption laws historically premised on complete elimination of biological PCR & ext. family Adoption statutes enacted to : (1) avoid stigma of illegitimacy, (2)for childless couples (incl stepparents in blended fams) Adoption orders in BIC child promote more openness (Daly) ; Legislation still contains highly secret historical antecedents, harken back to earlier forms of adoption legislaiton 1. Involuntary adoption - flowing from CAS removal. parents' rights are eventually extinguished, child eligible for adoption 2. Voluntary - Mum and dad must give informed written consent, adoption order extinguishes parental rights

CFSA, s 156 2(b) & 157(1) – Consent & Policy goals Primary goal is the best interests, protection and well being of children subsidiary policy goal – to keep fam unit together & encourage parents to look after children on the basis of mutual consent

Statutor y Regime

s 137: Consent to adopt (and definition of “parent” for consent purposes) Consent of child’s mother expressly included or of father if under CLRA 8(1) (copied into statutory provisions) if father does not fall into s 8(1) then NO right to give consent s 136(2) The “best interests of the child” test for adoption s 136(3) The “best interests of the child” test for adoption of an Aboriginal child s 143 Termination of access orders for an adopted child s 158 Status of an adopted child and adoptive parents s 145.1(3) Disclosure arrangements: “openness”

Re Attorney General of Ontario and Nevins (1988)64 OR (2d) 311 (HC) F

Mother gave consent to adoption order (then 139, now 137), swore by affidavit that father was non parent. Bio father did not contact bio mother some until just before adoption order. TJ raises constitutionality issue of prov

I

Is s 139, now s 137(1) of CSFA constitutionally valid? Is bio father’s consent required to execute adoption order?

S 138

Includes all biological mothers w/in definition of parent, but excludes biological fathers unless they have married or cohabited with mother or acknowledged parent or otherwise demonstrated responsibility for the child

H

TJ : violated s 15(1) of Charter , Div Ct: did not violated s 15, if so, saved by s 1

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Ratio

C

There must be clear evidence that male who wants to be involved in making decisions must fit into the existing criteria under s 137(1), otherwise he cannot claim his consent I srequired. Leg measure by which consent of bio father is dispensed with fair, not arbitrary

Re SS (2009)64 OJ No 1148 (Ct J) F

Co-worker impregnated mum in an open relationship, never cohabited. Parties ceased K prior to child's birth. After birth, she decided to give child up for adoption. Mum did not advise father of child's birth, who remained unaware for some som time Child was ultimately placed with fam who filed an app for adoption order.

I

Should court read req into s 137(1) that bio father must notified of the birth of the child?

Ratio

Adoption order allowed; Law does not require the bio mum to info bio father of pregnancy, birth of the child or the adoption, even if known and easily found. S 137 excludes bio father fathers unless they have married/cohabited w mother or parent, or otherwise demonstrated responsibility for the child

Decision

H: No req read into give father notice under s 137. Court concluded that to remove child from present potential adoption fam would be contrary to BIC even if stranger is bio father

Notes

In light of BIC, the legislature should reconsider not requiring bio mothers to inform bio father of a child’s birth & plan to adopt if the relationship is more than casual, though not of some permanence, no safety concerns, violence

ADOPTION RECORDS AND DISLCOSURE Policy challenges

balance child's expressed need to connect w origins / sense of security in home rights of adoptive parents - there may be less adoptive parents, if they feel they were mere custodians of the child with less than ordinary parental rights and responsibilities (RJL v CAS if Metropolitan Toronto)

Recent disclosure amendments in Ontario legislation

Provide for release of only non identifying information like medical records identifying info that might connect a birth parent & a child subject to stringent controls, generally released only for emergency purposes Open adoptions – may be made by adoptive parent / person who plans to adopt child w A birth parent, birth relative or birth sibling of the child, a foster parent, extended family member or comm member with significant contact, adoptive parent of birth sibling of child, child’s band / native comm member community (if FN)

Adoption in relation to race and culture

ANR & SCR v LWJ (1983) 36 RFL 2d 1 (SCC) – BIC lay with de facto adoptive parents rather than Indian birth mother, duration & strength of relationship with them trumped child’s race & heritage F

L was born to Indian mother who was divorcing. She had drinking prob, 2 other children stayed w father. She became temp Crown ward, placed with fam who now wishes to adopt her. Foster mother took her home after temporarily returned to mum’s home. Conflicting evidence about mum’s intention to relinquish custody to adoptive mum.

Proc History

TJ ruled that adoption order should be made On Appeal, adoption order , SCC dismissed appeal

Analysis Birth apprehension, LW brought application after 3 years, delay resulted in child developing dependency on foster parents as psychological parents Finding of abandonment not necessary to decision 53 | P a g e

TJ conclusion drawn from expert evidence - R's have ability to support infant through any identity crisis she might face in teenage years. (Husband is Métis) Indian heritage and culture was an important factor, but duration and strength of her attachment to R was more important The closer the developing bond bt/w prospective parents, the less important race becomes

H v M [1999] SCR 1 SCR 328 – SCC awarded custody of FN child to adoptive parents of his birth mother , reversing TJ decision, concluding that CA should not interfere with TJ finding unless overriding & palpable error Facts Adoptive daughter of white American parents was Aboriginal. She visited her birth fam in Vancouver. After child’s birth, she moved to Van with son and lived in home of bio father and other fam members – poor & on social assistance. Adoptive parents initiate custody action for young son. By time case arrived at SCC, child had been with FN fam for 4 years) H

The BIC principle made the white adoptive parents the legal parents of the Aboriginal child

Assisted Reproduction and Parenthood Comparing adop tion & AR

 Create non-biological parent relationships  Adoption is a useful comparator law establishes non-biological PCRs, except distintive in cases of anonymous donors  AR – process brings a child into existence takes place in medical clinic, involves DRs, AI vs. AD – legally regulated, child is already born, subject to investigaton  Need for legal regulation Affects parental autonomy, need to regulate conflict at breakdown ; Law does not contemplate situations involving two or more parents  Against regulation - Reproductive material is so special that should not be commoditised, commercialized or transferred for consideration Parties must enter into K to use AR, must be approved by ON to be enforceable. OLRC report 1988 Baby M  Woman believed she could not gestate, so her and H enter into K of surrogacy with Mary Beth Whitehead. At birth, MB refuses to give up child  Held (like Jane Doe) Couple try to enforce K. Court held K is unenforceable, but it is in BIC to child w wealthy couple vs. MBW (poor, drug addiction) Recommendations - criminalizing commercial surrogacy arrangements, no P&S of eggs 93, Royal and sperm, gestational mother as mother for legal purposes, approach requiring adoption Com by intentional, non-biological parent missi

on 2004, 2011 AHRA , large part of Act invali d 2009 report, ON Donors BC FLA

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No buying or selling sperm or eggs in Canada - illegal You can have surrogacy arrangements, but cannot be paid for - illegal Research - suggests that concerns that commercial surrogacy will lead to commodification & exploitation & that women cannot give meaningful consent to such arrangements have not been realized in countries where comm. surrogacy is lawful

No legislation in ON to fill in legislative gaps unlike AB, QC and BC Report finding - need to review “the process for establishing parentage to accommodate assisted reproduction services.” Known v unknown Risks (WW, Marotta) vs. Benefits (knowledge of identity & health history of donor - could arrange for some care) Stat definition of parent in diff contexts s 24(1) - donor who provided human reproductive material or an embryo for AR production of child & child is born, the donor “is not, by reason only of the donation, the child’s parent.” s 27(2) provides that the child’s birth mother is the child’s parent. s 27(3) provides that a person married to, or in a marriage-like relationship with, the child’s mother, is also the child’s parent (unless did not/withdrew consent)

Property and/or contract approaches:

JCM v ANA 2012 BCSC 584 : Reproductive material like sperm straws can be considered property for purposes of property sharing/division at relationship breakdown. Facts:

Lesbian used therapeutic insemination with sperm from a single donor, and each gave birth to one child (the children have the same biological father; each partner bio mother. Parties separated, but sep agreement did not provide for disposition of 13 remaining sperm straws JCM wished to use sperm straws w new partner to have child, that would be biologically related to existing children. ANA opposed, wished to have it destroyed.

Issue

Can reproductive material considered property?

Held:

It was held that sperm straws would be divided equally bt/w the two former partners act. The case was divided before the FLA Act 2013 came into effect in 2013. The provisions of the FLA (2013) tried to deal with problems of division.

WW v XX (case settled ) K would probably not have been enforceable absent ILA, no proprietary interest in sperm gratuitously provided. Contrary to BIC?(Jane Doe; GES) Facts:

Deblois entered into K w lesbian couple to provide sperm so they could conceive a child. K provided that D would not participate in baby’s life. Couple eventually have baby birth. Parties did not receive ILA re K. D then makes application for access, changes mind, couple opposed

Notes

Result? Likely DeBlois is entitled to some access Consider: Child's age( T, 7 years old & here 3 years old), known vs. anonymous donors

A Human Rights Code challenge: Gill v Murray [2001] BCHRTD o. 34 (OL) Facts

SS partners of birth mothers file HR complaint that refusal by Vital Statistics Agency to register them as parents of the children of their partners. Claimants argue discrimination b/c man in opposite sex couple with mother when child is born is entitled without enquiry if he wishes to have his name on birth registration

Issue

Whether Vital Stats treatment constitutes discrimination?

Ratio

Partners of birth mothers in a co-habiting relationship are entitled to be registered as parents of children born to their partner without being required to prove a biological connection to the infant child.

H

Vital Stats has discriminated against co-mother, But for gender, they would not have been questioned as to sex/bio connection nor would they be directed to take steps to adopt child.

A Charter challenge: Rutherford v Ontario (2006) ONSC – Language of VSA changed to 2 persons following this case Facts

Lesbian parents conceive children by anonymous donor insemination claim they were entitled to register accurate particulars of their children's parentage per CLRA, s 4 asked crt to interpret statute to recognize modern methods of creating PCR, alternatively, to do so pursuant to court’s inherent PP. If relief could not be granted, then declare VSA as violating SS 7&15 of Charter.

Analysis

The court uses the same comparator group analysis, male in opposite sex relationship, for whom there is no inquiry as to if child is biologically related to male, entitled to register name

Ratio

The definition of parent under VSA for purposes of registering children’s parentage contravenes Charter. Child's parents at birth need not be its bio parents.

Held

VSA discriminated against non bio parents of SS parents, by contrast w non bio OS partners. 55 | P a g e

A stat and PP challenge: AA v BB and CC (2007) 35 RFL (6th) 1, ONC A Facts

Co-mother, not biologically related to mother, and wants to be legally defined as a parent in addition to the bio father and mother, but cannot be registered b/c CLRA only allowed for two parents to be registered for a child.

Issue

Should court use its inherent PP jurisdiction to declare co-mother was DD's parent?

Ratio

Courts may invoke PP jurisdiction to make a determination in the best interests of the child where there is a legislative gap and may do so to recognize a 3rd parent of child in context of AR or fam w three parents.

Analysis

CLRA’s purpose was to confer legitimacy on all children regardless of marital status of their parents to eliminate concept of illegitimacy in relation to children in ON , but it did not contemplate possibility of more than 2 parents incl conception by AR, therefore leg gap

Held

CA uses PP jurisdiction to declare co-mother as parent of child due to leg gap in CLRA

Note

Underlining the failure of the legislature to deal with the challenges of AR Possible future repercussion b/c case did not distinguish bt/w kinds of parental rights and responsibilities that that parents may wish to exercise

C(MA) v K(M) , 2009 ONCJ 18 - Rethinking Parental Status in relation to Adoption Facts

Lesbian couple no longer wants involvement of bio father once she is 6 years old. she is six years old. K entered into mandated arbitration for any disputes. Bio father applies for access order and in response, the co-parent makes an application for adoption

Issue

Should father have this right to consent removed?

Ratio

Father's right to consent under s 158 will not be dispensed with if not in BIC to sever bio PCR relationship (in context of 3 parent family), dom K not enforced re: arbitration

Analysis

Society has placed affectional ties @ centre of child's best interest, but child's bio connections remain a fundamental value ; H : Order to dispense w bio father’s consent is denied

Notes

state may have an economic interest in defining multiple parents, complex case

Disclosure versus anonymity in assisted reproduction 

ON - Policies of greater openness - child can have open relationship w bio parents , a child have an open assuming the biological parents' willingness to do so  College of Physicians can in fact destroy patient files patient not seen for 7+ years, but once destroyed, no way claimant can find out who was the sperm donor  Reform options : compulsory identity release donors or retroactive de-anonymization

Pratten 2011, BCCA - openness in AR , woman conceived using anonymous sperm & OS couple Facts

Legal claim - openness in adoption should apply in AR context. Claimant requested info from physician about identity of donor, but records had been legally destroyed (pursuant to rules). She seeks injunction prohibiting destruction...of recorded info re donors, children, parents

Held

BC CA, upheld unanimously gov’t appeal. There is open adoption, but not open assisted reproduction, dismissed Pratten's cross-appeal in relation to S 7 Charter violation

Appeal

Primary focus - relationship bt/w leg provs for adoptees to locate their birth parents, by contrast with the absence of any provisions to enable a child conceived using anonymous sperm to locate his or her donor Purpose of provs - Leg has intentionally regulated adoption to provide adoptees w new & perm family ties. To reduce access barriers to biological origins Given that purpose, it cannot be said that excluding persons whose legal status has never changed goes "further than is justified by the object of the ameliorative program" 56 | P a g e

PART II: LAW AND “INTACT” FAMILIES Child Care: CC is a private matter, deficient state intervention Stat

2008, 8/10 mothers in labour force, seeking paid work – no sig bt/w labour force participation of married women and single or divorced women

Childcar e Po lici es –a pri va te co nc er n

largely a matter of private financial responsibility; despite many studies recommending the adoption of national standards and funding for child care, significant financial burden for all but wealthy, absence of regulated options Anti-poverty programs (when market or family fails) and ltd child care subsidies, min tax breaks (Universal Child Care Benefit $100/month), but no entitlement

Gender ed im pa ct of CC de fic it

Labour market participation- Women withdraw WF in 2 parent high income HH, due to cost, need for special needs/ scheduling constraints, or work PT when CC not available Policy makers assume that women will provide care not offered by state, reproduces house & market divisions of labour Disadvantages middle class and low income families (esp female single parent HHs)

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Child Protection- legal intervention, primary goal is to paramountcy of BIC when children are at risk of harm vs. subsidiary goal of promoting privacy, integrity and autonomy of intact family unit Financia Bigger legislative net cast in relation to child protection concerns, increased budgetary constraints, affects Aboriginal CPS on reserve l res ou rce s Aborigin Many forms of prov leg provides for Aboriginal CPS on reserve that decision making reflects community values &auth of Aboriginal communities wrp to their children al Poverty ,alcoholism spousal violence, fetal alcohol syndrome, child neglect, sexual abuse chi a “connection bt/w over-representation of aboriginal children in the care system and the ldr prevalence of violent outcomes for aboriginal women & girls. In BC, AB children represent only 8 en % of the child population, more than 50% of children in care Not unusual that sep/divo cororally relief, CP, proceedings occur simultaneously(Winnipeg) CP & div There is often a significant relationship bt/w child protection and family dissolution CP & FL are not discrete, though decided in different courts orc e CFSA – Statute

CFSA, s 1(1) Paramount purpose 1. (1)The paramount purpose of this Act is to promote the best interests, protection and well-being of children. Other purposes s 1(2) s 1(2): Other purposes (so long as they are consistent with s 1(1)): 1) supporting the autonomy and integrity of the family unit; 2) recognizing the need to adopt “the least disruptive course of action”... and 5) recognizing that Indian and native people should provide their own child services ... and recognize their culture, heritage and traditions.

Child protection, s 37 (2) Harm in the past (incl neglect, patterns, past conduct) + risk of future harm s 37(2): Defining a child “in need of protection” - our main concern a) Physical harm b) Risk of physical harm c) Sexual molestation or exploitation d) Risk of sexual molestation or exploitation e) Needing medical treatment f) Emotional harm g) Risk of emotional harm.... s 37(3): BIC of a child - mandatory factors for consideration, including any other relevant circumstance” 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child’s physical, mental and emotional level of development. 3. The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. 5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community. 7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

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8. The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent. 9. The child’s views and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13. Any other relevant circumstance

s 37(4) – Where Child an Indian or Native person (not determinative, ANR) Orders in relation to a child who is an Indian or native person, and the duty to take account of preserving the child’s cultural identity.

Winnipeg South CFS Agency v S (DD) (1990) … (Man QB) (Fam Div), s 37(2)(f)(v) Facts

Analysis

Mother did not wish to keep the child and wanted to give him up for adoption ; Father wants to keep child upon family dissolution; but woud provide inadequate child care, are not comfortable when holding or interacting w child The evidence suggested child was scared and not responsive around parents vs. foster parents Nurses, home care workers, doctors, psychiatrists, child care managers were all helping parents 1. Witness credibility a factor - Determining whether a child should be made a permanent Crown ward requires judge to consider totality of evidence incl hospital records. 2. Home of natural parents & best interests - Permanent wardship not to be ordered solely b/c that foster home is providing child w better living conditions than those provided by natural parents. Test is whether home of natural parents provides living conditions in accordance with BIC 3. Presumptive right of natural parents to care for their children - Depriving the right of a natural parent to the care and control of a child requires cogent evidence of danger to the child's life 4. Temp orders, exceptional - The power to extend temp orders should only be used in those cases where indications that conduct, shortcomings, frailties or disabilities of the parent contributing to the child's neglect can be corrected AND where concrete evidence supports parent's recognition of the cause of such deficiencies and a desire to pursue the means to eliminate them 5. Not extended except in cases where parent demonstrates ability to make a real change

6. It is sufficient if there be a reasonable apprehension that physical injury may occur, the court should interfere before it has happened C

On totality of evidence, the child has been and is in need of protection. Parents unlikely to provide, care and supervision for long period of time if ever; Agency appointed permanent guardian of child w/in BIC

Critique Judge struggles with wardship vs ordering back to fam, has a difficult decision Judge may get into trouble if child is ordered back to the family and the child dies Appropriate risk taking in a world of fallible decision making becomes very difficult when one's whole career may be destroyed by a single decision to return a child to home, especially if subjected to further abuse.

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Abuse and Violence in Intimate Relationships - relatively clear where there is spousal abuse, escalates at the juncture of family Abused wo me n& dis adv ant age d co mm uni ties IDV Critique Torts re Spo usa l Viol enc e

Women and girls form marginalized communities are more likely to experience violence Concerns about violence & FN women - intimate violence in some northern Aboriginal communities may be as high as 75-90%, experience more severe forms of violence, higher rates of sexual assault immigrant women - studies show may underreport SV due to fears of police involvement, possibility of deportation Inquest of Arlene May & seamlessnes(killed by estranged bf who then killed himself) – recommended "individual dom violence initiatives must be coordinated and integrated into a unified plan and that each sector of the response system work in concert with the others

Integrated Domestic Violence court (IDV) upon consent of V &P, a criminal charge is required to access these courts, can deal w intersecting issues re: spousal abuse separation/divorce and corollary issues, property sharing and spousal support child access Ps often have mental illness, impoverished , from minority communities, legal outcomes not always equitable Shaw v Brunelle, 2012, ON SC 590 - court ordered $150,000 for aggravated damages & general damages of $50,000 for pain& suffering, b/c battery occurred in spousal relationship According to 1 FL lawyer quoted in press, decision reflects the views of newer judges appointed to FLC who have had significant judicial education about DV.

