Roadmap Family

8/10/2019 Roadmap Family

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Where Formal Defects Exist,Marriage can be Saved: TEST FOR

SAVING VALIDITYS. 31 deems a formally invalid (iefilling in the forms wrong; no license,

married by non-authorized person)marriage valid if it was: ( Alspector elderly Jewish couple marryinformally; plan to move to Israel, challenge validity)1. Solemnized in GOOD FAITH;2. With PARTIES ACTING

ACCORDINGLY (ie co-habitedand behaved as marriedpersons); and

3. NO essential defect.NOTHING IN THIS SECTION CANSAVE A MARRIAGE WITH

ESSENTIAL DEFECTS .

MARRIAGE

LEGISLATIVE AUTHORITYFederal authority to legislate marriage comes from s.91(6) BNA marriage and divorce.Marriage Act governs marriage by(1) preserving the right of religious institutions to marry ppl, and(2) providing the state with the right to marry ppl.The act grants authority to marry (s. 4) to people who have a license or a banns (Churchmails notices with names of those who intend to get married, rare these days.).

FORMALITIES of MarriageCeremony1. Must be conducted by a

person authorized by theMinister (can occur in aCIVIL via Judge way oin a RELIGIOUS way) S20

2. Both parties must bephysically present:: s. 24

3. Two witnesses must signthe registery: s. 25

4. Must be done withintimelines either within 3mths of obtaining licenseor 5 days after banns(27(2)&(3).

Everyone who is validlymarried gets a certificate asproof of marriage.

ELIGIBILITY REQUIREMENTS: Who can be granted a license?

1. Age of majority (s. 5 ) 16 in Ontario. If under 16 need consent by a parent orcan apply for court consent where not available by a parent (b/c parent does notexist or consent is being arbitrarily withheld s. 6 ).

2. Capacity (s. 7 ): Example: Not mentally ill, or under the influence ofintoxicating liquor or drugs.

3. Not currently married :Divorced ( s.8 ): If divorced before, s. 8 requires proof of divorce. In Cda dothis by showing certificate of divorce; if divorced outside of Cda, need aletter from a lawyer that says the grounds for divorce elsewhere are similarto the Cdn Divorce Act . (s . 8(3)Declaration of Death ( s.9 ) A declaration of death is granted where there isno communication with a spouse for 7 years immediately before anapplication and remaining spouse has made reasonable inquires.

Note: if a person who is presumed to be deceased, turns up, the validity ofthe spouses 2 nd marriage is called into question.4. NOT within Prohibited Degrees (s. 19 ): The list of ppl that you cannot

marry is short a vertical blood line of directness grandparent, parent, child,sibling (adopted or natural) are prohibited.

If local authority refuses to grant a license, the Minister has huge discretion, to grantlicences ( s. 10 ).

ESSENTIAL VALIDITY: Test for declaring a marriage voidNOTHING saves a marriage that violates these six essential factors, not evens. 31 . This results in an annulment of the marriage = making it VOID .Note: Such a declaration can have religious, societal (teachers in catholicboard) and legal (annulment = different type of property division) implications.

1. Opposite Sex (Layland ): CML defines marriage as b/w a man and awoman; Charter does not change this

2. Ability to consummate (Gajamugan ) UNLESS parties intended aplatonic marriage ( Norman elderly platonic intentions) or were aware ofthe inability/unlikelihood of consummation ( Aisaican marries paralyzedman) this is all about intent!

3. Inside Prohibited Degrees (s. 19 ) i.e. within vertical blood line ofdirectness (adopted persons are treated as blood relatives)

4. Prior existing marriage :a. Where divorce is invalid (i.e. if divorce was obtained in a jurisdiction

parties did not have a connection with: Bate Nevada)b. Where evidence shows that a spouse who was presumed to be

deceased under s.9 is alive, the validity of any subsquent marriage

may be in question ( Meszaro ); courts look at parties conduct/intentions5. Consent includes general contract provisions of offer, acceptance,

consideration, anda. Capacity to understand (Banton know you are getting married;

other incompetences are irrelevant Muna Case)b. No Duress (S. (A.) - can ratify marriage retroactively w/o consent

through continued cohabitation)c. Limited Purpose/fraud/mistake (Iantsis cannot be willfully

ignorant of the limited purpose of marriage Immign sham wedding)6. Age (Either age of majority, or in Ontario, at least 16)

a. Need parental consent if under 16 orb. Approval by the court ( Re Fox father refused consent, court gave it)

NOTE: THERE IS AVOID/VOIDABLE DISTINCTION

Void : analogous to adeclaration of NEVER BEINGMARRIEDVoidable : A declaration thatthe marriage is VALID butCAN BE VOIDED.

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Impediment or Defect in Marriage Status of MarriageIdentity of Sex VoidPrior Existing marriage VoidRelationship with prohibited degrees VoidInformal Marriage VoidFailure to comply with specific statutory formalities Valid , (except where applicable Marriage Act,

expressly or by necessary intendment, decrees anullity). Can be saved by s. 31

Non-age: either party below the marriageable ageof the CL (boys =14 girls = 12)

Void (except where the applicable Marriage Actdecrees otherwise) but cable of ratification bycontinued cohabitation after attainment of age

Non-age: marriage contracted by a minor ofmarriageable age but below age-of-marriage-majority and without consent of parent or guardian

Voidable : Valid unless the applicable Marriage Act,expressly or by necessary intendment, decrees nullity

Insanity Void but capable of ratification by continuedcohabitation after recovery/rehabilitation

Drunkenness or drug intoxication depriving partyof reason and volition

Void but capable of ratification by continuedcohabitation after sobering up

Force, fear or duress Voidable at instance of coerced partyMistake as to the nature of the ceremony or theidentity of the other party

Voidable at the insistence of either spouse or capableof ratification by mistaken party

Mistake as to qualities or attributes of the otherparty

Valid

Fraud Valid unless mistake is a material mistakeFormally correct marriage contracted withoutintention to establish a true marriage (i.e. limitedpurpose marriage)

