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MARRIAGE
91(26) - fed govt for essential validity (legal capacity) 92(12) prov govt for formal validity (solemnization of marriages, ceremonial and evidentiary reqt)

Void v. Voidable marriages Void (void ab initio) is a fatal defect in the marriage from the start such that the marriage was never formed. Thus, no divorce may be granted in a void marriage. E.g. same sex marriage 10 years ago. 3rd parties can question the validity even after death. Do not have to go to go ct to have it recognized as void, can be ratified by conduct (drunk at time of marriage but ratified by conduct if stayed with party). Voidable marriages are valid marriages until court pronounces the marriage annulled w/ retroactive effect. Only parties to marriage may challenge the validity of a voidable marriage during their lifetime. Voidable marriages may end in divorce. Whether a marriage is void or voidable is at the judges discretion. Examples of a voidable marriage is the ability to consummate in which the test to grant a voidable marriage is 1) the impotence must exist at the time of marriage 2) its incurable (invincible repugnance or aversion to sexual acts) 3) the incapacity must render sex impossible or impractical 4) the incapacity must stem from physical / mental / moral disability (Gajamugan ct held the marriage was void since the ct believed the H that the condition was incurable.)

Examples of a void ab initio marriage is if the parties were already a party to a prior existing marriage. (Meszaros After W secured an order declaring her previous H was dead, she married H2 who claimed the second marriage union as void due to her prior existing marriage. Ct held the marriage as valid due to the presumption of death.

Effects of void or voidable distinction: A void marriage is one regarded as never having taken place and so doesnt need to be annulled. A voidable marriage is one that will be regarded as valid until a decree annulling it has been pronounced.

Page |2 Essential Validity Gender (no longer applicable) Prior existing marriage Ability to consummate Relationship with the prohibited degrees (marrying father) Insanity, intoxication (depriving party of reason and volition) Force, fear, duress Mistake as to nature of the ceremony or identity

Mistake as to qualities or attributes of the other party Fraud Limited purpose marriage (immigration) Impotence Non-age: either party below the marriage-able age of the common law (boys 14, girls 12) Non-age: marriage contracted by a minor of marriageable age but below the age of marriage majority w/o the required consent of parent or guardian (e.g. 16 18) Formal Validity Failure to comply with statutory formalities

Valid now. Void (non-marriage). Voidable Void Void but capable of ratification by continued cohabitation Voidable at instance of coerced party Arguable of either. Voidable at instance of the party in error. If void, capable of ratification by mistaken party. Marriage valid Marriage valid unless fraud induced a material mistake (nature of ceremony or identity) Marriage valid in family law (controversial) Voidable at the instance of either spouse. Void (except where the applicable Marriage Act otherwise decrees) but capable of ratification by continued cohabitation after attainment of age. Valid unless the applicable Marriage Act expressly or by necessary intendment, decrees nullity. Also questions of ultra vires. Valid, except where the applicable Marriage Act, expressly or by necessary intendment, decrees nullity. Hassen case (4 ways to fail to met formal reqt in AB, held as invalid)

Consent: A valid marriage requires consent which may be vitiated by fraud, mistake, duress, coercion (Banton found marriage was valid as Mr B understood the nature of the relationship and the obligations and responsibilities involved. Although the will was held to be invalid, a finding of a lack of testamentary capacity doesnt negate capacity to marry. Duress: There is a reluctance to find duress by the ct as theres a presumption of marriages validity. The duress sufficient to set aside a marriage must be an objective test, looking at the applicants state of mind and must be such that the party was overcome by oppression that there was an absence of free choice. (i.e. psychological fear, physical force). Fearing the social consequences of backing out from a marriage is insufficient to nullify the marriage (Thompson and Parihar). In the S (A) case, the ct annulled the marriage based on evidence of sexual abuse by stepfather and the woman was only 16. Limited purpose marriages, fraud, mistake: Cad court have generally held that a marriage is valid even if parties enter it for immigration purposes. Mistake is read very narrowly and the ct will consider invalidating a marriage if the fraud or mistake induces an operative mistake as to the nature of the ceremony or identify of one of the parties to the marriage (Iantsis).

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Age: There is a large policy concern as there was a legislative void in defining age in common law and provincial law. The age at which a person has the capacity to marry is a matter of federal legislation 91(26). 5(2) Marriage Act of Ontario states that one can marry at 16 w/ parental consent. Theres an indication that this legislation is ultra vires as age of consent goes to the essential validity which is under federal power. S.6(1) of the Marriage Act of ON states that parties btw 16-18 can marry w/o parental consent but have get ct order if consent is withheld based on unreasonable grounds. S.6 also states that parties can be married at 18. consent cant be withheld. According to the Legbokoff case: the marriage of a child less than 7 is void. The marriage of a male btw 7 14 or a female btw 7 -12 is voidable if assailed by one party of the marriage invalidating it. Thus, marriage is only voidable up 14 or 12 and becomes valid if neither parties have challenged it up to that point. A void marriage is ratifiable if the parties stayed married for 20 yrs. Under the criminal code, the age of consent for sex is 14 and being married to a minor is not a general defence. Further, just bc you cant have sex with the party doesnt mean you cannot be married. (polygamy reference). Formal validity: Alspector case states that if the marriage is solemnized in good faith (religious marriage) and intended to comply with the Act, the marriage is deemed valid if the parties, after such solemnization lived together and cohabitated as man and wife. (Ontario Marriage Act s.31). The reason is that the law promotes stability of relationships. A defect in licensing procedure will render the marriage void (McKenzie v. Singh) A marriage that doesnt comply with the lex loci celebraionis in terms of formality may be recognized as a valid CL marriage a) where it is impossible to conform to the local form of marriage or b) when the parties have not submitted to the local law. (Hassan)

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DIVORCE
Policy: huge impact on the kids (best interest of the child). A positive adjustment for the kids depend on i) if parents function well and are amicable ii) economic stability of parents after support iii) parental access / contact in regards to children obtaining ongoing support network (grandparents). Grounds for divorce: living separate and apart for 3 years and fault based grounds of: adultery and cruelty.

Divorce Act: There is marriage breakdown is the only ground to plea divorce (s.8(1). Marriage breakdown is established (s.8(2) if (a) spouses have lived separate and apart for at least 1 year immediately preceding the determination of a divorce proceeding and were LSA at the commencement of the proceeding or (b)(1) and (2) spouse against whom the proceeding is brought has committed adultery or physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses. A party can file solely (s.36(5) Ontario Family Law Rules) if living LSA for 1 yr. If no matters are in dispute, no formal trial is required and a divorce judgment may be granted by affidavit evidence (ON FLR s.36(7). S.9(1) Divorce Act states a lawyer must draw partys attention to reconciliation and suggest mediation. If divorce is granted, it is effective on 31st day after the day on which the judgment granting divorce is rendered. (s.12(1), unless an earlier date is ordered due to special circumstances agreed by parties (s.12(2). Living Separate and Apart: There must be withdrawal from matrimonial obligation (no domestic services, no sex) with the intention of destroying the matrimonial consortium AND physical separation. There mere fact that the parties are under one roof doesnt mean that theyre not LSA. (Rushton LSA) 6 factors to indicate LSA (Dupere not LSA) 1) Spouses occupying separate bedroom - yes 2) Absence of sexual relations resumed cohabitation + sex for a month 3) Little, if any, communication communication re children 4) Wife providing no domestic services for husband she provided domestic services 5) Eating meals separately 6) No sharing of social activities

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An atmosphere of severe incompatibility may exist but remain one household. Here it was more of an unhappy household. On the other hand, physical separation may exist within a single dwelling unit. If a spouse remains in the same dwelling for reasons of economic necessity, this will not preclude living separate and apart

Indication on tax return as married, supporting Wm, sex sometimes, W involved in financing is indication of NOT LSA for a year (Severo) Physical separation is not enough, there is a mental element in addition, with an intention to end the marriage (Dorchester Husband sent wife to psychiatric hospital for 3 years NOT LSA). The one year period begins to run when an intention to terminate relationship is formed by at least one of the spouses. (Divorce Act s.8(3)(a) and Steinberg). If the other party doesnt have the capacity to separate, mental intention can be formed by at least one member (Divorce Act s.8(3)(b)(1).

Reconciliation and resumption of cohabitation Period of separation must not be interrupted by reason of cohabitation by spouses during a period totally of more than 90 days with reconciliation as primary purpose. Acts of occasional sexual intercourse didnt interrupt the period of LSA as it was more seen as an affair. (Rogler).

Adultery Considered as a breakdown of marriage as grounds to grant divorce (s.8(2)(b)(i) Divorce Act). Adultery is not defined in Divorce Act, must look at it on a case by case basis (P (SE) v. P(DD) case). Adultery is defined as voluntary sexual intercourse btw a married person and another. There is an element of moral turpitude. (Orford). For adultery to be committed there must be 2 parties physically present and engaging in the sexual act at the same time. To constitute the sexual act there must be an act of union involving some degree of penetration in the female organ by male organ. (Maclennan) Consent is a necessary element of adultery.

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Proof of adultery is based on preponderance of probabilities, fair and reasonable inference Evidence of opportunities for committing adultery is not sufficient evidence demonstrating that the opportunities would be used is required (intent) Can prove adultery by affidavit, doesnt need to name 3rd party. (Shaw).

Cruelty (s.8(2)(b)(ii) Divorce Act Rarely used, the test is looking at the whole relationship to see the cumulative effect of the abuse and examine the conduct on an objective and subjective level. The question is the effect on the mind of the affected spouse, and whether it rendered continued cohabitation intolerable (subjective) and whether the conduct is grave and weighty in nature (objective) (Knoll cruelty established: H drank, assaulted her). Gilbert elaborated on the objective element requiring an element of beyond mere incompatibility or unhappiness) The subjective criteria is one that renders continued cohabitation intolerable for that particular spouse. (Gilbert not cruel. Hs anger and meanness are just bad moods, not grave or weighty enough). Similarly, Barron not cruel when spouse is being annoying and talking about kids and family issues with others. Cruelty is established by total absence of intercourse when it is i) objectively grave and weighty, (although the quality and frequency of sexual relations will not normally establish cruelty) and ii) subjectively intolerable to W (erosion of self esteem). (Delaney cruelty established)

Bars to proceeding s.11 Divorce Act

4 bars which can only raised by the court, not the parties. Even if all reqt are met for divorce, it can still be denied based on i) collusion (s.11(1)(a), ii) condonation, iii) connivance and iv) s.11(1)(b) reasonable arrangements for the support of children. Collusion 11(1)(a) Absolute bar to divorce, defined in 11(4) meaning an agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice, and includes any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court,

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but does not include an agreement to the extent that it provides for separation between the parties, financial support, division of property or the custody of any child of the marriage [i.e. collusion does not include corollary relief, technically e.g. Providing false evidence to procure a divorce that both parties wanted. Suppression of evidence that would result in a different order being made Where a defence is abandoned in exchange for a consideration. Have to be careful in applying collusion to immigration cases, where the actual marriage is collusion and not the divorce (the divorce should be collusive!) (Kaur). Condonation 11(1)(c) deals w/ acts after the act. Its a discretionary bar (not absolute) that only applies to fault based grounds (adultery and cruelty). Definition under common law is forgiveness after the innocent party becomes aware of the offence and restores the guilty party back into the home. Test from Lederhousen: Acts of cruelty may be condoned in the same manner as any other matrimonial offence Three essential elements of condonation: 1) Knowledge by the innocent spouse of the offence (adultery or cruelty) 2) An intention by the innocent spouse to forgive and remit the offence; and 3) Actual reinstatement in his or her marital position of the guilty spouse by the innocent spouse Connivance 11(1)(c) deals w/ acts before / during that involves facilitation. Its a discretionary bar that only applies to fault based grounds. Definition under common law is knowingly or willfully permitting or encouraging a partner to commit a matrimonial offence (barred from claiming offence as grounds for divorce) Hiring a private detective when considering divorce doesnt fall here but H encouraging W to have sex w/ others (swinging) will bar divorce on grounds of adultery and connivance. Starting point is a presumption against connivance. The essence of connivance is that the person complaining of the misconduct consented or willfully contributed to the commission of the adultery or has promoted it in some other way (corrupt intent is essential). (Maddock no connivance when H was moving out of Ws house and new lover moved in).

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Reasonable arrangements for the support of children. 11(1)(b) Applies to all grounds of divorce, but usually to LSA. Section 11(1)(b) Duty of the court to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made; It is not up to the applicants discretion to determine whether to pursue child support as it is the right of the child, not mother even if the new husband was prepared to support. (Orellana divorce stayed, W has obligation to pursue father for child support).