The Behrendt case Facts

Wife claims H's anti-social behaviour, who suffered from mental health issues, created psychological violence, also incidents of violence towards 1 of daughter living home. 3 months after court rejected app, H murdered wife & took his own life. Wife filed app for interim exclusive possession under 24 of FLA & for divorce .

Analysi The nature of the allegations, the contradictory view presented by one of the children &the age of the children living in the home all militate against granting order. Parties are making completely different assertions based on evidence, difficult for parties to live under same roof H/C

Material presented… does not warrant granting exclusive possession MH to Mrs. B Court should only exercise its power to make such an order with great care. No live testimony, court should to delay adjudication until trial.

Critique

Allegations not considered seriously disruptive despite evidence that psychological violence has negative on security interests of other family members ; Weight accorded to son's affidavit ; age of children not entitled to live in home free from violence More weight given to inconvenience of moving out vs. risk of harm (here fatal) Silences victims who are victims of violence - may be ensured by direct threats & warnings not to to reveal the occurrence of violence to others

Notes

Affidavit evidence - Son’s affidavit supports father view, but had been out of home for several months. Mum chooses not to involve daughters who are being abused, to accuse father of behaving improperly. Financial evidence: H was taking money out of gold bars, sold car, on disability payments H’s position, judge was concerned about his vulnerability – couldn’t afford to live elsewhere, former prof, 60 | P a g e

mental health issues. W's position: H can support himself if he lives elsewhere. If she must move out and go somewhere else, then she cannot support herself and daughters. MH mortgage is paid off S 24(1) - Difficult to interpret conflicting evidentiary base as sufficient to come w/in s 24 Evidence that may have changed outcome: psychological assessment, affidavits from daughter

Protection for Vulnerable Elders Def

any violent / abusive harm done to an order person, cause by a person who has control over that person (spouses, children, other caregivers), many elder persons are at risk for violence Physical abuse (physical assault, sexual assault, forced confinement) Financial abuse (forced sales stealing possessions or money, fraud, forgery, extortion and wrongful use of a POA) Neglect (abandonment or withholding of food or health services failing to give a dep person what they need); and Mental abuse (humiliation, insults, threats, or treating an older person like a child)

Most

Form of abuse material (persuaded to give away money, relinquish title to home, subj to undue threats and influence in making wills) included recognizing the need for ongoing education for staff to prevent abuse, working with Health Quality Ontario to identify indicators of abuse, neglect and quality of life issues, and addressing staffing needs in homes.

Task

PART III: LAW & FAMILY DISSOLUTION The Context for Family Dissolution

Divorce as a “complex” legal process

Law creates post-divorce/separation family unit that is economically tied by ongoing financial obligations for their former spouses. emergence of “blended families” through re-partnering post separation/divorce, ongoing responsibilities for caregiving and economic well-being in re to former fams can be complicated. Legislation balances societal goals for divorce and separation Foster marriage and cohabiting relationships facilitate access to fair and efficient processes for recognizing that adult relationships have ended protecting children, vulnerable classes.

Divorce as a social process & Statistics The rate of divorce in Canada is 38%-40%, excl breakdown of cohabiting relationships. but there are regional variations. Cohabitation is on the rise, separation and divorce has increased and creates huge pressure in FLC, have not been abe to response in entirely satisfactory ways The average duration of marriages in 2005 was 14.5 years and the average age at divorce for men was 44 and for women 41.4 years. Emotional, economic, parenting - cannot be addressed in isolation from legal processes (Payne) "Harmism" ( a climate of opinion) insists that the greatest harm to children is their parents's div ; undermines poverty, domestic violence, poor housing, inadequate financial provision and the possibility that an ongoing marriage might be worse for children than a divorce

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The Legal Regime for Divorce

Shared constitutional authority Statutory provs (exam) Subject Matter

Married & Cohabitation + Married, but not Statutory Provisions asking for asking divorce incl interim relief divorce orders

Divorce

Fed DA

NA - Absence of fed legislation Divorce Act, 1985 RSC about property s 3: Residence requirement

s 8: No fault “Ground” for divorce separate and apart for one year, cruelty, adultery; “joint” applications and “desktop” divorces Marriage breakdown as sole ground for div S 8 (2) Grounds for marriage breakdown S 8(2)(b)(ii) S 8(3) excludes short periods of reconciliation from separate and apart calculation ss 9 -10: Reconciliation obligations for lawyers and judges ss 11 and 21.1: Bars to divorce Property

Prov FLA

CML equitable remedies

TBA

Custody/Access

Fed DA

CLRA

Child custody if relating to divorce Provs re custody of the 1968 Divorce Act were concluded to be valid b/c they had a rational, functional connection w divorce (Papp v Papp) Support (spousal & child), so long as connected to divorce proceedings

CS & SS

Fed DA

FLA

TBA

Conflicts between federal and provincial jurisdiction

Fed DA

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Commencement of 2 similar proceedings; Doctrine of paramountcy Family Law Act, s 36 ; CLRA s 27 Children’s Law Reform Act, s 27 FLA proceedings or CLRA proceeding will be stayed.

The “Ground” for Divorce (note requisite element that marriage must be valid) Note: It is necessary to establish Ground for Divorce: Marriage Breakdown

Interpreting Separate and apart

Rushton v Rushton (1968) 66 WWR 764 (BSSC) – Circumstances where parties are living physically separated in same HH and abstain from conjugal relations falls w/in meaning of sep & apart under s s 2(a); Separate and apart requires (i) withdrawal from matrimonial obligation w intention of destroying matrimonial consortium, ii) physical separation Facts Couple married in 1936, and by 1960 they had begun to live separate lives, though living in samesuite In 1965, they were no longer having intimate relations.hey lived in separate suite rooms, each did their own cooking, laundry and grocery shopping. He paid her a monthly sum for maintenance They continued to live together b/c they were joint caretakers of building, and to keep position, required to appear as H & W. They now maintain sep suites in same building as caretakers of another building A

Parties living under same room, does not disqualify There can be a a been a physical separation of rooms Unjust to deprive PE from remedy b/c economic circumstances precluded her from moving out

H

PE entitled to remedy under the Divorce Act Dupere v Dupere (1974) 19 RFL 270 (NBSC (QB) – judicial approach of familialism – If parties are living in the same HH and have children, it is more difficult to use sep& apart ground as reason for marriage breakdown Facts

P sought divorce on grounds of marriage breakdown ,spouses living sep & apart for at least 3 yrs in Nov 1973;R counter petition for divorce alleging perm marriage breakdown due to spouse living under same roof but sep & apart for almost 5 years Married in 1960, have three children, separated in 1966, reconciled for one month in 68. They began to occupy separate bedrooms, no intercourse since then; P gives R a weekly allowance; Mutual discussion and agreement where children were concerned; R friendly with another man, they claimed to stay kn same house for kids Judge says that R staying for economic necessity not supported by evidence They have moved out of prev residence - P bought a home, financing not finalized & R moved into apt with two children, has net weekly income of $66

Ratio

(Cooper v Cooper) Spouses were living sep and apart where circumstances where the following circumstances were present, not necessary to establish all six elements in each case, depends on facts of case Spouses occupying sep bedrooms Absence of sexual relations Little if any comm between spouses Wife providing no dom services for her husband Eating meals separately No social activities together Spouses not share living room and recreational facilities together, such as TV

Holding

Divorce app & counter dismissed. Evidence did not support that 3 + years prior to presentation of the petition, parties were living sep & part, under Act / lacked intention to destroy matrimonial consortium

Notes

"A mutual opting out in such circumstances would be little more than div by consent, something Parliament has not yet provided for"

Calvert v Calvert F

Wife leaves ON to go to Calgary to visit daughter, and had Alzheimers. While in Calgary, she expresses desire to divorce to husband. Lawyer testified that he had no doubt that wife had a capacity to give instructions to commence div proceedings. A medical doctor who examined wife while she was in Calgary also testified that she had the capacity to se from and divorce her husband . H argues that W did not have capacity at time of trial

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Ratio

Three capacities relevant to a divorce proceeding, that P/R must demonstrate in order to be held to have (1) Capacity to separate - simplest (2) Capacity to divorce - req more understanding (3)Capacity to instruct counsel Note it is not necessarily to prove capacity at each point beyond the above

Holding

Based on evidence TC found wife had all levels of capacity to succeed

Appeal

Distinct findings of capacity in re to live separate and apart at time of petition for divorce & for one year period prior to granting of divorce - argument reject

Adultery & Cruelty as proof of marriage breakdown, can only be used by innocent spouse, is used infrequently Orford v Orford (1921) 58 DLR 251 (Ont HC)- adultery by a woman involves the possibility of introducing into the fam of the husband a false strain of blood. And that on grounds of public policy, donor insemination constituted adultery in law Maclennan v Maclennan, [1958] sess Cas 105 (Scotland Ct Sess), donor insemination did not constitute adulterly in law Thebeau v Theubau (2006) 27 RFL (6th_ 430 (NB QB) - invokes s 15 of Charter people are equal and should be treated equally. Def of adultery in DA incl SS acts outside of the marriage P(SE) v P (DD) (2005), 259 DLR (4th_ 358 (BCSC)- A husband’s homosexual acts with another man outside of the marriage constitutes adultery. F

W applied for a div from husband of 19 years on basis he committed adultery with another man.

Ratio

Intimate sexual activity outside of marriage may represent a violation of the marital bond & be devastating to the spouse &marital bond regardless of the specific nature of the sexual act performed.

Analysis The uncertainty about precisely what would constitute adultery in a SS Relationship is not a reasonable basis for denying spouses the ability to divorce on basis of SS sexual activity. Act outside of marriage was sufficient to constitute adultery, though SS act performed. Held

Evidence of an intimate sexual relationship outside of P's marriage is sufficient to grant div on the grounds of adultery, notwithstanding that the act alleged was a SS sexual act.

Proof of Adultery: Burbage v Burbage (1985 ) 46 RFL (2d) 22 (Ont HC)- how courts determine adultery has taken place F

H counter petitions for div on grounds of adultery. Evidence demonstrated prior to sep, wife had a close relationship with a man, , spent night at his house on two occasions, no sexual intercourse had taken place b/c man was impotent due to back surgery. Surgeon could not testify b/c he had died

Ratio

Prima facie case of adult is established where there is (1) evidence of opportunity (here overnight stays), (2) evidence of inclination (R and Co-R agree to be good friends), and onus moves to other party rebut this presumption on sufficient evidence (Under no leg, test would not be applied in same way, no fault divorce)

Analysis Co-R could have submitted himself to a medical report but did not, no explanation for failure put forth. facts support an adverse inference ; testimony of ex-wife could have been called 64 | P a g e

Held

On BOP, allegation of adultery has been established.

Cruelty in Marriage – Basis for Marriage Breakdown (Knoll v Knoll) The determination of what constitutes cruelty in a given case, must in the final analysis, depend upon the circumstances of the part case having due regard to the physical and mental condition of the parties their character and their attitudes towards the marriage relationship - (1)Conduct upon which court relies should be of a "grave and weighty nature – more than incompatibility of temperament” (2)What is the effect of the conduct complained of upon the mind of the affected spouses (subjective-objective test)

Statutory Bars to Divorce (permit court to deny divorce even though div grounds provided) Collusion - (s11(1)(a), absolute bar to div, defined in s 11(4), also applies to immigration marriage (Johnson v Ahmed) Condonation and connivance (s 11(1)(c) available for 82(b) divorce grounds; requires crt to determine no condonation/connivance on part of petitioning spouse, unless public interest would be better served by granting petition; court may exercise discretion Absence of reasonable arrangements for the support of children of the marriage (s11(1)(B)) - adequate child care arrangements have been made in accordance with child support guidelines, court must stay granting a div if such arrangements have not been made ; Religious Bars to Divorce S 21.1 permits court to take action in a context where one spouse refuses to remove religious barriers to the remarriage of the spouse as part their div negotiations under s.21.1(3)(c)(d)

Economic Consequences of Divorce and Separation and General Trends- FL, in principle, is incapable of solving the problem of poverty of women and children. We've moved from patriarchy to individual responsibility model. The latter is premised on gender equality

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Assessing models (individual and social) for alleviating economic dependency of family members post separation: HH and family are identical, Mother and father are equated and identical, family is a unit, H & individual W are responsible for own support as well as other, , society may support fam, but in principle respo is not responsible for economic well-being of family nor for personal care of fam members, nsibil especially child care when parents are present ity” Results in economic vulnerability at separation or divorce b/c assumes parents are fungible mode Premised on notion of sex equality, when genders are not equal, so is likely to reduce equality l rather than increase it Social respo nsibil ity mode l (Eichl er) How does intact ness of fam mask depe nden cy? FL reform and mutu al conse nt

Allows for a decrease in societal contributions to fams Every fam member is responsible for her own well-being. If not possible, responsibility shifts to State not fam member Adults in need of care, responsibility of state not fam member to pay for cost of such care. Shared cost of raising children – state, mother and father, regardless of marital status

Sep/div thus unmasks the dependency for which intact families provide support, unemployment, disability, children

proposal would prevent husbands from unilaterally deciding to leave the family and retaining the bulk of family assets, restores weaker party’s bargaining power

.

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Family Dissolution: Litigation and its “Alternatives” – depends on significant amounts of FL bargaining Family law courts (and jurisdictions) SCJ - federally appoint judges ( s 96) Jurisdiction - Divorce and Property, Custody, Access, Spousal and Child Support (if part of a divorce decree) Pursuant to the constitution s. 96, with federally-appointed judges ONCJ (provincially appointed judges) Jurisdiction: Custody and Access, Spousal & CS, (if not part of divorce application, or re separation of cohabitees), enforcement of support, child protection, and adoption Unified Family Court: judges appointed jointly by both government Jurisdiction: All family law matters re separation and divorce for married and cohabiting couples Judges often FL experts, policy reports have recommended their expansion, but recommendations have not been implemented Barriers to expansion of UFC – resourcing issues for remote locations outside metropolitan centres

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Litigation Processes: The FL rules (default – 98% cases are settled via FL bargaining, courts tend to defer to private agreements absent issues relating to power inequality or domestic violence) Goals Before motion, Case Confer ence Settlement confere nce Trial negotiation

At Separation, Interim Motions Attendance at Mandato ry Informati on Program to pursue divorce proceedi ng Issues about legal represen tation Underlying policy rationale s of FL bargainin g FL matters & privacy matters CML tort of invasion of privacy

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Promote private ordering to encourage efficiency and economy in use of judicial resources  CS : ecourage settlement, explores options to reach agreement  SC: parties must make an offer to settle, possible cost consequences associated. If not settlement. Different judges preside over these process  TM conducted according to rules of civil trials b4 a judge. If divided success, possibly costs denied or awarded against a party who behaves unreasonably

to obtain relief decided on basis generally of sworn affidavit evidence Rules permitting requests for disclosure and questions by the parties, arrangements intended to ensure relevant info available 

 

ON procedural rules, with few exceptions, all parties div actions attend mandatory info programs within 45 days after commencing their proceedings, any additional steps in their proceedings are precluded until certificates of separate attendance are filed Should be mandated before div proceedings commenced DV allegation? could lead to more abusive confrontations through encouraging communication and co-operation



Rise of self-represented litigants, increases costs of legal process, cases proceed more slowly  (Cicciarella v Cicciarella) Court must judicial neutrality NWS 1 party's lack of legal rep .Div Ct ordered a new trial on W’s claim that TJ had interfered unreasonably & unfairly  Decrease in lawyers representing legal aid certificates  Lack of legal rep in litigation processes, so need to deflect matters away from negotation

 Goal Openness of court proceedings sometimes qualified to protect fam privacy  Some clients choose non litigation processes in part b/c ADR processes are private  Meh v Williams - court privatized wife's identifying information other than information incl in the reasoning in judgements (W divorcing H who had committed murder) OR details about Cabinet Minister’s divorce leaked on Twitter

Alternative FL Processes Negotiatio  “Shadow of law" – (assumes ) parties know their legal entitlements as they enter into fam bargaining, not always true, particularly if spouses have inadequate access to legal advice n

 Benefits: less expensive, avoid pain of adversarial proceeding, less risk and delay, consensual solution more consistent with parties' preferences  Limits: spouses may lack capacity for such bargaining b/c they are not fully rational contracting parties @ time of sep & div; parties may take into account gender perceptions about M/W as negotiators  TP interests -potential settlement agreement may negatively affect children, state fiscal interest

Collaborati  Settlement model, lawyers representing each party w/o resorting to litigation. Parties take primary role and lawyers take secondary role ve la  Parties sign a CL K, to agree to openly engage in negotiations, if are unable to reach settlement, K requires each client seek another counsel to provide representation for litigation. w  Benefits - Less adversarial way to achieve good outcomes, parties knows legal entitlements  Limits - requires lawyers , lack of protocols, incl DV screening process, power inequality?

Mediation  Neutral TP works with parties to achieve settlement agreement (T  Benefits: (1) decision making process remains w/in client's control. 2) avoids trauma of trial process, 3) procedures working better for clients than court ordered results, 4) assists clients to P) achieve long term working relationships  DOVE - Protocol to assess and manage DV risk bt/w partners during & after med participation  Limits : not operating in "Shadow of law", litigation limited to cases of abuse / power imbalance

ON gov’t pr oj ec t st re a m s re la ti o ns hi p br ea kd o w n o ut of n e g ot ia ti o n

 Court’s automatic referral to mediation, particularly for FL clients that qualify for LAO  Winkler J recommendation – free mediation , litigation for cases involving - abuse, power imbalance or uncooperative party, need for more UFC  mandatory mediation education attendance before filing divorce proceedings  govt services - 2h of free mediation services/ 5 days per week, first come for first serve  off -site mediation after 2 hours on a sliding income scale  Limits: Determination of mediator to reach resolution despite wishes or intentions of parties, more costly than litigation sometimes

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in to m e di at io n

Arbitration  Arbitration Act 1991, ON – permits parties to choose an arbitrator to resolve disputes, conduct (FL exclusively in accordance w/ law of ON or another prov jurisdiction to be legally binding A,  Stat provs: King out is prohibited (s 59.3); no recognition of agreements entered into prior to dispute arising (59.4), conds of enforceability (s 59.6) ILA, arbitrator comply with AA ss 59.  Govt does not permit religious arbitration unless conducted in ccordance with FL provs 1 to .8) Process for Resolving Custody and Access claims s 31, CLRA (recall ss 9(1-2), DA & ADR)  Parties are encourage to settle matters at dissolution w/o litigation  Limits: DV or abuse, and lack of screening protocols in CL - need for leg reform OR mediation? , i.e. H disclosing son's difficulties at school angering H, lived in same home, pressures her to reach settlement quickly  Family bargaining and access to legal advice : ON gov't policy designed to stream FL members away from a litigation process into a mediation process: FL Info Centres, Mandatory Info Program (spouses can't file applications under DA until programs have been attended) , free onsite mediation at courts for litigants for 2 hours(no particular eligibility guidelines), off site mediation sliding scale service

Family Law Bargaining – FLA 2(10) A dom K dealing with a matter that is also dealt with in this Act prevails unless this Act provides otherwise (accorded substantial authority) Balfour v Balfour: At CML dom K not legally binding. They are now statutorily enforced.

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In what circumstances will a court set aside a separation or marriage agreement?

