FAMILY LAW CANs
(LAW 524 – Gordon/Johnson – Fall 2016)
Compiled and Edited by Anonymous
Contents
Part I: Introduction
Constitutional Law
General Law
Federal Legislation
Provincial Legislation
The Courts
Part II: State Recognition Of The Family Unit
“Common Law” Or Cohabitational Relationships
Walsh V. Bona, 2002 Scc 83
Quebec (Attorney General) V. A (Eric V. Lola), 2013 Scc 5
The Alberta Adult Interdependent Relationships Act
Part III: The Breakdown Of Family Unions
Practical Resolution
Stewart V Stewart, 2008 Abqb 348
Types Of Lawyers
The Court Process
Family Violence
Lenz V Sculptorneau, 2016 Abca 111
Quigley V Willmore, 2008 Nsca 33
The Divorce Act
Hickey V Hickey, [1999] 2 Scr 518
Enman V Mccafferty, 2010 Nbqb 118
Burbage V Burbage (1985), 46 Rfl (2d) 33 (Ont Sc)
A(I) V D(S), 2009 Abqb 513
Orellana V Merino
Jomha V Jomaa, 2010 Abqb 135
Part IV: Support
Child Support
Chartier V Chartier, [1999] 1 Scr 242
Farden V Farden (1993), 48 Rfl (3d) 60 (Bcsc)
Wahl V Wahl, 2000 Abqb 10
Contino V Leonelli-Contino, [2005] 3 Scr 217
Hanmore V Hanmore, 2000 Abca 57
Hunt V Smolis-Hunt, 2001 Abca 229
Sweezey V Sweezey, 2016 Abqb 131
T(Cj) V T(Ga), 2012 Abqb 193
Francis V Baker, [1999] 3 Scr 250
Simon V Simon (1999), 46 Or (2d) 349 (Ca)
S(Db) V G(Sr), 2006 Scc 37
Lavergne V Lavergne, 2007 Abca 169
Haisman V Haisman (1994), 22 Alta Lr (3d) 56 (Ca)
Spousal Support
Moge V Moge, [1992] 3 Scr 813
Bracklow V Bracklow, [1999] 1 Scr 420
Anand V Anand, 2016 Abca 23
Davis V Crawford, 2011 Onca 294
Spousal Support Advisory Guidelines
Part V: Adoption, Guardianship, Child Custody And Access
The Divorce Act
The Family Law Act
L(V) V L(D), 2001 Abca 241
Kk V Gl And Bjl, [1985] 1 Scr 87
Types Of Custody Orders
R V R (1983), 34 Rfl (2d) 277 (Alta Ca)
Young V Young, [1993] 4 Scr 3
Colwell V Colwell (1992), 128 Ar 4 (Qb)
Mccurry V Hawkins, 2004 Abqb 827
B(Je) V B(C), 1998 Abqb 774
Cavanaugh V Balkaron, 2008 Abca 423
R.A.L. V R.D.R., 2007 Abqb 79
Expert Reports And Practice Notes
Tucker V Tucker (1998), 219 Ar 383 (Ca)
Factors That Must Be Considered For The Best Interests Of The Child
K(Mm) V K(U) (1990), 109 Ar 241 (Ca)
Bachor V Lehmann-Bachor, 2001 Abca 53
Van De Perre V Edwards, 2001 Scc 60
J.S. V A.V.T., 2008 Abqb 185
Mobility
Gordon V Goertz, [1996] 2 Scr 27
Bjornson V Creighton (2002), 62 Or (3d) 236 (Ca)
Spencer V Spencer, 2005 Abca 262
Mcphail V Karasek, 2006 Abca 238
Van De Veen V Van De Veen, 2001 Abqb 753
Roberts V Salvador, 2006 Abqb 400
Part VI: Division Of Property
Common Law Property
Matrimonial Property Redistribution Laws
Cox V Cox, 1998 Abqb 987
Portigal V Portigal (1987), 187ar 17 (Ca)
Tawiah V Tawiah, 2002 Abqb 314
Gartner V Ewasiuk, 2002 Abqb 797
Tarapaski V Tarapaski, 2007 Abqb 81
Kazmieczak V Kazmieczak, 2001 Abqb 610
Hodgson V Hodgson, 2005 Abca 13
Quigg V Quigg (1983), 44 Ar 5 (Ca)
Jackson V Jackson (1989), 97 Ar 153 (Ca)
Harrower V Harrower (1989), 97 Ar 141 (Ca)
Brokopp V Brokopp (1996), 181 Ar 91 (Ca)
Sparrow V Sparrow, 2006 Abca 155
Felker V Felker, 2005 Abqb 365
Mazurenko V Mazurenko (1981), 30 Ar 34 (Ca)
Dwelle V Dwelle (1982), 46 Ar 1 (Ca)
Jensen V Jensen, 2009 Abca 272
Dbc V Rmw, 2004 Abqb 954
Gardiner V Gardiner (1996), 191 Ar 139 (Qb)
Macdonald V Macdonald (1997), 209 Ar 178 (Ca)
Abbott V Abbott, 2006 Abca 204
Busenius V Busenius, 2006 Abqb 162
Kazmierczak V Kazmierczak
Rick V Brandsems, 2009 Scc
part i: introduction
CONSTITUTIONAL LAW
Under Section 91(26) of the Constitution Act, the Federal Government is given dominion over Marriage and Divorce.
