Where Formal Defects Exist,

Marriage can be Saved: TEST FOR

SAVING VALIDITY
S. 31 deems a formally invalid (ie
filling in the forms wrong; no license,
married by non-authorized person)
marriage valid if it was: (Alspector
elderly Jewish couple marry
informally; plan to move to Israel,
challenge validity)
1. Solemnized in GOOD FAITH;
2. With PARTIES ACTING
ACCORDINGLY (ie co-habited
and behaved as married
persons); and
3. NO essential defect.
NOTHING IN THIS SECTION CAN
SAVE A MARRIAGE WITH
ESSENTIAL DEFECTS.
MARRIAGE
LEGISLATIVE AUTHORITY
Federal authority to legislate marriage comes from s.91(6) BNA marriage and divorce.
Marriage Act governs marriage by
(1) preserving the right of religious institutions to marry ppl, and
(2) providing the state with the right to marry ppl.
The act grants authority to marry (s. 4) to people who have a license or a banns (Church
mails notices with names of those who intend to get married, rare these days.).

FORMALITIES of Marriage
Ceremony
1. Must be conducted by a
person authorized by the
Minister (can occur in a
CIVIL via Judge way or
in a RELIGIOUS way) S.
20
2. Both parties must be
physically present:: s. 24
3. Two witnesses must sign
the registery: s. 25
4. Must be done within
timelines either within 3
mths of obtaining license
or 5 days after banns
(27(2)&(3).
Everyone who is validly
married gets a certificate as
proof of marriage.
ELIGIBILITY REQUIREMENTS: Who can be granted a license?
1. Age of majority (s. 5) 16 in Ontario. If under 16 need consent by a parent or
can apply for court consent where not available by a parent (b/c parent does not
exist or consent is being arbitrarily withheld s. 6).
2. Capacity (s. 7): Example: Not mentally ill, or under the influence of
intoxicating liquor or drugs.
3. Not currently married:
Divorced (s.8): If divorced before, s. 8 requires proof of divorce. In Cda do
this by showing certificate of divorce; if divorced outside of Cda, need a
letter from a lawyer that says the grounds for divorce elsewhere are similar
to the Cdn Divorce Act . (s. 8(3)
Declaration of Death (s.9) A declaration of death is granted where there is
no communication with a spouse for 7 years immediately before an
application and remaining spouse has made reasonable inquires.
Note: if a person who is presumed to be deceased, turns up, the validity of
the spouses 2
nd
marriage is called into question.
4. NOT within Prohibited Degrees (s. 19): The list of ppl that you cannot
marry is short a vertical blood line of directness grandparent, parent, child,
sibling (adopted or natural) are prohibited.
If local authority refuses to grant a license, the Minister has huge discretion, to grant
licences (s. 10).

ESSENTIAL VALIDITY: Test for declaring a marriage void
NOTHING saves a marriage that violates these six essential factors, not even
s. 31. This results in an annulment of the marriage = making it VOID.
Note: Such a declaration can have religious, societal (teachers in catholic
board) and legal (annulment = different type of property division) implications.
1. Opposite Sex (Layland): CML defines marriage as b/w a man and a
woman; Charter does not change this
2. Ability to consummate (Gajamugan) UNLESS parties intended a
platonic marriage (Norman elderly platonic intentions) or were aware of
the inability/unlikelihood of consummation (Aisaican marries paralyzed
man) this is all about intent!
3. Inside Prohibited Degrees (s. 19) i.e. within vertical blood line of
directness (adopted persons are treated as blood relatives)
4. Prior existing marriage:
a. Where divorce is invalid (i.e. if divorce was obtained in a jurisdiction
parties did not have a connection with: Bate Nevada)
b. Where evidence shows that a spouse who was presumed to be
deceased under s.9 is alive, the validity of any subsquent marriage
may be in question (Meszaro); courts look at parties conduct/
intentions
5. Consent includes general contract provisions of offer, acceptance,
consideration, and
a. Capacity to understand (Banton know you are getting married;
other incompetences are irrelevant Muna Case)
b. No Duress (S. (A.)- can ratify marriage retroactively w/o consent
through continued cohabitation)
c. Limited Purpose/fraud/mistake (Iantsis cannot be willfully
ignorant of the limited purpose of marriage Immign sham wedding)
6. Age (Either age of majority, or in Ontario, at least 16)
a. Need parental consent if under 16 or
b. Approval by the court (Re Fox father refused consent, court gave it)

NOTE: THERE IS A
VOID/VOIDABLE DISTINCTION
Void: analogous to a
declaration of NEVER BEING
MARRIED
Voidable: A declaration that
the marriage is VALID but
CAN BE VOIDED.
Next Page





Impediment or Defect in Marriage Status of Marriage
Identity of Sex Void
Prior Existing marriage Void
Relationship with prohibited degrees Void
Informal Marriage Void
Failure to comply with specific statutory formalities Valid, (except where applicable Marriage Act,
expressly or by necessary intendment, decrees a
nullity). Can be saved by s. 31
Non-age: either party below the marriageable age
of the CL (boys =14 girls = 12)
Void (except where the applicable Marriage Act
decrees otherwise) but cable of ratification by
continued cohabitation after attainment of age
Non-age: marriage contracted by a minor of
marriageable age but below age-of-marriage-
majority and without consent of parent or guardian
Voidable: Valid unless the applicable Marriage Act,
expressly or by necessary intendment, decrees nullity
Insanity Void but capable of ratification by continued
cohabitation after recovery/rehabilitation
Drunkenness or drug intoxication depriving party
of reason and volition
Void but capable of ratification by continued
cohabitation after sobering up
Force, fear or duress Voidable at instance of coerced party
Mistake as to the nature of the ceremony or the
identity of the other party
Voidable at the insistence of either spouse or capable
of ratification by mistaken party
Mistake as to qualities or attributes of the other
party
Valid
Fraud Valid unless mistake is a material mistake
Formally correct marriage contracted without
intention to establish a true marriage (i.e. limited
purpose marriage)
Valid though controversial
Impotence Voidable at insistence of either spouse