Part IV, s 51 (FL Ks)

stat def incls Cohabitation , Arbitration Marriage, Separation agreement, Marriage, Paternity

SS 52,54,59 - S 52: definitions of marriages KS legal S 54: identify rights and obligations about which spouses may K scope S 59.1 to 8 (detailed provs re content and procedures for negotiating family arbitration awards) for dom Ks SS 55-57 – forma lities, judici al revie w, groun ds for settin g aside K

s 55(1) formalities : -Enforceable dom K must be in writing, signed by parties, witnessed . Parties are not required to receive ILA prior to K signing, other than fam arbitration awards s 55(2) – minor has capacity subject to approval of court s 56(1): Judicial review re provs respecting child incl moral training, custody, access BIC (and see s. 56(1.1) re child support arrangements) s. 56(4): Judicial review r e failure to (a) disclose significant assets and debts; (b) understanding nature and consequences of L , encourages ILA (c) according to law of K - misrepresentation, lack of consideration, undue influence, duress, coercion, unconscionability, illegality) s. 56(5): Court may set aside K if barrier to remarriage used as bargaining chip in negotiations s. 33(4): court may set aside K provisions re support if prov is unconscionable, if it results in a dependent qualifying for public support, or if there is default in payment of support pursuant to K.

S 56(4)(c), Doch uk v Doch uk (199 9)

court upheld validity of K provs where there was evidence that husband had wilfully failed to disclose relevant info b/c it would not have affected the wife's decision to sign the K; # of factors court must consider when being asked to exercise discretion under s 56(4) Whether there had been concealment of asset or material misrepresentation Whether there had been duress or unconscionable circumstances Whether petitioning party neglected to pursue full legal disclosure (Party must do the ask for information and pursue it) Whether she moved expeditiously to have agreement set aside Whether she received substantial benefit under agreement Whether other party had fulfilled his or her obligations under agreement It is desirable that parties should settle their own affairs if possible/ In doing so parties should know that the terms of such settlement will be binding and recognized. The CA was clear that approach is NOT applicable to Ks that are unconscionable.

S 56(4)(b), ILA not required in ON, K provs may be set aside if either party did not understand Rose nature and consequences of K. However, court will decline to set aside nv provs of K where party seeking to set aside K refused or decline ILA unless Rose terms are unconscionable. Court here concluded that n W had acted voluntarily in deciding not to obtain legal advice b4 signing a sep agreement. Court also determined no inequality in bargaining power S 56(4)(c)

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Courts may set aside K if party seeking remedial action can demonstrate Clai circumstances surrounding negotiation of K disclose consider ms unconscionability, duress, undue influence, fraud, misrepresentation and abou mistake t Puopolo v Puopolo - Held: Ct expressed concern about such legal advice that W may dure be able to set aside K in future. Court held W was not under duress when

ss she signed agreement. It was her wish to buy peace w/ her husband and and there was no basis for setting aside the K vuln  F: H & W signed sep agreement relating to their fam prop, incl matrimonial agreement relating to erabi their fam prop, incl matrimonial home (owned by husband) & apt building. Signed agreement to lity sell apt building and divide proceeds w/ husband after he threatened. W got ILA incl suggestion she might be able to set aside K in future. Saul v Himel (1989) – Crt upheld a sep agreement even though H claimed misrep & nondisclosure re provs for supporting a child of whom H was not bio father. Crt decided that he had been aware @ time of negotiating agreement, that he might not be bio father. W had no duty to disclose facts Barton v Sauvé (2010 ONSC) , cohabitation agreement - Court examined cohabitation agreement in detail, rejecting all grounds for setting it aside .Presence of vulnerability alone will not justify ct intervention (W had no ILA)  F: H, claimant, did receive ILA, signed K voluntarily; His L testified he was not concerned about S’s understanding of K. S received ILA & signed K voluntarily. Mrs. B gave Mr S $70,000 & paid off all of his debts. S 33(4) &

S 56(5) &

Held: Court upheld sep agreement, although it meant W & children would require supp social assistance. Facts of this case: Sep agreement required H to take ort responsibility for all couple’s debts, so he was not able to pay much CS or prov SS. s H&W negotiated sep agreement after W decided to live w another man, wife received ILA, when Salo new relationship ended, W sought order for support. nen v Salo nen (198 6) remo val of barri ers to rema rriag e

Similar to s 21.1 of Divorce Act, offers assistance to parties who cannot access Divorce Act

Family law bargaining: Case studies of marriage contracts Hartshorne v Hartshorne [2004] 1 SCR 550 (favours Choice/Autonomy)- explicit use of fairness in stat lang Facts

 W got ILA about proposed K. W signed marriage K in middle of marriage ceremony, added note that it was not voluntary. She brings application to set aside MK, b/c entitlements under leg in effect at that time are less than under new leg.  When parties met, W was an articling student at law firm of which H, was a partner. H gave evidence that his willingness to marry depended upon agreeing to a marriage K b/c he did not want to share assets again in event of marriage breakdown.  Parties separated after nine years of marriage. H had significant assets, W had few & debts. She was out of workforce for 11 years to raise children. 2 had sep account, H gave a monthly allowance to W.

TJ

Held: Evidence did not establish K was unconscionable was entered into under duress, coercion, or undue influence, even though there was evident that the wife was visibly upset @ the time when she signed K. Conclusion : W was entitled to share ppty owned by husband b/c of prenuptial agreement was unfair 72 | P a g e

under s 65 of BC FRA, authorizes court to reapportion ppty where marriage agreement would be unfair having regard to list of factors in sector Issue

Rule

1. Is marriage agreement re division of ppty unfair, and should therefore be set aside on basis that it did not compensate W for her CC and HH responsibilities, and sacrifice in giving up her law practice and postponing her career development, NWS that K preserved right to SS? 2. If provs re division of ppty are unfair, should, whole agreement should be simply ignored.?

Court should defer to dom that spouses make for division of their ppty on the breakdown of their relationship, unless found to be unfair after considering s 65 factors of FLA

Analysis ILA sought supports judicial deference to marriage K

Analysis - Central to any analysis under s 65(1) of FRA is (1) accuracy of parties’ contemplation at time of K formation, of their circumstances at time of distribution, (2) whether they considered the impact of their decision, and, (3) whether parties subsequently adjusted K to meet demands of a change in circumstances or, or implications inadequately addressed/un realistic  According to BJ, Parties lived out intention to remain independent re personal & real property possessed at time of agreement ;Agreement unfolded in accordance with exactly what was going to happen  Wife SS entitlement was preserved, so K ultimately not unfair un reL s 65; LA that wife was received clearly forewarned W of K's shortcomings. R made some changes to agreement re lawyer's advice incl preservation of spousal support

Ratio

To determine whether a marriage agreement operates unfairly: a) Apply the agreement, assess and award financial entitlements provided to each spouse under agreement, & other entitlements incl CS & SS b) Were there any procedural irregularities that might be reason to set it aside; Were parties aware of substantive entitlements, and sign K anyway? c) Consider facts in light of stat provs, determine whether K is unfair having regard to personal and financial circumstances& how they evolved over time d) Did parties know their lives unfold in way it would? e) P’s onus is heavier if current circumstances were within contemplation of parties at time K formation, and circumstances surrounding it reflect consideration and response to those circumstances,

Holding Marriage agreement was fair at time of triggering event considering all circumstances, and s 65 factors Diss

 intention of parties at time of K formation too determinative, should not be, deviates focus from inequality of bargaining power in situation at time application is brought, original - Here W was out of workforce for several years, only ever worked at appellant’s firm  Consider deference to TJ decision absent palpable and overriding error  S 65 inquiry should turn on whether K is substantively fair at time application is made Must be considered alongside other conds of separationhere, W was in weaker position, had been out of workforce for two years, only ever worked at appellant's firm

LeVan v LeVan (Ont CA 2008)(TJ decision upheld: K set aside)S 56(4) TEST Facts

Proc

 Parties cohabited 1 year, married, had two children, W was homemaker & primary caregiver during marriage  Husband & fam owned major group of manufacturing companies. H’s fam had negotiated arrangements to protect fam shares from outside influence.  W knew when she agreed to marriage she must sign K to that effect. H added K prov to exclude all H's business interests and severely restricted W’s claim to SS at sep/div.  ILA – W received ILA that MK was unfair. H referred W to 2 nd lawyer who had acted for H’s divorce lawyer  H’s initial failure make full disclosure of assets to W. TC set aside agreement; W awarded EQ payment of of $5.3 million, Significant SS and CS. Costs for 1) 73 | P a g e

HIst

failure to disclose, 2) W did not understand nature and consequences of K ; H's appeal dismissed.

Analysis W did not receive effective ILA, did not understand nature and consequences of MK, H misrepresented nature and terms of MK to W, H's failure to disclose was deliberate, H had interfered with wife's receipt of legal assistance from 1 st L – breach of set 56(4) (A) & (B) (B at part two application) Ratio

Determine whether claimant has met s 56(4) (2) Determine whether it is appropriate to exercise discretion to set aside fairness having regard to fairness of K ,overall circumstances such as intention, is breach such that it counteracts objectives of underlying policies

Virc v Blair ONCA 2014 Unless there is proper ILA and full financial disclosure, the dom K may be set aside under s 56(4). There is no duty on a spouse to investigate veracity of financial disclosure made by other spouse. The fact that W knew K was not in best interests is not sufficient to find that spouse does not understand nature and consequences of K. (Decision here: new trial ordered) Facts

Ex-spouses meet while W lawyer does work for company of which H is a president. W stays home for several years to take care of children, and H indicates he wants a divorce. W is 26 and H is 46. They negotiate a separate agreement. H intentionally misrepresented value of assets.

McCain v McCain (2012) ONSC 7344 (SCJ)(marriage agreement) The circumstances regarding its execution, the improvident result for the Wife and the extent of the Husband’s now wealth, are sufficient to have the spousal support provisions of the Contract set aside. Bargain was unacceptable in longer term marriage of 15 years after K was signed, did not provide for H’s future earnings projections. Circumstances surrounding K formation incl psychological duress, minimal disclosure. Facts

 H & W were married for 20 years. H’s father wanted Ss to enter into K that precludes interest of spouse from having an interest in family wealth, and if child fails to do that, he will be disinherited.  Marriage K did provide some support for W. On basis of K, H had assets in the 500 million range and W only had assets in the 6 million range

Marriage contracts and the enforcement of religious obligations: (enforceability of Mahr has been upheld in BC cases). The courts tend to enforce religious obligations in MK unless inconsistent with ON law. Kaddour Mahr was unenforceable obligation pursuant to ON law

Hermann v Charlesworth - Mahr is a religious matter so the resolution of any dispute relating to it are religious in context and context. Like Balfour v Balfour, contracts of affection and love are not binding

Khan v

ON court upheld validity of a nika namma(MK) of Pakistan as a domestic K pursuant to ON's FLA. Court upheld Muslim marriage K, but did not enforce W’s waiver of SS right

Yahr v Yahr

Issues of evidence are complicated and often a need for expert evidence to be able to litigate them

The Jewish get: Bruker v Marcovitz SCC upheld CA decision. Facts

Parties married in 1969 and divorced in 1981. They negotiated an agreement re: corollary relief for the purpose of obtaining a ghat once divorce decree was granted. Decree was granted and H refused to grant get over a period of 15 yrs so wife was then nearly 47 years of age. She sought damages for breach.

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Ratio

An agreement between spouses to take necessary steps to permit each of them to remarry in accordance with their religious beliefs constitute a valid and binding agreement that did not represent a harm to the husband's religious freedom by requiring damages

Analys  Ct is not interpreting substantive validity of a religious obligation, like is the particular get valid  Promise to grant get was negotiated by two consenting adults each represented by counsel as part of a voluntary exchange of commitments intended to have legally enforceable consequences  International law - use of damages as compensation for spouse whose spouse has refused to provide a get (D v France)  Public interest in protecting equality rights, dignity of Jewish women in their inability to div and remarry, as well as public benefit in enforcing valid and binding contractual obligations are among interests and values outweighing Marcovitz' claim that enforcing para 12 of Consent would interfere with his religious freedom

Covenant marriage and (less) access to divorce (USA)- If parties were married in LA/AZ, domiciled in CA, courts would probably grant civil divorce, but conflict of laws principles may apply (look for reform ideas here) 

Such laws choose people to allow whether they want to be married in accordance with civil laws of marriage or covenant marriage legislation requiring spouses to take all necessary steps such as counselling to preserve marriage (limits access to divorce). Divorce legislation in state will not actually apply to covenant marriage.  Spouse is not entitled to divorce except on basis of serious fault on part of other spouse and relies on support of (Christian) comms to provide support for institution of marriage and family

FAMILY PROPERTY

The Legal and Social Context of Family Property

Murdoch v Murdoch (1974), the catalyst to legislative reform Facts

Wife leaves H after 25 years of marriage. @ sep, she files claims for financial support & remedial CT for UR claim, H ass trustee for her of an undivided one half interest in ppty owned by him and in re to which she claimed that they were equal partners. During years of marriage, she worked extensively in maintaining large rural properties in AB and couple had acquired a # of additional valuable ppties as a result of their successful work. Title to all ppties in husband's name alone.

Rule

Unless there was evidence to show that wife had made a financial contribution to acquisition of ppty held in her husband's name, she was not entitled to a declaration of resulting trust (wife's labour not sufficient)

Analysis Wife did not work along with husband on large ppties, but maden o financial contribution Held:

Majority held that Mrs. M was not entitled to a resulting trust, and “met the expectations of what every ranch wife is expected to do "

Laskin J Dissenting, Wife is entitled to remedial CT for UR claim "wife's significant contribution of physical labour beyond ordinary housekeeping duties, to accomplish goals of ppty sharing

Who is a Spouse for Purposes of Property Sharing (s 1-2, FLA) S 1 - “spouse” means either of two persons who, a) are married to each other, or b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.

S 2 - Polygamous marriages In the definition of “spouse”, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid.

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Nova Scotia v Walsh (SCC 2002) (Walsh v Bona), and constitutionality of def spouse for ppty sharing Policy Theme

the SCC majority emphasized private ordering, individual autonomy, and choice for family members. Similar arguments were later considered in Quebec v A (SCC 2013). (Miglin, Hartshorne)

Facts

Ms Walsh argued that the exclusion of opposite sex cohabiting couples from Nova Scotia’s matrimonial property regime (applicable at separation) contravened s 15 of the Charter.

Proc History

Dismissed at trial, TC overturned by NSCA, TC restored by SCC -the majority decision denied that there was an infringement of s 15 of the Charter (and did not then go on to consider s 1)

Ratio

The definition of spouse is confined to married spouses for purposes of provincial marital ppty statutes and complies with s 15 of the Charter

Analysis Spouses “choose” whether to be bound by the matrimonial property regime when they choose to marry (or not), thus emphasizing goals of autonomy and choice. The majority noted that these couples could make contracts (“opting in”) or hold property as joint tenants; & could access CT remedies

Diss,

a) Perception of “choice” focus on the formation of relationships b) a couple’s initial intentions are not relevant at the end of an interdependent economic relationship; c) both partners must choose to marry, so that it is not a matter of individual choice. responsibility for post separation dependency should be assigned to former family members, rather than the state. d) SCC rejected the argument that cohabitation was mainly the result of a choice in e) , marital status often lies beyond the individual's effective control (para 153) The policy recommendation - OLRC report recommend co-habiting couples should have access to ppty regime under FLA. Despite cases and LI, recommendations have not been implemented

LRC Recomms.

   

ALI

absence of formal marriage has (little) bearing to intention of spouses or character of domestic relationship or equitable considerations underlying claims bt/ spouses at breakdown use of K law to define rights & obligations of non-marital cohabitants was unsatisfactory

What is useful

 Like Holland, LRC rejects opt-in legal regime, but co-habiting couples must continue to do so

Functional similarities between married couples and opposite sex cohabiting couples Reasonable expectations of fam members The need to compensate economic contributions to family well-being Relationships between FL and social assistance law

Quebec v A [2013] SCJ No 5 – Claimant’s constitutional challenge wrp to her exclusion under QC Civil Code is rejected. SCC held that she was entitled to what the dom K offered Facts

Issue

 Cohabiting spouse brought claim wrp to her exclusion (pursuant to Quebec’s Civil Code) from access to any property or spousal support at separation, based on the Charter.  The spouses met and began to cohabit when the woman was 17 and the man in his early 30s; he was a successful business man and the woman left Brazil to settle with him in Quebec. 3 children and were together for seven years; P gave evidence that she had wanted to marry but that her partner had explained that he did not believe in marriage.  At separation, he agreed that she could remain in the MH until the children were all of the age of majority, and he also agreed to pay sig monthly child support, based on extensive wealth Does cohabitee's disentitlement to anything other than SS contravene s 15? If yes, is it saved by s1 ?

Proc History Claim rejected at trial, QCCA reversed TC, SCC restored TC - partner gets what other partner offered 76 | P a g e

Ratio

QC’s Civil Code entitlements do not apply to unmarried spouses, and does not contravene s 15 of Charter. Therefore, unmarried spouses cannot claim stat ppty rights under Civil Code (5-4)

Dissenti (McLachlin CJC) held provisions contravened s 15, saved by s 1 (all male maj did not invoke Charter) n 3 Judges: Impugned provisions contravened s 15, ppty provs justified,& SS not saved by s 1 judge g (Abella J) - denial of entitlement to property and SS to a cohabiting spouse at separation contravened s 15 and was not saved by s 1.

Thomps It is lawful to exclude cohabiting couples from access to the ppty sharing regime at o relationship breakdown; Decision marks the end of era in FL. . A formalistic n vs. functional approach was taken save for Abella J who used functional approach to conclude that access should be extended on basis that what C matters is not choice or consent, but what the family does at sep r i t i q u e

Legislative Regimes for Property-Sharing at Marriage Breakdow n

What is the underlying rationale for property sharing? : a presumption of equal contributions to acquisition & maintenance of fam assets S 5 – Policy Framework

ON FLA

Parts I and II (s 1) re : “married spouses” ONLY defi Part III (s 29) re SS“expanded definition of ‘spouse’ to include cohabiting niti spouses” ons of “sp ous e”:

Legislative obj ect

Each spouse shares equally in economic wealth of marriage @ breakdown, without any change in ppty ownership

Section 5(7) (1) to recognize that child care, household management and financial provision Purpose of are the joint responsibilities of the spouses, (2) and that equ inherent in the marital relationship there is equal contribution, aliza whether financial or otherwise, by the spouses to the assumption of tion these responsibilities, (3) entitling each spouse to the equalization regi of the NFPs (4) subject only to the equitable considerations set me out sub (6) Section 5(1)

“Triggering events”: divorce, nullity or “when the spouses are separated and there is no reasonable

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Division of the value of “marr ppty"

prospect of resumption of cohabitation”

Section 5(6) and poli cy con side rati ons

“Unconscionability” test and specific factors ; permits a court to award something more or less than the equalization payment.