Under Section 92(14) of the Constitution Act, the Provincial Government is given dominion over the Administration of Justice, whereas Section 92(13) gives the Provincial Government dominion over Property and Civil Rights.
Further, Section 92(12) of the Constitution Act gives Provinces dominion over the “solemnisation of marriage.”
The Federal Power is more related to Essential Capacity, whereas the Provincial Powers is more related to the administration and solemnisation.
Child Custody/Parenting/Corollary Relief/Support is an ancillary of the Federal Divorce power, but there is also Provincial jurisdiction in these areas.
GENERAL LAW
Federal legislation
Marriage (Prohibited Degrees) Act
- Consanguinity. Blood Relation.Section 2(2): “No person shall marry another person if they are related [vertically] lineally, or as [horizontally] brother or sister or half-brother or half-sister, including by adoption.”
Civil Marriage Act
- For many years, there was no statute about the formality of marriage. The case of Hyde v Hyde from England (which was adopted in Canada) defines marriage at common law as: “The voluntary union for life of one man and one woman with the exclusion of all others.” A series of constitution claims were brought by same-sex couples in the late 1990s. There was huge contention especially caused by religions who felt that they would be forced to marry someone against their religious beliefs.
- The Civil Marriage Act was eventually assented to in 2005. Section 2 says “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.” Do not have “voluntary”, “man and woman” or “for life” from the common law definition. However, section 2.1 says “Marriage requires the free and enlightened consent of two persons to be the spouse of each other” which takes care of the voluntariness issue.However, consent is vitiated by fraud (lies about name, age, wealth, etc. will not vitiated the agreement. There must be fraud that goes to character) or duress (must be a threat of harm). Further, section 2.2 prevents persons under the age of 16 from getting married.
- Note that this Act prohibits polygamy. There have been criminal constitutional challenges against this prohibition, but there have not been any family constitutional challenges.
Divorce Act
- An exception was made through amendment that if a Canadian marriage is not recognised in the spouses’ domiciled jurisdiction, we will allow a divorce in Canada notwithstanding they have not been resident here for at least a year.
provincial legislation
Alberta Marriage Act
- Previous preamble: “In its purity the public is deeply invested…without which there would be no civilisation or progress…” This colourful language has been ousted.
- Essentially governs the rules of solemnisation. Section 3 talks about who may solemnise a marriage (registered clergy, appointed marriage commissioner).
- There are some bare-bones requirements related to the solemnisation (section 8as to the words that have to be said). Section 10 requires two adult witnesses to witness the marriage. That is pretty much it.
- Section 17(1) says that no person under the age of 16 can get married, but section 17(2) says except for “a female who is shown by the certificate of a physician to be either pregnant or the mother of a living child.” This is probably ousted by the stricter Federal act.Section 18 says that consent of a guardian (or the Court when a guardian refuses) is required for a person trying to marry when they are aged 16 or 17.
- Section 21 allows for a person to apply for a decree of presumption of death. 7 years of being continually absent is evidence enough of death. This provision is in place to collect insurance or if you want to remarry.
- Section 22 deals with void marriage. A void marriage is one that has been since the beginning (ab initio). You cannot cure it or make it better, since it has always been a nullity. However, the Courts retain the jurisdiction to deal with remedies such as support and property.
- Section 23 allows the Court to declare a marriage valid, even when there are some procedural deficiencies.
- Section 27 says that mentally handicapped persons cannot enter into marriage.
Family Law Act
Matrimonial Property Act
- Only available to married individuals. Common law couples must rely on the common law doctrine of unjust enrichment.Walsh v Bona was the constitutional challenge against disentitling non-married individuals from accessing the rights afforded in Matrimonial Property Acts.