FAMILY PROPERTY
Family Law Act 1986: Formula: NFP = Value of property at separation that each spouse has (excluding inheritance) value of property at marriage (pre-owned assets). Each spouse go thru this calculation. EQUALIZATION PAYMENT = (Wealthier party less wealthy party)/2 Part 1 of FLA: married spouses. Objective: equal division of financial gains during marriage. Little judicial discretion to alter this formula unless unconscionable 5(6) Cohabitating Regime Cohabiting people are not included in the definition of spouse under Part 1 of FLA. Main test for Constructive Trust (Pettkus):
1) An enrichment (contribution via money or labour) 2) Enrichment of the other led to a corresponding deprivation to the party who contributed. 3) No juristic reason for the deprivation (e.g. contract or obligation, gift) Reasonable expectations (doesnt this tie in more with intent & resulting trust) Gift, service, any obligation to provide service Public policy re: recognizing the services 4) Connection or relationship btw the contribution and acquisition or improvement of the property in question (causal connection or nexus to the property).

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Rawluck (Dicksons dissent): CT may also be applied to married couples (e.g. cohabitating for many years followed by marriage). FLA would apply during the married period and CT to cohabiting period. CT or UE is preferred remedy to unfair asymmetries.

Pettkus v. Becker: CT may apply to cohabiting individuals to recognize the interest of a party who contributes (financially or by labour) to the acquisition of property where this contribution has unjustly enriched the other partys title to the property Shifting conception of contribution CT: P was enriched by Bs financial support and labour with a corresponding depravation to B; contribution of B enabled P to acquire the assets (causal connection). No juristic reason for enrichment - where one person in a relationship tantamount to spousal prejudices herself in the reasonable expectation of receiving an interest in property and the other person in the relationship freely accepts benefits conferred by the first person in circumstances where he knows or ought to have known of that reasonable expectation, it would be unjust to allow the recipient of the benefit to retain it. In the absence of evidence establishing a contrary intention, presumption that the parties expected to share in the assets created during relationship (Peter v. Beblow)

Sorochan: F: W asked to be wed, expected a benefit. M said later. Test for unjust enrichment: Devotion of labour and earnings without compensation may constitute a benefit and deprivation and satisfies the requirement of the absence of a juristic reason for the enrichment He derived benefit (enrichment) from her labour in the home and the maintenance and preservation of the farmland without providing remuneration (deprivation). No juristic reason No K. She asked to be married and requested the transfer of part of the land into her name indicates reasonable expectation of receiving an interest in the property from her contribution; there was no contract for service, nor was her service a gift. He had knowledge or ought to have known of that reasonable expectation Conjugal gifts arent juristic reasons. Remedy: proprietary or monetary? To establish proprietary interest, she doesnt need to have contributed to the acquisition of the property, but the maintenance, domestic works are sufficient. There was a causal connection btw asset and contribution Proprietary interest. Services must have a clear proprietary relationship e.g. maintenance of the land.

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Peter v. Beblow F: cohabit 12 yrs, W cared for kids, dom wk w/o comp, also worked part time. H bought house, paid mortgage, provided financial support. Became abusive, relationship ended. Held: awarded title to property (CT) CT is available where $ is inadequate and theres a link (causal nexus) btw the contribution and the property 2 ways to assess value of CT: 1) Value received (quantum meruit) = value of services rendered the amount paid if you got your services elsewhere (e.g. $350) This is arbitrary. 2) Value survived = amount by which the property has been improved (i.e. apportions value of the assets accumulated, including appreciation, based on the contributions made by each party) In Peter v. Beblow, McLachlin made it clear that where unjust enrichment is established and a monetary award is adequate, the value of the contributions giving rise to a finding of unjust enrichment should be determined on a value received basis. In other words, if a monetary award is adequate (a non issue in this case), the increase in the value of house and RRSPs is not an appropriate basis for assessing the compensation. One starts, of necessity, by defining the property. One goes on to determine what portion of that property is attributable to the claimants efforts. This is the value survived approach. For a monetary award, the value received approach is appropriate; the value conferred on the property is irrelevant. Majority (McL) favored the value survived approach individuals expect to share in the wealth generated from the relationship, rather than to receive compensation for services performed. Not just looking at value received. The parties are contributing to the overall share (increasing value of assets). Look at length of relationship, difficulty of enforcing monetary award, contribution A gift (putting house under Ws name) is juristic reason for enrichment, thus no CT (dont have to go thru value received and survived) (Spence). Nowell: Mistress (not spouse under FLA) but claimed CT over his estate. She had job, he assured her that he would take care of her but would not marry her. Held: Based on nature of the relationship (quasi spousal) and the fact that there was UE (man benefits from her services and she suffered monetary deprivation), mistress is entitled to monetary compensation.

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R: Quasi-spousal relationships and married relationships qualify for proprietary interest. Pegler: VS in dealing w/ monetary contribution, look at partys contribution in how property was maintained, accorded w/ parties expectations (Peter v. Beblow). W (w/ MS) gets from M (prof) compensatory award in connection to the increased value of home and pension (RRSP) since she gave up working to care for child and home. Bell v. Bailey: Once the trial judge found unjust enrichment and accepted that a monetary award was adequate, the issue of constructive trust should have left the table. He should have valued Ms. Bells direct and indirect contributions (those contributions supporting the unjust enrichment finding) on a value received basis Belvedere: she sues estate for UE, she did all childcare, left job, man gifted her lots then died. VR approach favored, there was no deprivation since she took benefit in the relationship. UE should be based on VR.

DEFAULT PROPERTY s.4 16 FLA.

P a g e | 12 s.4 Definitions - Matrimonial home means a MH under section 18 and includes property that is a matrimonial home under that section at the valuation date - NFP means the value of all the property, except property described in 4(1)(2), that a spouse owns on the valuation date, after deducting, (a) the spouses debts and other liabilities, and (b) the value of property, other than a MH, that the spouse owned on marriage date, after deducting the spouses debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a MH (this is not deducted), calculated as on marriage date. - Property means any interest, present or future, vested or contingent, in real or personal property and includes, (a) property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself, (b) property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, and (c) in the case of a spouses rights under a pension plan that have vested, the spouses interest in the plan including contributions made by other persons - Valuation date means the earliest of the following dates: 1. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation. 2. The date a divorce is granted. 3. The date the marriage is declared a nullity. 4. The date one of the spouses commences an application based on subsection 5 (3) (improvident depletion) that is subsequently granted. 5. The date before the date on which one of the spouses dies leaving the other spouse surviving.

s.5 Equalization of NFP can be done upon 5(1) divorce, when the marriage is null, when spouses are separated w/ no reasonable prospect that they will resume cohabitation. The spouse whose NFP is the lesser gets the difference. 5(2) same thing when spouse dies. 5(3) when spouses are cohabitating, if theres a danger that one spouse may improvidently deplete his NFP, the other may apply under s.7 to have the difference btw the NFP divided as if the spouses were separated w/ no prospect of resume cohabitation. s.7 application to court 7(1) ct may determine any matter regarding spouses entitlement under s.5 7(3) applications under 5(1) and (2) are limited to a) 2 yrs after the day the marriage is terminated by divorce or judgment of nullity; (b) 6 yrs after the day spouses separate and theres no prospect (c) 6 months after first spouses death.

P a g e | 13 STEP 0: Determine property and ownership

Property: The property owned by _SP_ falls under s4(1) FLA as property / interest, present or future, vested or contingent, in real or personal property. - Brinkos: bank account set up, money was transferred in trust is vested income property within 4(1). Can assign value to it. Rights to future income is property. - DaCosta: Future contingent interest (right to share estate on death of surviving grandchild) is property under 4(1). - Lowe: Property definition read broadly, given purposive reading to reflect the true partnership btw spouses during marriage. - Caratun: Traditional indicia of property that it can be transferred and sold. Dental degree is not property bc cant be separated from person. The practice is property though. Ownership: note the following applies to both married and cohabiting spouses. In determining who has ownership or right to possession, _SP_ can apply under s.10 FLA for cts assistance, which they may order under s.9. - Rawluk: F: value of home increased exponentially btw separation & end of litigation. FLA does not preclude the application of CT in the context of marriage bc UE should be addressed to promote fairness. - Rawluk dissent: Inequality (UE) is already dealt with under 5(6). W also didnt contribute since separation thus isnt entitled to interest. - Rawluk raises uncertainty where theres big price fluctuations btw separation date and trial. Where the jointly owned property has significantly decrease in value after separation, there are cases where cts held that CT doesnt apply since the titled spouse has discretion to sell property at separation. - Macdonald: in obiter, the ct comments that if trust doctrines are used to allow spouse to share in gains, they should also be used to share in losses. If theres a decline in value of property after separation, which is not attributed to fault or poor judgment, the ct may impose a reverse CT requiring both spouses to suffer from loss. Value: Every asset must be assigned and evaluated, but the focus is on real property, valuable items. The general rule is that value is determined after taxes and disposition costs are automatically deducted (Heon) There is now a limit on the general rule, the onus is on owner to establish evidence that disposition of asset is foreseeable in near future before allowing deduction of disposition costs. (Starkman) Sengmueller: can deduct disposition cost if theres evidence of a likely disposition date and if its clear that such costs is inevitable. 3 factors to apply 1) Apply the principle of fairness (costs of disposition and benefits to be shared equally) 2) Deal with each case on its own facts (nature of assets, timing, probability of tax and other costs at the time) and 3) Deduct disposition costs before arriving at equalization payment, except where its not clear when, there will be a realization of the propertys value.

P a g e | 14 STEP 1: S.4 (1) Determine the valuation date S.4(1): defines VD as the earliest of 5 days: 1) The date spouses separate and there is no reasonable prospect of resuming cohabitation (likely this) 2) The date a divorce is granted 3) The date the marriage is declared a nullity 4) The date one of the spouses commences an application based on section 5(3) (improvident depletion) that is subsequently granted 5) The date before the date on which one of the spouses dies leaving the other spouse surviving Ct is v reluctant to apply Part 1 of FLA if youre claiming to be LSA in same home. 2(8): party can apply for extension of VD 8: each spouse has to make full and frank disclosure of assets. If party depletes assets after separation, still calculate from VD but not current amounts. If suspect spouse is hiding, can make preservation order under s.12 (ct is reluctant to use due to valuation based system). Test: whether a reasonable person, knowing all the circumstances, would reasonably believe the parties had an expectation to resume cohabitation (Torosantucci) Caratun Intention of one spouse (refuses to reconcile) is sufficient to establish no reasonable prospect of cohabitation. Wishful thinking is not a reasonable prospect. No unconscionability even tho he led her to believe that if she lost weight, he would take her back as she had the ability to work. Flemming: No discretion to alter valuation date retroactively, separation is when economic union end Newton: cts cautious w/ separated spouses who live together bc theyre likely to be economic interdependent. Possible to live separate and apart under one roof (see divorce grounds above), casual sex usually ok akin to affair, can take under will FLA 4(1)(5), 4(1)(4) dont have to wait for end of marriage i.e. if spouse is squandering your assets, or if gifting to 3rd party (Stone) can apply to separate assets.

** if gifts before marriage deduction. If after marriage exclusion STEP 2: List the property interests owned by the spouse on the valuation date and determine their values at that time. Total the values. If only one spouse owns an asset (not owned jointly), including the matrimonial home, its listed only in the calculation of that spouses net family property. If spouses hold property interests jointly (i.e. MH w/ mortgage), include the value of the joint interest in each of the spouses net family properties (put assets owned jointly under both column. Includes future vested interests, even if not marketable (Brinkos) Includes contingent interests. Court can order S1 to hold in trust for S2 until the interest materializes, if ever (DaCosta) Pensions are property. Govt sorts out CPP Professional licences are not property, but practices are (Caratun)

P a g e | 15 General Rule: value is "fair market value" unless not marketable. Then just "fair value" MH: section 4(1) defn under NFP. Basic principle is the division of its value equally btw the 2 parties. 5(6) unconscionable to divide equally For assets: dont take into account inflationary gains. Just take the nominal value

STEP 3:

Determine if any of the spouses property interests are excluded by s4(2) on date of triggering event.