BC ppty

Note that the new BC FLA retains judicial discretion to re-allocate spousal property

Policy rationale – to promote certainty and predictability, reduce litigation Practical benefits - promotes certainty & predictability, less litigation re: ppty rights vs. BC where cts have greater discretion Disadvantages individualized justice restricted , gen rules producing a fair result in vast maj of cases, but may cause unfairness in part circumstances OLRC - maintaining high threshold carries a price, but recommended against lowering standard for fear of increased inconsistency and unpredictability Recommendations - add additional circumstances to s 5(6) : to recognize a substantial post valuation date change in value of an asset if necessary to ensure an equitable result, having regard to fluctuation (courts should consider i) cause of change in value, ii)amt of the change)

sh ari ng reg im e

Default Regime - The Equalization Process in Ontario (FLA, Part I (1986)) – Note, parties can K out of FLA, s 2(10), subject to 52(2) Act subject to contracts S 2(10) – Opting out (10) A domestic contract dealing with a matter that is also dealt with in this Act prevails unless this Act provides otherwise

S 52(2) no A provision in a marriage contract purporting to limit a spouse’s rights under Part II (MH) is unenforceable K re MH rights

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Default Regime - Definitions s (4, FLA)

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Valuation d a t e : (s 4) , e ar li es t of fi v e d at es

(Usually) date the spouses separate and there is no reasonable prospect that they will resume cohabitation (2) date divorce is granted, (3) date of an order of nullity, (4) The date one of the spouses commences a (granted) application based on subsection 5 (3) (improvident depletion) , (5) date b4 death date of spouse, the other spouse surviving

(any interest, present or future, vested or contingent, real or personal) as encompassing Broadly both equitable and legal interests, excludes professional licences (Caratun), in includes a negative balance (Menage) t e r p r e t e d, p p ty

Excluded p p ty (s 4 ( 2 )) NFP, s 4 ( 1 ) Negative

S4(2) Definition of “excluded property” Gift/inheritance, from TP, after marriage date, can't be MH interest) - interest/income calculated from gift/inheritance being excluded requires express lang from donor/testator Def of "gift" & UR - McNamee vs McNamee:" a transfer of property by way of gift may equally be motivated by commercial purposes provided the transfer is gratuitous.”(& therefore excl from H's NFP, but not interest that is beneficially owned) PI damages & right to proceeds of life insurance Property into which property be traced - 1-4 Property excluded by a dom K, and CPP pensionable earnings (NB: No value of excluded property would be included in calculating NFP) S4(3) Onus of proving “deduction” (section 4(1)) or “exclusion” (section 4(2)) (on claimant) Value of all the property, that a spouse owns on V-day, except property described in subsection (2), after deducting “debts & other liabilities not related to directly to acquisition or significant improvement of MH ” and “premarriage property – not MH, owned at date of marriage, calculated at date of marriage ” S 4(5) If a spouse's NFP results ina negative value, deemed to be 0

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NFPs s 4(5)

Steps of Analysis

1. Determine V-day or valuation date (ct may exercise discretion if factual context is unclear )  Oswell v Oswell (1992) - marriage deteriorating bt/w Sep 87 and March 88, TJ held V-day at Jan 1988, CA declined to interfere with TJ determination  Caratun v Caratun (1987) - V-day refers to date when there was no reasonable prospect of resumption of cohabitation, when H left with no intention to return (wife's expectation of reconciliation was not reasonable in circumstances)  Rawluk v Rawluk - wife left MH in '84, property value increased dramatically after V due to rezoning. Court held that it was not permitted to alter valuation date pursuant to s 4 of FLA, though they did not express view about whether such increases in value might constitute unconscionability pursuant to s 5(6)

2. Determine what ppty was owned by each spouse on V day (If there is a beneficial interest giving rise to RCT for UR claim, engage here FIRST)  Excludes professional licences, CT can be attached to licence b/c its not ppty (Caratun),  If applicable, apply trust principles to determine beneficial ownership (b/c ppty cannot be excluded if beneficially owned by someone else) (McNamee;Rawluk) 3. Determine whether any ppty constitutes excluded ppty (s 4(2) and note tracing in s 4(2)), and is deducted from NFP  Post-V day Increase in value of excl real or personal ppty not include in NFP calculation  Silverberg v Silverberg: S may not change a represented characterization of ppty. Mrs S tells her H that boss gave her jewellery in lieu of wages, later argues it was a gift, was included in NFP.  Lefevre v Lefevre: Gifts or funds (otherwise entitled to be excluded)used for purchase of MH may be included in spouse’s NFP calculation, if traced to ppty of MH at V-day  Harrington v Harrington: Standard for meeting s 4(3) onus - BOP  Cartier v Cartier: When a spouse transfers gifted or inherited ppty into joint names, conferring an interest in the other spouse, the transferring spouse loses the exclusion ONLY to the extent of the gift he or she made to the other spouse, provided that the result intended by the transfer is joint ownership 4. Assign value to the property (involves judicial discretion if there are competing claims about value)  Montague v Montague : court assigns $0 value to a ppty that was so polluted, clean cost exceeds inherent value of ppt  Oswell v Oswell :Court exercises discretion to determine which valuation measure to use in valuing W's furs and jewellery - fair market value at V day? Replacement value? Wear & tear?

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5. From total ppty value, deduct 1) (any contingent tax) debts & liabilities of ppty owned at V-day, AND 2) pre-marriage ppty value of assets spouse calculated at date of marriage (even if sold after marriage, difficulties of proof)  MH - S cannot deduct pre-marriage ppty value of MH, even if owned at date of marriage ; or value, debts and liabilities of MH, incl those related to acquisition/sig improvement  Sengmuller v Sengmuller - Non-speculative, actual disposition costs if supported by evidence of a plan for disposition, TEST : (1) apply overriding principle of fairness, 2) case-by-case  Zafarella v Zafarella 2013, ONCA – Presumption - S’s debts at date of marriage will affect that spouse’s entitlement in the equalization calculation, unless evidence to the contrary , frustrates policy objectives  Stein v Stein SCC : contingent tax liabilities constitute liabilities in relation to NFP  H retained business interests; W acquired MH, and contingent tax liabilities deducted  Abella J, dissenting - unfair to make deduction due to manifest unfairness resulting from inequality created by division bt/w both parties  Folga v Folga if spouse's asset not MH at Vday, though once was, then spouse may redeem right to deduct pre marriage value Step 6 - Calculate each spouse's NFP , determine amount that is 1/2 the difference bt/w greater and lesser (S 5(1)) - represents a debt owing, not an entitlement to property; neg NFP shall be "0" (s 4(5))  Menage - A spouse's indebtedness, negative balances, is added to a spouse's assets a V day  Where a PMV is a negative amount, it becomes a positive amount, that is added to value of NFP Step 7- Assess any claim for entitlement to more than one half the difference (s 5(6)) permits court to exercise discretion to award an amount that is +/- than 1/2 difference bt/w NFP IF court is of opinion that equalizing NFPs would be unconscionable – higher threshold than inequitable

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

Step 7 continued with case law "unconscionable represents higher threshold than inequitable; In this case equal sharing would be grossly unfair, unreasonable, repugnant to anyone's sense of justice to the level of unconscionability" (Braaskma)  (Waters v Waters) deemed equality of contribution - As a matter of public policy, contributions are deemed equal (even when they are not) - ‘compelling public policy reason by departure from equality should be uncommon. Court concluded here there was no basis for revising EQ claim  Skrij v Skrij: Reckless depletion of NFP (s 5(6)(h) Ct awards unequal sharing on basis that H took $6,330 more than W from joint account. 1/2 of that amount award to W's EQ payment  (Sullivan v Sullivan) Ct preserved business as asset for wife and her future ability to support herself & children; "patently & grossly unfair: to permit H to share in equity of this bus; 'dismal "  (LeBlanc v Leblanc) W awarded unequal share, her contributions extensive, his negligible (Futia)It would be unconscionable for Petitioner to receive an equal division when she contributed virtually nothing to acquisition of MH whose value increased substantially bt/w purchase date & date of sep ; Short marriage b/c spouse claims other spouse was abusive; Ct awarded unequal share to responded even though P argued R's cruelty was reason for duration of short marriage  (Macneill)5(6)(e)Cohabitation period interpreted to include pre-marital + marital cohabitation periods Serra v Serra, interpreting s 5(6)(h), includes spousal misconduct and unconscionable results of the EQ process High unconscionability threshold does not preclude ct from taking into account a post separation date change in value of spouse's assets and the circumstances surrounding for purposes of s 5(6)h)  TEST Ct should only award an unequal division if (i) circumstances giving rise to change in value relate to the acquisition, disposition, preservation maintenance of improvement of ppty, AND ii) where equalizing NFP would be unconscionable, having regard to those circumstances (alone or in conjunction w 5 (6) factors)  (Serra @ Separation, H's principal asset deceased from 11 million to 2) court decreased EQ payment - permits a focus on result of EQ process of s 5(1); distinguished that market driven decline NOT related to economic downturn, not sufficient w/o more to award unequal sharing  (Kean v Clausi) Unconscionable result for wife to have to bear entire burden of a decrease in asset value created at instigation of H, for purpose of maintaining MH, out of equity of MH, and largely managed by H

Equalization at death or divorce (spousal rights re marital ppty constitute enforceable legal obligations)  Stone v Stone (1999) 46 OR (3d) 31  F: wealthy husband who knew he was fatally ill transferred assets worth $1.3 million to children to avoid equalization w wife @ his death. Following death, widow successfully challenged transfers as contrary to Fraudulent Conveyances Act, RSO, 1990 Ratio: FLA created a creditor debtor relationship which takes form of an open or running account which becomes a settled account on separation or death ; consistent with goal of spouses sharing their net accretion in wealth during marriage

Property & Professional Degrees – spousal contributions to PPDs can be compensated via SS awards Corless v Corless : H's law degree was property had no value for purposes of calculating wife's NFP;Crt awarded SS to compensate wife, taking into account she postponed her legal career to assist H 83 | P a g e

in his Caratun v Caratrun: Prof licence does not constitute property, but SS can be used to compensate spousal contributions to acquisition of professional licence, under SS provisions of the Act

Legal update: Defining “property” JCM v ANA 2012 BCSC 584 - Donor sperm straws should be treated as property for the purposes of dividing them upon the dissolution of the spousal relationship.  Held: BC court divided sperm straws , 7 and 6. JCM payed $125 value to ANA for extra straw received.  illustrates difficulty of ppty sharing v. ppty division  ON court may invoke s 9(1)(a) to have JCM pay our ANA or (d(ii) to partition the property if 1 spouse makes a s 7 application request dcourt determine spouses’ entitlement to sperm straws in question Ppty & beneficial (equitable) ownership, Rawluk v Rawluk (s 4 2, FLA)- If claimant can establish RCT for UR claim, then C will be entitled to share in value at date of trial, not V day. The consideration of RCT claim for UR occurs before determination of NFP and before EQ Notes

L claimed definition of ppty in s 4 of FLA incl equitable (beneficial) interests, therefore W is entitled to to an equitable interest in ppty in which her husband held legal title and this arrangement should be reflected in respective NFPS.

Facts

H&W married for 29 years until 1984. They worked together in 2 business during marriage: farm machinery, cash crop, livestock farming business. W performed larger role in FM business, farm operation, acquired legal tile to # of other ppties. In 70's she went to night school to become a nursing assistant, and continued to work part time in farming and farm machinery buss. They separated in 1982, and separated permanently in 1984.

Proc History W's claim succeeded a trial, upheld by ONCA & SCC (4 dissenting): Claim was in order to share in one half of increase in value, W claimed by way of a remedial constructive trust a beneficial one half interest in home farm, machinery lot, other property Ratio

Spouses are not precluded from CT remedy for UR claim. S 4 is includes beneficial (equitable) ownership. (1) Court must consider trust principles to determine whether claimant has beneficial ownership at first step of determining NFP of each spouse (2) court must perform equalization calculations. Third, court assesses whether given facts of particular case, equalization is unconscionable & may exercise discretion

Conclusion

In this case fairness requires that the dedication and hard work of W in acquiring and maintaining the ppties in issue be recognized. Equitable remedy of CT was properly applied S 4(3) Definition of gift, McNamee vs. McNamee – affirms Rawluk analysis remains significant; Shares were a gift in law & excluded from H's NFP. The conditions imposed on transfer of gift were invalid b/c donee accepted a gift on the assumption there were no conds attached. However, W’s alternative claim of RCT for UR in relation to gift of shares required a new trial (BC TC did not hear evidence re: W's claim

Facts

H and W shared incomes and expenses, held all assets and liabilities jointly. They separate in 2007, father executes declaration of gift, transfer of shares from F to S (H), that were part of NFP of donee in event of marital breakdown. H did not understand conditions, nor did he see Declaration until after sep 2007. @ time of transfer, he and W assumed it provide for their future security.

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Valuation

S 4(1)(c) ) in the case of a spouse’s rights under a pension plan, the imputed value, for FL purposes, o of the spouse’s interest in the plan, as determined in accordance with section 10.1, for the period f beginning with the date of the marriage and ending on V-day p Read FLA in conjunction with Pensions Benefits Act to calculate value of pension e (Pension Benefits Ac, 10.1) Pension administrator will determine value of pension plan before n apportionment for family law purposes in accordance with V day (value from marriage date to V-day) s i o n s , s 4 ( 1 ) ( c )

FL Stat

FL Statute, Amendment Act, 2009 amended FLA to prov guidance on valuing pensions, as of 2012012 A CPP benefits - excluded ppty from equalization regime, splitting entitlement to pension credits pursuant mto CCP is div/sep, but necessary to make an application e Settlement of a pension interest by equalization - S 10.1(3), immediate transfer of a lump sum out of n a pension plan per FLA ss 9-10 , subject to 10.1(4), Pension Benefits Act restrictions continue to apply ? d Pensions subject to amendments - amendments apply whether Vday before, on or after date of force, mJan 2012, restriction on orders made before section takes effect. e Domestic Ks and pensions - S 56.1 allows for application of same rules re pensions in relation to n domestics Ks (incl sep agreement) or arbitration awards ;Cohabiting couples may make sep t agreements incl provs concerning pensions t s 2 0 0 9

Property and pensions–s 4(1)(c) FLA , s 4 ppty def incls "a spouse's rights under a PP that have vested.

The Matrimonial Home: FLA Parts I and II Ward v Ward, [2011] OJ No. 344, ONSC 570 (Ont Sup Ct J) – CA affirmed TJ decision to permit unequal sharing and awarded wife EQ payment of 90K on basis of s 5(6)(c)(h). Unconscionable result in award of equal sharing invoked s 5(6) Facts

In 2006, W’s father conferred on time gift of $200,000 on W, and M persuaded her to pay down LOC secured against family home. Marriage already in trouble for 4 years. 2 month later, M purchases condo and leaves FH. C stayed in FH & agreed to buy M's interest in the home after receiving an order for exclusive possession of MH. They also agreed on an order for SS & CS, only remaining issue was amt of EQ payment

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Rule(s)

Courts should not deviate from presumption of equality of contribution unless award of equal sharing would shock the ct's conscience; CA should not intervene in a TJ discretionary decisions “unless there is an error of law or an egregious error of fact.”

A

Gift C received was not accumulated during cohabitation, and not a gift to spouses jointly. It seems manifestly unjust to allow R to take advantage of any presumption that the parties intended to benefit equally from application of these funds to reduce mortgage on MH Wife expected M to pay back, though no evidence to support expectation C received no ILA re: transaction, reasonable to assume she would never have advanced money had she known spouse was planning to leave marriage within months

C

Held (TC) equal division of NFP in this case would be unconscionable and so he applied ss. 5(6)(c) and (h) of the FLA and concluded that Carolyn was entitled to an unequal division of NFP in the amount of $90,000 Conclusion: On the record before him, he was entitled to find "in the opinion of the court", that in the context of the history of this marriage, I)where the wife did not earn income but stayed home to raise the family while H earned high salary, II) H pressured W to use one-time gift from her father toward MH knowing she was doing so to try to save the marriage, then leaving her soon thereafter, an equal division of the net family property would be unconscionable.

Diss, Ct not looking to whole of NFP calculations, but is singling out this gift from father. Ct should look to whole SimmonsJA of assets and how they have been treated.

Spencer v Riesberry, [2012] ONCA 418) – A FH that is a trust asset may not qualify as a MH, Facts

W's mother established family trust, which purchased a home that became trust ppty (the mother was the trustee). W. H and children resided in home & paid costs associated with the home. Trust also purchased homes for the wife’s siblings and their spouses and children. The trust agreement specified that any distribution from the trust was not to be included in a spouse’s NFP.

Ratio

A spouse's beneficial interest in a family trust does not constitute a MH where spouse has no ppty interest in any specific trust asset , and an interest in the trust alone(distinct from the context of a corporation, where a trust ppty is can be trusted back to sole sharedholder who is spouse in a marriage - Debora)

Analysis [58] There are two conditions in s 18(1) that must be satisfied for a property to be a matrimonial home: (1) a person must have an interest in the property; and (2) at the time of separation, the property must be ordinarily occupied by the person and his or his spouse as their family residence. first condition had not been met because [the wife’s] interest is in the [trust], not the [home] property. C

W held “a contingent beneficial interest in the … trust property as a whole, … the [wife] as a beneficiary has no property interest in any specific trust asset. Therefore, she has no specific legal interest in the property within the meaning of s 18(1) of the FLA.” (And not part of wife's NFP)

Note

H appealed a TC decision, TC decision upheld - TC did not err in finding W date of sep that R (Sandra) did not have an interest in ppty witn meaning of s 18(1) of FLA

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Statutory Provisions

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Scope

*Parts I and II of the FLA do not apply to cohabitees, Spouses may K out of Part default ppty sharing regime, but may not K to limit a spouse's possessory rights in the MH: FLA s 52(2)

Section 18(1) (1) Every property in which a person has an interest and that is or, if the spouses have separated, (2) was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is MH (at V-day) Caselaw re

Nahatchewitz – H owned a home at time of marriage, H& W lived in it for some time. H went away, and then H sold it. Parties separated. MH was not “ordinarily occupied by the spouses as their family residence” at separation (V-Day), it ( was not a MH, and thus H was entitled to deduct it as PMV. 1 DaCosta : H received an inheritance of money after his marriage, used it to purchase 8 Cedar Dee Farm in part. Court traced the funds to the farm. Held: H was ( entitled to exclude the inheritance value from NFP total b/c it was not 1 considered a MH the court held that W did not spend time at the farm to meet ) s 18 test. ) S

Exclusions S 4(1)(b)Deductions on MH - If pre marriage property is a house that is the matrimonial & home at V day, it cannot be deducted. D S4(2)#1 Property, other than a MH, that was acquired by gift or inheritance, from a third e person, after the date of the marriage d u ct io n s S 19

Possessory Rights – requisite element of entitlement is s 18(1) Spouses have equal rights to possession, regardless of title (potentially to a non-titled spouse): it is a personal right, not enforceable against TP

S 24

Section 24(1)(b): Regardless of title and s 19, section confers auth on court to order exclusive possession, generally time limited, precludes titled spouse to sell home(radically changes trad ppty principles) S 24(3) interim order for exclusive possession, usually a time-limited order. Statute is silent about how much weight to accord each factor.”In determining whether to make an order for exclusive possession, the court shall consider,” (a) the best interests of the children affected; (includes psychological stresses and strains affected by separation of parents arising out of daily frictions bt/w parents, protection of children may outweigh financial issues - Pifer) (b) any existing orders under Part I (Family Property) and any existing support orders; or other enforceable support obligations (c) the financial position of both spouses; (Rosenthal - typical, H left home cannot support W and kids in M and himself @ same time, W wants everything to stay the same without any changes; Wilson) (d) any written agreement between the parties; (e) the availability of other suitable and affordable accommodation; and (f) any violence committed by a spouse against the other spouse or the children (incl psychological violence, warfare - Hill) Section 24(4): Definition of BIC for applications for exclusive possession of the MH. (a) the possible disruptive effects on the child of a move to other accommodation; and (b) the child’s views and preferences, if they can reasonably be ascertained.