LEGISLATIVE AUTHORITY
Only married people can apply for relief under Divorce Act. There are
Two sets of relief under the DA.
1. Get a Divorce: this is a change in legal status can sever this
from (2) under s. 16 (Heon Ont CA) How to get a Divorce:
1 year residency requirement s. 3(1)). (jurisdiction issues
arise where two spouses live in separate provinces; the
rule is first in time is first in line: s. 3(2) subject to s. 6
jurisdiction follows the child).
Grounds for Divorce: s. 8(1) only one ground:
Breakdown of Marriage (proven by living separate and
apart, (8(2)(a) for 1 year (incl. a 90 day period where
parties can cohabit with the intent to reconcile: s.
8(3)(b)(ii)); OR through adultury/cruelty here a one year
waiting period is waived) 8(2)(b)(i) adult (ii) cruelty
2. Get Corollary Relief s.8: Such as
Living arrangements for children partners and children
Child support
Spousal support very dynamic issue
Sharing (equalization) of property and debts.
DIVORCE
Next Page
Duty of Legal Advisor and Court
s. 9 all lawyers have a positive duty to
make suggestions other than litigation by
encouraging clients to explore client to
explore reconciliation, negotiation or
mediation unless the circumstances of
the case are such where it would clearly
be inappropriate.
s. 10: Court has similar duty to make
sure that there is no possibility of
reconciliation if there is such a
possibility judge can order stay of
divorce for any period of time.
Reconciliation is encouraged by S.10(5)
evidence of anything said during
reconciliation process is not admissible
in court. Idea is to protect parties
privacy, especially if there was an
admission, or talk about corollary relief
issues.

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



















































*NOTE: this means parties can apply for a divorce on the same day as a separation provided the 1 year
residency requirement is met (but the divorce cannot be granted until 1 year of separation)
Steps to seeking relief under the Divorce Act ONLY APPLICABLE TO MARRIED PERSONS
















Establish courts jurisdiction

1. Generally court has jurisdiction if one of the parties has been ORDINARILY RESIDENT in that jurisdiction for at
least 1 YEAR (S. 3(1)).
2. If parties are seeking relief for a child, jurisdiction follows the child. The jurisdiction the child is more
SUBSTANTIALLY CONNECTED is the one that has jurisdiction. GENERAL RULE: JURISDICTION
FOLLOWS THE CHILDREN. (S.6)
3. If divorce proceeding occurs in 2 courts around same time (ie COMPETING CLAIMS) one of the parties must
withdraw their claim. Generally the person who began proceedings first get to proceed. First in time, first in
line S. 3(2)).
4. If 2 divorce proceedings started on same day- Federal court trial division can resolve which case must be
withdrawn. S. 3(3)).
Note: once a court has jurisdiction it doesnt lose it just because parties move out of jurisdiction, but parties may apply to
court to transfer the jurisdiction (s,6(1).
Establish grounds for divorce: Only 1 Ground: breakdown of marriage (s. 2); can be proven by


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

(2) Behaviour (s.8(2)(b))
Spouse against whom divorce brought
(guilty spouse)
i. Committed adultery or
ii. Treated the other with physical or
mental cruelty such that made
continued cohabitation impossible -
High test (Barron treatment should
be intolerable annoying)
Note: no 1 year separation requirement
Proof: Civil standard (BOP). Direct evidence
is rare, circumstantial evidence or affidavit of
either spouse or 3
rd
party involved used to
establish adultery.
Living separate and
apart (s.8(3)(a))
Parties can cohabit and
still be separated if the
parties intended to be
separated (Dupere
live together for the sake
of ; behaviour = intent)
Reconciliation s.8(3)(b))

Parties can recommence co-
habitation for up to a 90 day period
(consecutive or not) with the
INTENTION of reconciliation
without effecting the 1 year
separation term. (s.8(3)(b) (ii))
(Rogler casual sex, no intent)
Ensure rsbl arrangements have been made for the support of any children (s.
11(1)(b)
In general the Federal Child Support Guidelines are considered reasonable
arrangements for the children. If the Guidelines are not met, then most judges
find that they have no option but to deny divorce (Briand CS not in SA; and
Merino). Having a CS order is not enough, court must be satisfied the parties are
abiding by it (Ninham natives ignore order; J stays divorce)
Ensure there is no possibility of
reconciliation (s.10)
If there is such a possibility judge can
order stay of divorce for any period of
time.
Severed
Divorce has been
severed from
corollary relief
issues as per s. 16
(Heon Ont CA H
wants divorce, W
wants corollary
issues dealt with. H
gets divorce)
Ensure there has been no
collusion s. 11(1)(b).
Collusion = agreement or
conspiracy either directly or
indirectly to deceive the court.
Ensure there has been
no condonation or
connivance s. 11(1)(c)
Only if one spouse claims
adultery or credulity
DIVORCE: Divorce Order -- One year after a Petition for Divorce is filed a
divorce order can be issued. 31 days later an application can be made for
a certificate of divorce which = proof of divorce.
Note: 31-day period can be waived in certain circumstances i..e. if

Judicial Controls on an Existing Domestic Contract: Factors to Consider
























.