4(2)(1): Property other than MH can be excluded if acquired by gift / inheritance after date of marriage from 3rd person. If acquired before marriage, value is deducted at MD and VD. This includes increase in value of the gift / inheritance. 4(2)(2): income from 4(2)(1) if the donor / testator expressly stated that its to be excluded. 4(2)(3): damages or right to damages for personal injuries, nervous shock, mental distress. Lowe: workers disability award is income, included under asset 4(2)(4): proceeds or right to proceeds of life insurance. 4(2)(5): property, other than MH under 4(2)(1) to 4(2)(4) which can be traced. 4(2)(6): any property agreed in domestic K to be excluded in NFP. 4(2)(7): unadjusted pensionable earnings under CPP

Matrimonial home - Fully included, no exclusion, whether inherited, gifted, however acquired. 4(1). - To be considered as matrimonial home, must be defined in s.18. Both spouses have to either be living in the property or have been living in it at the time of separation. - Policy: recognition of the special nature of the matrimonial home; premise that both spouses contribute significantly to the preservation and maintenance of this asset - Presumed to have joint contributions. - Domestic K can deal with MH, if not done, then divide under default regime. Folga: - To qualify for a 4(1) deduction, MH must be as defined by s.18 at valuation date which states that the property is one which a person has an interest that is (present tense) or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home. - The property in this case should be treated as MH under s.18, since the spouses were ordinary residence of the home or lived in it at the time of separation. If not MH, can be deducted. - House 1 was once MH but no longer so under 4(1) or 18 since parties werent ordinary resident in it at date of separation. Not being a MH, it now qualifies for deduction under 4(1)(b). Note: If owns house worth $500,000 and sells immediately before marriage, and uses proceeds to purchase a new home the day after marriage, can deduct $500K bc cash is owned on the date of marriage inconsistency in the FLA: If property is retained as MH, no deduction (criticism of MH formulation)

P a g e | 16 Mittler 4(2)(3), 4(2)(5) Contingent interest in pension constitutes property and can be excluded if traceable and identifiable. Pension thats 1) payable before marriage but paid after marriage is deducted at MD 2) paid during marriage but not traceable is deducted (not excluded) 3) amount owed after separation date is excluded Ho: F: H and W acquired gifts from Hs parents during marriage, H claimed gifts were for him but transferred to W for tax purposes. H: W has asset on VD and may exclude value (traced to gifts acquired after marriage) while H has a debt (deductible) on VD. Cartier: F: H sold farm (gift) for investment which he wants to exclude. H: investment is excludable since its a gift. Tracing 4(2)(5) Bennett: normally under tracing rule (first in first out), might not be able to exclude ___. However, given where a gift or inheritance is proximate in time to the purchase of an asset, and so traceable to the gift / inheritance, the asset is excludable.

Capital Gains on gifts / inheritance as per Oliva case: If acquired after marriage and expressly stated by donor, exclude asset and capital gains (on VD) If acquired before marriage, only exclude original value of asset but increase in capital gains is shared btw the parties (MD deduction). Policy: during marriage, the other spouse contributed to the maintenance and management of property

STEP 4: Calculate the amount of the spouses debts and liabilities on the valuation date. - Deduct the total of these debts and liabilities from the figure determined under Step 3 as per 4(1) - Married parties can use trust doctrines to establish ownership interest in property - If a constructive trust is found, might be possible to have court value at trial date, not VD (Rawluk) Menage: if an unsecured debt is incurred to buy a MH as pre-marital debt, it can be deducted on MD. Da Costa: a secured debt should be excluded since the MH is excluded as well. Collier: If the borrower can demonstrate that he is subject to a legal or financial constraint linking the debt to the MH, the debt should not be deducted (should be excluded) on MD Courts follow Collier for unsecured debt and Da Costa for secured debt. STEP 5: Deduct the marital property deduction - Determine the martial property deduction by adding up the values of all property interests, other than those in a matrimonial home, that the spouse owned at marriage and then subtracting from that total the value of the debts and other liabilities of the spouse on the date of the marriage other than those directly related to the acquisition of a matrimonial home.

P a g e | 17 Only the gain during the marriage is shared. The number here can be a negative resulting in what is effectively an addition to the spouses net family property. For policy reasons, there are special rules governing the matrimonial home.

STEP 6: If the result is a negative number, it is deemed to be 0 by 4(5) - If X1 Y1 = -ve #, then deemed to be 0. - If have 0 assets on VD, but come into marriage w/ 4K of student loans which was paid off during marriage. This ve at MD becomes a +ve on VD, so you have to pay 2K to your spouse. Cant have a ve NFP (Z) but can have a ve net worth in marriage date. - If debt is on VD, then deemed to be 0. If debt is on MD, becomes an asset. Step 7: Under 5(6), a court may award a spouse a greater or lesser amount if the court thinks that equalizing the net family properties would be unconscionable. - s.9 empowers the ct in an application under s.7 to make various orders to ensure that sum is realized in a fair and effective manner. - If theres debt owing and the MH cant be sold, can postpone payment of debt until its sold as long that its not over 10 yrs. S.5(6) provides an exhaustive list of factors to consider unconscionability. The threshold is high and test is whether the conduct / circumstances is harsh or shocking to the conscience (Macdonald). Levan Unconscionability is hard to be found. Threshold is higher than unfair. Onus on party that claims assets shouldnt be divided equally.

Section 5(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to, (a) a spouses failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage; (b) the fact that debts or other liabilities claimed in reduction of a spouses net family property were incurred recklessly or in bad faith; Naidoo: gambling is not unconscionable based on Hs conduct, need to consider proportion of family means that is put at risk. Ct held that gambling debts shouldnt be shared. Abaza: H got escort, didnt divorce after found out. Ct allows for discounting but doesnt cover the entire escort period bc after she found out, she had a choice of triggering VD under 5(3) (c) the part of a spouses net family property that consists of gifts made by the other spouse;

P a g e | 18 (d) a spouses intentional or reckless depletion of his or her net family property; gambling (i) gifts to 3rd parties: look at motivation of donor, timing of gift, quantum of gift in relation to value of the property owned by donor. Harry F: gave $ to daughter. R: add of $ to W. Put her in situation if H didnt give the amount. e.g. H 25K, W 20K. H gave 100K to daughter. Equalization claim is 2500. W is still short 50K. Ct held that you cant make H go beyond (under) his NFP Czieslik F: H gave $ to friend (100K) prior to sep. W found out after. Hs NFP 74K, Ws 63K. R: CA gave her the entire Hs NFP (74K). 5(6) allows payment above the difference of NFP theres flexibility; and can go above the actual amount of NFP. But recourses under 5(6) is limited for remedies. (ii) unsuccessful business ventures: do not usually amount to intentional or reckless depletion of NFP. Poor judgment or management resulting to loss is not enough, must show knowingly making bad investments to waste assets. (iii) wasteful spending: not necessarily mean intention or reckless depletion of NFP as to render equalization of NFP unconscionable especially if buying goods for use by the family as a whole. (e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years; Harris: 13 wks marriage, H pre-owned asset, argued unconscionability for W to get Equalization payment. Ct agreed and considered the work she did prior to marriage (longer than marriage) Linov: where marriage is close to 5 yrs, ct can hold no unconscionability to reduce litigation. Ct can pro-rate though if its just a 1 yr marriage (get 1/5 value of home) (f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family; (g) a written agreement between the spouses that is not a domestic contract; or (h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. catch all Waters: ct doesnt generally assess differences in contribution: financial or domestic in varying equalization payments affirming high threshold for unconscionability and discourage litigation. However.. Leblanc (sufficient to shock the conscience of ct to vary Equ pmnt) Leblanc: ct considered 5(7)s 3 categories: child care, household management and financial problem as jt responsibilities. Ct gave W much more since she did much more than H who was drunk, no job.

P a g e | 19 Fraudulent Conveyancing Act: to limit the escape of obligations to creditors where the conveyance is deemed void and fraudulent. Stone: wife could be held as creditor under FCA s.2 once she knows about conveyance and triggered 5(3). If the conveyance was hidden from her in a will, such that she didnt know about it, she could be deemed to be creditor once she finds out. inter vivos gift set aside in that case. Spouses can opt out of Part 1 of the Act or modify the rules applicable to their relationship by entering into a domestic K. Part IV of the Act provides a framework within which couples are allowed great freedom to determine the property rights arising out of their relationships.

s.9 implementation of the equalization payment.

s.9 empowers the ct to make various orders to ensure that this EP sum is realized in fair and effective manner. s.9 comes into play after ct determined the equalization sum under s.5 Section 9(1) In an application under section 7, the court may order, (a) that one spouse pay to the other the amount to which the court finds that spouse to be entitled under this Part; most common order (b) that security, including a charge on property, be given for the performance of an obligation imposed by the order; s.13 an order for security (c) that, if necessary to avoid hardship, an amount referred to in clause (a) be paid in installments during a period not exceeding ten years or that payment of all or part of the amount be delayed for a period not exceeding ten years; and (d) that, if appropriate to satisfy an obligation imposed by the order, (i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or (ii) any property be partitioned or sold. Various orders under section 9 with regards to payment which enables the court to consider both the needs of the debtor spouse and creditor spouse. Orders are only effective after an equalization payment is calculated Section 9(3): where there is a material change in circumstances, court may vary the schedule (subject to 10 year restriction) or other terms of payment but may NOT vary the amount

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Section 9(2) (corollary orders under s9): when deferred payment or payment by installments is ordered, court may require the debtor spouse to furnish the other spouse with financial information, or permit inspections of the property by or on behalf of the other spouse o Court of Justice Act, ss 139 and 140: ct may order interest on installment or deferral payments

MATRIMONIAL HOME - PART II FLA

** This part deals w/ possession of MH 19(1) both spouses have an equal right to possession of a MH, regardless of legal title. The owning spouse cant order the other out of the home. See 19(2)(b) 19(2)(a) - However the non-titled spouse only gets a possessory right not proprietary right, and can only be asserted against spouse. Could try to argue CT for a property interest. 19(2)(b) Adultery or the commission of another matrimonial offence by the non-owning spouse no longer ends that spouses right to occupy the MH. However, this right terminates when the marriage ends unless a separation agreement or court provides otherwise. Only a separation agreement can change the possessory right only. A marriage K (made before marriage) can deal w/ proprietary rights but cant waive possessory rights. 19(2) exception to (1). Can lose possessory rights if: There is a separation agreement that waives these rights (and its made after separation) or o 52(2) a marriage K can deal with division of property (NFP for s.1 etc), but a contract regarding possessory rights wont be enforced there is an order for exclusive possession (section 24) You cease to be a spouse, and there is no court order or sep agreement that extends possessory rights e.g. on death. 21 cant sell the MH or mortgaged without consent of both spouses 22 any spouse with a right to possession in a MH is granted a right of redemption and relief against forfeiture in certain proceedings by 3rd parties. 23 can get a court order dispensing with the need for consent under s.21 24 notwithstanding each spouses right to possession, a ct is authorized to grant exclusive possession to one spouse. Such an order can be made in favor of either spouse regardless of who owns the MH. A ct order for exclusive possession can provide that the non-owning spouses possession will continue following the dissolution of the marriage.

P a g e | 21 Orders made under Part II can be registered against land under the Registry Act and Land Titles Act (s.27) 26(1) if a spouse dies owning an interest in a matrimonial home as a jt tenant and not with the other spouse, the jt tenancy is deemed to have been severed immediately before the time of death. As a result, the jt tennacy becomes a tenancy in common and the surviving jt tenant lose the benefit of the right of survivorship. The deceaseds interest falls into his or her estate, rather than passing to the surviving tenant. 26 (2) a spouse who has no interest in the MH, but is exercising their possessory rights to occupy it at the time of death of other spouse is entitled to retain possession against the spouse's estate for 60 days, rent free. 27 orders under Part II FLA can be registered against the land under RA or LTA. 28(1) Part 2 only applies to MH's in Ontario. Even if proceeding is brought in Ont, but own a cottage in NB, too bad, can't use Part 2. However, under part 1, homes outside Ont can still be considered when dividing property. Links Between Part 2 and Other Parts Link 1: Part 1 & Part 2 link of proprietary and possessory rights Regardless of proprietary rights under Part 1, the court can make an order for exclusive possession under Part 2 s24; which will lead the ct to usually delay the payment of an EC under Part 1 (note: 10 year period continues to run) Link 2: Part 2 possessory right & spousal support The spouse w/ possession might not need as much financial support, so spousal support might be decreased bc they dont need to pay rent Link 3: Part 2 possessory right & Custody Spouse with custody has a better argument for a possessory claim. 24(3)(a) ct has account best interest of children in excl possession. If one spouse has to leave MH, not likely to get full custody bc not primary care taker at this pt. Reasons: Need to evict due to abuse in home; interest for kids to stay in home bc of attachment to neighbourhood (psychological attachment); economic benefits (better accommodations for spouse staying in MH).