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Evidentiary c o n si d e r a ti o n u n d e r s 2 4 ( 3 ) – e x p e rt & T P

TP evidence, friends providing sworn affidavits (Hill), babysitter (Pifer) Importance of expert evidence as to anxiety, physical distress (Hill) vs. Behdrendt (none, financial resources) Age of children, older children and their ability to find other accommodation Financial stability of both spouses

Financial

Wilson v Wilson – key factor in granting interim excl possession to wife – DV, drinking problem on part of H, BIC, affordable accommodation A: i) B/c of H's limited means, realises she will have to accommodate her needs beyond H's ability to pay; ii) H's behaviour incl assault tendencies, uncontrolled drinking - factor to grant exclusive possession of MH to W, iii) BIC - remain in similar surroundings would be in best interests of children bearing in mind that wife has been a full time mother and will continue to be so if interim custody, care and control of children were granted to W w generous access to H, iv) lack of alternative affordable accommodations C: Wife expected to pay household expenses incl mortgage payment, grant of exclusive possession of MH to W;

r e s o u rc e s & s 2 4 ( 3 )

Applications for exclusive possession of MH - Caselaw Rosenthal v Rosenthal (1986) 3 FL (3d) 126 (Ont HC) – S 24 application refused Facts

Three older sons are residing W application. One is attending school, two are receiving income - EI and income from work related injury. H is renting 1 bedrom apt for $600/month. W presents evidence that she emotionally distressed, believes her standard of living should not be affected by H's situation

Analysis 24(3)(c) - Per financial statements filed by both parties, apparent that there are not sufficient funds to continue occupation of marital home, ; it is in best interests of both parties that MH be sold for best price available, and excess moneys to be divided bt/w 89 | P a g e

them and form a portion of each NFP After review of financial statements, Mr. R is entirely incapable of paying amount that would be required to continue their occupancy of MH at price I have indicated. S 24(3)(a) Child's best interests - No legal obligation upon R to maintain two older sons in a style to which they are accustomed ; each of the 3 boys owns and operates a motor vehicle R already paying $300 toward support/maintenance of youngest son C

W has failed to satisfy court that R's stat ½ interest in MH should be set aside on basis of s 24(3)

Pifer v Pifer (1986) 3 FL (3d) 167 (Ont Dist. Ct)- Application granted – Fault based conduct, heaving drinking and tobacco consumption, TP evidence of R’s behaviour, BIC affected by parental friction Facts

P is a nurse, D is an accountant and enjoyed relatively comfortable lifestyle until bad business venture undertaken by H who become unemployed. W sought employment in 84, currently working - doughnut shop and nursing. D working as a law firm accountant. Both undertook child care

Analysis Allegations of heavy drinking, cigarette smoking endangering the family, bizarre conduct of H (supported by babysitter's affidavit, Linda C

Balance of all material indicates to me that there is as great deal of stress and strain in this household obviously affecting children, and ...would be in BIC if relieved of stress by the separation of their parents.

Held

It would be in BIC that PL have custody of them and exclusive possession of matrimonial home

Hill v Hill (1987)- s 24(3)(c)(e)(f) – expert evidence unlike Mrs B. Mr H could afford to move, has alternative accommodation in 2nd FM, Mr H committed psychological warfare against Mrs H , “impinging on mental and physical health” Facts

W seeking interim relief from H of same age by way of exclusive possession of MH, support and costs. They were married for 40 years. H had prosperous marriage, W homemaker expressed desire to sep.

Ratio

FLA, remedial statute, must surely include meaning of violence that violence causing injury to a spouse which can be achieved by words and deeds, not restricted to violence by physical abuse.

Analysis Judge considers 24(3)(c)(e)(f) Financial position (c) - H has considerable assets – income and capital Available alternative accommodation – R H’s sons have no room for him, there is somewhere else to go Violence - Conduct of H in written & spoken communication to W produces anxiety which puts wife in fear of her husband's behaviour and impinges on her mental &physical health, violence has been done to her emotional equilibrium as surely as if she had been struck by a physical blow H subtly harasses W when home, delivering handwritten notes of invidious character constitute harassment, undertaken to wage psychological warfare against W C

Mr H’s conduct has rendered MH incapable of being shared His is the lesser emotional attachment to home. He will be the least inconvenienced by finding alternate accommodation. His are the greater resources to do so.

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Cohabiting Couples and the Use of Trust Doctrine (Pettkus v Becker; Peter v Beblow, Kerr v Baranow ;Vanasse Seguin) 1) Substantial benefit conferred upon responding party by UR contributions of claimant relating to maintenance or acquisition to pr ppty in question in a) Sorochan, Pettkus; Murdoch – non-trad extraordinary work outside of home required to establish ci claim was quite extraordinary, same work as B, laying floor, lifting beehives, pl b) (Everson v Ric, SK) - Claimant not successful where household work only performed; (Kutt v e Sam) Where a woman worked outside home & household services, awarded 25% of interest in MH (Stewart v Whitley) courts denied claims b/c traditional division of labour (with woman doing (P household work and man working at paid labour) meant there was no enrichment or deprivation et c) Beblow – expands work required to include HH services & childcare, formerly HH services tk interpreted as equal division of work in relation to male’s work outside of the home us 2) Corresponding deprivation suffered by claimant for which no ) compensation was received o 3) Absence of juristic reason rebuttable by evidence on part of D to show why enrichment should be retained (reasonable expectations n considered here (Kerr; Vanasse) us 4) Determine corresponding remedy – 3 gradations: QM(value o received); RCT(value survived), JV (value received NWS value n survived) P (Beblow)Onus on PL to show that QM would not appropriately compensate L

I.

II. III. IV.

person for for services rendered by claimaint in the circumstances (Sansome) If Y – then QM awarded. Consider probability of award being paid. Responding party will attempt to show it’s appropriate – bargain, reasonable expectations If No, then CT determination - Is there a nexus between claimant's contributions and acquisition of ppty in question w/in which claimant seeks proprietary interest? A direct contribution is not required (Sorochan) (Rawluk, McLachlin J in Peter v Beblow) If Yes, then CT and determine award. If No, proceed to JV. IF, CT, interest awarded, determine portion of value of ppty in question that is attributable to to direct or indirect contributions of claimant. Actual value conferred by C is irrelevant. Where contribution is unequal, shares are unequal. (Kerr;Vanasse) If JV, which, does not mandate a presumption of equal sharing, then claimant must demonstrate (1) parties have been engaged in JV – joint efforts of parties & accumulation of family assets or wealth (2) that responding party has retained an inappropriately disproportionate amount of wealth (3) a contribution to the accumulation of family assets or wealth – consideration of:

a) ME - pooling of effort & team work? Decision to raise children together? Length of relationship? b) EI - the more extensive the integration of couple's finances the more likely a JV will be found c) Actual intent, subjective standard - express or inferred ; whether they held themselves as married, joint title to ppty? d) PF - Have parties acted on shared assumptions or understandings for the future, express or impliedly? - foregoing career or educational advancement for fam benefit, accepting underemployment to balance dom and financial needs

If JV established, award should be proportion to accumulation of family assets and compensation received should be discounted from overall award.

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Pettkus v Becker [1980] 2 SCR 37- RCT for UR claim is available to cohabiting spouses at relationship breakdown Analysis (a&b) benefit and corresponding deprivation - B supported P for five years, inference can be made that she believed she had some interest in farm, reasonable expectation in circumstances ; no evidence that P informed B all work was gratuitous & freely accepted benefits conferred upon him through her financial support and labour (c) Juristic reason - Lived together as H & W for almost 20 years, during which she made possible acquisition of 1st property by supporting them both exclusively from her income during the lean years, but worked side by side with him for 14 yrs building up bee keeping operation which was main source of livelihood C

B entitled to ½ interest in properties and business, less the $2600 and the car which B received @ sep.

Sorochan v Sorochan[1986] 2 SCR – A claimant may establish RCT by UR through demonstrating a nexus bt/w contribution and ppty in question; a contribution to actual acquisition is not required Facts

C

Cohabiting opposite sex couple of 40+ years ended, woman sought an interest owned by man. Man owned most of land before they began to cohabit so her claimant can't demonstrate a nexus bt/w acquisition of ppty, & her contributions, jointly worked a mixed farming operation, had six children, F worked long hours. From 6882, M became travelling salesperson & F often did farm chores independently. SCC - allowed appeal, TC decision restored, but Mary can decide whether or not transfer title. She is the one who suffered deprivation, not the children On the facts F(Mary), contribution of labour was directed only to the maintenance, not the acquisition of ppty to which Alex (M) had title

Monetary remedy (Quantum meruit) - George v Hassanali (1989) (Ont HC) Facts

Ratio

Younger woman and wealthy older man cohabiting for 15 years. Woman provided extensive services to tenants of a large apt building owned by main in Scarbs, well as HH and personal services to him. Man married another woman when 1st wife died

P may be entitled to monetary award where UR is established, but is not appropriate to award remedy of CT, and may impose CT until monetary award is paid in full

Analysis UR found - Building in question valued at $8 million, income of $363,000 per year, net worth of almost $7million ; Woman has two fur coats, jewellery of $2500, on welfare, furniture only worth $500 C

Plaintiff entitled to award of $725,000 as a fair and realistic amount to pay plaintiff to redress her deprivation, a trust imposed so as to constitute a proprietary interest until sum is paid in full t P. P shall retain exclusive right to occupy suite until sum paid in full without having to pay rent.

Peter v Beblow[1993] 1 SCR 980 – expands the scope of work required under CT Facts

Spouses lived in cohabiting relationship for 12 years. Ms P cared for children - her own, B's and theirs, looked after home and garden. Prior to relationship B had part time help to do these tasks. P worked pt time outside of home, B did seasonal work/ AT end of relationship, B paid off mortg on home, owned a car and a boat, owned a vacay property that P had purchased during relationship

Analysis UR established : (1) child care, HH services were a benefit to B in being received w/o compensation, thereby enhancing his ability to pay mortgage and other assets, (2) corresponding deprivation - P performed services w/o compensation, (3) no existing obligation bt/w parties to justify UR C

(1)PL unjustly enriched to benefit of D, and no justification existed to vitiate the UR claim. TJ order restored - P awarded full interest in home on basis of UR, QM for her housekeeping for 12 years at $350/month and reduced fig by 50% for benefits she received, after appropriate deductions, awarded title to P proportionate to this amount, i.e. full value of house" 92 | P a g e

Cory J

Calls for a more relaxed standard vs. commercial context when applying remedy of CT without minute scrutiny of spouse's respective financial contributions (75, 568) Need for flexibility and discretion ; McLachlin J is advocating a more doctrinal and rigid approach

Joint Family Venture - Kerr v Baranow; Vanasse v Seguin Facts V & S enjoyed a relationship for 12 yrs. For first 4 yrs, they had each pursued ind careers and are cohabiting without children. coupled moved from Ottawa to Halifax for imp bus opp, and V took a leave from her pos. During period in Hal, couple had 2 children. V prov childcare and dom labour while S worked long hours & travelled extensively in relation to bus. They're in Halifax for three and a half years. Eventually S stepped down as CEO of bus, coupled moved back to Ottawa, bought a house in their joint names. S in 200 sold shares in buss for about 11 mil, then participated more in fam's domestic chores. Ratio Common intention resulting trust has no more application FL in UR claims. Claimant's monetary award is assessed according to share of accumulated wealth proportionate to claimant's contributions ( consider mutual benefit here) Mutual Benefit conferral should be addressed @ def and remedy stage to; at juristic stage, a limited role to determine whether or not enrichment was just, not its extent (Prof not concerned about this either) Beblow, at remedy stage of decision, for e.g. discounting proprietary interest by amount of benefits received., mitigating role Parties' expectations - should have a limited and clearly circumscribed role, Held

Mrs. V is entitled to accumulation of wealth during period where there is UR, i.e. in Halifax. Deductions were made for RRPS&, Mrs. V's contribution to family results in some access to fam wealth(1/6 overall)

Quasi Spousal Relationships : Nowell v Town Estate [1997] ONCA Facts

Woman had relationship with married man for 24 years, whose marriage and fam responsibilities continued. 13 years into relationship, man bought farm and the two resided there most weekends. W made various contributions - cooking, cleaning, gardening, organizing social events. Man was famous artist and gifted to her paintings worth 120,00+ which she sold.

Ratio

A claimant in a quasi-spousal relationship that establishes UR claim may be entitled to (QM)

Analysis

Ct looks at : Relationship was not casual many verbal assurances of Town to N that he would look after her, demonstrated in part by gifts to her UR - Yes, Town was focal point of Nowell's life

Critique

Prof McLeod raises that the reasons in Nowell v Town Estate come close to asserting an almost automatic right to relief to long time lovers Prof says this case has not had a huge impact

Pelechaty PL awarded CT of 20% interest in D’s house & the home in which she S lived. UR and CT may be available to couples who are not K "cohabiting" Q PL & deceased in 17 year relationship. D purchased a house for PL to live in, B charged her rent and he lived separately. PL’s contributions incl cooking dinner regularly for D, HH services of deceased’s houses. PL claimed D stated she would never have to worry about the house in which she lived. Facts: W claimed UR against H's estate in relation to her increased fin and caregiving services after H fell ill, Knoll SK case and was barred from making claim pursuant to a prenuptial agreement signed by her and deceased H (2001) agreeing not to make a claim against her H's estate (both had grown children from 1st marriage when deciding to marry)

Ct denied claim , relying on prenuptial agreement barring her from making claims against H’s estate; & extra responsibility attached to an ill spouse, is a marital undertaking out of love & affection

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UR & SS Relationships

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Forrest v PL was entitled to remedial CT, given history of relationship and D's assurances throughout, P reasonably expected to receive an actual interest in various ppties & D either P was or ought to have been cognizant of that expectation (considered D's debts, ri increase of value of ppty since sep, process for ppty sale) c e ( 1 9 9 2 ) B C S C Buist v G r e a v e s [ 1 9 9 7 ] O J N o . 2 6 4 6 ( G e n D iv )

Partner that was the lawyer brought an UR claim. Which was rejected by reason that there wasn't sufficient evidence of deprivation by absence of juristic reason. Ms B was not worse off personally or professionally due to relationship No UR because there was no evidence that Buist's contributions contributed to increase in value of any of assets; B did not enhance earning potential of G; no parties shared equally in division of HH duties; no evidence that B was financially worse of personally or professionally b/c of relationship Lesbian couple sep after 10 year relationship, B substantial claim by filing vols of doc itemizing expenses that she paid for during their relationship and cohabitation

Cohwdhu P's claim for remedial CT failed. PL found to have made no contribution of value to D's home, either in money or services , claim that PL had "contributed to MR A's r happiness & made him joyful was irrelevant" y v A r g 95 | P a g e

e n ti E s t a t e , 2 0 0 7 B C S C Martin v Sansome 2014 ONCA – CRT for UR claim re to married couples : If claimant seeks UR claim remedy, court must consider if award of higher EQ payment under s 5(6) redresses remedy before engaging in RCT anaylsis Reasonning Wife did not receive ILA, the fact that she knew dom L was not good for her does not mean that she understood either the nature or consequences of the domestic contract. I see no error in the trial judge’s finding that she did not. Held

(1) UR claim was established, but a higher award of EQ payment adequately address UR claim s 5(6) w pre- and post judgement, a charge placed on farm ppty as security for payment

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SPOUSAL SUPPORT "Spouses" in provincial legislation in relation to support DA FLA,

Applies to married spouses if one of the spouses has made an application for divorce. Def of spouse expanded to included cohabitees for purposes of SS I Married spouses use FLA to apply for SS at moment of separation before spouse applies for divorce

Idependant: a person to whom another has an obligation to provide support spouse: 1(1) either of 2 persons/unmarried & have cohabited (to live together Iw/in a conjugal relationship, inside or outside marriage), (a) continuously for

s 29, a period of 3 years or are (b) natural or adoptive parents of a child in drelationship of some permanence e f o f s p o u s e S 36 S2

Paramountcy If there is an app under both DA & FLA, not adjudicated for SS, then the FLA app is stayed If dependent and payor K out of FLA provs, and arrangements are low such that D qualifies for social

( assistance officers are entitled to apply for order of variation to increase SS & you may become disentitled 1 0 )

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Interpreting S 29(a): Continuous and conjugality Moldowic  Shelter (a)Did parties live under the same roof? (b) What were the sleeping h arrangements? (c)Did anyone else occupy or share the available accommodations – f a c t o rs t o d e t e r m in e w h e t h e r 2 p a rt ie s a r e in c o h a bi ti n g r el a ti o n s hi p

 Sexual and Personal Behaviour (a)sexual relations? If not, why not? (b) attitudes of fidelity? (c) feelings towards each other,(d)communicated on a personal level?  (e)ate meals together? (f) Did they do anything assist each other w/probs or illness? (g) Did they buy gifts for each other on special occasions  Services - (a) What was the conduct of the parties in relation to: a)preparation of meals, b) washing and mending clothes, c) shopping, d) household maintenance, and e) any other domestic services ?  Social - (a) Did parties participate together or separately in neighbourhood and community activities? (b)What was the relationship and conduct of each of them toward members of their respective fams and how did such fams behave toward the parties?  Societal -What was the attitude & conduct of the comm toward each& as a couple?  Support (economic): What were arrangements re (a)food, clothing, shelter, recreation, (b) acquisition of ownership of ppty, (c) as to determinant of overall relationship  Children - What was attitude & conduct of parties concerning children?

Sullivan v Mrs S is applying for SS and Mr L contests that they were in a cohabiting relationship. Decision: Parties were in a cohabiting relationship. Trial is required to determine issue of spousal Letnik support

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Whether couples are separated is a matter of intent, not geography. (We're not looking at geographical location, co-residence, but rather intention of parties) Application gifts - 60 cards sent from L to S, calls her W oral evidence - Mrs. S's witnesses impress more upon TJ credibility - L is less than forthright about what was going on. Mrs S was found more credible continuity - L emphasizes times when they were on separate ships judge finds not determinative, relationship may be continuous even if parties live apart.

Sanderso In some cases the test should be realistic and flexible enough to recognize that a nv brief cooling off period does not bring the relationship to an end. Such Russell conduct does not convincingly demonstrate ... that the relationship is at an end

Interpreting S 29(b): A touch of permanence Mahoney v King

F: Parties are in intimate relationship for 5/6 yrs, A lived on her own, R lived separately w his married spouse who did not know about extramarital relationship. A applies for support after relationship broke down

An intimate relationship in which one party is married, and spouses are living apart, may constitute a relationship of some permanence H: A entitled to SS, falls under def of spouse under s 29(b) Labbe v McCullou gh

F: Young woman lived w man for 6 wks over period of 19 months. A was pregnant and R ended relationship. A applies for spousal support A party may be entitled to SS even though parties are living together for short period of time if they are parents of a child H: A is a spouse, circumstances disclose a touch of permanence ; SS $150 month/1yr

Brebic v Niksic

F: W and H were in an 18 month cohabiting relationship and bught a home together. The parties shared expenses, incl expenses for P's two sons from an earlier relationship and planned to marry in 1994. Man dies in a collision and woman wants to sue driver for damages but her right to sue depended on whether she could demonstrate that was a spouse pursuant to s 29 (a). An objective standard will be used to determine whether or not a party falls under the definition of spouse pursuant to s 29(a). Spouses must live together for at least 3 yrs under s 29(a), though may not correspond precisely w/all characteristics of CML relationships H: Woman did NOT fall under def of spouse

:

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Legislative Principles history of SS

 SS was formerly alimony,H had duty to provide economic support for W post-separation  Judicial divorce - Alimony was available to "an innocent wife". Underlying rationale above - duty to pay could not be terminated by spousal misconduct  modern reforms undermined this rationale - no fault divorce promoting gender neutrality

SS models

 three models - are considered when determining entitlement to spousal support  no clear consensus as to basis for spousal support (1) different kinds of marriages, (2) diff objectives & factors in statute, not all consistent, (3) discretion - aspects used as appropriate

 being married + economic need which gives one an entitlement to draw on resources of other SS to spouse with financial resources. provide  primary responsibility of family, undertaken in marriage, to provide support to dependants post-sep income security for  not necessarily justifiable to the person who must pay spousal support. Should dependant ought to provide for themselves? a dependent spouse (“need”);

Compensato  need to compensate a spouse (usually W) who has "sacrificed labour force participation in order to perform family responsibilities" for the loss of economic opportunity suffered ry for econ loss during  Compensate for economic disadvantage flowing from primary child care responsibilities after divorce  Length of marriage may also be considered M/COH SS as (clean model recognizes marriage has ended and should encourage economic disengagement of the parties & the assumption of responsibility by spouses for their own support, as quickly as possible break)

Evolution of Legislative Principles About Spousal Support former

DA, 1968 1(1), spousal support ordered on basis of: princi conduct, condition, means and other circumstances [of the parties] ple

Who bears obligation of providing financial support?