Child Youth and Family Enhancement Act
- Adoption issues must be dealt with exclusively by the Court of Queen’s Bench.
Protection against Family Violence Act
the courts
Provincial Court: Family and Youth Court (Family Law Act, Child Youth and Family Enhancement Act, and the Protection Against Family Violence Act). No equity jurisdiction (like a restraining order which is an equitable injunctive remedy).
Court of Queen’s Bench: Court of superior jurisdiction with federally appointed justices (Divorce Act, Matrimonial Property Act). Concurrent jurisdiction with the Provincial Court to deal with the Family Law Act.
PART II: STATE RECOGNITION OF THE FAMILY UNIT
“COMMON LAW” OR COHABITATIONAL RELATIONSHIPS
Marriages were originally held to be valid at common law in two situations: (1) the couple held some sort of ceremony or procedure but it did not comply with the solemnisation rules of the local statutory regime; or (2) the couple found it impossible to comply with the local statutory regime (ex. During wartime where couples refused to submit to the law of a hostile occupation regime).
The case of Miron v Trudel was one of the first SCC decisions where the equality provisions of the Charter were analysed with respect to cohabitational relationships. Specifically, the case was about benefits under the insurance policy where only married couples received these benefits. The SCC said it was time to recognize cohabiational couples as equal to married couples in certain situations.
Later, the case of M v H was decided on the issue of same-sex couples trying to claim support under the family law act. The case contemplated a traditional 5 year cohabitational relationship, and there a challenge of the definition of spouse. The decision found that same-sex couples cannot be excluded from the spousal support benefits offered under the Family Law Act.
Walsh v. Bona, 2002 SCC 83
RATIO:Choice trumps equality. Unjust enrichment and contract law are sufficient to allow for equality when those choices are made.
FACTS: Walsh and Bona cohabited for 10 years. Upon the breakdown of their relationship, Walsh applied for spousal support, child support and a declaration that the definition of "spouse" in s.2(g) of the Matrimonial Property Act was unconstitutional for failing to provide her with the presumption, applicable to married spouses, of an equal division of matrimonial property, in violation of s.15(1) of the Charter. The trial judge held that the exclusion of common law spouses from the definition of "spouse" did not constitute discrimination within the meaning of s.15(1). The Court of Appeal set aside the decision, concluding that the legislation infringed s.15(1) and that the infringement was not justifiable under s.1 of the Charter.
ISSUE: Whether the exclusion from the definition of “spouse” in theMPA of unmarried cohabitating persons of the opposite sex is discriminatory and therefore a violation of s.15(1) of the Charter.
RESULT: Not unconstitutional. Does not breach Charter. This was a bit of a surprise since the Courts own jurisprudence in Miron v Trudel and M v H supported the claim being made by the respondent about unconstitutionality.
REASONS (Bastarache, J.):
Bastarache, writing for the majority, held the distinction between unmarried and married couples in the Act does not affect the dignity of these persons and does not deny them access to a benefit or advantage available to married persons. Bastarache applied the test set out in Law v Canada to test whether a statute violates s.15(1):
(1)does the law imposes differential treatment between the claimant and others, in purpose or effect;
(2)are one or more enumerated or analogous grounds of discrimination the basis for the differential treatment; and
(3)does the law in question perpetuate a disadvantage by prejudice or stereotyping?
Bastarache found that s.2(g) passed the first two questions of the test, but not the third.
In order to demonstrate discrimination, you must show that the state action infringed on your human dignity. As part of that test, four contextual factors to consider: (1) Is there a pre-existing disadvantage, (2) What is the relationship between the grounds of discrimination or reason for distinction and the claimants actual characteristics and circumstances, (3) Did the all have an ameliorative purpose, (4) What was the nature of the interests affect. What was the impact of the distinction?
(1) Is there a pre-existing disadvantage
The question becomes whether a reasonable heterosexual unmarried cohabiting person, would find the MPA’s failure to include him or her in its ambit has the effect of demeaning his or her dignity.
While it remains true that unmarried spouses have suffered from historical disadvantage and stereotyping, it simultaneously cannot be ignored that many persons in circumstances similar to those of the parties, that is, opposite sex individuals in conjugal relationship of some permanence, have chosen to avoid the institution of marriage and the legal consequences that flow from it.To ignore the differences among cohabiting couples presumes a commonality of intention that simply does not exist.