Valid though controversial

Impotence Voidable at insistence of either spouse

LEGISLATIVE AUTHORITYOnly married people can apply for relief under Divorce Act. There areTwo sets of relief under the DA.1. Get a Divorce: this is a change in legal status can sever this

from (2) under s. 16 (Heon Ont CA) How to get a Divorce: 1 year residency requirement s . 3(1)). (jurisdiction issues

arise where two spouses live in separate provinces; the

rule is first in time is first in line: s . 3(2 ) subject to s. 6 jurisdiction follows the child). Grounds for Divorce: s . 8(1) only one ground:

Breakdown of Marriage (proven by living separate andapart, (8(2)(a ) for 1 year (incl. a 90 day period whereparties can cohabit with the intent to reconcile: s.8(3)(b)(ii)); OR through adultury/cruelty here a one yearwaiting period is waived) 8(2)(b )(i) adult (ii) cruelty

2. Get Corollary Relief s.8 : Such as Living arrangements for children partners and children Child support Spousal support very dynamic issue

DIVORCE

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Duty of Legal Advisor and Courts. 9 all lawyers have a positive duty tomake suggestions other than litigation byencouraging clients to explore client toexplore reconciliation, negotiation ormediation unless the circumstances ofthe case are such where it would clearlybe inappropriate.s. 10 : Court has similar duty to makesure that there is no possibility ofreconciliation if there is such apossibility judge can order stay ofdivorce for any period of time.Reconciliation is encouraged by S.10(5 )

evidence of anything said duringreconciliation process is not admissiblein court. Idea is to protect partiesprivacy, especially if there was anadmission, or talk about corollary reliefissues.

Relevance of distinction is that there are rights available to married persons:1. Marriage allows division of property under FLA 2. Marriage allows party to make claims under DA i.e. support under DA stronger than under FLA 3. Marriage allow claim under s. 3 Family Law Act 4. Prior to the Children Law Reform Act marriage meant that children were legitimate


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*NOTE: this means parties can apply for a divorce on the same day as a separation provided the 1 yearresidency requirement is met (but the divorce cannot be granted until 1 year of separation)

Steps to seeking relief under the Divorce Act ONLY APPLICABLE TO MARRIED PERSONS

Establish courts jurisdiction

1. Generally court has jurisdiction if one of the parties has been ORDINARILY RESIDENT in that jurisdiction for atleast 1 YEAR (S. 3(1) ).

2. If parties are seeking relief for a child, jurisdiction follows the child. The jurisdiction the child is moreSUBSTANTIALLY CONNECTED is the one that has jurisdiction. GENERAL RULE: JURISDICTIONFOLLOWS THE CHILDREN. (S.6 )

3. If divorce proceeding occurs in 2 courts around same time (ie COMPETING CLAIMS) one of the parties must

withdraw their claim. Generally the person who began proceedings first get to proceed. First in time, first inline S. 3(2) ).4. If 2 divorce proceedings started on same day- Federal court trial division can resolve which case must be

withdrawn. S. 3(3) ).Note: once a court has jurisdiction it doesnt lose it just because parties move out of jurisdiction, but parties may apply tocourt to transfer the urisdiction s 6 1 .

Establish grounds for divorce: Only 1 Ground: breakdown of marriage (s. 2); can be proven by

(1) Separation (s. 8(2)(a)) Of at least one year immediately preceding thedetermination of the marriage.*

(2) Behaviour (s.8(2)(b)) Spouse against whom divorce brought(guilty spouse)

i. Committed adultery orii. Treated the other with physical ormental cruelty such that madecontinued cohabitation impossible -High test ( Barron treatment shouldbe intolerable annoying)

Note: no 1 year separation requirementProof: Civil standard (BOP). Direct evidenceis rare, circumstantial evidence or affidavit ofeither spouse or 3 rd party involved used toestablish adultery.

Living separate andapart (s.8(3)(a))

Parties can cohabit andstill be separated if theparties intended to beseparated ( Dupere live together for the sakeof ; behaviour = intent)

Reconciliation s.8(3)(b))

Parties can recommence co-habitation for up to a 90 day period(consecutive or not) with theINTENTION of reconciliationwithout effecting the 1 yearseparation term. (s.8(3)(b) (ii))Ro ler casual sex no intent

Ensure rsbl arrangements have been made for the support of any children (s.11(1)(b)

In general the Federal Child Support Guidelines are considered reasonablearrangements for the children. If the Guidelines are not met, then most judgesfind that they have no option but to deny divorce ( Briand CS not in SA; and Merino ). Having a CS order is not enough, court must be satisfied the parties areabiding by it ( Ninham natives ignore order; J stays divorce)

Ensure there is no possibility ofreconciliation (s.10)

If there is such a possibility judge canorder stay of divorce for any period of

time.

SeveredDivorce has beensevered fromcorollary reliefissues as per s. 16(Heon Ont CA Hwants divorce, W

wants corollaryissues dealt with. Hgets divorce)

Ensure there has been nocollusion s. 11(1)(b).

Collusion = agreement orconspiracy either directly orindirectl to deceive the court .

Ensure there has beenno condonation orconnivance s. 11(1)(c)Only if one spouse claimsadulter or credulit

DIVORCE: Divorce Order -- One year after a Petition for Divorce is filed adivorce order can be issued. 31 days later an application can be made fora certificate of divorce which = proof of divorce.


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Judicial Controls on an Existing Domestic Contract: Factors to Consider

.