DOMESTIC CONTRACT DOES NOT
COMPLY WITH FORMAL REQTS OF
FLA s. 55(1)) unenforceable
3 essential elements to valid domestic
K:
1. Signed
2. In writing and
3. Witnessed
Court will find ways to enforce agreets
even when formal reqts are not meet
provided parties had independent legal
advice, no duress etc (Geropoulos)

BIOC
The provisions of agreement are not in the
best interests of the children (s. 56(1) FLA)
GUIDELINES: CS
provisionin accord-
ance w guidelines
(s.56(1.1) FLA)
CHASTITY
Provisions dependant on the parties
staying chaste (s. 56(2) FLA) Note: while
requirements to stay chaste are
unenforceable, obligations based upon
cohabitation or remarriage are enforceable
THE FORMATION OF THE CONTRACT WAS FLAWED
1. Party failed to disclose significant assets or debts or liabilities when K made (s. 56(4)(a) FLA): Court will consider
whether non-disclosure = a MATERIAL INDUCEMENT to entering the agreement. (Dochuk fid duty to disclose)
2. Party did not understand nature and consequences of K (s. 56(4)(b) FLA) i.e. ILA explain this: Best (note: if
ILA is ill-qualified or giving wrong advice, the onus is on the spouses to check out qualifications: Grant-Hose)
3. Otherwise in accordance with the law of contracts (s. 56(4)(c) FLA) : Offer, acceptance, consideration, intention,
meeting of minds, capacity (duress, mental), certainty, specific terms (Troitter no ILA and unconscionable terms
= no SA; Crouse K should be looked at as a whole; here, W cheated and H took advantage of her weak posn)
NOTE: The court will bend over backwards (give judicial deference) to help parties achieve their intentions, even
when there are formal defects in the separation agreement
IF SA NO LONGER REFLECTS PARTIES INTENTIONS OR
OBJECTIVES OF Divorce Act (Miglin SCC 2003)
1. At the time of K formation
(a) Consider the circumstances under which K was made
considering the bargaining inequalities, particular
vulnerabilities and assistance received by the parties;
(b) Whether the substance of K meets the objectives of the Act.
2. At the time of the application to do the terms of K still reflect the
parties intentions at time of K & the objectives of Act.

COHABITATION AGREEMENT/MARRIAGE
K DEALS WITH FORBIDDEN MATTERS
1. Deal with custody, access and support
for children (s.52(1)(c) FLA;
2. Limits spouses right to possess
matrimonial home (s. 52(2))FLA; Nurmi
ownership can be contracted, not rgt to
possession
BARRIERS TO MARRIAGE
If consideration for K was one party removing barriers to other parties
ability to get married (s. 56(5FLA) ie if you need husbands
permission to get remarried in church and to get it you waive SS.
Court deals with this severely by striking out pleadings, changing SA
entirely even if there is valid consideration
DOMESTIC CONTRACTS: Is the Domestic Contract Valid?



Formal Requirements: 3 Essential elements to a valid domestic contract (FLA
s. 55(1)):
2. Signed
3. In writing and
4. Witnessed
Agreets that do not comply with these reqts = unenforceable; however in an
effort to promote settlement, and support parties efforts to make a deal, the
court will find ways to enforce agreets where formal requirements are not met
provided the parties had ILA, no duress etc (Geropoulos lawyers letter exch
= Domestic K) What crts are willing to do to enforce Qable domestic K:
1. Formal defect of SA avoided by calling it a promise to pay
(Sanderson s.55(2) re: homemade SA; this SA is valid)
2. Interpret witnessing requirement as met if a lawyer reviewed the SA
even though spouses were not present while the actual SA was signed
(Campbell witness SA, not signature)
TYPES OF DOMESTIC
CONTRACTS Domestic K can
be (FLA s. 51).
(1) Cohabitation agreement(53)/
marriage contract. Marriage K =
predetermined separation
agreement s.52.
(2) Paternity agreement s. 59 K
to pay prenatal care and birth;
support; funeral expenses of the
child or mother (3) Separation
agreement. Pursuant to the DA
parties can opt out of almost
everything s.54 EXCEPT
matters dealing with children ie
child support

JUDICIAL CONTROLS: Trilogy upheld
permanency of settlets, reinforce indivl
responsibility and clean break; G.B. v L.G.
(SCC 95) considers fairness: (1) mat change
and (2) whether agreet satisfies DAs obj @
time of execution and @ time of mat change;
Miglin (1) Circ @ execution and substance
of agreet; (2) examine how enforcing agreet
reflects original intentions of parties and obj
Objectives s. 15.2(6) DA:
Re: SS (a) Eco ad/disad
arising from break; (b) finl
care of children; (c) relieve
eco hardship arising from
break; (d) so far as
possible, promote self-suffic


STEPS TO OBTAINING CUSTODY OF A CHILD


Who can apply for custody?
A person with connection to child can apply
for custody orders (DA s. 16, s. 21 CLRA),
- Under DA non-parents must seek leave
of court (s. 16(3).
- Both parents have equal entitlement to
custody (CLRA s. 20)

Are the parties legally married as per Marriage Act
If yes and there is jurisdiction under DA If no, proceed under CLRA, provided the child is s. 22(1):
(a) HABITUALLY RESIDENT of Ont, when application brought.
Habitual residence means the place kid resided w/ s.22(2):
a. Both parents;
b. With 1 parent under SA, consent or implied consent
c. Person other than parent on permanent basis for sig. time
(b) Or if court is satisfied that (22(1)(b)
a. Child is physically in Ontario
b. Evidence about BIOC is in Ontario
c. No application for custody pending elsewhere
d. No extra-provincial orders recognized by Ont.
e. Child has real & substantial connection with Ont.
f. Ontario is the most convenient jurisdiction
Kidnapping kid does NOT change residence (s.22(3))
ONLY FACTORS TO CONSIDER IS BIOC
s. 16(8) DA.
Note: Factors set out in s. 24(2) of CLRA are not
binding under DA but courts can consider them
(conditions, needs, means and other circumsts)