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Part 2: The Definition of spouse

Part 1 S1(1) two persons, who are married, or who have entered into a marriage that is void or voidable, in good faith on the part of the person asserting the right." Part 2 The general defn of spouse in 1(1) applies to determine whos covered in Part II. Thus, those who are cohabiting arent covered by Part II! Part 3 s.30 "two persons who are not married to each other and who have cohabited (a) continuously for a period of not less than 3 years, or (b) in a relationship of some permanence if the are the natural or adoptive parents of a child" [Part 3 concerns support] - Thus Part 3 would apply to certain cohabitees. - To get possessory rights, can use CT (but leads to jt possessory rights so have to keep sharing with the spouse youre trying to get away from). Thus CT is limited in relief. S.29 can be used by unmarried ppl. Ct can invoke 34(1)(d): interim or final order under clause 24 (allocation of spousal support + MH). S46 re restraining order (keep violent spouse out of house). Bill 133 - amendment recently to include cohabiting spouses (defined as living w/ 3 yrs or living in permanence with kid) on top of married spouses, and other than spouse and previously as spouse (can be bf of 2 months). Cohabiting Unmarried Spouses What are their potential remedies since theyre not included in the def'n of spouse in Pt 2? Some courts will use Part 3 FLA (Support): s.34.1 (c) and order exclusive possession as part of a support order since they have the right to order anything under s.24 Can use CL trust doctrines, but trusts only give you a property interest, no right to kick out one w/ property interest and/or legal title. But, it does give you the right to stay if the other side attempts to kick you out. Might follow the courts in the UK - Implied K licence for the other spouse to have a possessory (not property) right to occupy the home (equity). No Canadian Court has followed this though - CA: to have such a K, it must be shown that there was intention and a meeting of the minds to infer such terms were agreed upon

Section 46 - Court can order a restraining order bc of violence. Criminal law trumps FLA. If the person wants bail, as part of it, the court can order them excluded from the home - But, must satisfy the definition under Part 3 for this section to apply - Without a legal or equitable remedy, the spouse only has a licence, which can be terminated with reasonable notice

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PART 2: IDENTIFYING THE MATRIMONIAL HOME

Exam: ID the MH before examining any possessory claims (pt.2) or any division of property (pt.1) Can have more than one MH, something can cease to be a MH ex: move out and rent it. But, a change in use after separation does not change the fact that it was a MH on VD. 17: Defines "property" as real or personal property (ownership and leasehold interests) - Value for exclusive possession purposes although not equalization - Even if leasing a property, both spouses have equal rights to possession - If one spouse signed the lease for a property designated as MH, may not evict the other spouse on the basis of the lease - MH includes ownership and leasehold interests (important for possessory claims, not EC) - If it is a lease and this is the MH, other side cannot kick out 18(1) Every property in which a person has an interest and that is or, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home. Folga: present tense of MH status. - If party separate, MHs character is not lost even if one spouse moved out. MH remains as MH and retains character as in s.17 - Cottage can be MH even if theres another dwelling. Can have more than one MH. - MH is only the part of the property used for family purposes 18(2) The ownership of shares, or of an interest in shares, of a corporation entitling the owner to occupy a housing unit owned by the corporation shall be deemed to be an interest in the unit for the purposes of 18(1). Includes shares of corporations (condo) 18(3) If property that includes a matrimonial home is normally used for a purpose other than residential, the matrimonial home is only the part of the property that may reasonably be regarded as necessary to the use and enjoyment of the residence. - 50 acres cottage used as recreation property all of property is MH bc whole thing used for enjoyment. - 50 acres farm where MH is on only the farm house and the immediate surroundings are MH. The rest isnt used as enjoyment but for commercial purposes i.e. farming. DEFINING MH: THE CASE LAW Hartling: Farm _ 1 acre constituted MR (necessary to their use and enjoyment). Apartment owned by corp where H owned 50% of common share = interest in apartment that arises not from share ownership but status as lessee. Spouses entitled to share value of leasehold interest and not FMV of the rental unit. Ct suggested that s.18(2) really only applied to condo but see Debora

P a g e | 24 Debora F: H was sole SH that bought cottage as investment. W wanted to claim cottage was MH where they used for enjoyment to entertain guests. H: ct held 18(2) applies to condo, corp + others so H cant cheat out of possessor, proprietary rights. If have legal control in shares then have interest in property. Ct pierces the corporate veil. No 3rd party affected (cf Hartling bc 50% SH; here he was sole SH). H has to share 1M. DeCosta v. DeCosta: The intention to treat property as a MH "some day" is insufficient to make it a MH. Nor does a single visit qualify it as a MH; must be ordinarily occupied by the spouses at the time of separation.. Thus H can exclude. Goodyear: Flat is included as MH. - In determining if a property is ordinarily occupied as a family residence, family is interpreted broadly to include grandmother or other close relations of either spouses - To occupy something ordinarily does not mean constant or continually - The word "family" in s.18 wasnt intended to exclude from the MH parts used for residential purpose primarily or even exclusive, by an extended family member who doesnt pay rent. - Excluding a portion of a house from the matrimonial home requires not only a separate entrance but a distinct non-family use (i.e. normally used for a purpose other than residential, section 18(3)). E.g. doctors office, however, home offices are often included in MH because ordinarily occupied by family

ORDERS FOR EXCLUSIVE POSSESSION 24(1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse's equal right to possession), the court may on application, by order, (a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents; (b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part; (c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse; (d) direct that the contents of the matrimonial home, or any part of them, a. remain in the home for the use of the spouse given possession, or b. be removed from the home for the use of a spouse or child; (e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes; (f) authorize the disposition or encumbrance of a spouse's interest in the matrimonial home, subject to the other spouse's right of exclusive possession as ordered

P a g e | 25 (2) The court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e). (3) In determining whether to make an order for exclusive possession, the court shall consider, (a) the best interests of the children affected (determined under 24(4) Section 24(4): in determining the BIOC, court must consider: (a) disruptive effects of a move and (b) childs views and preferences, if they can reasonably be ascertained In practice, significant disruption required (some disruption is inevitable) (b) any existing orders under Part I (Family Property) or III (support) and any existing support orders; (c) the financial position of both spouses; In practice, primary consideration because often financially impossible to retain MH (sale necessary to satisfy equalization) (d) any written agreement between the parties (e.g. separation agreement. Persuasive, not binding bc the ct shall consider the factors) (e) the availability of other suitable and affordable accommodation; and (f) any violence committed by a spouse against the other spouse or the children (physical and psychological, Hill) (4) In determining the best interests of a child, the court shall consider, (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. (5) A person who contravenes an order for exclusive possession is guilty of an offence. (6) A police officer may arrest without warrant a person the police officer believes on reasonable and probable grounds to have contravened an order for exclusive possession. 27 -- an order can be registered against the property to notify 3rd parties (gives notice that theres an exclusive possession order) Under FLRA, courts were reluctant to grant exclusive possession orders (promoting clean break, if one spouse obtains possession without title, ongoing hostility) FLA was intended to expand the scope of exclusive possession orders (courts remain reluctant because insufficient finances to create two homes) Courts are less reluctant to grant exclusive possession orders if one spouse has already left the house and children remain, as the ct is just maintaining the status quo. Courts are reluctant to grant exclusive possession orders if parties are living separate and apart under the same roof (order effectively results in eviction) Spouse that gets interim custody, more likely to get final custody + child support + likely spousal support. Interim EPO 24(3)(a) accounts for child interest.

P a g e | 26 POSSESSION ORDERS: THE CASE LAW Pifer best interests of the children - Factors in s 24(4) (best interests of the children) are not exhaustive and may include other factors like psychological stress and strain to a child from the daily friction between parents. BIOC would then be to separate the parents to relieve stress and strain - Court consider that the father had more time to devote to caring for the children but were persuaded by evidence of his drinking, smoking leaving lit cigarette, abusive behaviour (affidavit evidence from wife, babysitters independent evidence) - Note: father did not have the opportunity to file affidavit material (ex parte order) - This is important in the context of child support, now mother has a new status quo established to her favor. - Child custody is now gender neutral.

Perrier held for jt possession. F: 2 kids, each parent blamed the other for marital problems. There had been physical altercations between parents. Father claims she abused daughter. R: The court will not grant interim exclusive possession if the request is based on gaining a tactical legal advantage rather than the BIOC. H: NO exclusive possession, held for jt possession. - Mothers discipline of daughter not regarded as evidence justifying exclusion from MH - Both parents are good enough parents. Has to ask whether parents are so bad to lose the interim order and eventually, custody of child. - Decision was an interim decision: no winner/loser mentality for the parents. No order for custody. - Temporary until there is an eventual trial and custody and exclusive possession is decided 19(1) from FLA provides that both spouses have an equal right to possession of MH. In seeking interim exclusive possession of the home, there is an onus on the party claiming exclusive possession to satisfy the court that the criteria set out in 24(3) of FLA exists to warrant the making of such an order. Dyck nesting agreement Ct states that nesting orders usually are disastrous, creating more conflict. Ct also states that what u do in nesting order (conduct) will set the stage for trial. Ct agreed to nesting order, but if the parents fail to comply, it will bring in the private home assessment. Ct states that the parents will never cross path theres a 1 hr gap where some relative will have to look after kids. Kooning Ct look at BIOC minimal disruptive, in same neighbourhood, school - and that mom will be likely primary care giver (maintain continuity). H is out bc he didnt claim to be primary caregiver and theres no evidence to suggest this, the ct had easier time to find for W.

P a g e | 27 Vollmer Ratio: Courts should exercise care in granting an order for interim exclusive possession of a matrimonial home when the order will have the effect of forcing a party to leave the MH. - The ct must also be concerned w/ putting too great a financial burden on a family. - Although normally reluctance to provide interim possession order, in this instance there was no prejudice to the husband because house sold shortly - Court concerned with repercussions to the children - Reluctant to provide an interim order for fear of impact at trial but if theres clear evidence of abuse, ct will grant it. Other factors courts consider for interim exclusive possession orders (not explicit in FLA) Hill Facts: He threatens to evict, fight her in court (H was dumb to put sth in writing that he shouldnt have). She suffers from psych abuse. Dr recommends she stays in MH. R: The factors for granting interim exclusive possession of matrimonial home (s 24(4) FLA) are not exhaustive. The court may also consider blame and conduct of the parties in determining exclusive possession. H: Granted exclusive possession bc Ws means are less than H (24(3)(c); violence includes psych (24(3)(f). - H rendered MH incapable of being shared as joint possession due to his conduct o He has lesser emotional attachment to home, lesser continuous use, will be least inconvenienced by finding alternate accommodation, greater resources to do so. Indefinite Exclusive Possession Orders - Order made after Part I decided - Only if necessary for benefit of children and financially feasible - After trial and division of property less likely to get exclusive possession orders. Cicero F: Jointly owned MH. W has custody, retaining MH is most efficient way to care for child w/ medical care. Children also have relatives in the community. R: Court will order indefinite exclusive possession of the MH when this is feasible financially and in BIOC. Held: Exclusive possession to W - indefinite order awarded. - BIOC to remain in MH. Ct looks at childs age younger kids attachment to community is more important, more stability. - Exclusive possession order without time limits Rosenthal R: If retaining the MH is financially unfeasible, court will order sale of the MH and equal division of the proceeds in the best interests of the parties. H: Denied indefinite exclusive possession, house sold. - W has insufficient funds to continue living in MH, but H should not be forced to indirectly support the family when they should be financially independent

P a g e | 28 Consider financial situation, needs of the children but if no kids involved, impossible to get exclusive possession. She failed to establish on the balance of probabilities that she falls within the provisions of 24(3).

Spousal Support
Part III FLA 92(13) Provincial legislation addresses support obligations for non-divorce (separated but not seeking divorce i.e. religious reasons) and cohabitating individuals. 33(8) = objectives / purposes of spousal support (not comprehensive principle) (a) recognize the spouses contribution to the relationship and the economic consequences of the relationship for the spouse; (b) share the economic burden of child support equitably; (c) make fair provision to assist the spouse to become able to contribute to his or her own support; and (d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home) 33(9) = factors to consider in determining amount and duration for spousal support. The ct shall consider all the circumstances of the parties, including (a) dependants and respondents current assets and means; (b) the assets and means the dependant and respondent are likely to have in the future; (c) the dependants capacity to contribute to own support; (d) the respondents capacity to provide support; (e) the dependants and respondents age and physical and mental health; (f) the dependants needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together; (g) measures available for the dependant to be 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 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 respondents career potential; (l) if the dependant is a spouse, (i) the length of time the dependant and respondent cohabited, (ii) effect on spouses earning capacity of the responsibilities assumed during cohabitation, (iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents, (iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

P a g e | 29 (v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the familys support, (vi) the effect on the spouses earnings and career development of the responsibility of caring for a child; and (m) any other legal right of the dependant to support, other than out of public money. Divorce Act (trumps FLA paramountcy) o o o For married seeking divorce 15.2(2) = applicant may obtain an interim interim order for spousal support pending determination of the spousal support application (same factors considered if applying for an interim order) Once a spousal support order granted, either spouse may apply for a variation of spousal support order (Divorce Act s17 or FLA s.37) 15.2(6) = 4 objectives of spousal support, which should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; Parties here are formed a relationship of interdependence. W assisted H to __ while H supported W to __. No evidence that _ was deprived of education or to improve her income earning potential. (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and Reduction of standard of living could be constituted as economic hardship. (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. Self sufficiency relates to the ability to support a reasonable standard of living. Its assessed in relation to economic partnership the parties enjoyed and could sustain during cohabitation, and that they can anticipate after separation. Self sufficient is more attainable in short term marriages, especially one without children, where the lower income spouse hasnt become entrenched to a particular lifestyle or compromised career goals. Long term ones are where parties have emerged economic lifestyles such that selfsufficiency cant be attained. 15.2(4) = factors to consider in granting spousal support. Ct shall consider the conditions, means, needs and other circumstances (new family but cts recognize first family first principle) of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. 15.2(5) = In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

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Who may apply? A married person may apply under s.29 of FLA, which uses the conjugal definition of spouse in 1(1) as 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 If not married, can use s.29s definition of cohabitating spouse as 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, Sanderson OR (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child Labbe The definition of cohabitation from s1(1) means live together in a conjugal relationship, whether within or outside marriage. Conjugal has been regarded as living together in a marriage like relationship.