DOMESTIC CONTRACT DOES NOTCOMPLY WITH FORMAL REQTS OF

FLA s. 55(1) ) unenforceable3 essential elements to valid domesticK:

1. Signed2. In writing and3. Witnessed

Court will find ways to enforce agreetseven when formal reqts are not meetprovided parties had independent legaladvice, no duress etc ( Geropoulos )

BIOCThe provisions of agreement are not in thebest interests of the children (s. 56(1) FLA)

GUIDELINES: CSprovision in accord-ance w guidelines(s.56(1.1) FLA)

CHASTITYProvisions dependant on the partiesstaying chaste (s. 56(2) FLA) Note: whilerequirements to stay chaste areunenforceable, obligations based uponcohabitation or remarriage are enforceable

THE FORMATION OF THE CONTRACT WAS FLAWED 1. Party failed to disclose significant assets or debts or liabilities when K made ( s. 56(4)(a) FLA ): Court will consider

whether non-disclosure = a MATERIAL INDUCEMENT to entering the agreement. (Dochuk fid duty to disclose)2. Party did not understand nature and consequences of K ( s. 56(4)(b) FLA ) i.e. ILA explain this: Best (note: if

ILA is ill-qualified or giving wrong advice, the onus is on the spouses to check out qualifications: Grant-Hose )3. Otherwise in accordance with the law of contracts ( s. 56(4)(c) FLA ) : Offer, acceptance, consideration, intention,

meeting of minds, capacity (duress, mental), certainty, specific terms ( Troitter no ILA and unconscionable terms= no SA; Crouse K should be looked at as a whole; here, W cheated and H took advantage of her weak posn)

NOTE: The court will bend over backwards (give judicial deference) to help parties achieve their intentions, evenwhen there are formal defects in the separation agreement

IF SA NO LONGER REFLECTS PARTIES INTENTIONS OROBJECTIVES OF Divorce Act (Miglin SCC 2003)

1. At the time of K formation(a) Consider the circumstances under which K was made

considering the bargaining inequalities, particularvulnerabilities and assistance received by the parties;

(b) Whether the substance of K meets the objectives of the Act. 2. At the time of the application to do the terms of K still reflect the

parties intentions at time of K & the objectives of Act.

COHABITATION AGREEMENT/MARRIAGEK DEALS WITH FORBIDDEN MATTERS

1. Deal with custody, access and supportfor children (s.52(1)(c) FLA ;

2. Limits spouses right to possessmatrimonial home (s. 52(2)) FLA ; Nurmi

ownership can be contracted, not rgt toossession

BARRIERS TO MARRIAGEIf consideration for K was one party removing barriers to other partiesability to get married (s. 56(5 FLA) ie if you need husbandspermission to get remarried in church and to get it you waive SS.

Court deals with this severely by striking out pleadings, changing SAentirely even if there is valid consideration

DOMESTIC CONTRACTS: Is the Domestic Contract Valid?

Formal Requirements: 3 Essential elements to a valid domestic contract ( FLA s. 55(1) ):

2. Signed 3. In writing and4. Witnessed

Agreets that do not comply with these reqts = unenforceable; however in aneffort to promote settlement, and support parties efforts to make a deal, thecourt will find ways to enforce agreets where formal requirements are not met

provided the parties had ILA, no duress etc ( Geropoulos lawyers letter exch= Domestic K) What crts are willing to do to enforce Qable domestic K:1. Formal defect of SA avoided by calling it a promise to pay

(Sanderson s.55(2) re: homemade SA; this SA is valid)2. Interpret witnessing requirement as met if a lawyer reviewed the SA

even though spouses were not present while the actual SA was signed(Campbell witness SA, not signature)

TYPES OF DOMESTICCONTRACTS Domestic K canbe ( FLA s. 51 ).(1) Cohabitation agreement( 53)/marriage contract. Marriage K =predetermined separationagreement s.52 .(2) Paternity agreement s. 59 Kto pay prenatal care and birth;

support; funeral expenses of thechild or mother (3) Separationagreement. Pursuant to the DAparties can opt out of almosteverything s.54 EXCEPTmatters dealing with children iechild support

JUDICIAL CONTROLS: Trilogy upheldpermanency of settlets, reinforce indivlresponsibility and clean break; G.B. v L.G.(SCC 95) considers fairness: (1) mat changeand (2) whether agreet satisfies DAs obj @time of execution and @ time of mat change;Miglin (1) Circ @ execution and substanceof agreet; (2) examine how enforcing agreetreflects original intentions of parties and obj

Objectives s. 15.2(6)DA :Re: SS (a) Eco ad/disadarising from break ; (b) finlcare of children; (c) relieveeco hardship arising frombreak ; (d) so far aspossible, promote self-suffic


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STEPS TO OBTAINING CUSTODY OF A CHILD

Who can apply for custody? A person with connection to child can applyfor custody orders ( DA s. 16 , s. 21 CLRA ),- Under DA non-parents must seek leave

of court (s. 16(3). - Both parents have equal entitlement to

custody ( CLRA s. 20 )

Are the parties legally married as per Marriage Act

If yes and there is jurisdiction under DA If no , proceed under CLRA , provided the child is s. 22(1):(a) HABITUALLY RESIDENT of Ont, when application brought.

Habitual residence means the place kid resided w/ s.22(2): a. Both parents;b. With 1 parent under SA, consent or implied consentc. Person other than parent on permanent basis for sig. time

(b) Or if court is satisfied that (22(1)(b)a. Child is physically in Ontariob. Evidence about BIOC is in Ontarioc. No application for custody pending elsewhered. No extra-provincial orders recognized by Ont.e. Child has real & substantial connection with Ont.f. Ontario is the most convenient jurisdiction

Kidnapping kid does NOT change residence ( s.22(3) )ONLY FACTORS TO CONSIDER IS BIOC

s. 16(8) DA.Note: Factors set out in s. 24(2) of CLRA are notbinding under DA but courts can consider them (conditions, needs, means and other circumsts)

Past conduct will only be taken into account if it is relevantto parenting DA s. 16(9) CLRA 24(3) ie:

1. Preventing meaningful contact btw kid and other parent(Renaud H kicks W out +keeps =status quo for custdy

2. Marital misconduct if it shows a willingness to put selfinterests before the children ( Fishback ) Ws beau =fling

3. Lack of parenting skills ( Young ) H = self-interest driven4. Conduct after separation ( Young ) stealing documents5. Smoking if child has health issues ( Bourdon v.