Past conduct will only be taken into account if it is relevant
to parenting DA s. 16(9) CLRA 24(3) ie:
1. Preventing meaningful contact btw kid and other parent
(RenaudH kicks W out +keeps =status quo for custdy
2. Marital misconduct if it shows a willingness to put self
interests before the children (Fishback) Ws beau =
fling
3. Lack of parenting skills (Young) H = self-interest driven
4. Conduct after separation (Young) stealing documents
5. Smoking if child has health issues (Bourdon v.
Casselman 1988 Ont. Prov. Ct)
6. Domestic violence
Factors courts consider to determine the BIOC
1. Status quo situations(s. 24(2)(c)CLRA) :
(i) should stay in an envt. they are accustomed to, unless compelling reasons to remove exist Lisantiabused W
(ii) SQ can be developed in a short period of time Moores 2 yrs to get to court; interim custody arrangement = SQ
(iii) SQ can be disturbed when circumstances used to establish it are questionable Renaud H kicks W out
2. Heritage/Ethnicity of parents and kids (Van de Perre 2000 SCC B-ball player seeks custody of mixed and gets it)
3. Relationships with third parties. Court considers
(i) Stability of new relationship (Fishback W show that new beau would last; self-interest no BIOC)
(ii) Character/parenting skills of the person w/ whom parent resides or intends to reside w/(ReidW lives w/ lover + )
4. Parenting Skills Young: H sends boy to steal documents from W; not acting in BIOC, but of himself
5. Sexual orientation not a bar to custody, but another factor to be considered. In reality it is a negative factor, but can be
mitigated by presenting evidence about other good parenting skills (Barkley lesbo-mom; daughter wants to live w/ her).
6. Primary care givers - parent that had the major impact on young childs development will likely receive custody, as long
as the task has been reasonably carried out (Harden tender yrs doctrine overturned; females not best always)
7. Sibling bonding - Generally, siblings will NOT be separated
8. Wishes of child (s. 24(2)(b) CLRA) ascertained through office of the childrens lawyer
9. Friendly parent: the parent that supports access gets custody (Doe W complied w/ orders) Parties dont have to do any
more than comply with existing orders. s.16(10)DA Note: courts treat unfriendly parents very harshly
10. Love, affection and emotional ties between the child and (s. 24(2)(a) CLRA)
(i) each person claiming custody or access
(ii) other members of the family who reside with the child, and
(iii) persons involved in the care and upbringing of the child;
11. Ability and willingness of each person to meet the needs of the child (s. 24(2)(d)CLRA)
12. Each parties proposed parenting plan (s. 24(2)(e) CLRA)
13. Pemanence and stability of family unit with which it is proposed the child will live (s. 24(2)(f)CLRA)
14. Relationship by blood or adoption btw child & person claiming cusotdy or access (s. 24(2) (g) CLRA)

Before making a decision about parenting, court must be presented
with evidence relating to needs of kids and evidence of the parents
ability to meet those needs (Wakaluk).
Lawyers have to advice
clients of ADR
possibility: s. 9(2) DA
Parental alienation is the purposeful attempt by a parent to
totally alienate the children from the other parent. Symptoms:
- Child hates parent; vilifies,
- Repeat rehearsed hate speech
- preoccupied w/ parents past behavior
Judges often respond to alienation by completely banning the
alienating parent from contact with the children. This harsh
response often leads to a misuse; courts need to be mindful
of s motives: sometimes it is not b/c of alienation but rather
b/c child doesnt like access parents new spouse, living
arrangement, or some other reason completely unrelated to
the custodial parents behavior.




Duration of orders the court can make







TYPES OF PARENTING ORDERS THE COURT CAN MAKE
INTERIM ORDER: DA s.16(2)
This is impt b/c generally the person who gets
interim custody establishes a status quo which
judges are hesitant to interfere with.

Joint Custody/Shared parenting
s. 16(1)(4) DA and s. 28(a) CLRA
Parents jointly share decision-making abilities. Note: one
parent can still have sole physical care of children but both
share decision-making. Presumes that both parents are
capable and able to make decisions. There is no presumption
of JC; DA simply allows Js to authorize JC arrangements
where appropriate: Catholic Childrens Aid Society
When JC will not work:
Leonoff, Joint Custody and Beyond
1. If one of the parents rejects idea of JC
2. There is lots of blaming btw the parents
3. Rules of parents houses are divergently different.
4. One or both parents exert a sense of ownership
over children my child
5. Parents argue through their children ie kids
asking what mom is going to spend CS on
6. Neither parent is adequate enough to assume
custodial role on their own
7. Evidence of mental illness, addiction, personality
disorder with one of the parents
8. SINE QUI NON- when parents wont stop going to
court hotly contested litigation
Singer and Reynolds, A Dissent on JC
Reservations about JC are explained, particularly
when court-imposed:
1. JC needs to distinguish b/w physical and legal
custody
2. JC assumes that after a divorce are better off
maintaining frequent contact with both parents,
and the only way this can occur is through JC
this is illogical and lacks data to make the leap
from one to the other.
3. JC-friendly-studies are based on voluntary, rather
than court-imposed, JC arrangements.
If parents
cannot co-
parent
Sole
custody
PERMANENT ORDER
Note: these are not really permanent, if the
circumstances of the child change, court will consider
what is in BIOC at that time (CLRA s. 28) (DA s. 17(5)
If parents cannot co-parent,
Parallel Parenting
Parents never speak to each other but on a
rotating basis they are responsible for the
children. In the interim each parent MUST
comply with what the other parent agrees to.

If parents need help co-parenting
Parenting Coordination
Parenting coordinator with a social/mental health
background helps parties resolve minor issues that are
not specifically covered in court order/separation
agreement. Parents agree to be bound by the decisions
of coordinators . Parenting coordination hasnt yet been
incorporated into court orders b/c there arent enough
people offering this service.
ACCESS (rgt of to see non-custodial parent) and CONTACT
FACTORS TO CONSIDER IN LIMITING/EXPANDING ACCESS
Note: Child support and access are NOT two parts of a bargain. A denial of one is not justification for a denial of the other.


