Stoikiewicz wrongly decided. [Cohabitation] F: W did housework, resided w/ their child for 6 yrs. H gave her ring, acted as father. Slept in diff rooms. W had social assistance. Held: Not cohabitating, residing together at arms length relationship. R: Unmarried persons cant be found to be cohabiting unless each assumed an obligation to support the other in the same manner that married spouses are obliged to do. Couple resided together to retain their personal freedoms unencumbered by the obligations which law and traditional morality impose on married spouses. Since spousal support provisions are an intrusion upon that liberty, cohabitation should be construed strictly Labbe wrongly decided. [Touch of permanence] F: band guy, lived w/ her for 6 weeks. R: Minimal cohabitation is required if there was more than a touch of permanence i.e. talk about marriage possibilities. Sanderson [Continuous cohabitation] R: A period of continuous cohabitation ceases when either party regards it as being at an end by conduct AND has demonstrated convincingly that his state of mind is settled (fact specific). Temporary lovers quarrel did not constitute an interruption in the cohabitation Harris R: Period of cohabitation is interrupted bc woman left for Paris for 4 months with indication that she may never return. Separation for short period or several months for employment purposes without an intention to end the relationship will not interrupt a continuous period of cohabitation there must be an intent to permanently separate from relationship. Hazelwood

P a g e | 31 R: Uses Molodovich 7 features of a spouse like / conjugal relationship 1) Shelter Did parties live under same roof? What were sleeping arrangements? Did any else share the accommodation. 2) Sexual and personal behavior did parties have sex (if no, why not)? Did they maintain fidelity to each other? Where there feelings to each other? Communication on personal level? Did they eat meals together? Assist each other w/ problems or during illness? Buy gifts on special occasions? 3) Services what were the conduct and habit of parties regarding meal preparation, washing clothes, shopping, household maintenance and other domestic services 4) Social participate together or separately in neighbourhood and community activities? What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties? 5) Societal attitude and conduct of community toward each of them and as couple? 6) Support (economic) financial arrangements btw parties re provision and contribution of food, clothing, shelter, recreation. What were the arrangements concerning the acquisition and ownership of property? Was there any special financial arrangement btw them which both agreed would be determinant of their overall relationship? 7) Children attitude and conduct of parties concerning children. Held: spouse like relationship was present as the couple had sex, M has room in Ws house w/ personal things, W did domestic work for him, attended parties as couple, plans to marry, M put her down as spouse in health benefits. McEachaern R: held the couple lived as H and W in every sense of the word based on the fact that there was dependence btw the parties (although owned separate homes, spent time together on weekend, she helped pick out his house, H contributed financially for her, W did domestic work) and how their relationship was regarded by others (neighbours said they lived together and considered them a couple).

Part 1: ENTITLEMENT OF SPOUSAL SUPPORT CAUSAL CONNECTION the general principle that governs spousal support is the causal connection btw need and marriage. Messier: F: W school, masters, no job 5 yrs post separation. W won indefinite spousal support. Held: Majority in awarding indefinite spousal support, recognized each case as sui generis and should not assume the ability of wife to integrate into the work force in 8 months. However, wife has an obligation to engage in reasonable efforts to become self-sufficient (one of the purpose of spousal support in Divorce Act 15.2(6)(d)). Dissent proposed the clean break theory where gender equality required women to become selfsufficient financially and this support the reintegration into labor force. Spousal support should be transitional, if unable to find job, should go on welfare.

P a g e | 32 Pelech Trilogy: Adopted dissent in Messier. Marriage does not award spousal support to minimize economic loss incurred as a result of role adopted in marriage, not to address systemic gender inequality nor to guarantee a higher standard of living that spouse was accustomed to. Pelech [self-sufficiency model; causal connection] F: married 15 yrs. W psych prob, cant wk on welfare, wants Divorce Act variation. Sep agmt states W to get lump sum payment (property + spousal support) but no obligation after. W lost R: Causal connection test state that a variation of spousal support order requires a radical change in circumstances flowing from a pattern of economic dependency engendered by the marriage. In order to impose responsibility for changed circumstances on a former spouse, there needs to be a causal connection btw the change and the marriage is required. Otherwise, spousal support would create a fiction of marital responsibility at the expense of individual responsibility.

Richardson F: married 12 yrs. W stopped working to care for kids during marriage. Sep agmt states W to get spousal support for 1 yr + child support. W lost. R: Policy rationale: (1) importance of finality in the financial affairs of former spouses and (2) deference to the right and responsibility of individuals to settle their affairs It cannot be said that the possibility of her being unemployed was completely outside the reasonable contemplation of the parties and therefore, court should not intervene Caron F: married 14 yrs. W sacrificed job to be w/ kids. Sep agmt states spousal support would end if she remarried or cohabited for more than 90 days. W began to live w/ another guy for 4 mths Held: right to spousal support forfeited under sep agmt.

MODERN BASES FOR SPOUSAL SUPPORT: Moge [compensatory model 15.2(6)] F: 16 yrs marriage w/ 3 kids. W was primary caregiver, worked nights. H remarried. Kids grown up. H: no cc btw her low income & marriage (she had low education/job skills, job market was precarious. Those factors are not his fault) R: Rejected narrow view of cc. Entitlement to spousal support reflects the role assumed in marriage rather than status of spouse i.e. compensate spouse who was not in labour force for long time to look after kids for long term effects on earning potential. Support might be indefinite. Policy: self sufficiency model in Pelech is inadequate to deal w/ cases of post-sep impoverishment of women due to disadvantages from role played during marriage. Self sufficiency is just one factor of 4 in 15.2(6) Moge led to a more generous granting of spousal support and increased prevalence of indefinite orders.

NON COMPENSATORY / NEEDS BASED MODEL FOR SPOUSAL SUPPORT:

P a g e | 33 Looks at 15.2(6)(a) economic dis/advantage and 15.2(6)(c) economic hardship Bracklow F: married 3 yrs, both worked, W hospitalized, no longer employable. H after sep earned more $, remarried. W on disability benefits. R: 3 conceptual bases used to establish post-sep spousal support entitlement. 1) Contractual approach: 15.4(c) which is rarely relevant. Can be express 15.4(c) or implied K i.e u put spouse thru med school, implied K that theyll put u thru law. Caratun 2) Compensatory approach (comes from role assumed in marriage: career sacrifice), developed in Moge but not relevant in this case; and 3) Non-compensatory, needs-based approach amount of support is related to basic social fxn assumed in marriage, length of marriage and time for spouse to transition. **This basic social function seems to suggest were back to the status of marriage model where if a party has a need and the other has means, spousal support awarded. Non compensatory model is based on 15.2(6)(c) and (d) Brockie F: Short term relationship, pregnant at high school, W wanted to go to uni. Spousal support awarded allowing her to complete school. Held: this case recognizes a childs impact and is reflected in spousal support. After Moge, there was a rejection of individual accounting, there was a need of proxy measure: 1) not based on causal connection test but on need (esp on marriage length) or 2) marital stnd of living.

CONDUCT Leskun F: 20 yr married, W supported H for school, he got high paying job, affair. W in 50s. W wins. R: 15.2(5) - Marital misconduct is not itself a factor in awarding spousal support; however, consequences flowing from misconduct can be a factor. I.e. Affair leading to Ws emotional devastation which led her inability to sustain herself financially. However, spousal support is awarded based on all circumstances of the case i.e. Ws emotional devastation at end of marriage, age, bitterness. 33(10) FLA: Very high threshold to meet. There are no case laws suggesting that a party owes more spousal support due to violent behavior or affair, but spousal support could be reduced based on unconscionable, reprehensible circumstances. Moray F: jt property sold, W takes off, wants spousal support. R: 33(10) not met: conduct has to extremely bad, repugnant, that it destroys the marriage and the other party must be blameless. Macdonald

P a g e | 34 F: W assaulted H, H would leave home or lock himself in washroom. W stabbed him twice, spent 3 months in jail. W wants spousal support. R: 33(10) met, although H succeeded, he still has to pay 5 yrs spousal support (but reduced) and share property. Template: Entitlement is a threshold issue before the SSAP is applied. An argument might be made that there is no entitlement to support as W is employed full time (hairdresser) and could support herself, and there is no compensatory basis for support. However, she will suffer a significant drop in standard of living as a result of marriage breakdown and at an income of 25K, will likely experience some economic hardship. Current law would suggest an entitlement to at least transitional support on a non-compensatory basis to allow her to adjust to a lower standard of living. In Bracklow, McLachlin noted that trial judges must exercise their discretion in light of the objectives of spousal orders as set out in s.15.2(6) and after having considered all the factors set out in s.15.2(4) of the Divorce Act. Both 15.2(4) and (6) have to be considered in determining if an order of support should be made, and if so, the quantum and duration of that support. Under 15.2(4), in making an order for spousal support, the ct is directed to take into account the means, needs and other circumstances of each spouse including the length of the time the spouses cohabited 15.2(4)(a) and the functions performed by each spouse during cohabitation 15.2(4)(b). 15.2(4)(c) not relevant here. The objectives of a spousal support order set out in 15.2(6) must all be considered, the ones most relevant here are (a) economic advantages or disadvantages to the spouses arising from the marriage or its breakdown and (c) relieving any hardship arising from breakdown.

PART 2: DURATION / QUANTUM Once entitlement is determined (FLA 33, 15.2 Divorce Act), then determine this. Thus, there must be a finding of compensatory or non-compensatory or contractual basis before this formula is applied. SSAG deals w/ amount and duration. Its an advisory, informal guideline that has not been legislated by fed gov, thus is not legally binding and operate on voluntary basis only. SSAG can be used for provincial leg where duration is calculation using the length of marriage as length of cohabitation. Without child support calculation formula: Since there is no dependent child of the marriage and no concurrent child support obligation at the time spousal support is determined, the without child support formula is used. Income of spouses is determined using the Federal Child Support Guidelines (T4 tax receipts).

P a g e | 35 Amount: - Ranges from 1.5 to 2% of the difference between the spouses gross incomes (gross income difference) for each year of marriage (or, more precisely, years of cohabitation), up to a maximum of 50%. - For marriages of 25 yrs or longer (merger of income theory at play), the maximum range is fixed at 37.5% to 50% of income difference. (The upper end of this max range is capped at the amount that would result in equalization of the spouses net incomes the net income cap) 1) Determine the gross income difference btw the parties: 90,000 30,000 = 60K 2) Determine the applicable % by multiplying the length of the marriage by 1.5 -2 % per year: 1.5% x 20 = 30% to 2% x 20 = 40% 3) Apply the applicable % to the income difference: 30% x 60,000 = 18,000/yr (1,500/month) 40% x 60,000 = 24,000/yr (2000/month) Duration: - Ranges from 0.5 to 1 year for each year of marriage. - Remember that length of marriage actually means the period of cohabitation! - If the marriage is 20 years or longer, support will be indefinite (duration not specified, but subject to reviewed or varied later) - If the marriage is 5 years or longer, and the years of marriage + the age of the support recipient at separation equals or exceeds 65 or more (rule of 65), support will be indefinite - The rule of 65 for indefinite support is not available in short marriages (under 5 yrs of length) This result is fair as it accounts for the idea of merger over time: as marriage lengthens, spouses deeply merge their economic and non-economic lives and each spouse makes decisions around those of the other spouse. So the longer the marriage, the more the lower income spouse should be protected against such differential loss. Merger over time captures both the compensatory and non-compensatory spousal support objectives recognized since Moge and Bracklow.