Casselman 1988 Ont. Prov. Ct) 6. Domestic violence

Factors courts consider to determine the BIOC1. Status quo situations (s. 24(2)(c) CLRA ) :

(i) should stay in an envt. they are accustomed to, unless compelling reasons to remove exist Lisanti abused W(ii) SQ can be developed in a short period of time Moores 2 yrs to get to court; interim custody arrangement = SQ(iii) SQ can be disturbed when circumstances used to establish it are questionable Renaud H kicks W out

2. Heritage/Ethnicity of parents and kids ( Van de Perre 2000 SCC B-ball player seeks custody of mixed and gets it)3. Relationships with third parties . Court considers

(i) Stability of new relationship ( Fishback W show that new beau would last; self-interest no BIOC)(ii) Character/parenting skills of the person w/ whom parent resides or intends to reside w/( Reid W lives w/ lover + )

4. Parenting Skills Young : H sends boy to steal documents from W; not acting in BIOC, but of himself5. Sexual orientation not a bar to custody, but another factor to be considered. In reality it is a negative factor, but can be

mitigated by presenting evidence about other good parenting skills ( Barkley lesbo-mom; daughter wants to live w/ her).6. Primary care givers - parent that had the major impact on young childs development will likely receive custody, as long

as the task has been reasonably carried out ( Harden tender yrs doctrine overturned; females not best always)7. Sibling bonding - Generally, siblings will NOT be separated8. Wishes of child (s. 24(2)(b) CLRA ) ascertained through office of the childrens lawyer9. Friendly parent : the parent that supports access gets custody ( Doe W complied w/ orders) Parties dont have to do any

more than comply with existing orders. s.16(10) DA Note: courts treat unfriendly parents very harshly10. Love, affection and emotional ties between the child and (s. 24(2)(a) CLRA )

(i) each person claiming custody or access(ii) other members of the family who reside with the child, and(iii) persons involved in the care and upbringing of the child;

11. Ability and willingness of each person to meet the needs of the child (s. 24(2)(d) CLRA ) 12. Each parties proposed parenting plan (s. 24(2)(e) CLRA ) 13. Pemanence and stability of family unit with which it is proposed the child will live (s. 24(2)(f) CLRA ) 14. Relationship by blood or adoption btw child & person claiming cusotdy or access (s. 24(2) (g) CLRA )

Before making a decision about parenting, court must be presentedwith evidence relating to needs of kids and evidence of the parentsability to meet those needs ( Wakaluk ).

Lawyers have to adviceclients of ADRpossibility: s. 9(2) DA

Parental alienation is the purposeful attempt by a parent tototally alienate the children from the other parent. Symptoms:

- Child hates parent; vilifies,- Repeat rehearsed hate speech- preoccupied w/ parents past behavior

Judges often respond to alienation by completely banning thealienating parent from contact with the children. This harshresponse often leads to a misuse; courts need to be mindfulof s motives: sometimes it is not b/c of alienation but ratherb/c child doesnt like access parents new spouse, livingarrangement, or some other reason completely unrelated tothe custodial parents behavior.


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Duration of orders the court can make

TYPES OF PARENTING ORDERS THE COURT CAN MAKE

INTERIM ORDER: DA s.16(2)This is impt b/c generally the person who getsinterim custody establishes a status quo which

judges are hesitant to interfere with.

Joint Custody/Shared parentings. 16(1)(4) DA and s. 28(a) CLRA

Parents jointly share decision-making abilities. Note: oneparent can still have sole physical care of children but bothshare decision-making. Presumes that both parents arecapable and able to make decisions. There is no presumptionof JC; DA simply allows Js to authorize JC arrangementswhere appropriate: Catholic Childrens Aid Society

When JC will not work:Leonoff, Joint Custody and Beyond

1. If one of the parents rejects idea of JC2. There is lots of blaming btw the parents3. Rules of parents houses are divergently different.4. One or both parents exert a sense of ownership

over children my child5. Parents argue through their children ie kids

asking what mom is going to spend CS on6. Neither parent is adequate enough to assume

custodial role on their own7. Evidence of mental illness, addiction, personality

disorder with one of the parents8. SINE QUI NON- when parents wont stop going to

court hotly contested litigationSinger and Reynolds, A Dissent on JC

Reservations about JC are explained, particularlywhen court-imposed:1. JC needs to distinguish b/w physical and legal

custody2. JC assumes that after a divorce are better off

maintaining frequent contact with both parents,and the only way this can occur is through JC this is illogical and lacks data to make the leapfrom one to the other.

3. JC-friendly-studies are based on voluntary, ratherthan court-imposed, JC arrangements.

If parentscannot co-

parentSole

custody

PERMANENT ORDERNote: these are not really permanent, if thecircumstances of the child change, court will considerwhat is in BIOC at that time ( CLRA s. 28) ( DA s. 17(5)

If parents cannot co-parent,Parallel Parenting

Parents never speak to each other but on arotating basis they are responsible for thechildren. In the interim each parent MUSTcomply with what the other parent agrees to.

If parents need help co-parentingParenting Coordination

Parenting coordinator with a social/mental healthbackground helps parties resolve minor issues that arenot specifically covered in court order/separationagreement. Parents agree to be bound by the decisionsof coordinators . Parenting coordination hasnt yet beenincorporated into court orders b/c there arent enough

eo le offerin this service.

ACCESS (rgt of to see non-custodial parent) and CONTACTFACTORS TO CONSIDER IN LIMITING/EXPANDING ACCESS

Note: Child support and access are NOT two parts of a bargain. A denial of one is not justification for a denial of the other.

Access can be terminated if it is nolonger in the BIOC ( M.(B.P ) Dr. told Wthere may be sexl abuse by H; wetsbed in fear) .