The State or the former spouse?

Case

Ratio/Decision

Messier v Dela ge [198 3] 2 SCR 401

F: Former H applied to vary SS order on ground that although W had not yet secured her employment, she had completed her studies and had 5 years to become self-sufficient. Former W was married for 12 years, had custody of 3 children, had never worked outside the home Ratio: A divorced man bears the responsibility of supporting a former W who cannot provide for her own needs . Held: H must pay reduced SS indefinitely to former S. SCC upheld CA  Dissenting (Lamer ): Support ought to be rehabilitative,and that each spouse had a mutual obligation to become self -sufficient, and SS is not the responsibility for the former spouse.

Pelech Triology (sep Ks)

Pelech: Mrs P received SS in lump sum in context of sep agreement, and eventually ran out. Her health deteriorated, and therefore unable to work. W brings an order for variation to increase SS on advice of social assistance officers 15 yrs after divorce Ratio: The state bears the responsibility to support former spouses post separation, not former spouses, unless applicant can demonstrate causal connection economic disadvantage & marriage breakdown (b) designed to promote certainty & to facilitate clean break; (c) focus on individual autonomy, (d) respect for Ks; Held state should pay social assistance to support applicant wife in all 3 cases 100 | P a g e

Application: Mrs. P's economic need arose from illness not from pattern of economic dependency arising from marriage; therefore not entitled to claim SS

Family Law Act, RSO 1986 s 30

Obligation of spousal support every spouse has obligation to support herself and other spouse, according to means and needs to extent person can provide support

s 33

Order for support - ct has auth to make a SS order

Applications by MCSS, etc- Other agencies that can make orders for CS of the respondent's child . s 33(3) Setting aside domestic K re (a)unconscionability, (b)dependant who waivers SS and qualifies ss for welfare 33(4) Scheel v Henkelman, ONCA). Cohabiting partners, woman worked as assistance to man in RE s activities; appeal allowed from TJ decision upholding waiver of SS. "Shocking to the court to allow appellant 56(4) to live on her modest pension". Unconscionable transaction resulted from woman's age (6), inability to work, monthly pension of $00, and former cohabiting partner worth $2.5 million

Purposes of SS order S 33(8) Factors for determination in relation to SS order s 33(9)

33(10 Conduct in relation to spousal support- ct may consider unconscionable conduct constituting obvious and gross repudiation of relationship ) s 36

Provs reapplications under FLA if there is DA application FLA app is stayed if order under DA made

s 37

Variation of spousal support orders only if there has been a material change in ependant or respondent's circumstances or evidence not available on previous hearing has become available

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Divorce Act , RSC 1985 – S 15.2, 15.3(1), s17 s15.2(1 give ct auth to make make ss order (reasonable sum) ) s15.2(2 auth to make interim orders, lump sum or periodic ) s15.2(3 auth court to impose terms&conds, pay definitely or indefinitely ) s15.2(4 (discretion) factors court must consider needs, means and other ) circumstances of each spouse incl: (a)length of time, (b)functions performed by each spouse during cohabitation, (c) any order, agreement or arrangement relating to support of either spouse s15.2(5 for (interim) order, court cannot consider spousal misconduct re: the marriage, (does not limit considering consequences thereof) ) S15.2(6 ) (reflect s Rogers onmod els)

a) b) c) d)

recognize economic advantages or disadvantages to the spouses due to marriage/breakdown apportion child care costs of any child of marriage (over & above child support) relieve any economic hardship of the spouses arising due to marriage/breakdown in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Objectives of SS orders – need, compensation and self sufficiency

Critique- crt cannot accomplish all goals, makes factually driven choices, wide exercise of discretion

Priority for CS s 15.3(1)

s 17

Variation - vary, rescind or suspend an order if there has been a change in needs, means and circumstances of either spouse

SSAG

created to encourage uniform re quantum and duration

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Principles of SS, Judicial Views of DA, 1985 , SS as compensation Moge v Moge & s 17 a-d (broadens basis for SS to incl compensatory) F: Former W applies for variation of a SSO in 89, 9 yrs after div b/c she does not have enough income. She raised children Both were immigrants, W did not speak Eng well, low paid jobs. Ex-H remarried, owned house, and doing financially well. Reasoning: there has been a change in circumstances since last SSO made Mrs. M has sustained substantial economic disadvantage due to marriage - sole provider of children, pt/time work, homemaker (s 17(7)(a) earning ability impacted by upbringing of kids( s 17(7)(b) continues to suffer economic hardship (s 17(7)(c) failed to become self sufficient despite conscientious effort (17(7)(d) Held: Mr. M must continue to pay SSO, his appeal is dismissed, CA decision upheld

Ratio - Courts have an overriding discretion when making SSO, and will be exercised according to the particular factors of each case, having regard to factors and objectives in DV i) The clean-break objective is not pre-eminent, attenuated, in determination of SSO , ii)compensatory model adopted by Parliament attempts to ensure equitable sharing of eco consequence at marriage breakdown; iii) consider short term vs. long term marriages; childless marriage; 2 income household?

Keast v Keast (Caratun; Linton) issue of sharing prof degrees resolved through compensatory support rather ppty provisions) F: Former W worked as nurse, and sacrificed job so H could obtain medical degree. 2 separated, she lost her job, mental health issues

Ratio: SSO can be used to compensate a spouse's efforts towards the other spouse's profl degree SSO can be made to recognize a wife's sacrifices and contributions to the realization of her H's prof aspirations Reasoning: W would continue to experience uncertain health, her substantial financial contribution to H's career change (during a period of deteriorating health), H would have potential substantial increases in earnings

Stevens v Stevens 2012 ONSC 70 Held: Crt assessed SS & equalization. B/C W remained at home during the marriage, the court ordered H to pay pump sum retroactive compensatory SS of $136,182. Reasoning In this respect, W is entitled to compensatory support, for (i) role in household maintenance while sacrificing career potential & (ii) her limited paid work served to further H's financial interests. Therefore, H must compensate W for her contributions to marriage. MK set aside due to error in draft K that did not correspond to L for W's ; W unable to understand nature/consequences of K @ time of negotiation

Ratio: reaffirms Moge ... economic consequences of marriage breakdown must be shared equally, given that work inside the home has an undeniable value.

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Bracklow (SS as social obligation, recognizes 3 models of marriage –social, independent, mutual, s 15.2(6)(d) is a stat limitation on the obligation to become self sufficient) Ex- W obtained interim SS, but at trial, she was refused further SS. Mr B, remarried, offered to briefly pay SS. Mr B later appealed to CA &SCC on basis that Mrs. B's economic need not attributable to pattern of economic dependency from marriage

Ratio: Law recognizes 3 conceptual grounds for entitlement to SS: (1) compensatory, (2) Kual, (3) non-compensatory; Thus, A payor spouse may be held to bear a social obligation to support a former spouse beyond compensation for loss incurred as a result of marriage and its breakdown

Reasoning: W was entitled to SS based on length of cohabitation, hardship marriage breakdown imposed on her (on illness), palpable need and financial ability to pay. new trial was ordered to determine quantum and duration. Notes 3 model of marriage: social obligation model (1 P provides for the other, non-compensatory support) & independent model (Ps have separate affairs & clean break model) - mutual obligation - interdependencies not easily unravelled, recognizes artificiality of clean break model (para 31); obligation to provide SS arise out of [marital relationship]. Where need is established that is not met on compensatory/contractual basis, fundamental marital obligation may play a vital role (para 49)

Expanding rationale for SS obligations - non compensatory support

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Fault and SS (DA, s15.2(5)) Court is precluded from relying on spousal misconduct, may look to impact of spousal misconduct Leskun v Leskun [2006] 1 SCR 920 Former spouse left his former W after 20 years who significantly financially contributed to his ongoing education, maintained household, & left her somewhat impoverished. Shortly after sep, she seriously injured back, laid off. Ct ordered at divorce in 99 for H to pay SS until she could return to work. 2003 - H brings application for termination b/c he was unemployed/financial difficulty, at time wife is 60 yrs old. Held: Appeal dismissed, W was in need of SS b/c she had not yet come self sufficient

Ratio: (Emo) Consequences of spousal (mis)conduct may be considered in looking at needs and circumstances to determine entitlement to SS. Here dep S’s failure to achieve employment in part due to emotional devastation caused by ex-H’s spousal misconduct, wife’s age, poor health.

Reasoning: Spousal abuse triggering a depression so serious as to make a claimant unemployable, is highly relevant in determining entitlement, quantum and duration to SS as here (21) ;failure to achieve self-sufficiency not a BOD of clean break duty;is 1 of several factors to be taken into account (27). evidence is desirable, not essential

Ungerer v Ungerer (1998) H applies to terminate SS b/c Former W no effort to become self-sufficient; was in contempt for resisting access provs for H to children; encouraging daughter to claim falsely H had molested her.

Ratio: Spousal misconduct may establish an application for an order to terminate SS if misconduct alleged is of such a morally repugnant nature, as would cause a RP to say S is no longer entitled to support of ex-H or to judicial assistance in compelling H to pay ; Held, SS terminated 6 years after divorce. Stewart v Stewart 2000 NSSC H's abusive conduct post-divorce did not constitute conduct in relation to marriage, one of several factors to support denying H's claim for SS

Ratio: A dependant or payor spouse’s abusive post-separation conduct, does not fall under conduct in relation to marriage, and thus is a factor in determining whether to deny, grant or vary an order for SS

FLA Provisions about conduct and SS (s 33(10) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

Morey v Morey (1979) 24 OR factors relevant to determining a spouse was disentitled to SS on basis of conduct that constituted unconscionability - as an obvious and gross repudiation of relationship, claimant must show (a) exceptionally bad conduct (b) conduct reasonably expected to destroy marriage (c) conduct must have persisted in the face of innocence & virtual blamelessness on part of other spouse, (d) commission of so-called matrimonial offence not necessarily sufficient; (e)party raising issue of relevant conduct should be prepared to undertake that there is a bona fide belief that the test ..can be satisfied [w risks of punitive costs if crt finds issue is frivolous]; and (f)pleadings...should set out a summary of conduct relied on to meet the test... Bruni v Bruni (2010) 24 OR F: Spouses married for 11 years and after sep both repartnered & sep agreement, W would have sole custody/father w reasonable access. W seemed to have alienated children from their father. H brings app to set aside sep agreement. In same action, W claimed SS

Ratio: S 33(10) "unconscionable conduct" interpreted to include post-separation conduct, & relationship incl co-parent relationship, therefore post-separation misconduct is a basis for termination of SS order; Conclusion: FW’s conduct reflects intent to 105 | P a g e

destroy father-daughter relationship, amounts to hideous repudiation of relationship bt/w former spouses as co-parents for daughter. ;Mother's alienation of daughter and FH must be condemned ,made effective by way of terminating SS

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Rethinking Pelech & the Role of Family Agreements, Miglin v Miglin 2004 ,SCC Facts

Spouses signed a sep agreement that limited duration of SS payable to Mrs M. H pays mortgage, and W receives MH; H gets lodge. H gets 60K of CS for their 4 children. KEY : W gets 15K /year from lodge for 5 years upon renewal. After 5 years, Mr. M refuses to give consent for extending consulting agreement. Mrs. M is bringing an application to set aside this provision of sep agreement. Both had received ILA before signing SA, but years later Mrs M files claim for initial SS; original SS provided no SS

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Abella, Agreements is not a pre-eminent s 15.2 factor. Courts should treat JA sep agreements & crt orders equally. Higher threshold should CA not be required to warrant judicial intervention in setting aside sep agreement vs. a SS order. A SS order determination should be made w regard to "overall scheme & support provs" considering there is no stat direction re: agreements Ratio(s)





 

DA, s 15.2(1) Statutory objectives: (1) certainty, (2) finality, (3) autonomy, (3) equitable of sharing of economic consequences flowing from marriage breakdown The court is to treat family agreements as “Ks nonetheless” ,unlikely to intervene to set aside a separation agreement absent extraordinary circumstances like illness or disability of a child (market forces, job loss, health issues, house pricing fluctuations do not quality, failing businesses or remarriage) ; (para 89) Pelech test dead no longer appropriate for interfering with a preexisting agreement Two-stage test to be used to determine whether a court will uphold an agreement that limits/waives a party’s SS rights under s 15.2(1). (1) Look at circumstances in which agreement was negotiated, and see whether it should be discounted in those circumstances (reasons like vulnerabilities or oppression/pressure, duration of negotiation, legal representation) , (b) there was pressure on the signor or was 1 party vulnerable? (2) If no, asses, whether the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of DA

Analysis/  no circumstances surrounding negotiation disclose vulnerabilities, took substantial period of time, involved professional assistance, ILA not min required to ensure fair negotiation; personal feelings not C

enough to disclose vulnerabilities;  sep agreement reflects parties' needs and wishes & fairly distributed assets acquired and created by them over course of marriage  change to obligations re child care did not take Ms Ms' current position outside reasonable range of circumstances that parties contemplated in making sep agreement ________ Diss- parties financial arrangements manifestly failed to address fact that MS M disproportionately suffered economic disadvantages flowing both from roles in marriage of 14 yrs & breakdown of marriage ; no SS or income to Ms M ; Consulting Agreement had renewal clause, recognized potential future need Conclusion: Parties' financial arrangements were insufficient to fall w/in generous ambit w/in which reasonable disagreement is possible in terms of realizing the SS objectives in s 15.2(6)

Key Paras

 TJ did not value a determination by parties as to what is mutually acceptable to them  (46) Ct should be loathe to interfere with pre-existing agreement ; ct should treat parties' reasonable best efforts to meet s 15.2(6) objectives as presumptively dispositive , unless K substantially deviates from overall objectives , particularly so when pre-existing SS agreement is part of comprehensive settlement of all issues re to termination of marriage;  new DA places a high premium on private settlements; Parliament did not intend that a K that not does mirror s 15.2(6) objectives be set aside...interferes with parties' autonomy and freedom to structure their post div lives in manner reflecting own objectives/concerns  and K set aside only where the K fails to be in substantial compliance w overall objectives of Act - incl certainty, finality, autonomy and equitable sharing of economic consequences of breakdown  (91) global separation agreement should be given significant and determinative weight

Dissenting Paras

 important to recognize degree to which social and economic factors may constrain individuals' choices @ bargaining table, are not gender neutral  women who come to bargaining table as financially dependent spouse, more vulnerable party 108 | P a g e

 crts cannot assume that settlement agreements provide a clear and transparent guide to their intentions (para 28)..already difficult to ascertain in any area of law ; presence of counsel not always sufficient to redress problems (Stevens; Levan)  principles for determining s 15.2 applications 1) is agreement objectively fair @ time of application, i.e. actually produce equitable sharing of economic consequences @ marriage breakdown  other test problematic b/c inadequate to deal with problems that family law experts identify flowing from inherently prospective nature of SS agreements  approach reflects driving consideration as determined by Parliament - achieving an equitable disentangling of parties' economic relationship upon marital breakdown Act encourages negotiation of fair settlement in accordance with s 15.2(6)not privileges private settlement ; not permitted to K out

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Legacy of Miglin

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Cooper v F: W applies for SS some years after parties divorced and negotiated sep agreement; C Held; Follows Migliin to deny W’s application for SS in context of sep agreement.. Parties negotiated a fair settlement, change in circumstances, it did not result in o agreement being unfair pursuant tos 15.2(6),DA o p e r – Y Rick v B r a n d s e m a 2 0 0 9 S C C – N

F: Ex spouses negotiate agreement with intermittent legal representation, 5 children. W applied 1 year later to set aside on grounds of unconscionability under s 65 of BC FRA. SCC upheld TJ agreement was unconscionable in circumstances b/c H had exploited W's mental instability, undervalued assets - assets were not divided equally (failure to make full disclosure), W received substantially less. Ratio : The settlement agreement must ensure a fair distribution of assets, and the absence of exploitation within the singularly emotional environment in which family bargaining takes place Reasoning: Distinguished from Miglin Starting point is not s 9 or 15.2, but CML principle of equity, Corollary to the finality of separation agreement in Miglin, that there be a duty to make full disclosure & not to take advantage of other spouse's vulnerabilities . In Levan, W as under pressure to sign K, here W suffered from mental instability , note mental vulnerability is a factor

relies on C M L u n c o n s. vs . O N, a le g pr in ci pl e

S 17 Issue: Variation 111 | P a g e

LMP v IS 2 0 1 1 S C C 6 4 N

F: Spouses agree to consent judgement pursuant, H pays CS and SS w/ review date, no requirement that W seek training/employment, had MS. W applies to increase SS b/c H’s income increased. H applies to terminate SS. QC grants H’s app. QCCA upheld TJ. Appeal to SCC. Held/C: Appeal allowed. Consent judgement treated as order. TJ erred to consider material change in circumstances, so there was no basis for change in variation. Applications refused, SS reinstated. Ratio: Miglin principles apply to an application for SS under s 15. Determination of an application under S 17 orders for variation on existing SS order engages a diff treatment of agreements in light of statutory lang, “agreement, order, arrangement”, not used in s 17

Bhupal v F: Ex-H applied to vary obligation to pay on basis that W had remarried, close friend of exH. Minutes of settlement provided for review of SS obligations in 5 years or B based on “material change in circum” h Held: CA upheld TJ decision that remarriage did not constitute change in circumstances b/c u at time of signing minutes of settlement, H knew W was in new and serious p relationship as supported by evidence al ( 2 0 0 9 ) O R

Reform Initiatives: the Spousal Support Advisory Guidelines SSAGS

Define quantum and duration, They do NOT affect basic principles of entitlement

Purpose

bring more certainty & predictability to determination of SS under DA , encourage applicants to apply , lead to more frequent SS awards

Content formula generating ranges if incomes : (i) income sharing - SS determined as percentage of spousal

incomes , ii)with - raise compensatory principle & superseded by child support, or without child support (or no dep children), relies heavily on length of marriage and duration of marriage, iii)itemize a series of exceptions to assist in assessing departures from SSAGs

Objectiv reduce conflict, encourage settlement , create consistency and fairness, reducing costs and improving e efficiency in FL system, providing basic structure for further judicial elaboration s SSAGS and SSAGs confer no power to re-open or override final spousal agreement, but play important role, as provide privatization structured framework and benchmarks of fairness in negotiation of agreements

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Role in

Reisman

Tool of stat interpretation, tool of argument like any other article, text, government doc ; tool of appellate

c review where award substantially above / below range and there are no acceptable circumstances o u r t r o o m Reasoning [29]: (a) long marriage: it lasted 20 years. (b) W primarily responsible for maintaining the household and raising the children. [b] W has not been employed FT since before birth of children. (c) (d) marital Standard of living – lived, well; “ did not worry about income, (e) Wife will be 56 when SS order ends R Held: CA removed impose time limit of 10 years, and change to of indefinite duration. SSAGS e support this view, guideline that duration for marriages of 20+ years should be i “indefinite”

v

s m a n , O N C A 2 0 1 4 Limitatio

do not confer power to reopen/override final agreements re SS ; apply to interim & initial determinations of n SS, not review or variation of existing orders

s

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Privatizing Responsibilities for Dependency Post-Separation Obligation child to support parent S 32 FLA Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so S 33(1) Order for support - A court may, on application, order a person to provide support for his or her dependants and determine the amount of support S 33(9) –Determination of amount for support of parents, spouse In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including, (a) the dependant’s and respondent’s current assets and means; (b) the assets and means that the dependant and respondent are likely to have in the future; (c) the dependant’s capacity to contribute to his or her own support; (d) the respondent’s capacity to provide support; (e) the dependant’s and respondent’s age and physical and mental health; (f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together; (g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures; (h) any legal obligation of the respondent or dependant to provide support for another person; (i) the desirability of the dependant or respondent remaining at home to care for a child; (j) a contribution by the dependant to the realization of the respondent’s career potential; (m) any other legal right of the dependant to support, other than out of public money. Dragulin v Dragulin

F: Father applied for support from daughter under FLA s32 and recently unemployed. She co-owned house with mother, sister paid rent. She was Canada Post worker. She won lottery & lived modestly, did not wish to support father

Ratio: S 32: Parent must have cared for OR provided support (conjunctive test); Act (daughter includes no defence of fault or misconduct in award of parental support, ordered to nor does it consider nature and quality of current relationship bt/w parentpay support to Dad) child. Application: Father provided support for family when D was a child w/in meaning of s 32. / Entitlement based on need, not to improve standard of living. Held: D to pay support to father, after budget is calculated and non-necessities deducted. Skyrzpac Immigrant mother sought interim support from son. App dismissed. Mother never z primary caregiver did not file any evidence as to support entitlement under sponsorship agreement.