P a g e | 36

Child Support
FLA: obligation arises if party has showed settled intention to treat the child as his own. Obligation ends when child is over the age of majority and is not enrolled in a full time education program (s.31)

Presumption and paternity. In order to establish support to a child born outside the marriage, proof of paternity may be required. This is done on a balance of probability and could be done via 2 ways 1) application to superior ct (s.4 and 5 CLRA) or 2) FLA child support application. 2 methods of doing is 1) presumption under s.8 CLRA and 2) paternity test under s.10(1) CLRA. Where the mother testifies that the farther is the only possible dad and dad denies intercourse, unless the father submits to paternity test, judge is required to discern credibility under 5(3) of CLRA on the balance of probabilities. S.8(1) states a presumption that a male person is the father if: 1 & 2. Married to mother at birth or within 300 days before birth (where marriage terminated by death, nullity, divorce) 3. Married to the mother after birth AND acknowledges he is the natural father 4. Cohabited in a relationship of some permanence at birth OR within 300 days after ceased to cohabit 5. Person has certified the childs birth as the childs father 6. Person has been found or recognized in his lifetime by a court to be the father of the child The paternity test is granted from a ct order submitted by an applicant and is treated as reasonable proof. S.10(4) states that the ct may draw an adverse inference if leave is granted and a blood test is refused (Williams v. Cruickshank). Obligation of Step-parents to pay child support Obligation to pay child support is statute based. Ericka would argue under Divorce Act that M2 was in loco parentis. Divorce Act defines child of marriage as child of 2 spouses or former spouses as any child of whom one parent and whom the other (or both) stands in the place of a parent. This is the in loco parentis doctrine. The test for whether a person stands in position of a parent focus on the best interest of the child and on an objective review of the factors. (Chartier). FLA extends support obligations to adults who are not biological parents of child. Child includes one whom a parent has showed an intent to treat them as child (except where theyve been placed in foster home) s.1(1). Parent in 1(1) is the person who has showed this settled intention. In the case that M1 isnt childs biological father, W would argue under FLA that M1 stood in the place of a parent to child. Although he left shortly after she was pregnant and denied

P a g e | 37 responsibility, he had since then become the only father figure that child has ever known by visiting S on a regular basis. Thus there was a settled intention to treat child as a child Key words: establish parent like relationship, acted as psychological parent, promotes the best interest of the child (psychological and economic reliance). Chartier: Divorce Act, factors, in locus parentis F: M actively assumed parental role, changed birth certificated, only psychological father ever known. Unilaterally stopped contact. R: Once a step parent has assumed the role of a parent, they cant unilaterally end the relationship. Biological father cannot unilateral end relationship either. - Cant solely look at intent as it would always be denied. - Must rely on the best interest of the child and objective criterias in determining if a person stands in place of a parent: o Intention can be inferred from actions e.g. the actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his family i.e. a child of the marriage. o Child participates in the extended family o Financial support provided to the child o Disciplines the child as a parent, emotional relationship o Perspective of the child (called the step parent dad) o Represents to the child, family, world, explicitly or implicitly that he or she is responsible as a parent to the child o Nature or existence of the childs relationship with the absent biological parent Collis: FLA, no settled intention. F: KBC case. R: Presumption and relationship w. child doesnt lead to a finding of settled intention. Treating child like son is not sufficient if it is based on what M believed the situation to be (which was a lie). Had M continued to treat C as his own even though he was suspicious that C might not be his, there might have been a finding of intention. Cornillio Divorce Act F: M finds out no bio parent after paying CS for 10 yrs. R: M had been suspicious but put himself in locus parentis. Has to continue payment and no retroactive repayment. Jane Doe v. AB F: W got AI, domestic K. R: K not binding but persuasive. The prospect of M ignoring C is unrealistic, being a parent cant be avoided. Do Corina F: M never cohabited w/ W but spent lots of time w/ kid, had affair w/ her but lived w/ wife.

P a g e | 38 R: Not a parent, there seems to a requirement of cohabitation. Chang: mother can add grandparents to owe child support obligation as grandparents are not excluded from the statute. Monkman: Its possible to have grandparents owing child support but generosity is not enough, there must be a parent like relationship. Extent of step-parents obligation. FLA 33(5) and (6) allows adding a biological father as a possible payor, who has a primary obligation to pay if he has enough money to pay. FCS s.5 states where the party against whom the support order is sought stands in the place of a parent (non-biological) the court is to order payment of the amount considered appropriate having regard to these guidelines and another other parents legal duty to support the child. S.5 has been held inconsistently though, but court usually orders an amount that is just. e..g step parent w/ parental status, thus considered presumptively liable for child support. Step parent can get a reduction based on s.5 and if theres a biological parent present. Biological parent can rarely get out of this obligation. Age Limits Child can sue parents under FLA but not Divorce Act. Disabled child: see Divorce Act 2(1)(b). If no separation or divorce, but parents are living together use FLA. Wesemann F: Kid wants to go to UBC, dad paying child support, mum wants increase R: Slight increase of child support ordered for at least first university degree. Even if child unilaterally ended the relationship, child support could still be granted. 4 step approach to determine support for adult child under Divorce Act. Step 1: decide whether the child is a child of the marriage as defined in the Divorce Act? If No, matter ends here. Divorce Act s.2(1) states a child remains a child of the marriage if the child a) is under 18 and has not withdrawn from the charge of the parents b) is over 18 but unable by reason of illness, disability or other cause, to withdraw from the charge of parents or to obtain the necessaries of life. Cts have generally accepted that where a child is 18 or 19 yrs, parents have the onus to establish that the child has voluntarily withdrawn from parental control.

P a g e | 39 Cts are sympathetic to young adults in high school w/ difficulty living w/ either parent if theres been emotional turmoil due to separation (cant live with either parent esp if theres negative attitude from step-parent to child). However, voluntary withdrawal must be due to unbearable conditions, not just unhappiness (Zedner) May allow child support in part time or where child is waiting for suitable program of studies to begin. A parent has the obligation to assist the parent on whom the child is dependent thru a reasonable transition period. i.e. waiting period before child is about to begin post-secondary program. Waiting period must be in near future, cant be for child who is employed full time and saving money for future education. The cts will balance the parents obligations towards an adult child w/ an expectation that adult students made a real contribution to their own education. FLA s.31 govern cases where parties are not getting divorce (most often not married). 31(1) Every parent has an obligation to provide support for his unmarried child who is a minor OR is enrolled in a full time education program, to the extent that the parent is capable of doing so 31(2) The obligation under (1) does not extend to a child who is 16 OR older and has withdrawn from parental control FLA requires enrollment in full time studies. Step 2: determine whether the approach of applying the guidelines as if the child were under the age of majority (the usual Guidelines approach) is challenged. If not challenged, determine the amount payable based on the usual Guidelines approach. Step 3: if the usual Guidelines approach is challenged, decide whether the challenger has proven that the usual Guidelines approach is inappropriate. If not, the usual Guidelines amount applies. Step 4: if the usual Guidelines approach is inappropriate, decide what amount is appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial.

Zedner R: To establish a defence under section 31(2), the withdrawal must be voluntary (not via emotional or physical abuse) Haskell: To force the child to return to that residence and endure emotional and personal stress or as an alternative to deny him support would be unthinkable for his best interests.

Wahl F: Took out RESP to go Egypt R: The onus to prove that a child is a child of the marriage rests on the one seeking maintenance for a child who is over the age of majority.

P a g e | 40 Factors to consider in determining whether a child is a child of the marriage: (Fardon) 1) Whether the child is enrolled in studies (full time or part time) - Child over the age of majority who is in full time attendance at an educational institution as a child of the marriage entitled to support. Parents disapproval of the course of studies chosen by child doesnt relive parent from support obligations. 2) Whether the child has applied or is eligible for student loans or other financial assistance - Adult child is expected to contribute towards her education to the fullest extent possible thru bursaries, scholarships. 3) Career plans of the child (reasonableness) - reasonableness of the childs course of studies in relation to their aptitude and past achievement is considered. 4) Ability of the child to contribute to own support through part-time employment its rare that a ct will not require a student to contribute, thru his own earning s to the cost of maintenance. Held that during summer months, there will be no support obligation owed by father. 5) Age of child the test is one of dependency not age, yet age can be a factor to consider when determining dependency. 6) Childs past academic performance (likelihood of success) 7) Plans of parents for the childs education, particularly during period of cohabitation this factor was important in this case. Cultivated in daughter that education is important and he was going to support her thru his actions. 8) Where the child has reached the age of majority, whether the child has unilaterally terminated relationship with the parent from whom support is sought

Quality of the relationship is only one of the factors to consider unless circumstances are grave (child assault) Smith F: Model, father stopped child support. R: Under the Divorce Act, child support obligation may exist by reason of illness, disability, or other cause (includes employment but realistic plans required) Courts are not sympathetic if the child is not engaging in reasonable efforts to seek employment

P a g e | 41 Determining the Amount 1. The objectives of these Guidelines are (a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (d) to ensure consistent treatment of spouses and children who are in similar circumstances.

Child Support Guidelines must be followed by ct unlike the SSAG. To determine amount: s.3(1) CSG states the presumptive rule. In the absence of exemptions s.8, 9, 10, 4, 7, ct will order amount under s.3. (a) the amount 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 payor spouse AND (b) the amount, if any, determined under section 7 (special child related expenses) Note: In the absence of exemptions, s.3 must be followed, theres no residual discretion except for determining income.

To determine income CSG 15 says to look at s16 20 s.16: annual income is determined by looking at the total income in the last T1 issued by the Cad Revenue Agency. s.15(2) ct may consider agreement btw spouses on annual income of spouse if reasonable. s.17: ct can consider fluctuation in income and may average a spouses income over the last 3 yrs to determine a fair and reasonable amount. s.18: ct can attribute corporate income where personal income is low for a spouse thats a SH, director of office. s.19: ct may impute income where (a) the spouse is intentionally under-employed or unemployed, other than where the underemployment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; Drygala (b) the spouse is exempt from paying federal or provincial income tax; (c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (i.e. US) (d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

P a g e | 42 (e) the spouses property is not reasonably utilized to generate income; (f) the spouse has failed to provide income information when under a legal obligation to do so; (g) the spouse unreasonably deducts expenses from income; (h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and (i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. Exemptions: s.4: gives ct the authority to determine the appropriate support amount where the paying parents income is over 150K. Where the income of the payor spouse is over $150,000, the amount of a child support order is (a) the amount determined under section 3; or (b) if the court considers that amount to be inappropriate [i.e. table amounts exceeds childs reasonable needs], (i) in respect of the first $150,000 of the spouses income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates; (ii) in respect of the balance of the spouses income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and (iii) the amount, if any, determined under section 7 (special and extraordinary expenses). s.8, 9: adjustments for split and shared custody arrangement. s.10: Undue Hardship: party pleading has to show a lower standard of living than the other party. Standard that might justify: high level of debt reasonably incurred to support family, significant access expenses, obligations for support of other children. s.7(1): This is an exhaustive list. Can be added if they are reasonable and necessary in light of the needs of the children and parent. (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 and 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.g. private school, childs disability needs tutor (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities

P a g e | 43 2 types of expenses: special (child care, health, post secondary edu) and extraordinary as defined in 7(1.1) for extracurriculars or primary and secondary edu. Extraordinary defn is based on subjective understanding what the parents spent on before separation.

Drygala F: quit job to be teacher R: - When imputing income based on intentional under-employment or unemployment, a ct must consider what is reasonable in the circumstances. - A parent is intentionally underemployed if he chooses to earn less than he or she is capable of earning. There is no requirement of bad faith (of avoiding child support obligations). - Once its established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his reasonable education needs. There are 2 aspects to this stage of inquiry: determine if the educational needs are reasonable. This involves a consideration of the course of study i.e. must be realistic and reasonable. Bak F: dad gives monetary gifts to son to promote self sufficiency. R: Payors income is based on his income tax return which does not include gifts and lifestyle. - While the stream of income is similar to trust income (trust is income, theres a section in s.19), there are important differences e.g. Payor remains in complete control of funds, the amount are closely tied to receivers basic needs which he has no entitlement to, and which payor could reduce or end at any time w/o receivers recourse. Celotti 7(1)(f) F: father has 221K income, 2 kids in dance, mum wants 12K increase. R: CSG s.7 provides a 2 part test of necessity and reasonableness (parents previously spent that much) to determine if a claimed expense is to be included in child support amount. Necessary in relation to childs best interests and reasonable in relation to spouses means and familys spending pattern before the separation. The subjective test based on what the parents have been spending on the kids based on parents income. Frances F: W was schoolteacher, income is 1M+ R: Onus on payor to justify reduction. There is a presumption favouring the table amount where one spouse has high income and the other has low. The guideline amount of just over 10K was acceptable. Simon F: Child proposed 6K for clothes, club fees R: Payor didnt meet the onus that amount is not reasonable.