Nothings Final :

Courts are generallyunwilling to restrictaccess, particularly if astrong connectionexist. NOTE:Decisions regardingaccess to children arenot final.. if theparents circumstanceschange (ie the theycorrect behavior andwant to see the kids),court orders will alsochan e.

Biology and Original Intentions are not Determinative : A parent does nothave to be the biological parent in order to get access ( Low 1994 Ont. GenDiv ), nor does the parent have to be someone who planned to be in thechilds life ie sperm donor ( Johnson-Steeves v. Lee 1997 Atla CA).

Rights of access

parents under DA s. 16(5) - spousewith access havethe right to makeinquiries (provision isambiguous, itdoes not saydirectly from thecustodial parent);and to be giveninfo as to thehealth, edu andwelfare of

BIOC, Access and the

Charter : BIOC may limitthe Freedom of Religion ofthe parent ( Young 93 SCC H = Jehovs Witness; dislike instructions and Wseeks to limit Hs ability toexpose to religion)NOTE: In B(R) v. CAS ofToronto , (1995) SCC heldthat limitation of a parentsfreedom of religion for theBIOC must still be justifiedunder s. 1.

Mobility Rgts : Test to be used to allow a

custodial parent to move is the BIOC (Gordon W wants to move to Australia togo to school) not maintenance of reln w/non-custodial parent (Carter made thisdeterminative). One parents desire torelocate = material change in circs Crtmust consider the custody matter afreshw/o defaulting to the existingarrangements. Existing Order createspresumption ( MacGyver Ws new H hasbetter job offer in WA; H seeks to keep inOnt. to maintain access); examine impact reason for move is not relevant, impact on

is key -- from a -centered perspective:(Gordon )


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STEPS TO GETTING SPOUSAL SUPPORT note this is considered after property division

Are the parties legally married as per Marriage Act

If married, crt can grant div.: proceed under DA s. 15.2 and/or FLA If not married proceed ONLY under FLA Pt.III

ENTITLEMENT Court SHOULD consider objective set out in s.15.2(6) and MUST consider any existing orders,agreements, arrangements relating to support. s.16.2(4)(c ). If these exist see variation chart

If spouse consider, trying to bear in mindobjectives set out in s . 33(8 ):

1. Is there a NEED for support (s. 30 )2. Is there ABILITY to pay (s, 30)

If NO Need or entitlement try to make aconstructive trust claim lon shot!!!

ENTITLEMENT - Are they a spouse as per FLA 1. Man or women married to each other (s. 1); can incl gay couples2. A person who on good faith /innocently entered into a void or

voidable marriage (s. 1)

3. Hetero/homo ( M v. H SCC) couple that have continuouslycohabitated for at least 3 years (s. 29 ). Consider:- Lived together as husband and wife ( Gostlin BC CA) - They shared residence, had sexual relations, domestic duties

shared, socialized together ( Molodwich )- never intended to end relationship ( Sanderson Ont CA together

as CML for 6 yrs and separated for 4-5 days, lovers quarrel)- if parties were economically dependent ( Stoikewicz Wmn paid

rent; econ. indep.) but this is not always determinative(Armstrong look at more than ecoic dependence)

4. Hetero/homo ( M v. H SCC 12 yrs ) couple in a relationship ofsome permanence if they are the natural/adoptive parent of (s.29).

- Consider length of cohabitation, sharing of property, discussion ofmarriage ( Labbe Groupie/Musician, Baby, talk of marriage)

Determine the AMOUNT and DURATION of support. Under FLA courts MUST consider factors in s. 33(9) - below, while these arenot in DA, the courts still consider them. Courts can use SS database which offers cases based on income, # kids, length ofmarriage. In Moge the SCC advocates continuous SS if there was continuous need. But in Miglin the SCC implied that SSshould be of a limited duration; this promotes self-sufficiency.

Relevant Factors listed in s. 33(9)(a) The parties current and (b) future assets and means;(c) The recipients ability to be self sufficient(d) The payors ability to pay(e) The parties age and physical and mental health;(f ) Accustomed Standard of Living so no cardboard box for the Mrs.(g) What is needed for recipient to become self-sufficient i.e. moreschool, training etc.(h) Any legal obligations to provide support to another person(i) Recipients desire to stay at home -acknowledges the care of children(j) Contribution by recipient to the realization of spouses career potential(Caratun - dentists license );(l) Specific factors:

(i) the length of cohabitation - the longer youre together, themore SS youll get

(ii) the effect on earning capacity by marriage responsibilities(iii) whether the spouse is responsible for an ill or disable child,(iv) whether the spouse is assisting kid pay for post secondaryeducation,(v) any housekeeping, child care or other domestic serviceperformed by the spouse(vi) the effect on earnings and career development by child careresponsibilities

(m) any other legal right of the dependant to support, other than out ofpublic money.

Is thereABILITY to

pay?

Is there a NEED for support or reasonCOMPENSATION is required?

Court MUST consider:(a) length of cohabitation s. 15.2(4)(a )(b) functions preformed by spouses during

cohabitation s. 15.2(4)(b) Generally as long as relationship lasts sometime entitlt to SS is estd ( Moge 20 yrs; W loses

job; Femzn of Pov Jly noticed). Need can bebased on post breakup event ie illness( Bracklow )

GROSS UP amnt of SS to acct for tx OR INCOME SPLIT (giving tx refund)

If no ability- consider seeking a futureorder securin s/s if abilit chan es

Enforcement of Spousal Support OrderIn Ontario the FRO is responsible for enforcing courtorder. They have the sole authority to collectsupport. Note: Parties can agree to withdraw orderfrom FRO and pay each other directly.1. If payor is an employee:

i. FRO sends letter to payors employer to getthem to deduct spousal support at source.

ii. If employer chooses not to deduct then theemployer is liable for the amount of support.FRO then sends money to the receivingspouse.

2. If the payor is self-employed it can be difficult todetermine their income and collect support.

i. The courts respond by sometimes imputing

income.ii. FRO takes drastic action in order to forcepayment ie. taking away their license orpassport. Payor can then ask court to seek arefraining order which refrains the FRO fromtaking action for 60-90 days to allow thepayor to pay the arrears.