Finding this was not the case effectively nullifies the individual's freedom to choose alternative family forms and to have that choice respected by the state. Unmarried cohabitants maintain their respective proprietary rights and interests throughout the duration of their relationship and at its end. If they so choose they are free to marry, enter into domestic contracts, own property jointly or register as domestic partners. As a result, the application of the Act to married persons only is not discriminatory in this case as the distinction reflects and corresponds to the differences between those relationships.
(2) Actual characteristics and circumstances
MPA deems married persons to have agreed to an economic partnership wherein both pecuniary and non-pecuniary contributions to the marriage partnership are considered to be of equal worth. Designed to protect non-title holder on event of marriage breakdown. Supports equality of both parties. But also give up proprietary rights when not married.
Unmarried couples maintain their respective proprietary rights in contrast. They may, instead, enter into domestic contracts, own property jointly or register as domestic partners. The MPA, then, can be viewed as creating a shared property regime that is tailored to persons who have taken a mutual positive step to invoke it. Conversely, it excludes from its ambit those persons who have not taken such a step. The case of Miron v Trudel was distinguished on the basis in that case the couple could not access any of the rights, whereas in this case they could access the rights through certain registration.
Suggestion that an “opt-out” regime should be instituted. Problem with this is that it eliminates an individual’s freedom to decide whether to make such a commitment in the first place. Persons unwilling or unable to marry have alternative choices and remedies available to them. Law of constructive trusts remains available, as well as child maintenance through other Acts.
REASONS (L’Heureux-Dube, J.):
The family is no longer an institution reserved for married persons. In essence, the family is a matrix of relationship through which values are transmitted, members are socialized, and children are raised. Disregarding the matrix because two of its members are unmarried fails to take into account the social reality that the same incidents of interdependence are faced by both the married and unmarried living together in these relationships.
One complaint that could arise from the extension of the benefits accorded married cohabitants to heterosexual unmarried ones involves the fact that the latter are, on average, relationships of shorter duration than marriages. But, some marriages are also of short length and benefits are still conferred upon them. Further, there are provisions to deal with short-term relationships in the MPA which could be adapted for non-married couples.
The MPA has nothing to do with consensus and everything to do with recognizing the needs of spouses. Highly problematic to conceive of marriage as type of arrangement people enter into with the legal consequences of its demise taken into account. Most people are not lawyers and do not know the obligations and details. Couples do not think of their relationship in contract terms. Also, the marriage changes over time due to rarely anticipated events.
Not all people choose to cohabit to avoid the legal consequences of marriage. Often they do not have a choice due to other reasons.
There is an inadequacy of current equitable remedies. For a constructive trust to arise, the claimant must show a direct link between the property and the services rendered. Very difficult to establish the quantum of one’s trust entitlement. There is a significant difference between the marital property regime and the remedies currently available under trust law and unjust enrichment doctrines. Under the Matrimonial Property Act, a presumption exists that spouses share the property equally. In unjust enrichment, the presumption is that the person who is claiming unjust enrichment is entitled to nothing whereas the defendant is presumed to be entitled to everything. They plaintiff must prove the unjust enrichment and a corresponding deprivation with no juristic reason. These are 2-3 week trials that costs tens of thousands of dollars, and the stats suggest that the plaintiff’s only get around 25%. I hold that it is incorrect to say that the claimant’s dignity is not demeaned by offering her remedies that are greatly deficient relative to the legislated property regime. Those remedies do not come close to affording heterosexual unmarried cohabitants equal treatment with those who are married.
QUEBEC (ATTORNEY GENERAL) V. A (ERIC V. LOLA), 2013 SCC 5
ISSUE:Similar to above.
DECISION:The practical effect of the decision is to leave the family law landscape just as it was. In Quebec, de facto spouses have no matrimonial-like rights or obligations, still. In the rest of Canada, nothing changes either. The Walsh outcome is still valid, i.e. no constitutional obligation to include common-law couples in matrimonial property laws.
REASONS:Those who choose and consent to marriage get the "primary regime" (which includes support), while those who choosede factounion are free to fashion their own private regime in their statute-free zone, in his benign analysis. "The legislature has merely defined the legal content of the different forms of conjugal relationships.
In Miron, common law spouses had been excluded from certain provision relating to automobile insurance because they were not married, a ground that was in all probability irrelevant to automobile insurance. It had given one class of couples a privileged that expressed or perpetuated prejudice in favour of marriage and against common law relationships.
In Walsh, the legislature provided that the presumption of equal division of property was conditional on the expression of a consensual intention. Since common law spouses, unlike married spouses, had not expressed such an intention, their exclusion from the MPA was not based on an inaccurate and stereotypical characterization of their actual circumstances and did not violate their dignity.