P a g e | 44 R v. R. R: S.4 allowed ct to deviate from that amount where it considers table amount inappropriate and instead award appropriate amount in light of: condition, means, needs and circumstances of the children and financial ability of each spouse to contribute to childrens support. Held: Reduction in Guidelines amount even though moms budget was reasonable (award was higher than expenditures on children during the marriage but lower than the table amounts) Familys lifestyle prior to the parents separation is relevant in determining whether the table amount is appropriate and, if not, what amount should be ordered Simon was an unusual case because the parties separated before the birth of the child and therefore, no pattern of expenditures was established (of how father would pay for child) cf R v. R no evidence of spoiling kid, what he thought was reasonable to spend on child. Split and shared custody. s8 = split custody Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses. Set off Guidelines amounts (subtract one amount from the other and the wealthier parent pays the difference) s9 = shared custody (joint physical custody) = one or more children lives with one parent for at least 40% of year (146 day minimum) and with the other parent for the remainder Amount of the child support order must be determined by taking into account: (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements [i.e. double resources in each home]; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. Contino R: There is no presumption of an automatic reduction for shared custody (no set off or pro rating) No formula is definitive as it is fact dependent. S.9 is self standing. Consider whether one parent is paying for the majority of expenses. Consider the financial reality. Ct wants to equalize the standard of living. s.9: 2 part determination 1) establish 40% threshold and 2) determine the appropriate amount of support 1) s.9(a): Determine simple set off as a starting point (difference between the CSG table amounts for each parent, subtract the lower from higher income. That amount is the simple set off). 2) s.9(b): Consider ALL actual expenditures of both parents individualization starts here. 3) Burden faced by each parent under the set off approach

P a g e | 45 Ability of each parent to absorb increased costs and the childs standard of living in each household (child should have an equivalent standard of living in each household) Cost between the parents will be higher as everything that the child needs is doubled. 4) Distinction between initial and variation orders Variation order: assume standard of living is established (if 40% threshold is satisfied, concern of radical reduction in child support) Court has discretion to adjust the set off amount where, in consideration of the financial realities of the parents, this would result in a significant variation in the standard of living experienced by the children as they shift from one household to the other Cliff effect the 40% threshold will reduce the child support substantially. Awarding the 500 is just to set off the cliff effect in this case. Here, mom just bought a home under the assumption that son would live w/ her and she would get child support. Martin Judges state there should be a presumption that doesnt just use the set off but use a midpoint between higher figures and set off. The party that is contesting that amount should rebut the presumption. Undue hardship High threshold where excessive, extreme, unreasonable or unjustified hardship required. Significant judicial discretion. Under Section 10, court may adjust the Guidelines amount where the parent seeking the adjustment establishes that (1) paying the Guidelines amount would cause undue hardship and (2) his or her households standard of living is lower than that of the other parent 10(3) limitation: Ct may not deviate from Guidelines amounts if the party claiming UH would have a higher standard of living after. 10(2) Not exhaustive list. Circumstances that may cause a spouse or child to suffer undue hardship include (a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living; (b) the spouse has unusually high expenses in relation to exercising access to a child; (c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person; (d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

P a g e | 46 Swift R: Onus on H to satisfy undue hardship before the standard of living test is applied. High threshold that H didnt meet. Although the expense is a large change for his family to fund, theres nothing undue or extreme about the expenses for his new children as disclosed on his financial statement. Theyre not sick or disabled. Thus no deduction, unless the expenses are related to disability or illness. Dean R: Slight variance granted (husbands household income was lower than wifes after child support payments). Court considered wifes limited means. If she was earning a lot more, there might have been a greater reduction. If custodian parent moves in w/ new partner, payment not affected but spousal support payment may be reduced. 5 circumstances where recipients income is considered: 1. Recipient is a high income earner 2. Split custody 3. Shared custody 4. Section 7 (extraordinary expenses) 5. Section 10 (undue hardship) Retroactive Child Support DBS R: in awarding retroactive child support, whether the child is one of marriage must be determined at the material time which is the time when the application was initially made. 3 step approach 1) Determine if retroactive award is appropriate. Cts must consider the reason for recipient parents delay in seeking child support, the conduct of payor (if parent is blameworthy i.e. refused to disclose increase in income), threatening, dishonest then ct might award longer retroactive support), past / present circumstances of child, hardship imposed by retroactive award 2) Determine what period award should cover. Its presumed that the award should cover the period following the date on which the claimant gave effective notice i.e. when they signalled desire for increase in amount. However, this is subject to a general maximum of a 3 yr period predating the date of formal notice. This doesnt apply if the payor engaged in blameworthy conduct that interfered w/ recipients ability to pursue support or its increase. i.e. misrepresentation, intimidation. 3) Adjust the commencement date if required. Having found that a retroactive award is appropriate and having determined the presumed commencement date, the ct needs to determine quantum. This is done using legislations e.g. CSG. After this, the ct may adjust the total amount owing by altering the commencement date where this is needed to ensure overall fairness.

P a g e | 47 SCC held that an application for child support, whether prospective or retroactive can only be made under the Divorce Act or provincial legislation while a child is still eligible for support not independent adults. If theres a change of income, the date of retroactivity should reflect that. If parent is blameworthy in the way that mum didnt ask for child support bc she didnt think she was gonna get any, its relevant since the child support right belongs to the child.

Lastman R: Cant claim under Divorce Act parties never married; cant use FLA independent adults Must be a child under the marriage under the Divorce Act.

Custody and Access

General principle is what is the best interest of the child, as interpreted by Divorce Act and CLRA. Provincial Applications (CLRA) s20 S.20 (2): "A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights in the best interests of the child" S.20 (4): Where the parents of child live separate and apart and child lives w/ one of them w/ the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to custody and the incidents of custody, but not the entitlement to access is suspended until a separation agreement or order otherwise e provides. If they cant agree on custody or access, either can apply for ct order under s.21. Acquiescent: if one parent live out of country, custody can be acquiesced to be given to other side. S.20(5): 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. Young: right to discuss religious beliefs S.20(7): 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. - Courts may determine incidents of custody (i.e. delegate incidents to particular parents) Chauvin - Mother had custody, father had access, dispute as to which school the child should attend (mother English school, father French school) - Held: Mother obtained custody, father had right to make decisions with respect to education (i.e. incident of custody). BIC for child to go to French school. - Separated legal and physical custody (courts may hive off incidents of custody)

P a g e | 48 S.21: Either parent can apply for custody the child, even if there is an existing agreement in place. Courts have the power to disregard the terms of a parental agreement if it's in the best interests of the child. S.30: ct appointed expert (see expert issue above). This is perceived as more balanced both parties have access and will meet with them, will interview new partner. Judges usually follow this assessment as the reports from them are more thorough. Cases usually (80%) settle post report. Appeals are expensive. o 30. (1) The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. Young R: Expert evidence should not be routinely used; rather, custodial parent should be given more weight as they have lived with child on regularly basis. So custody and access should follow that guideline. Linton Theres an over reliance of cts on assessment. Assessment should only be used when theres a clinical use (psychologist, social worker). Judges are otherwise abdicating their responsibilities on determining what is BIC.

De Facto Situation Parents w/ interim order of custody has a stronger case re stability and continuity, cts might want to maintain the status quo S.24(2)(c); (e); (f). Cts want to preserve what the child is used to CLRA s.24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child. In determining the best interests of a child for the purposes of an application of custody and access to a child, a court shall consider all the needs and circumstances of the child including, (2) A court shall consider all the childs 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 care and upbringing of the child; (b) the views and preferences of the child, where such views and preferences can reasonably be ascertained; [This has everything to do with the age of the child. You wont get much out of a two year old. A 13 year old will likely have a lot to say.] (c) the length of time the child has lived in a stable home environment; . [This is Status Quo. The longer the one party has the child to the exclusion of the other, the stronger their case is. The court does not want to be disruptive to the child.]

P a g e | 49 (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) any plans proposed for the care and upbringing of the child; (f) the permanence and stability of the family unit with which it is proposed that the child will live; and (g) the relationship by blood or through an adoption order between the child and each person who is a party to the application. [It deals with the importance of a blood tie. Blood connection should give some priority.] After separation, one parent is granted de facto custody, even if there is no court order (with consent or acquiescence of the other parent)

Status Quo Where the temporary living arrangements are the least disruptive, most supportive and most protective of child the status quo should be maintained. Spencer F: Mom left house, left kids, was primary caregiver. He had interim custody (acquiescent). She wants to move w/ kids now. R: Presumption favoring stability and continuity in determining interim and final custody orders. Children are in a familiar environment w/ their father. Rejected the tender years presumption. Lisanti F: no evidence of assault on mum. Mum left w/ kids. Held: father interim order of custody R: Court protects the status quo, unless theres a clear evidence of abuse, ct unlikely to grant custody order which destabilizes a child. Ct also discourages parties from self help remedy by removing the children from familiar environment. s.283 Criminal Code parent taking child from another who has custody right has committed an offence, even if there is no custody order in place, parents are presumed to have custody on their child. Charge will only proceed with the consent of Attorney General. s.283 defence removal to protect child or yourself from imminent harm . What if mom is assaulted and she leaves kids in the home? Hard to get full term custody (left kids in de facto situation and shes forfeiting right to the other spouse) see Renaud. Renaud F: H locked W out of house, assaulted 2X. He had de facto custody but grandma was taking care. Shunned Ws contact w/ kids. Held for mum R: While the courts are reluctant to disrupt the stability and continuity of the de facto environment, other factors are considered in determining whether this disruption is in the best interests of the child i.e. H got de facto custody w/o Ws consent, she fled bc of abuse, Hs fits of anger (possible danger to kids).

P a g e | 50 16(10) Custody should be awarded to the party who reaches out to other spouse. Birth and Blood Relations - Presumption in favor of blood relations in determining custody, but psychological connection and bond with child may be as significant as the birth connection of a parent (e.g. adoption) - If birth parent consents or acquiesces, a non-biological parent may become a psychological parent (i.e. child will suffer if removed from the care of the psychological parent) - Not necessary to have a blood relationship to claim custody but psychological connection is required o CLRA s. 21 A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child (see section 16(3), o Divorce Act = person other than a spouse requires leave from ct regarding custody or access to children of the marriage) Moores F: Mum have up kid after birth to make up w/ H. Tried to get kid back. Interim interim order was for couple. Child was 4 at trial. H: adoptive couple granted custody. R: Blood relations are presumptive but NOT determinative Reasons: - Ct recognized this was the only home the child has known and were reluctant to disturb the stability of the child (long period of de facto control) - As a result of the delays in the court system and notwithstanding the fact that the biological mother initiated a claim early, the child remained with de facto family for a number of years King v. Low F: Mum never completed paperwork, wants child back when baby was 2.5 mths, SCC: 3 yrs old Held couple wins. R: Test focuses on best interest of the child and not parents interest. Had trial been heard earlier, child would still have been young, documentation was not formally completed and there was no consent, but time is not neutral especially where theres no continuing contact btw parent and child. This suggests that the longer you have physical custody; you will have de facto custody. This can just be used as strategy by the couple throwing legal hurdles at the biological parent. Conduct Divorce Act 16(9), CLRA 24(3) - both state the past conduct is not relevant unless the conduct relates to the ability of the person to act as a parent. Focus is on parental conduct not spousal. Father abuses mother in the presence of the children (likely relevant) Mother commits adultery with knowledge of the children (uncertain) Fishback F: W cheated on religious H. R: Factors considered: Stability of father in relationships, environment (stable for kids), remained in MH Personalities of both parents and new partners: impressed by the fathers new partner and moral values. Mother more interested in relationships left kids alone to be with new bf.

P a g e | 51 Case implicitly considered spousal conduct as parental conduct. Ct held that Mrs F raised the children well. It was the fact that she had an affair that concerned the ct. The ct is judging the wife morally based on her marital conduct. Young F: H abusive to W, but lavish kids. Held: for mum R: Abusive conduct raised parenting concerns. Wishes of children are not determinative especially where one parent is dominant. CLRA: s.24(4) and (5): requires ct to consider if person was violent to spouse, member of household or child. Parental Relationship w/ 3rd party Ct considers the parenting ability of a new spouse or partner bc this 3rd party may assume a parenting role (in loco parentis) Re Reid F: Mum wants custody to remove kids and move in w/ new lover (changed man). Father got lovers ex wife to testify he didnt care for his own kids. R: Courts are not concerned with the common law or adulterous nature of the relationship but rather, the focus is on the parenting ability of the third party as surrogate parent. 3rd party (lover)s refusal to testify led to an adverse inference. Tender Years doctrine Presumption = children under 7 are best served under mothers custody unless moral misconduct or unfit. Assumed could provide something that only mothers seem to be able to provide Presumption no longer applies CLRA 20(1): either parents are equally entitled to custody (gender neutral). R v. R R: The tender years doctrine and presumption of custody to the mother is outmoded and no longer applies. There are no presumptions based on gender. The best interests of the child are the only concern. At trial, judge placed more emphasis that father had more daytime hours to spend with the child, whereas the mother would have had to rely on day care Preference for child to be raised by immediate family, known family member (grandparents) rather than subjected to daycare Klachefsky F: jt custody, mum wants to move to Vancouver. Held: for mum even tho she would need daycare. R: There is no presumption that family members will provide higher quality care than daycare services.