Bankruptcy does not eliminate obligation to payperiodic support but does wipe out obligation to paylump sum support. Court can use s. 34 FLA torequire property to be transferred over, anirrevocable beneficiary declared on life insurance,charge (mortgage) on property.

Under DA s. 15.3. FLA s. 38.1 CS gets priority over SS if there is a limited ability to pay even if there is an entitlement and a demonstrable need


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Variation of Spousal Support

Is there an existing order, separation agreement relating to SS?

If OrderDA s. 17(4.1 ) & FLA

s .37(2): court can vary aSS order if there has beena change in condition,means, needs or othercircumstances of a formerspouse since the last order.OrUnder FLA s.37(2 ) ifevidence not available atprevious hearing is nowavailable

If Separation Agreement If no, proceed as new SS claim

Under DA if there is a waiver of SS(Miglin 2003 SCC)

1. At the time of K formation(a) Consider circumstances under which K was

made considering: bargaining inequalities,particular vulnerabilities & assistancereceived by the parties;

(b) Whether substance of K meets objectives ofthe Act.

2. At time of application, do terms of K still reflectparties intentions at time of K & objectives of Act.

Under FLA s. 56(4)Provisions of SA can beset aside if:(a) Failure to disclose

assets, debts/liabilities at time of K

(b) Didnt understandnature/consequence of K

(c) In accordance withlaw of K


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Steps to Getting Child SupportIs there an obligation to pay support? CS is a creation of Statute, not CML. This right to support is given to a childof the marria e under s . 15. 1 DA or de endent under s . 33 1 FLA. 1. establish entitlement 2. assess amount .

Can paternity be proven?

A court may order a potential father to take apaternity test. ( s. 10 CLRA , Silber v. Fenske father refused test), provided the conducting of thetest doesnt affect the kids health AND only after thepresentation of some admissible evidence ( D. v. S.1980 Ont. Div Ct.) .

Types of evidence relied on ( Rhan v Pinsonneault )1. Were the parties married/CML relationship of

some duration at the time of conception?2. Did the parties admit to sexual intercourse near

the time of conception?3. Did parties admit to extramarital relationships?4. Was mom able to establish a prime facie case

of putative fatherhood notwithstanding the

maybe dads denial of having sex with mom.5. The doctrine of laches does not apply ( Phiroz.V. Mottiar 1995. Prov. Div.) , subject to somelimitation ie. Mcartney case, Lastman

If dad refuses to take the test, the crt may draw anadverse inference from the refusal Silber v Fenske

Does the person fall under extended definition of parent

If married under DA s. 15.1 CS payable for a child of the marriage,under s. 2 DA Interpreted by the crts tomean:(i) A child of both spouses includes kids

adopted by both parents s . 2(2) (ii) A child for whom both parties stand in

place of a parent i.e. aunt & uncle(iii) A child for whom a person stands in the

place of a parent (s . 2(2)) - need knowledge and intent

(Aksugyuk Dad must know they arenot the real dad to be a s locoparentis )

- Cannot be revoked ( Carson Dadtries to get out of CS by revokingcommitment to ; not allowed)

- TEST = objectively consider theNATURE of the relationship ( Chartier

H treats from Ws first marriage ashis own factors on p.36 in bold)

Under FLA s.31(1)

CS orders can bemade for a parent

(i) Who hasdemonstrated asettled intentionto treat as achild as child oftheir own familys.1(1 ) exceptfoster kids; OR

(ii) anotherperson whomay have anobligation toprovidesupport. s.33(5)

Has the obli ation to a su ort been extin uished?

Underage?

Must pay for kids underage of majority b/cstatute says so: DAs .2(1)(a)); or unmarried,minor FLA s. 31(1). std

Withdrawal from parental care

Do not have to pay for kids who areover 16 & have withdrawn fromparental control during the materialtime s.31(2) FLA. = forgottenchildren ie squeegee kids- withdrawal must be voluntary

(Zedner has probs w/ new H,moves in w/ grandma and seeksCS for school did notvoluntarily leave)

- material time = time ofapplication/hearing ( Harrington )

Overage?Must pay for kids over the age of majority if child is:-

FLA s. 31(1) -Enrolled in full time school - DA s.2(1)(b) - unable by reason of illness, disability or other cause, to withdrawfrom their charge or to obtain their necessities of life

Other causes interpreted = full time school TEST ( Wesemann)1. Determine if still child of marriage by considering

i. Whether the course of studies is pt/ftii. Whether child is eligible for loansiii. Whether the career plans of the child are reasonable/appropriateiv. The ability of child to contribute to their own support through pt jobv. Age of the childvi. The childs past academic performancevii. Parent plans for the education of kid made during the marriageviii. Whether child has unilaterally terminated relationship with parent?

2. Pay guideline amount, unless one of the parties challenges3. If amt challenged, determine if amt is inappropriate. If appropriate keep

amt. Consider how close kids circumstances are to child thatguidelines were based on. The closer the circumstances the more likelythe guidelines are appropriate.

4. If guideline amount is inappropriate, decide what is the appropriateamount with regards to the condition, means, needs and othercircumstances of the child (ie ability to obtain employment) and thefinancial ability of each spouse to contribute to the support of the child.

What AMOUNT of C/S that is appropriate? Next Chart


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What amount of child support should be paid?

Court must set c/s in accordance with guidelines DA s.15.1(3); FLA s. 33(11 ); NB: there is an obligation to disclose incomes (s.21 Guidelines non-com liance leads to crt drawin adverse inference s. 23 strike out leadin s contem t s.24

Court can set CS @ a different amnt from guidelines if ( DA s.15.1(5); FLA s.33(12)):1. Special provisions made for amnt is equal to guideline amnt i.e. pay private school fees DA s. 15.1(5)(a) FLA s.33(12)( a);2. Guideline = inequitable DA s.15.1(5)(b) FLA s.33(12)(b) 3. Upon parents consent provided rsbl arrangements had been made for care of child ( DA s.15.1(7); FLA s. 33(14 )).