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Children and Family Dissolution The statutory framework DA

Married spouses who initiate a divorce action (with corollary relief pursuant to the Divorce Act) and

CLRA cohabiting couples who separate (and married couples who do not initiate divorce), whose issues about custody, access and child support are determined pursuant to provincial legislation.

Federal Jurisdiction , DA General authority s. 16(1) Joint custody (discretion) s. 16(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons. Maximum contact (“friendly parent”) s. 16(10)the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. (not absolute and always subject to BIC, Gordon) Terms and conditions s. 16(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. Change of residence (7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child. Factors (BIC-no details) s. 16(8) court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. Conducts. 16(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child. Variation S 17(1)

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Ontario legislation: Children's Law Reform Act, sole or joint custody arrangements s. 20(1) Equality of parents the father and the mother of a child are equally entitled to custody of the child

s. 20(2)Custodial rights and duties A person entitled to custody of has parental rights of a child, and must exercise those rights and responsibilities in BIC s. 20(3) Joint rights and duties Where more than one person is entitled to custo dy of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child s. 20(4) Assumed custodial rights Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides s. 20(5) Access The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child s. 20(7) Contracting out - Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement Applications and jurisdiction

CLRA , s 21, s 24(2)-(4) Access claims by GPs or others – care plan, criminal check, affidavit

permits custody /access claims by persons other than parents ,but app requires submission of an affidavit incl proposed plan for child's care and upbringing; info about perosns's current or prev involvement in fam proceedings, incl any related to child protection, and to submit to police and CAS record checks

S 21(2)Factors (BIC)

Best interests of child (factors to look at)

The court shall consider all the child’s needs and circumstances, including, (a) the love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application s. 24(3) and (4)Past conduct A person’s past conduct shall be considered only, (a) in accordance with subsection (4); or (b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

S 24(4)Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,(a) his or her spouse;(b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any child.

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Types of Custody Arrangements S 20(2) Custodial parent : legal auth to decide about child re health, education and welfare usually, choice of religion; S 20(5) Access person: right to spend time w child, receive info about child's sit usually in accordance with terms of order or sep agreement Joint custody: Both parents have legal auth to make decisions for children re health, education,welfare, religion Physical custody and caregiving responsibilities; May be negotiated , and reflect a range of responsibilities Parenting plans: IBID Parallel parenting Incl detailed parenting plans & auth for parent with physical custody to make decisions about child during the time that child is in that parent's care ; order may be requiredfor parents to cooperate

The Legal Principle: The “Best Interests of the Child”

Carson v Watts 1998 - An approach about what decision will result in the least harm vs. the BIC? typical analysis, mother was accused of drug use, alcohol abuse, father's claim - she messed up one child (no expert evidence required, witness credibility) Facts

Father applied to custody to son. Mother opposed application, or alternatively joint custody provided he has daily care and control of child with ; liberal and gen access for mum

Reason TJ believes Mrs. W's testimony that Mr. C was controlling (particularly in financial matters) (did not need expert evidence to assess integrity of her demeanour or that Mr C was emotionally abusive ) TJ rejects counsel' s request to take her deliberate and thoughtful demeanour as attempt to deceive crt Mr C a very controlling ind, points to her drinking and one time drug use and inability to raise older son Social worker did not testify that Mrs W was an inept parent

Held: Not in BI of Teague to grant sole or joint custody to Mr C, subjected to life w/ controlling rigid ind, sole custody to mum, who will ensure and facilitate access (friendly parent), not confident Mr C would do same w/ attaching strings to perpetuate emo abuse she has endured Assessing best interests in trial court  (Haider v Malach 1999 Sask CA;Perron v Perron) - Appeal courts will not intervene in relation to custody and access decisions unless there is an error in principle or a clear or factual error in a matter of significance (759) reasoning of evidence in relation to factors used to identify child's best interests  Geremia v Harb 2008: Crt may make an order to preclude either parent from commencing further legal proceedings w/o leave of crt b/c it's in the BIC where satisfied that a person “has persistently and without reasonable grounds… institutes vexatious proceedings in any court under s 140(1) of Courts of Justice Act . They separated in 2001. At time of divorce order 2002, crt awarded custody to mother. 2002-8. 8 diff judges made at least 24 orders, # of contempt orders. Convention on Right of Child , Art 3 - BIC shall be a primary consideration in all actions concerning children, considered in Baker ; scope for change when used as an interpretive guide? (still indeterminate)

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BI & Identity: Sig of Race Van de Perre v Edwards – which parent will foster understanding of child’s heritage from both parents is a relevant consideration in determining custodial parent Facts

A woman has a long affair with a basketball player from the US and they have a child. They in somewhat of a co habiting relationship. Mother applies or a custody order;

Ratio Race is not a critical factor in custody and access cases, and importance of this factor will depend greatly on many factual considerations, determined w/discretion on a case-by-case basis incl, parental ability to foster racial identity pride, need to develop a means to deal w racism and need to develop a positive racial identity Reason CA should not intervene absent a material error, TJ found overarching need for child to be in a stable and loving env, which outweighed neg findings, & against factor of race which was not determinative, min weight placed on it by parties reflected by TJ's limited findings. Held

CA reversed custody to mum & access to dad ; CA did not apply the correct stand or review & should not have intervened

Note

Race and BI custody cases - Courts are attentive as to which parent will ensure child's continuing contact with racialized heritage (Ffrench;Camba v Sparks) BI & Identity: Sig of Religion/Culture Libbus v Libbus – A court may accord weight to a parenting plan that is supported by expert evidence, mother submitted expert evidence in case that court accepted re: issues of religion

Facts

Spouses were married in a Jewish ceremony, and agreed to raise their children in Jewish religion. Father fully supported children's Jewish faith.Fam also celebrated Christian holidays for paternal grandma Parents separated. Mum wanted to move to Thornhill to foster J identity in Jewish community and father preferred Uxbridge only school they attended, FR immersion

Reaso Issue to address is despite father's efforts and intentions, whether Jewish identity of children can be better fostered in present school or at a school in Thornhill. To successfully raise the children in Jewish and as cultural Jews something more than strong fam values are needed. Value is enhanced especially as children get older not only by family but also from peers and wider comm. C

Mother's plan is the one that would suit the BIC. Father's plan for their care is a good plan but law requires me to determine best plan. Parties required to renegotiate access and care .

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Best Interests & Access: A Child's Right

Parental access is determined by application of BIC test; No presumptive entitlement to access; Access may be withheld if facts disclose apprehension of harm to child Craig v

No statutory presumption of entitlement to parental access for non-custodial Ant parent exists where onus falls on other parent resisting access to rebut that one presumption. Determination of parental access made on basis of BIC (Courts 198 consider conduct of applicant towards custodial parent; child-access parent 7 relationship, general lifestyle in relation to child ) Ont To impose father's presence on child in any way would be completely contrary to BIC ; child was Pro thrown aside by a commitment to an aberrant lifestyle, has behaved opportunistically and callously v Ct towards woman; evidence is that he threatened to kidnap child only to cause emotional harm to (78 applicant; no justification for father having even supervised access (though somewhat unusual when existing rights suspended/terminated) 45)fath er refu sed acce ss

Denial/ Suspension of Access

Access is often suspended or denied of deemed contrary to BIC of child (S v S, Gorgichuk) Father was denied access where child did not wish to see him after he acted improperly (Gorgichuk SKCA 1999) Father denied from pursuing further suits to compel access to his children borne of an incestuous relationship w daughter (S v S 1998 BCCA)

Custody access claims by non parents DA, ss 16(2)(3) Arnink v Arnink 1999 Grandparents were appropriate parties for purposes of custody and access claims in divorce proceedings between spouses

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Legal

Grandparent access (bill died due to election)

U A bill was introduced in the Ontario legislature to amend the CLRA with respect to grandparent access: see p Bill 67 (second reading 31 May 2012). See also a critique of grandparents’ “rights” to access (reflecting d that most parents permit access to relatives who respect boundaries), a t e , G P a c c e s s t o C L R A

Access Bachor v Lechmann Bachor (2001 ABCA)Custodial parent's auth has sole and &religion primary responsibility to oversee all aspects of a child's daily life and long term well being and is not subject to access Young v Young SCC: test for determining if access parent can share religion with child is BIC

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Access and relocation of the custodial parent: legal principles and judicial interpretation Carter

Custodial parent did not have an inherent right to move. Each parent bearsan evidential burden to show move is in BIC. Mother was not permitted to move from ON to BC. Interests of cust parent would be given reasonable amt of respect Mother was restrained from moving from ON to BC b/c it was that living in proximity to access parent w/in BIC

MacGy

Cts must have deference to custodial parent's decision to relocate absent exceptional circumstances like bad faith or unreasonableness (relationship w custodial parent more important that w non custodial parent; courts should acknowledge BIC & cust parents' interests inextricably linked) mother wished to move with parties' child to be w/ fiancé and father applied for joint custody order which would restrict move;

Gordon Mother wanted to move to Australia to pursue educational goals, while access father remained in SK Principles applicable to relocation by custodial parents in circumstances where relocation may affect access parent's contact w child pursuant to s 17 of Divorce Act Approach: threshold requirement of a material change in circumstances; judge must embark on fresh inquiry; focus is BIC involved, not rights/interests of parents, no presumption for cust parent a judge should consider: (a) existing custody relationship & cust parent-child relationship; (b) existing access arrangement and access parent-child relationship; (c) desirability of maximized contact bt/w child & both parents; (d) views of the child; (e) cust parents' reasons for moving only if relevant to cust parent's ability to meet child's needs; (f) disruption to the child of a change in custody; (g) disruption to child consequent on removal from fam. schools and community Reasoning: Move to Australia met material change req; and would limit parent access contact, but overall cust should be continued w / mother; father could exercise access in Canada and Australia Concurring Reasons: LHD disagreed w courts stance on cust parent's rights. Any restriction on rights of custodial parents should be exception not rule and should not be inferred from gen/specific access provs, and specific stips must have been included in court's order;

Virtual

FJN2004 ONSC - mother was allowed to move to Cali but father was entitled to exercise access through unlimited telephone, email webcam and post communication @ all reasonable hours/ Mum was ordered to purchase necessary equipment and supply it to the father

Legal Update: Perron v Perron – consider imposing custody order w conditions when children’s language of education is engaged Facts

Father appealed custody order granting him access to 3 children He wanted children to attend FR school; at time of appeal children were in FR immersion school .

Reason

[44] In a linguistic minority environment, homogeneous French-language schools are generally preferable to French immersion programs for ensuring that both languages, namely French and English, are maintained at the highest level and ensuring students maintain cultural and linguistic links .

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Conclu It was an error under the circumstances not to consider the option of ordering Frenchlanguage schooling as a condition of awarding sole custody to the respondent. Children have been in French immersion school for 2 yrs now and would not be in BIC to revise custody order. As per s. 24(2)(d) CLRA, the children's language of education should be taken into account when considering BIC. Interpreting and applying the BIC test in relation to abduction, abuse and alienation Conclusi It was appropriate to vary terms of sep agreement eliminating father's access to his o daughter & was in her BIC b/c it was not possible for daughter to overcome n her severe alienation from father Reasoning

Unrealistic to expect parties have resources and desire to seek counselling for issues; 13 yr old daughter ascertained she was aligned with mother, has no love or affection for father, father was inept and took no steps to fix shortcomings as a father - alienation mostly attributed to mother's misconduct

Facts

Spouses married for 11 years and re-partnered They signed a sep agreement awarding custody to mother with reasonable access for father. Father applies to set aside sep agreement and was denied b/c he waived right to ILA before signing

Notes

The hate and psychological damage that now prevail would require years of comprehensive counselling to undo. The legal system does not have resources to monitor a schedule of counselling (nor should it do so). The function of Family Court is not to change people, but to dispose of their disputes @ given point in time

Sharing custody and care: joint custody, parenting plans and “parallel parenting” Buist v Greaves, precedes AA, BB, CC, court holds Simon can only have one legal mother. Court rejects assessment recommendation of joint custody in light of high level of conflict bt/w parties, exacerbated by litigation. He grants Ms. G’s relocation claim from ON to BC. Facts

Women in SS relationship for sev years Ms G was 9 yrs older, previously married a had a first child who lives w her/& Ms B was at beg of her career Ms. G bore Simon, 4 years old. Ms B owns former MH in which they lived; has a country ppty. Ms. B pleads sole or joint custody & cannot be removed from London. Ms. G wishes to move for job opp to Vancouver. Ms B ended relationship and moved out when Ms. B seeking declaration as mother and CT for UR claim, is a lawyer.

Use of Letter filed in evidence from paediatric head at UBC that facilities provide equal or superior access for expert Simon's needs, who has learning disability evidence Simon's paediatrician testified that S will receive same high level of care in BC as in ON Crt rejects assessment done in very short time that joint custody is recommended & in BIC Court’s assess relocation claim

S' relationship w mother Ms G is crucial to his well being; S loves Ms B and considers her part of his family; max contact would not be achieved if Simon is moved; reason for moving look at if exceptional, and court has no about her ability to meet his needs, has done research about therapy and care available; disruption to change in cust would devastate Simon; Simon has adjusted to change, would have Lucas as constant beneficial change, job that significantly advances Ms B's career, services at reduced cost

Decision

BI of Simon to award sole custody to Ms G w access for B. Simon must move w his mother b/c losses that will flow from less reg schedule offset by benefits of moving w mother & bro; belives Ms G when she says she will ensure ongoing relationship w Ms. B. Ms B ordered to pay CS, reduced due to costs of access

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Processes for Decision Making and Legal Arrangements s 30 CLRA – auth court to order a parenting assessment Criteria (1) not to be ordered in every case, will not decide what is in BIC, crts do; (2) routine order iof assessments is discouraged absent clinical issues, (3) role of assessor is not mediate bt/w parties Hearing children’s voices in custody and access decisions  Through an assessor or another mental health professional who had been in contact with the child  Through the parties and their witnesses, who could provide hearsay evidence of a child's statements outside the court  by means of a judge's interview with a child outside the courtroom  by having a child provide direct evidence to the court has part of the proceeding  Last two most often used in cases of teenagers  Assessment usually employed when child is young  The Office of the Children’s Lawyer - the courts can request that OCL commit to an undertaking of an assessment of the child's wishes

OCL : Stat Auth

Courts of Justice Act, ON provides for OCL to assist court: (S 89(3.1) crt may order OCL to provide legal representation for a child (tend to be limited) ; and (2), S 112 OCL may undertake an investigation, report and make recommendations in a custody and access proceeding (DA or CLRA) OCL has discretion in whether to respond to a request when courts order OCL assistance, crt must regard limits of resources , and is permitted to make a request

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"Sharing Custody and care" : Joint Custody, Parenting Plans, Parallel Parenting Baker v Baker : A realistic and practical approach was required in resolution of custody litigation and joint custody should be ordered only in exceptional circumstances which are rarely if ever present in cases of disputed custody Kruger (Diss, Wilson JA) Alt view: Court should order joint custody circumstances where it is in the best interests of the children short and long term. should assess preferably w prof assistance, ability of parents to co-operating in upbringing of their children in light of that assessment and to choose

range of options from it ( often referred to when making JC order) Most Custody and Access disputes are litigated in relation to decision making auth

joint custody - parents share auth to make decisions about a child in relation to health, education, welfare incl religion ; joint physical custody - child spends equal amounts of time in care of each parent, possible to also have joint legal custody OR one parent to have legal custody and other have access Kaplanis v Kaplanis 2005 TJ made order that counsellor is a 3P arbitrator where parents can't make decisions; ordered counselling (father was unrepresented) Facts: Spouses married in 98, daughter in 2001, tumultuous marriage, father left after uttering death threat to mother; mother gave affidavit that H was not violent. Mother wanted sole not joint custody b/c they could not communicate w/o screaming at each other. No expert evidence of child's needs

Ratio: Court must determine courts must assess ability of parties to communicate to determine whether to make a joint order for custody; Joint custody is not appropriate if parties were unable to communicate/co-operate effectively. There was evidence here to the contrary. (TJ assumed comm would improve) CA Held: allowed appeal. New trial ordered. Evidence found did not address bonds bt/w child and each parent and ability to parent her, father's caring plans & benefits of such arrangements; TJ erred in order for joint custody and counselling bt/w parties, not spec auth by leg Parallel parenting orders - critics skeptical of its utility; judges remain enthusiastic, allows for balancing? involves det arrangements for decision making by parent in re: to the child most important to that parent on an ongoing basis; ordered by many courts to avoid ongoing litigation in high conflict parental disputes post dissolution, both parents have equal status but exercise rights & responsibilities associated with custody independently of one another

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Child Support: “Public” and “Private” Responsibilities – Context

SUMMARY OF STEPS of ANALYSIS  Initiate application under S 33(1) FLA or s 15.1(1) depending on whether application part or divorce proceeding  Entitlement - Determine whether child falls w/in statutory meaning under DA or FLA  Obligation - Determine whether parent falls within statutory meaning under DA or FLA (demonstrated settled intention – social parent) & CLRA (biological parent or presumptive paternity)  Determine Quantum and Duration by Reference to CSGs

Paras v CS should be set at a level that would maintain the child at Para (1)the pre-divorce standard of living (2)and that the costs of s achieving that standards should be apportioned bt/w 1970 parents in proportion to their respective incomes (aspirational principle) Ont created concerns about fairness and consistency CA Step or blended fams

created after the death of a spouse, after the dissolution of marriage or cohabiting relationship, a fam with at least 1 child from a prev relationship of M or F or both, + 1 created in current relationship; stepparents have been ordered to pay CS following longstanding relationships

Determining whether a respondent is a parent for CS purposes, Parent & Child Defs s. (2)1: “child of the marriage” - child two spouses or former spouses who, D at the material time, A (a) is under the age of majority and who has not withdrawn from their

charge, or (b) is the age of majority or over &under their charge but unable, by reason of illness, disability or other cause (incl post-secondary education), to withdraw from their charge or to obtain necessaries of life;

s 2(2) (2) For the purposes of the definition “child of the marriage” in subsection (1), ( a child of two spouses or former spouses includes (Place of parent test S Chartier) o (a) any child for whom they both stand in the place of parents; and ci (b) any child of whom one is the parent and for whom the other stands in the place of a parent. al p a r e n t s)

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FLA ,s 1, 29 Definitions:, parent, dependant, spouse

S 1“parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody S 29 dependant” means a person to whom another has an obligation to provide support under this Part S 29 “spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited, (a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child

FLA s 30 Obligation of spouses for support

Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so

FLA s 31, Obligation of parent to support child

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so ; (2) eliminates parental obligation to support a child 16 + who has withdrawn from parental control

FLA, s 33 Order for support

A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.