Access can be terminated if it is no
longer in the BIOC (M.(B.P) Dr. told W
there may be sexl abuse by H; wets
bed in fear).
Nothings Final:
Courts are generally
unwilling to restrict
access, particularly if a
strong connection
exist. NOTE:
Decisions regarding
access to children are
not final.. if the
parents circumstances
change (ie the they
correct behavior and
want to see the kids),
court orders will also
change.
Biology and Original Intentions are not Determinative: A parent does not
have to be the biological parent in order to get access (Low 1994 Ont. Gen
Div), nor does the parent have to be someone who planned to be in the
childs life ie sperm donor (Johnson-Steeves v. Lee 1997 Atla CA).

Rights of access
parents under DA
s. 16(5) - spouse
with access have
the right to make
inquiries
(provision is
ambiguous, it
does not say
directly from the
custodial parent);
and to be given
info as to the
health, edu and
welfare of
BIOC, Access and the
Charter: BIOC may limit
the Freedom of Religion of
the parent (Young 93 SCC
H = Jehovs Witness;
dislike instructions and W
seeks to limit Hs ability to
expose to religion)
NOTE: In B(R) v. CAS of
Toronto, (1995) SCC held
that limitation of a parents
freedom of religion for the
BIOC must still be justified
under s. 1.
Mobility Rgts: Test to be used to allow a
custodial parent to move is the BIOC
(Gordon W wants to move to Australia to
go to school) not maintenance of reln w/
non-custodial parent (Carter made this
determinative). One parents desire to
relocate = material change in circs Crt
must consider the custody matter afresh
w/o defaulting to the existing
arrangements. Existing Order creates
presumption (MacGyver Ws new H has
better job offer in WA; H seeks to keep in
Ont. to maintain access); examine impact
reason for move is not relevant, impact on
is key -- from a -centered perspective:
(Gordon)




































STEPS TO GETTING SPOUSAL SUPPORT note this is considered after property division
Are the parties legally married as per Marriage Act
If married, crt can grant div.: proceed under DA s. 15.2 and/or FLA If not married proceed ONLY under FLA Pt.III
ENTITLEMENT
Court SHOULD consider objective set out in s.
15.2(6) and MUST consider any existing orders,
agreements, arrangements relating to support. s.
16.2(4)(c). If these exist see variation chart

If spouse consider, trying to bear in mind
objectives set out in s. 33(8):
1. Is there a NEED for support (s. 30)
2. Is there ABILITY to pay (s, 30)

If NO Need or entitlement try to make a
constructive trust claim long shot!!!
ENTITLEMENT - Are they a spouse as per FLA
1. Man or women married to each other (s. 1); can incl gay couples
2. A person who on good faith/innocently entered into a void or
voidable marriage (s. 1)
3. Hetero/homo (M v. H SCC) couple that have continuously
cohabitated for at least 3 years (s. 29). Consider:
- Lived together as husband and wife (Gostlin BC CA)
- They shared residence, had sexual relations, domestic duties
shared, socialized together (Molodwich)
- never intended to end relationship (Sanderson Ont CA together
as CML for 6 yrs and separated for 4-5 days, lovers quarrel)
- if parties were economically dependent (Stoikewicz Wmn paid
rent; econ. indep.) but this is not always determinative
(Armstrong look at more than ecoic dependence)
4. Hetero/homo (M v. H SCC 12 yrs) couple in a relationship of
some permanence if they are the natural/adoptive parent of (s.29).
- Consider length of cohabitation, sharing of property, discussion of
marriage (Labbe Groupie/Musician, Baby, talk of marriage)
Determine the AMOUNT and DURATION of support. Under FLA courts MUST consider factors in s. 33(9) - below, while these are
not in DA, the courts still consider them. Courts can use SS database which offers cases based on income, # kids, length of
marriage. In Moge the SCC advocates continuous SS if there was continuous need. But in Miglin the SCC implied that SS
should be of a limited duration; this promotes self-sufficiency.

Relevant Factors listed in s. 33(9)
(a) The parties current and (b) future assets and means;
(c) The recipients ability to be self sufficient
(d) The payors ability to pay
(e) The parties age and physical and mental health;
(f ) Accustomed Standard of Living so no cardboard box for the Mrs.
(g) What is needed for recipient to become self-sufficient i.e. more
school, training etc.
(h) Any legal obligations to provide support to another person
(i) Recipients desire to stay at home -acknowledges the care of children
(j) Contribution by recipient to the realization of spouses career potential
(Caratun- dentists license);
(l) Specific factors:
(i) the length of cohabitation - the longer youre together, the
more SS youll get
(ii) the effect on earning capacity by marriage responsibilities
(iii) whether the spouse is responsible for an ill or disable child,
(iv) whether the spouse is assisting kid pay for post secondary
education,
(v) any housekeeping, child care or other domestic service
performed by the spouse
(vi) the effect on earnings and career development by child care
responsibilities
(m) any other legal right of the dependant to support, other than out of
public money.