NB: DA s.15.1(8); FLA s. 33(15) say the rsbl arrangement = guidelines .NOTE: If the court makes CS order different from guidelines, the court must explain why it has chosen to do so: DA s. 15.1(6)and FLA s.33(13 ). Courts bend over backwards to NOT deviate from guidelines to increase certainty.

Is there a reason to award different amt than table amtA court has discretion to award amt different from tables if:

1. Children over age of majority (s.3(2))2. Income > $150,000 (s.4), pay table amt for 1 st $150,000, tables may be applied to balance ( Simon hockey dad)3. Parent is a person in place of a parent (s. 5)4. Split custody (s.8) - i.e. each parent gets 1 child5. Shared custody (s. 9) i.e. each parent gets child for at least 40% of the time ( Hunter 2 Options:p.37)Note: uidelines are still considered for each of above.

Does the parent have the ability to payS. 31 FLA requires parents to pay CS to the extent that they can ( Dean undue hardship in s. 12 Guidelines).

Undue hardship test s. 10 1. Are there circumstances that constitute undue hardship? Section 10(2) Must be:

(a) Spouse has unusually high level of debt associated with marriage(b) Spouse has high access expenses

(c) Spouse has legal duty to support previous spouse(d) Spouse has a legal duty to support kid other than the child of marriage(e) Spouse has a legal duty to support another person

2. Does household standard of spouse seeking relief exceed that of other spouse? On exam state comparisonof household standards of living is a complicated process, beyond the scope of this answer.

3. If 1 and 2 established, the guidelines are NOT mandatory, court has discretion to award c/s in accordancewith c/s guidelines or not.

NOTE: In theory s. 10 could be used to CS amount, but hasnt been done yet

If exceptions do not apply, determine type of child support?\S. 3 1 CSGL creates assum tion that for all children under a e of ma orit c/s should be based on uideline

Basic Table Amount Covers room & board. Determined formulaically based on

income & # of children usin rovince s ecific tables

Special & extraordinary expenses (s. 7 CSGL) Restricted to health, education & extra curricular

see next a e

Determining Income s. 15-20Income is based on total income on T1 form (s .16 ) except when1. Not fairest determination of income. Income determined based on last 3 years & pattern of income. ( s. 17 )2. If income of shareholder, director or officer of a corporation is not reflective of actual amt, all or part of corporations

income can be attributed as personal income (s. 18).3. The court may IMPUTE income in the following circumstances (s.19 very impt)

a. Intentionally under employed or unemployedb. Exempt from paying taxc. Spouse lives in country with lower tax rate than Canadad. Income has been divertede. Spouses property is not reasonably being used to generate income;f. Spouse fails to provide income informationg. Spouse unreasonably deducts incomeh. Most of income is from sources that are taxed at a lower rate than employment incomei. S ouse is the beneficiar of a trust.


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Special & extraordinary expenses (s. 7 Guidelines) Determine on a case by case basis

Step 5: ApportionmentOnce an expense is deemed to besection 7 expenses, the amount of thisexpense is proportioned between the

parties in accordance with their grossincome s. 7(2) ie. the person who earn60% of the parties total income pay60% of the additional costs. Note theincome for the purposes of

Step 1: expenses must fall under one of listed categories in s. 7(1): * = contentious issues(a) Child care expenses incurred b/c of custodial parents employment, disability or illness

(b) Medical and dental insurance premiums(c) Health related expenses that exceed $100 annually list of examples included(d) Extraordinary educational expenses for primary/secondary school that meet childs particular needs*(e) Post secondary education expenses*(f) Extraordinary expenses for extracurricular activities****** No definition of what is extracurricular

Step 2: Necessity(McLauglin)

Is this something childhas always done,benefited from in the pastetc?. Very discretionary.

Factors Considered:

(1) Nature/Amnt of indivlexpenses vis--visparents income; (2)Nature and # of activities;(3) Special needs/talentsof ; (4) Overall Costs

Step 3: ReasonablenessReasonableness of expense is an objective test based

Step 4: Extraordinary(McLauglin)

If expense is s.7(1)(d) or (f)

determined if the expense isextraordinary on a subjectivebasis with a view to the actualcircumstances of the parties ieinclude the parties incomes


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Determining Property DivisionStep 1: Is there possibility of reconciliation? Step 2: Does FLA property regime apply? Marriage must be valid

Step 4: Opt out?Did the parties sign a domestic K to opt out of FLA? NOTE: Can opt out

Step 4: Find valuation date s.4(1)?Earliest of:1. Spouses separate w/ no rsbl

prospect of reconciliation note: canstill live together (separate andapart)

2. Date a divorce is granted3. Date marriage is declared null4. Starting a court action preventing

other party from defeating the assets5. Death of one spouses. Note this

creates an entitlement that canoverpower a spouses will.

Step 3: Province of residence? Onl if Ont residence does FLA a l

Step 6: Equalization PaymentTake difference btw NFP and split in half.The spouse with the lower NFP isentitled to of the difference of the NFPto equalize NFP. (s. 5(1))

Step 5: Determine NFP and equalization payment1. List property owned by each spouses on the valuation date2. Determine if any of the spouses property is excluded by s. 4(2 ):

1. Prop. other than MH ( Folga ) acquired by gift or inheritance from 3P(Ho ); If $$ ONLY excluded if deposited into a separate account (s.4.2.1)

2. Income earned from property in (1) if will says income is excluded fromFLA (s.4.2.2) magic words

3. Damages received from injury/torts (s.4.2.3) Mittler (not excl. b/c WWI-$ received after marriage day)

4. Payout from life insurance policy (s.4.2.4)5. Property that can be traced back to (1-4) (s.4.2.5)6. Property exclude through SA (s.4.2.6)

3. Determine value of property owned by the spouses on the valuation date4. Calculate amount of spouses debts and liabilities on the valuation date5. Determine value on valuation date subtract step 4 from step 36. Determine the value of the property other than the matrimonial home that the

spouses own on the date of marriage = deductible property7. Calculate the values of the debts and other liabilities of the spouses (other

than mortgage on mat home DaCosta ) on date of the marriage8. Subtract step value on date of marriage (subtract step 7 from step 6)9. Determine NFP per person by subtracting the figure in, step 8 from that in

ste 5. If the result is ne ative it is deemed to be zero.