P a g e | 52 Garsha Best interest test is vague and unpredictable in determining whos the better parent, theres favoring on party who has better resources (father). Promotes litigation, Mother wants to retain relationship w/ children so will settle for less on economic issues due to issues being so vague. Thus the ct decide on the primary caregiver presumption. Primary Caregiver Presumption - Who has a closer psychological bond, cared for, educated, or nurtured the children? o Who plays with, bathes, reads, monitors homework, cooks meals for the children? - Concern of stability and continuity of previous arrangements that parties made during marriage. Determination is retrospective in terms of what standards have been established in the relationship - Primary caregiver presumption is less vague and unpredictable than the best interests of the child test (reduces litigation) - If both parents have equally shared primary care, final custody decision should reflect this Race and Culture Van De Perre F: white woman involved w/ several basketball players. R: Race is a relevant factor but not determinative. - Trial judge is at a better posn to assess the character of the witness so appellate cts are reluctant to overturn their rulings. - The fact that theres a step-mother is not relevant, dad has a busy schedule. Also rejects TYD but looks at primary care giver principle. Emphasis on stability and continuity, suggested primary caregiver presumption - Ct also looks at inter-spousal conduct as the fathers twins were bothered by the fact that their dad had so many affairs. Wishes of the Child CLRA 24(2)(b) - The court shall consider all the childs needs and circumstances, including views and preferences, if they can reasonably be ascertained CLRA 64(1) - In considering an application, a court where possible shall consider childs views and preferences to the extent that the child is able to express them Wishes of a child is one factor in determining the bests interests of the child but are NOT determinative Friendly Parent Principle Divorce Act s 16(10) - In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. - Presumption in favor of access as its BIOC to maximize contact btw parents and children. - Preference of custody to parent most willing to facilitate contact with the other parent - Friendly parent principle considered in custody, access and mobility cases

P a g e | 53 Jane Doe F: Mum primary caregiver, father had access, no evidence of mum expressing hostility to child (despite expert opinion) H: mum gets custody. R: Friendly parent principle is considered only if the negative feelings of one parent towards another are demonstrated to affect the relationship between the child and the access parent. (i.e. parent expresses negative feelings to child) ACCESS Divorce Act s16(5): Unless the court orders otherwise, a spouse granted access to a child of the marriage has the right to make inquiries, and be given information as to the health, education and welfare of child CLRA section 20(5): 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 Most common arrangement: alternate weekends, Christmas, March break, 3-4 weeks in summer, special events (birthday, fathers day), one evening a week Specifies phone calls and emails are permitted, but not beyond a certain hour

CLRA Section 36(1): Where a court is satisfied upon application by a person in whose favour an order has been made for custody of or access to a child that there are reasonable and probable grounds for believing that any person is unlawfully withholding the child from the applicant, the court by order may authorize the applicant or someone on his or her behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to custody or access, as the case may be CLRA Section 36(2): Where a court is satisfied upon application that there are reasonable and probable grounds for believing, (a) that any person is unlawfully withholding a child from a person entitled to custody of or access to the child; (b) that a person who is prohibited by court order or separation agreement from removing a child from Ontario proposes to remove the child or have the child removed from Ontario; or (c) that a person who is entitled to access to a child proposes to remove the child or to have the child removed from Ontario and that the child is not likely to return, the court by order may direct a police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order. Parental Alienation L v. D F: Doctors, lots of evidence mum does PA. Held: sole custody to father. Mum prev had them for 10 yrs. Unusual to impose custody at that age (16, 13, 9)

P a g e | 54 R: If parents have generated the estrangement like in Moudi (physical discipline) that might not lead to ct holding a switch around. Cf here, the other parent was the source of estrangement. Young H: Father permitted to discuss religious views but prohibited from involving kids in religious practices w/o kids consent. R: McL: The risk of harm to the child test is applied to determine whether access should be restricted on a case by case basis. This test is informed by the notion that a child should know his or her parent as they truly are. Sopinka: Test should be substantial harm (more than mere inconvenience or upset) to justify restrictions on religion and access (pro access parent). Relocation MacGyver R: There should be a presumptive deference that the views of CP prevail. The decision making process should go to CP, even if relationship w/ access parent is very strong. This discourages litigation, but deviates from standard of litigation where the best interest of the child should be accounted. Gordon: F: mum had custody, wanted to move to Aus, by time of trial, already living there for 2 yrs. H: mum wins R: Presumption given to custody parent is rejected. McL rejects presumption and emphasizes best interest approach Parent thats applying for change in custody order has to meet a threshold: material change in circumstances affecting the child. Hard to meet if parent doesnt see the child often. If its a small move, not enough distance means not a change in circumstances. If threshold is met, then the ct has to embark on fresh inquiry as to whats the best interest of the child based on previous judges finding and new circumstances. Parents interest might not be preserved. Ct has to consider existing custody and access orders and relationships of child w/ custody and access parents, max contact w/ parents, views of child, custodial parents reasons of moving (only rarely do u take this into account though this view is disregarded now), disruption of child based on change of custody and changes arising to school, environment that child is accustomed to. LH-D (dissent): argued for deference to parent Woodhouse F: Mum had to give dad 60 days notice if moving. Mum left anyways w/ kids. H: Reasons for the move were accounted for (getting married to new guy and so he can work while she is stay at home mom) and were weighed heavily. Now: Separation agmt states that theres no move outside of some jurisdiction w/o approval of ct or other parent. If there isnt such clause, AP has to stop the move via variation (reversal of custodial order) or ct order. If no such clause, parent is free to move w/o notice and the onus is on other parent to get reversal.

P a g e | 55 If theres non-removal order, CP must meet the best interest test to get ct order to move by showing how important the move is. Joint Custody and other Options
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Divorce Act s.16(5); access parent has right to information about child (school, medical) Young: right to discuss religion Chauvin: hiving off incidents of custody. Father wanted child to go French school and ct allowed that while mother had custody. Increase in childs meaningful input. Joint custody allows maximum child contact. However, still controversial parenting arrangement. May hive off incidents of custody (one parent may have physical custody while other parent has the right to determine education, religion, etc.) Increase in joint custody (controversial parenting arrangement). 20% in divorces result in jt custody Joint legal custody = joint legal responsibility for decision making. Joint physical custody = joint legal responsibility for decision making + child spends approximately 50% of time in each home (less common) 40% threshold for CS purposes Evidence that joint custody is beneficial for children (consistent w/ 16(10) facilitate contact w/ child) but not in all circumstances. o Benefits: maximum contact, benefits children, facilitates payment of child support, children less traumatized, parent appreciates support of other parent o Criticisms (feminists and child psychologists): Studies on joint custody focus on voluntary joint custody, studies also skewed towards parents with high incomes, education (inadequate control group). Those who choose jt custody are more involved in raising child, tend to have higher income and have a more amicable separation, good will towards each other. Those who choose jt custody are enthusiastic about arrangement which is beneficial for child (less traumatized bc they dont lose one parent at the end of separation), and is linked with higher payment of child support. Effectiveness of joint custody generally requires close geographic proximity, cooperative parents (maturity, goodwill)

Mudie F: Father in military, strict physical disciplinarian style. History of drug abuse. Mother believe in reasoning. Father began to be receptive of mums approach. Mum had sole custody w/ dad on wkend H: JC in BIOC R: Courts may award joint custody where there is a concern that one parent will restrict the other parents access to the child (encouraging agreement and best interest of child to have both parents) Ladissa R: JC order even though mum was opposed. Office of Childrens lawyer testified that communication btw parties were possible. Trial judge has lots of discretion to make a factual finding since the ct heard evidence of the capacity to communicate with each other.

P a g e | 56

Koplanis F: Parents screaming, police called. No testimy cf Ladissa R: Councellor cant determine childs arrangement. Hoping that communication between the parties will improve once the litigation has concluded does not provide a sufficient basis for ordering JC. There must be some evidence that, despite their differences, the parents are able to communicate effectively with one another. However, the mere fact that one parent says communication is impossible wont preclude an order for JC.

Domestic Contracts
Part IV of FLA recognizes marriage contracts, separation agreements and cohabitation agreements as domestic contracts that can override or modify statutory rights. Allow parties to agree that they dont want to be bound by default regime. Ct generally respects domestic K as theyre the wishes of the parties, accounting for interest when the parties arent in the heat of battle. 2(10): domestic K prevails over default regime unless theres an act that stipulates otherwise. 3 types: cohabitation agreement, domestic K, marriage K. Marriage K s.52(1): Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including, (a) ownership in or division of property; (b) support obligations; (c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and (d) any other matter in the settlement of their affairs. s.56(1.1) Contracts subject to child support guidelines In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract. Divorce Act s. 11(d) Child support amount that is stipulated in the agreement is subject to change from guidelines.

P a g e | 57 s.33(4) setting aside domestic K.

The court may set aside a provision for support or a waiver of the right to support in a domestic contract and may determine and order support in an application under subsection (1) although the contract contains an express provision excluding the application of this section, (a) if the provision for support or the waiver of the right to support results in unconscionable circumstances; (b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or (c) if there is default in the payment of support under the contract at the time the application is made.
Cohabitation agreement 53. (1) Two persons who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including, (a) ownership in or division of property; (b) support obligations; (c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and (d) any other matter in the settlement of their affairs. Effect of marriage on agreement (2) If the parties to a cohabitation agreement marry each other, the agreement shall be deemed to be a marriage contract. Separation agreements 54. Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including, (a) ownership in or division of property; (b) support obligations; (c) the right to direct the education and moral training of their children; (d) the right to custody of and access to their children; and (e) any other matter in the settlement of their affairs. FORM AND CAPACITY Form of contract 55. (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed. Capacity of minor (2) A minor has capacity to enter into a domestic contract, subject to the approval of the court, which may be given before or after the minor enters into the contract. Guardian of property

P a g e | 58 (3) If a mentally incapable person has a guardian of property other than his or her own spouse, the guardian may enter into a domestic contract or give any waiver or consent under this Act on the persons behalf, subject to the approval of the court, given in advance. P.G.T. (4) In all other cases of mental incapacity, the Public Guardian and Trustee has power to act on the persons behalf in accordance with subsection (3). Waldick R: domestic K must be signed under 55(1) by both spouses OR must be signed by lawyer on their behalf. The parties must agree to the terms of the agreement. Agmt had no effect. Hartshorne F: lawyers, signed K to divide assets even tho Ws lawyer told her not to. W modified K, added spousal support wont apply. H: K fair. W had independent legal advice. In BC under Family Relations Act, for K to be set aside, the standard is unfair for her to get nothing considering she sacrificed her career to care for kids. The standard in ON is unconscionability (which is an even harder standard) thus generally enforce the agmt. R: Ct is reluctant to second guess the separation agmt that both parties drafted, provided its fair. To determine if a contract is fair, look to the circumstances of the negotiation to see if one party took advantage of the others vulnerability, were circumstances at separation within reasonable contemplation of the parties at the time the agreement was formed, secondly, apply the agreement then make a determination wrt factors in legislation as to whether the contract operates unfairly i.e. situation of the parties at the time of distribution, age, education, true capacity to reintegrate into work force and achieve economic independence. ON FLA 56(4): K can be set aside at higher standard than BCs unfairness. Setting aside domestic contract 56(4) A court may, on application, set aside a domestic contract or a provision in it, (a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made; (b) if a party did not understand the nature or consequences of the domestic contract; or (c) otherwise in accordance with the law of contract. duress, fraud lead to vitiation of K Pelech triology: The separation agreement wont be reviewed at ct and is binding. A party can apply for spousal support where there has been a radical and unforeseeable change in circumstances which has a causal connection to the marriage. Miglin rejected this.

P a g e | 59 Miglin R: circumstances were foreseeably within the contemplation of parties at the time the agmt would be reviewed. Standard is still that its still hard to overturn sep agmt (hard for ct review the sep agmt) except if theres clear indication of undue influence, unconscionability. A court should be loathe to interfere w/ a pre-existing agreement unless its convinced that the agreement does not comply substantially w/ the overall objectives of the Act in question and the ct must not view spousal support arrangements in a vacuum, it must look at the agreement or arrangement in its totality, bearing in mind that all aspects of the agreement are linked and that the parties have a larger discretion in establishing priorities and goals for themselves.

Test: First, the court considers the circumstances in which the initial agreement was made: whether the agreement was negotiated fairly (ct looks for signs of fraud, unconscionability) and whether the agreement conformed with the objectives of the Divorce Act Second, the court must consider the current circumstances: whether the agreement still reflects the intentions of the parties and whether there has been significant change in circumstances such that it was reasonably unforeseeable at the time of formation.