Is there
ABILITY to
pay?
Is there a NEED for support or reason
COMPENSATION is required?
Court MUST consider:
(a) length of cohabitation s.15.2(4)(a)
(b) functions preformed by spouses during
cohabitation s.15.2(4)(b)
Generally as long as relationship lasts some
time entitlt to SS is estd (Moge 20 yrs; W loses
job; Femzn of Pov Jly noticed). Need can be
based on post breakup event ie illness(Bracklow)
GROSS UP amnt of SS to acct for tx OR INCOME SPLIT (giving tx refund)
If no ability- consider seeking a future
order securing s/s if ability changes
Enforcement of Spousal Support Order
In Ontario the FRO is responsible for enforcing court
order. They have the sole authority to collect
support. Note: Parties can agree to withdraw order
from FRO and pay each other directly.
1. If payor is an employee:
i. FRO sends letter to payors employer to get
them to deduct spousal support at source.
ii. If employer chooses not to deduct then the
employer is liable for the amount of support.
FRO then sends money to the receiving
spouse.
2. If the payor is self-employed it can be difficult to
determine their income and collect support.
i. The courts respond by sometimes imputing
income.
ii. FRO takes drastic action in order to force
payment ie. taking away their license or
passport. Payor can then ask court to seek a
refraining order which refrains the FRO from
taking action for 60-90 days to allow the
payor to pay the arrears.
Bankruptcy does not eliminate obligation to pay
periodic support but does wipe out obligation to pay
lump sum support. Court can use s. 34 FLA to
require property to be transferred over, an
irrevocable beneficiary declared on life insurance,
charge (mortgage) on property.
Under DA s. 15.3. FLA s. 38.1 CS gets priority over SS if there is a limited ability to pay even if there is an entitlement and a demonstrable need






Variation of Spousal Support











Is there an existing order, separation agreement relating to SS?
If Order
DA s.17(4.1) & FLA
s.37(2): court can vary a
SS order if there has been
a change in condition,
means, needs or other
circumstances of a former
spouse since the last order.
Or
Under FLA s.37(2) if
evidence not available at
previous hearing is now
available
If Separation Agreement If no, proceed as new SS claim
Under DA if there is a waiver of SS
(Miglin 2003 SCC)
1. At the time of K formation
(a) Consider circumstances under which K was
made considering: bargaining inequalities,
particular vulnerabilities & assistance
received by the parties;
(b) Whether substance of K meets objectives of
the Act.
2. At time of application, do terms of K still reflect
parties intentions at time of K & objectives of Act.

Under FLA s. 56(4)
Provisions of SA can be
set aside if:
(a) Failure to disclose
assets, debts/
liabilities at time of K
(b) Didnt understand
nature/
consequence of K
(c) In accordance with
law of K





































Steps to Getting Child Support


Is there an obligation to pay support? CS is a creation of Statute, not CML. This right to support is given to a child
of the marriage under s. 15.1 DA or dependent under s. 33(1) FLA. 1. establish entitlement 2. assess amount.
Can paternity be proven?

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

Types of evidence relied on (Rhan v Pinsonneault)
1. Were the parties married/CML relationship of
some duration at the time of conception?
2. Did the parties admit to sexual intercourse near
the time of conception?
3. Did parties admit to extramarital relationships?
4. Was mom able to establish a prime facie case
of putative fatherhood notwithstanding the
maybe dads denial of having sex with mom.
5. The doctrine of laches does not apply (Phiroz.
V. Mottiar 1995. Prov. Div.), subject to some
limitation ie. Mcartney case, Lastman

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

Does the person fall under extended definition of parent
If married under DA s. 15.1
CS payable for a child of the marriage,
under s. 2 DA Interpreted by the crts to
mean:
(i) A child of both spouses includes kids
adopted by both parents s. 2(2)
(ii) A child for whom both parties stand in
place of a parent i.e. aunt & uncle
(iii) A child for whom a person stands in the
place of a parent (s. 2(2))
- need knowledge and intent
(Aksugyuk Dad must know they are
not the real dad to be a s loco
parentis)
- Cannot be revoked (Carson Dad
tries to get out of CS by revoking
commitment to ; not allowed)
- TEST = objectively consider the
NATURE of the relationship (Chartier
H treats from Ws first marriage as
his own factors on p.36 in bold)

Under FLA s.
31(1)
CS orders can be
made for a parent

(i) Who has
demonstrated a
settled intention
to treat as a
child as child of
their own family
s.1(1) except
foster kids; OR
(ii) another
person who
may have an
obligation to
provide
support. s.
33(5)


Has the obligation to pay support been extinguished?
Underage?
Must pay for kids under
age of majority b/c
statute says so: DA
s.2(1)(a)); or unmarried,
minor FLA s. 31(1). std
Withdrawal from parental care

Do not have to pay for kids who are
over 16 & have withdrawn from
parental control during the material
time s.31(2) FLA. = forgotten
children ie squeegee kids
- withdrawal must be voluntary
(Zedner has probs w/ new H,
moves in w/ grandma and seeks
CS for school did not
voluntarily leave)
- material time = time of
application/hearing (Harrington)
Overage?
Must pay for kids over the age of majority if child is:
- FLA s. 31(1) -Enrolled in full time school
- DA s.2(1)(b) - unable by reason of illness, disability or other cause, to withdraw
from their charge or to obtain their necessities of life




Other causes interpreted = full time school TEST (Wesemann)
1. Determine if still child of marriage by considering
i. Whether the course of studies is pt/ft
ii. Whether child is eligible for loans
iii. Whether the career plans of the child are reasonable/appropriate
iv. The ability of child to contribute to their own support through pt job
v. Age of the child
vi. The childs past academic performance
vii. Parent plans for the education of kid made during the marriage
viii. Whether child has unilaterally terminated relationship with parent?
2. Pay guideline amount, unless one of the parties challenges
3. If amt challenged, determine if amt is inappropriate. If appropriate keep
amt. Consider how close kids circumstances are to child that
guidelines were based on. The closer the circumstances the more likely
the guidelines are appropriate.
4. If guideline amount is inappropriate, decide what is the appropriate
amount with regards to the condition, means, needs and other
circumstances of the child (ie ability to obtain employment) and the
financial ability of each spouse to contribute to the support of the child.
What AMOUNT of C/S that is appropriate? Next Chart





































What amount of child support should be paid?