Step 7: Is there any reason to vary 50/50 rule? s.5(6)(a)- (h)1. Is amt under 50/50 rule UNCONSCIONABLE (shock conscious of court Ferguson loss of

dental license b/c of negligence is not shocking; need recklessness to shock) 2. Consider conduct of parties ( Leblanc SCC W with 7 works FT in diner, pays mortgage

while H drinks ) . Specifically have regards to:(a) Failure to disclose debts/other liabilities at marriage;(b) Debt incurred on VD were reckless or in bad faith/ Depletion of marital assets;(c) Part of 1 spouses NFP consists of gift made by other;(d) Spouse intentionally/ recklessly depleted his/her NFP ( Mittler - Hs $-gift to son = ok );(e) Amt is disproportionate large for cohabitation of


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Unmarried peopleOnly married people can have access to part II FLA. Unmarried people can own property together but haveno legislation to help them seek exclusive possession. Some provinces have emergency relief for unmarriedpeople where there is domestic violence. In Ont no such provisions but can get probationary order that theabuser not come near house if there is a conviction.

1.

MATRIMONIAL HOME

Determining what is the matrimonial home part IIThe matrimonial home is s. 18 FLA EVERY property in which a person has an interest that is or was at the time ofseparation, ordinary occupied by the spouses as their primary residence. BUT if matrimonial home is in property thatis used for other than residential purposes (ie a farm), then the matrimonial home is only the part of property thatmay be reasonably regarded as necessary to the use and enjoyment of the residence (s. 18(3)). NOTE: There canbe more than 1 matrimonial home i.e. snow bird who spend 6 mths here and 6mths in FloridaDesignating the matrimonial home (s. 20) : prior to separation, MH can be designated this way snow birds canstate that Florida home is MH

Test for Ordering Exclusive Possession s.24(3) one spouse may be given MH for a period of timeThe factors that a court looks at to give one spouse exclusive possession are: note: high standard

(a) BIOC (i) limit disruption (s.24(4)(a)) and (ii) consider childs preference (s.24(4)(b)). Generally who ever has

custody is more likely to get exclusive interim possession. ( Pifer ) (b) Existing orders under relating to family property (ie equalization payment) or support ie does the party seekingorder have means which would enable them to pay rent

(c) Financial position of both parties(d) Any written agreements btw the spouses NOT a pre-nup but maybe a lease.(e) Other housing alternatives(f) Any violence against a spouse or children ( Hill )

Compensation to ownerThe court can compensate the owner by requiring the party with exclusive possession to pay the owning spouseoccupation rent s. 24(1)(c). If both parties own the house occupation rent = market rent, if one party owns thehouse occupation rent could = market value.Consequences of non-compliance with order

If a party contravenes an order for exclusive possession they are guilty of an offence and my be fined or imprisoneds.24(5).

Alienation of Matrimonial Home (s. 23): Ifone of the owner of MH disappears, orunreasonably withholds consent, court candispense with the requirement of the titles ouse in order to sell the home

Possession (s.19): NOT the same as ownership. Both spouseshave equal rights to possession. CANNOT contract out of right ofpossession in a marriage contract (pre-nup), can only terminatethis right through a SA or court order.

TREATMENT OF UNMARRIED PEOPLE All Property Issues Only Apply to Married Persons

Remedies that non-married cohabiting people can useto get property division:

1. Domestic K saying parties agree to haveprovincial property regime apply

2. Constructive TRUST 3. Hold all property jointly4. Can seek spousal support,

Registered Domestic Partnership (Only in NS) allowspeople to opt into provincial property regimes

Why do people not get married?1. Don t want to be subject to FLA2. See no need to formalize relationships 3. Fear of divorce/failure

4. Rejection of the institution of marriage 5. Effect on children 6. They cant b/c (i) already married; (ii) same

sex couple

Gay/Lesbian Case: M. v. H . SCC extended support provisions to homosexuals; led to FLA reformsCML Case: Walsh v. Bona (NSCA) Property distinction b/w married and unmarried ppl is ok; this is a matter of choice


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TRUSTS

Resulting Trust TestNot used often today; historically used. Look at Constructive Trusts (below)

1. Parties had an intent to create a trust.2. Demonstrated through words or implied (courts will do so in the interest of equity)

Constructive Trust TestAvailable to:

1. Unmarried people who wish to share property;2. Married people who want a claim over excluded property;3. Mistresses/3 rdP w/ extensive relations can make claims ( Nowell v. Town Estates artist; muse)

Requirements:1. Enrichment ( Rathwell farmers pooling resources to buy farm; given CT, instead of RT)2. Corresponding deprivation ( Rathwell ) 3. No juristic reason for enrichment ie K for employment, lease etc. ( Rathwell )

RemedyIf unjust enrichment and deprivation are found the court has a choice as to whether it wants to award moneyor property ( Beblow Ms. makes no $-contribution, but raises kids). In deciding what it wants to award thecourt considers:

1. Is the Ps claim small compared to the value of the entire property?2. Does P have special attachment to the property?3. What hardship will occur to D if P is given the land?4. Land does not have to be acquired through the course of the marriage ( Sorochan Mr. owns farm;

Mrs. comes along w/ own ; Married ppl can get the MH via CT)In the case of constructive trust court determine an amount of property interest the party is entitled to basedon the enrichment and deprivation ( Pettkus )

Documents

Roadmap Family