CLRA s 1(1) & 1(2, (4), s 8

S 1(1) Rule of Parentage Subject to sub (2), for all purposes of the law of ON a person is the child of his or her natural parents and his or her status as their child is independent of whether the child is born within or outside marriage. S 1(2_) Exception for adopted children Where an adoption order has been made, section s 158/9 of CFSA of applies and the child is the child of the adopting parents as if they were the natural parents. S 1(4)Common law distinction of legitimacy abolished - Any distinction at common law between the status of children born in wedlock and born out of wedlock is abolished and the relationship of parent and child and kindred relationships flowing therefrom shall be determined for the purposes of the common law in accordance with this section S 8(1) Presumptions of paternity - Unless the contrary is proven on BOP, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances: 1. The person is married to the mother of the child at the time of the birth of the child. 2. The person was married to the mother of the child by a marriage that was terminated by death or judgment of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child. 3. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father. 4. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit. 127 | P a g e

5. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada. 6. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child.

Impact of dom Ks

Ks entered into by parents should not preclude subsequent applications for CS, at least in re: to children attending post-secondary educational institutions; Court may not uphold a dom K prov in relation to a matter affecting a child if not in BIC (Jane Doe; Hyde; Lastman) Hyde v Decision: The crt granted support on the basis that the child was entitled to support pursuant to s31(1). Stating the FLA was rooted in dependency, the court held that the child's right to support should not be affected by the fact that parent did not exercise access ,nor from any arrangement entered into by her parents that compromised her right to support Mother of the child wants father to pay lump sump of child support and they do not re-establish a relationship. Adult makes child makes an application for support b/c they are pursuing post secondary education.

Louis v

Parson (1996)

H: Appeal dismissed. Adult children not entitled to retroactive CS b/c on the grounds that R dod have a FD to ensure the quality of life of his adult biological children. F: Adult children bring an application for retroactive child support b/c they did not have benefit of bio father's wealth while growing up. Mother had a relationship for several years with bio father who was married & had two other boys. Mother signed agreement releasing Lastman from all obligations for payment. Applicant male children argued that there was a FD on part of bio father to ensure their their quality of life. TC denied claim. If application had been brought before boys came age of majority, app may have succeeded Quality of PC relationship is one of many factors, not determinative in a 2(1) determination of whether respondent is a parent Held: Daughter was a "child of the marriage" pursuant to s 2(1) of the DA, 1985, and that she had not disentitled to herself from assistance. F was ordered to pay CS to wife of $400 for 1 year for 24 yr old daughter, who had no ongoing relationship with her father. Note: crt advised father that he could apply for review of the support after 1 year if no PC relationship had been established by that time

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Parent-Child Relationships: "Standing in the Place of Parent" or "Settled Intent" Parents Chartier v Chartier [1999] 1 SCR 242

A social parent who "stands in place of parent under s 2(2) of DA will have CS obligations, cannot terminate PCR when the intimate relationship with child's bio parent ended. Most judges accept that it it is appropriate to interpret the DA and FLA F: Parties were married for 1 year & had one bio child. W had a child from a prev relationship for whom H stood "in place of a parent" pursuant to s 2(2) of DA. When marriage ended, W applied for support both children

 Ratio: (Note. Key that person stepparent forms a new family is key factor in drawing inference) Whether a person stands in the place of a parent is a factsbased, objective determination made by looking to relevant factors that define PC relationship, among which is intention, express or implied, include but not limited to  whether the child participates in the extended family in the same way as would a bio child;  whether the person provides financially for the child (depends upon ability to pay)  whether the person disciplines the child as a parent;  whether the person represents to the child, the family. the world either explicitly or implicitly that the or she is responsible as a parent to the child  the nature or existence of the child's relationship w the absent bioparent Gardine court less likely to impose CS obligations on support parent for child w r disability (if bio parent is involved, the respondent is not a primary caregiver, here the children had a nanny) H applied for declaration that W stood in loco parentis to 2 sons (one had cerebral palsy, other had behavioural problems) from prev relationship; Held: W was not loco parentis under s 2(2) b/c she would then carry support obligations for rest of 1 child's natural life Monkman v Beaulieu MBCA (cohabiting spouses): Held, In loco parentis is the same phrased used by DA, therefore Charter principles apply to determination of whether respondent is in loco parentis. Crt will not sever PCR where it is contrary to BIC in question Facts: Parties cohabited for 4 yrs. They had 1 child together, and mother had 3 other children, one whom of was focus of this case. Child called R Dad, and not connected to bio father . Held: R stood in place of a parent and thus had CS obligations to 4 yr old child.

Cheng v Cheng ONCA: FLA does not exclude GPS as persons who might be responsible for support of children, assuming they are significantly involved w children, and may be joined to app for CS support Facts - Grandparents were joined the child support proceeding b/c they had contributed quite heavily to supporting the children was the relationship was intact. ONCA allowed appeal.

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CLRA - ss. 4, 5, 8, and s. 10, Maternity and Paternity Declarations

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PART II ESTABLISHMENT OF PARENTAGE

S 3 - Court under ss. 4 to 7 The court having jurisdiction for the purposes of sections 4 to 7 is, (a) the Family Court, in the areas where it has jurisdiction under subsection 21.1 (4) of the Courts of Justice Act; (b) the Superior Court of Justice, in the rest of Ontario. S 4 (1) – Paternity and maternity declarations Any person having an interest may apply to a court for a declaration that a male person is recognized in law to be the father of a child or that a female person is the mother of a child. (Note AA BB CC – PP may be invoked to declare a person a 2nd mother) S 4(2) Declaration of paternity recognized at law - Where the court finds that a presumption of paternity exists under section 8 and unless it is established, on the balance of probabilities, that the presumed father is not the father of the child, the court shall make a declaratory order confirming that the paternity is recognized in law. S 4(3)Declaration of maternity - Where the court finds on the balance of probabilities that the relationship of mother and child has been established, the court may make a declaratory order to that effect S 4(4) Idem - Subject to SS 6-7, an order made under this sect shall be recognized for all purposes. S 5(1) Application for declaration of paternity where no presumption Where there is no person recognized in law under section 8 to be the father of a child, any person may apply to the court for a declaration that a male person is his or her father, or any male person may apply to the court for a declaration that a person is his child. S 5(2) Limitation - An application shall not be made under subsection (1) unless both the persons whose relationship is sought to be established are living. S 5(3) Declaratory order - Where the court finds on the balance of probabilities that the relationship of father and child has been established, the court may make a declaratory order to that effect and, subject to sections 6 and 7, the order shall be recognized for all purposes. s 10(1) - Leave for blood tests and DNA - On the application of a party in a civil proceeding in which the court is called on to determine a child’s parentage, the court may give the party leave to obtain blood tests or DNA tests of the persons who are named in the order granting leave and to submit the results in evidence. S 10(4) Inference from refusal If a person named in an order under subsection (1) refuses to submit to the blood test or DNA test, the court may draw such inferences as it thinks appropriate Re Rhan and Pinsonneault (1979) OR Factors for consideration in making a s 10(1) determination  Were applicant and respondent married at time the child or children were born?  Did parties cohabit in a CML relationship of some duration which time or shortly thereafter a child was born?  did R admit sexual intercourse with applicant at or near time calculated to be point of conception but now denies he is actual father of child but alleges another is?  although there was not a CML union, did R admit to an extramarital relationship w the 131 | P a g e

applicant wherein sexual intercourse occurred from time to time thus making it possible he is the putative father? Was the applicant able, through affidavit and other evidence to establish a PF case of putative fatherhood notwithstanding denial of R as to fatherhood and or ever having sexual intercourse w applicant? F: Mother applied for a court for leave for blood test to determine parentage of her 22 month old child, required to do so to obtain entitlement to social assistance. Accusation arised out of alleged experience of two hours bt/w parties who had no prev/subsequent relationship Conclusion - it was not appropriate to make an order for blood tests b/c the applicant's evidence revealed a 1 night stand @ a motel w the respondent almost 2 years earlier. and b/c her application was filed only to meet he requirements of the welfare authorities. There was a duty not to infringe on personal rights of respondent that trumped duty to protect interests of the child Note: Constitutional challenges have been unsuccessful b/c respondents are not required to undergo blood test (PK v NP 1988)

CS and the CS Guidelines - Statutory Framework

CS Guidelines adopt a model usually determining CS amt by reference to payor's income & # of children

FLA, Purpose and determination of order for CS S 33(7) Purposes of child support - CS support order should, (a) recognize that each parent has an obligation to provide support for the child; (b) apportion the obligation according to the child support guidelines. CS guidelines s 33(11) to (15) (11) Application of child support guidelines - A court making an order for the support of a child shall do so in accordance w CS guidelines (12)Exception: special provisions Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance w CS guidelines if the court is satisfied, (a) that special provisions in an order or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and (b) that the application of the child support guidelines would result in an amount of child support that is inequitable given those special provisions. (13) Reasons Where the court awards, under subsection (12), an amount that is different from the amount that would be determined in accordance with the child support guidelines, the court shall record its reasons for doing so. (14) Exception: consent orders Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance with the CS guidelines on the consent of both parents if the court is satisfied that, (a) reasonable arrangements have been made for the support of the child to whom the order relates; and ( b) where support for the child is payable out of public money, the arrangements do not provide for an amount less than the amount that would be determined in accordance w CS guidelines (15) Reasonable arrangements (determining whether arrangements are reasonable) For the purposes of clause (14) (a), in determining whether reasonable arrangements have been made for the support of a child, the courts shall 132 | P a g e

(a) have regard to the child support guidelines; & (b) court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance w CS guidelines

DA, CS principles, s 15.1 S 11(1)(b) Bar to divorce – failure to satisfy the court that reasonable arrangements have been made for CS for children of the marriage, having regard to the applicable guidelines s. 15.1(1) CS order - A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. (2) Interim order - Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1). (3) Guidelines apply A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines. (4) Terms and conditions - The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just. (5) Court may take agreement, etc., into account - NWS subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. (6) Reasons - Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so. Consent orders (7) NWS subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates. (8) Reasonable arrangements - For the purposes of subsection (7), in determining 133 | P a g e

whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines. 15.3 (1) Priority to CS - Where a court is considering an application for a CS order and an application for a SS order, the court shall give priority to child support in determining the applications. (2) Reasons - Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so. (3) Consequences of reduction or termination of child support order- Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be

Steps of Analysis

Step 1: -s. 3: Using tables of annual “gross income”, determine table amount: [CSGs provs that permit a court to determine “a pattern of income” (s 17), to incl corporate income (s 18) & to impute income (s 19) Step 2: Adjustments for special expenses: ss 7(1) and 7(1.1) childcare, medical and dental insurance premiums, health-related expenses “extraordinary expenses” to meet educational needs , postsecondary education (Lewi v Lewi) “extraordinary expenses” for extracurricular activities:(definition in s. 7 (1.1) Step 3: Special considerations (note judicial discretion) * s. 5 “Standing in place of a parent” (Wright v Zaver; and Cornelio v Cornelio) * s. 8 Split custody *

s. 9 Shared custody (Contino)

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*** The Child Support Guidelines- O Reg 391/97 Support Guidelines CSG objectives (a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation; (b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective; (c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and (d) to ensure consistent treatment of parents or spouses& their children in sim circumstances.

Amount of Child Support s 3(1)Presumptive rule Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is, (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and (b) the amount, if any, determined under section 7. S 3(2)Child the age of majority or over Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is, (a) the amount determined by applying these guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child s 5 - Spouse in place of a parent (applies where more than 1 person may have obligation to pay, primary obligation of bio parent) Where the spouse against whom an order for the support of a child is sought stands in the place of a parent for a child or the parent is not a natural or adoptive parent of the child, the amount of the order is, in respect of that parent or spouse, such amount as the court considers  Wright v Zaver 2002 ON CA - S 5 does not diminish a bio father's obligation for CS. S 5 focuses on person who stands in place of parent - The obligation to pay CS is not related to the right access & must be determined according to BIC; Domestic K can be set aside in relation to CS obligations if not in BIC. Facts : Man and woman have a relationship, woman becomes pregnant and relationship breaks down, were not married and cohabited for a short period of time. They make an agreement that father is not going to have any access to child, mother will not ask for support and father pays lump sum to mother for 7K. Woman marries another man and has child. They separated and H is ordered to pay CS for both children. H does not have a lot of money. Then, Mrs W applies for order CS from bio father of first child.

 Cornelio v Cornelio 2008 ONSC : relies on Jane Doe ; The mistaken belief must be balanced w BIC ; Mistaken belief as to being a biological father of a child does not negate a finding that the party has demonstrated a settled intention to be a parent. Facts: Father brings motion to terminate CS obligations for 16 year old twins (and repayment for support paid) after discovering he is not bio father of twins for whom he thought was father for 16 years. Mother's explanation for extramarital affair was that it was caused by medication being taken at the time

 BB v BCP 2005 (FLA s 31) Determination of settled intent turns on whether the relationship that exist @ time that the fam was functioning as a unit to separation was one in which father treated child as his own 136 | P a g e

 Right to CS is the right of a child and is independent of a parent's own conduct, whether it be delay in pursuing support, an attempt to K out of support (Jane Doe)or the failure to disclose an extramarital affair that may have led to the conception of the child. Father is a social parent, demonstrated settled intention S 7 – Special or extraordinary expenses (great deal of evidence and litigation for wealthier families) 7(1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, 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 parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation: (a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities. Definition, “extraordinary expenses” For the purposes of clauses (1) (d) and (f), “extraordinary expenses” means (a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or (b) where clause (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 parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child, (iv) the overall cost of the programs and activities, and (v) any other similar factors that the court considers relevant (2)Sharing of expense The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. (3)Subsidies, tax deductions, etc. except UCCB in (4) Subject to subsection (4), in determining the amount of an expense referred to in subsection 137 | P a g e

(1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense, (4)Universal child care benefit In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit

S 8 – Split custody (CS amount is offset, i.e. diff between CSG determinations for each spouse, less than 40% of time) Where each parent or spouse has custody of one or more children, the amount of an order for the support of a child is the difference between the amount that each parent or spouse would otherwise pay if such an order were sought against each of the parents or spouses. S 9 – shared custody Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account, (a) the amounts set out in the applicable tables for each of the parents or spouses; (b) the increased costs of shared custody arrangements; and (c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.  LL v CC : The court held that when deciding CS obligations, the hours spent in care of each parent should be considered, not minutes &seconds. Father payer did not meet 40% threshold, so was required to pay amount according to tables .S 9 only takes effect w shared parenting if parent has child for 40% of the time.  Billark v Billark 1998: school and sleep time may be excluded from calculation  Rosati v Dellapenta (1997): in determining calculation, court may have prefer to nature & quality of time spent by each parent  Leonelli-Contino v Contio [2005] SCR 21: how to assess s 9 support obligations: (1) Determine simple set off amt under s 9(A) of each parent's table amount for # of child involved in shared custody arrangement; (2) Review Child Expense Budgets: crts must look at all expenses of both parents based upon child expense budgets. ; (3) Consider ability of each parent to bear increased costs of shared custy & standard of living for children in each house - crt should consider income levels of each parent, disparities in income, assets and liability of each ; (4) Distinguish bt/w Initial Orders or Agreements & Variations - b/c recipient parent may have validly incurred expenses based on leg expectations about how much child support would be provided Facts: Parents of a child agreed @ sep to a joint custody arrangement incl CS obligation at 500 per month. Child resides w mother on daily basis w generous access by father, Mother began taking night course and asked F to take child for an additional night each week. Father agreed to do so but also applied to vary CS order under s 9 b/c extra night at father's home meantchild was w his father for 50% of the time

S 10 Undue hardship 10. (1) On the application of either spouse or an applicant under section 33 of the Act, 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 parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. (2)Circumstances that may cause a parent, spouse or child to suffer undue hardship include, 138 | P a g e

(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living; (b) the parent or spouse has unusually high expenses in relation to exercising access to a child; (c) the parent or 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; (e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education; (f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability (3)Standards of living must be considered (3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse. (4)Standards of living test (4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II. Reasonable time (5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time. O. Reg. 391/97, s. 10 (5). Reasons (6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so Schmid v Smith 1999 ONSC: Crt dismisses application b/c he finds HH ratio of W is lower than that of H applicant (H supports 1 child, has ER vehicle not incl in income; W has to support 2 children) F: H applies for order to award CS amt diff from amt determined under s 4 on basis that H would suffer undue hardship, 3 circumstances: (1) unusually high expenses for exercising access to children nad travels from UK to Canada each year(circumstance of potential due hardship, s 10(2)(); (2)H claims legal duty to support Alison causes ; (3) H claimed higher cost of living in UK vs Canada , submits data requiring expert evidence, did not identify and quantify how cost of living personally affects him

s 19 imputed income- permits exercise of judicial discretion to impute income to a CS payor, creates huge tensions 19(1)(a)where parent "is intentionally under employed or unemployed  Drygala: Intentionally refers to voluntary where parent chooses to earn less than capable of earning, excludes situations where spouses are laid off, terminated, given reduced hrs of work  Middleton v MacPherson - crt struggled to determine what payor's incomeIt is not equitable to impute income to W equal to that of H were W is upgrading educational qualifications. Income/ CS obligation should change as income changes (here W was taking up internship which would temporarily reduce income earnings)  Riel v Holland (2003) Payor chose to cease working as an independent electrical Kor, and take a salaried position instead ONCA appeal court confirmed TJ's determination to impute the prev higher 139 | P a g e

income to him for puporses of determining his CS obligations (ss 17-19)  A v A (1999 45 RFL (4th) 5 (Alta QB) The payor won 1 million dollars, in lottery, cease to work and earn income, an AB court imputed both employment and investment income to him  Odendahl v Burle (1999) Crt imputed overtime income to payor for purp of determining CS support  Baldini v Baldini: payor was dismissed from employment for cause, BC court imputed his income to him  Bak v Dobell ONCA - payments made by father to disabed son did not count as income for purposes of determining son's CS obligation to this children

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