Court must set c/s in accordance with guidelines DA s.15.1(3); FLA s. 33(11); NB: there is an obligation to disclose incomes (s.
21 Guidelines); non-compliance leads to crt drawing adverse inference (s. 23), strike out pleadings, contempt (s.24)
Court can set CS @ a different amnt from guidelines if (DA s.15.1(5); FLA s.33(12)):
1. Special provisions made for amnt is equal to guideline amnt i.e. pay private school fees DA s.15.1(5)(a) FLA s.33(12)(a);
2. Guideline = inequitable DA s.15.1(5)(b) FLA s.33(12)(b)
3. Upon parents consentprovided rsbl arrangements had been made for care of child (DA s.15.1(7); FLA s. 33(14)).
NB: DA s.15.1(8); FLA s. 33(15) say the rsbl arrangement = guidelines.
NOTE: If the court makes CS order different from guidelines, the court must explain why it has chosen to do so: DA s. 15.1(6)
and FLA s.33(13). Courts bend over backwards to NOT deviate from guidelines to increase certainty.

Is there a reason to award different amt than table amt
A court has discretion to award amt different from tables if:
1. Children over age of majority (s.3(2))
2. Income > $150,000 (s.4), pay table amt for 1
st
$150,000, tables may be applied to balance (Simon hockey dad)
3. Parent is a person in place of a parent (s. 5)
4. Split custody (s.8) - i.e. each parent gets 1 child
5. Shared custody (s. 9) i.e. each parent gets child for at least 40% of the time (Hunter 2 Options:p.37)
Note: guidelines are still considered for each of above.
Does the parent have the ability to pay
S. 31 FLA requires parents to pay CS to the extent that they can (Dean undue hardship in s. 12 Guidelines).

Undue hardship test s. 10
1. Are there circumstances that constitute undue hardship? Section 10(2) Must be:
(a) Spouse has unusually high level of debt associated with marriage
(b) Spouse has high access expenses
(c) Spouse has legal duty to support previous spouse
(d) Spouse has a legal duty to support kid other than the child of marriage
(e) Spouse has a legal duty to support another person
2. Does household standard of spouse seeking relief exceed that of other spouse? On exam state comparison
of household standards of living is a complicated process, beyond the scope of this answer.
3. If 1 and 2 established, the guidelines are NOT mandatory, court has discretion to award c/s in accordance
with c/s guidelines or not.
NOTE: In theory s. 10 could be used to CS amount, but hasnt been done yet
If exceptions do not apply, determine type of child support?\
S. 3(1) CSGL creates assumption that for all children under age of majority c/s should be based on guideline
Basic Table Amount
Covers room & board. Determined formulaically based on
income & # of children using province specific tables
Special & extraordinary expenses (s. 7 CSGL)
Restricted to health, education & extra curricular
see next page
Determining Income s. 15-20
Income is based on total income on T1 form (s.16) except when
1. Not fairest determination of income. Income determined based on last 3 years & pattern of income. (s. 17)
2. If income of shareholder, director or officer of a corporation is not reflective of actual amt, all or part of corporations
income can be attributed as personal income (s. 18).
3. The court may IMPUTE income in the following circumstances (s.19 very impt)
a. Intentionally under employed or unemployed
b. Exempt from paying tax
c. Spouse lives in country with lower tax rate than Canada
d. Income has been diverted
e. Spouses property is not reasonably being used to generate income;
f. Spouse fails to provide income information
g. Spouse unreasonably deducts income
h. Most of income is from sources that are taxed at a lower rate than employment income
i. Spouse is the beneficiary of a trust.








































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
















Step 5: Apportionment
Once an expense is deemed to be
section 7 expenses, the amount of this
expense is proportioned between the
parties in accordance with their gross
income s. 7(2) ie. the person who earn
60% of the parties total income pay
60% of the additional costs. Note the
income for the purposes of
proportional sharing of section 7
Step 1: expenses must fall under one of listed categories in s. 7(1): * = contentious issues
(a) Child care expenses incurred b/c of custodial parents employment, disability or illness
(b) Medical and dental insurance premiums
(c) Health related expenses that exceed $100 annually list of examples included
(d) Extraordinary educational expenses for primary/secondary school that meet childs particular needs*
(e) Post secondary education expenses*
(f) Extraordinary expenses for extracurricular activities****** No definition of what is extracurricular

Step 2: Necessity
(McLauglin)
Is this something child
has always done,
benefited from in the past
etc?. Very discretionary.

Factors Considered:
(1) Nature/Amnt of indivl
expenses vis--vis
parents income; (2)
Nature and # of activities;
(3) Special needs/talents
of ; (4) Overall Costs
Step 3: Reasonableness
Reasonableness of expense is an objective test based
on the needs of the parties.
Step 4: Extraordinary
(McLauglin)
If expense is s.7(1)(d) or (f)
determined if the expense is
extraordinary on a subjective
basis with a view to the actual
circumstances of the parties ie
include the parties incomes

Determining Property Division
























































Step 1: Is there possibility of reconciliation? Step 2: Does FLA property regime apply? Marriage must be valid
Step 4: Opt out?
Did the parties sign a domestic K to opt out of FLA? NOTE: Can opt out
of parts 1 and 2 of FLA through a marriage contract except s. 19 (MH)
Step 4: Find valuation date s.4(1)?
Earliest of:
1. Spouses separate w/ no rsbl
prospect of reconciliation note: can
still live together (separate and
apart)
2. Date a divorce is granted
3. Date marriage is declared null
4. Starting a court action preventing
other party from defeating the assets
5. Death of one spouses. Note this
creates an entitlement that can
overpower a spouses will.

Step 3: Province of residence?
Only if Ont residence does FLA apply
Step 6: Equalization Payment
Take difference btw NFP and split in half.
The spouse with the lower NFP is
entitled to of the difference of the NFP
to equalize NFP. (s. 5(1))
Step 5: Determine NFP and equalization payment
1. List property owned by each spouses on the valuation date
2. Determine if any of the spouses property is excluded by s.4(2):
1. Prop. other than MH (Folga) acquired by gift or inheritance from 3P
(Ho); If $$ ONLY excluded if deposited into a separate account (s.4.2.1)
2. Income earned from property in (1) if will says income is excluded from
FLA (s.4.2.2) magic words
3. Damages received from injury/torts (s.4.2.3) Mittler (not excl. b/c WWI-
$ received after marriage day)
4. Payout from life insurance policy (s.4.2.4)
5. Property that can be traced back to (1-4) (s.4.2.5)
6. Property exclude through SA (s.4.2.6)
3. Determine value of property owned by the spouses on the valuation date
4. Calculate amount of spouses debts and liabilities on the valuation date
5. Determine value on valuation date subtract step 4 from step 3
6. Determine the value of the property other than the matrimonial home that the
spouses own on the date of marriage = deductible property
7. Calculate the values of the debts and other liabilities of the spouses (other
than mortgage on mat home DaCosta) on date of the marriage
8. Subtract step value on date of marriage (subtract step 7 from step 6)
9. Determine NFP per person by subtracting the figure in, step 8 from that in
step 5. If the result is negative, it is deemed to be zero.
Step 7: Is there any reason to vary 50/50 rule? s.5(6)(a)- (h)
1. Is amt under 50/50 rule UNCONSCIONABLE (shock conscious of court Ferguson loss of
dental license b/c of negligence is not shocking; need recklessness to shock)
2. Consider conduct of parties (Leblanc SCC W with 7 works FT in diner, pays mortgage
while H drinks ). Specifically have regards to:
(a) Failure to disclose debts/other liabilities at marriage;
(b) Debt incurred on VD were reckless or in bad faith/ Depletion of marital assets;
(c) Part of 1 spouses NFP consists of gift made by other;
(d) Spouse intentionally/ recklessly depleted his/her NFP (Mittler- Hs $-gift to son = ok);
(e) Amt is disproportionate large for cohabitation of <5yrs (Futia Crt does but for test:
But for the Hs bad behav, the W would have stayed in the marriage; <5yrs autoic div)
(f) One spouse has incurred a disproportionately large debt to support family;
(g) Written agreement btw spouses that is not a domestic contract i.e. consulting K;
(h) Any other circumstance source of most litigation
Step 8: Trust
claims
Make trust claim
on excluded
property. Note
this is alternative
to step (8)
Step 9: Implementation of equalization payment/Ways to pay
1. Payment forthwith: s.9(1)(a) =best way to meet equalization payment
2. Security for payment: s.9(1)(b). Some ways to do this:
i. Mortgage/lien on property = BEST security;
ii. Assign receivables from customers (if the party owns a business)
iii. Life insurance beneficiary
iv. Promissory notes really not a good idea b/c they do not survive bankruptcy
3. Defer payments up to 10 years or pay by installment: s.9(1)(c) . Can also impose obligations to require audited
financial statements to be provided to creditor spouse so that amt of payment may be varied if circumstances
change i.e. win lottery. If debtor spouse tries to deplete their assets court can order them to stop doing so.
4. Transfer property to other spouse as security for debt. (s.9(1)(d)(i)
5. Partition sale of real estate (s.9(1)(d)(ii)
6. Deem payment as lump sum SS, in event that one spouse declares bankrupy. Note: SS obligns survive bankrupy.
7. Impose a high interest rate if the debt is not paid with in X years.
8. If an equalization payment is owed very CLEARLY from the beginning then courts can order interim - equalization
payment - Zagdanski (2001) Ont Ct and Kleinman (1998) Ont Ct (mentioned in class)

CANNOT order sale of operating farm or business to pay eq. payment unless there is no rsbl alternative (S.11)















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
























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

Test for Ordering Exclusive Possession s.24(3) one spouse may be given MH for a period of time
The factors that a court looks at to give one spouse exclusive possession are: note: high standard
(a) BIOC (i) limit disruption (s.24(4)(a)) and (ii) consider childs preference (s.24(4)(b)). Generally who ever has
custody is more likely to get exclusive interim possession. (Pifer)
(b) Existing orders under relating to family property (ie equalization payment) or support ie does the party seeking
order have means which would enable them to pay rent
(c) Financial position of both parties
(d) Any written agreements btw the spouses NOT a pre-nup but maybe a lease.
(e) Other housing alternatives
(f) Any violence against a spouse or children (Hill)

Compensation to owner
The court can compensate the owner by requiring the party with exclusive possession to pay the owning spouse
occupation rent s. 24(1)(c). If both parties own the house occupation rent = market rent, if one party owns the
house occupation rent could = market value.
Consequences of non-compliance with order
If a party contravenes an order for exclusive possession they are guilty of an offence and my be fined or imprisoned
s.24(5).

Alienation of Matrimonial Home (s. 23): If
one of the owner of MH disappears, or
unreasonably withholds consent, court can
dispense with the requirement of the title
spouse in order to sell the home
Possession (s.19): NOT the same as ownership. Both spouses
have equal rights to possession. CANNOT contract out of right of
possession in a marriage contract (pre-nup), can only terminate
this right through a SA or court order.

TREATMENT OF UNMARRIED PEOPLE All Property Issues Only Apply to Married Persons
Remedies that non-married cohabiting people can use
to get property division:
1. Domestic K saying parties agree to have
provincial property regime apply
2. Constructive TRUST
3. Hold all property jointly
4. Can seek spousal support,
Registered Domestic Partnership (Only in NS) allows
people to opt into provincial property regimes
Why do people not get married?
1. Don t want to be subject to FLA
2. See no need to formalize relationships
3. Fear of divorce/failure
4. Rejection of the institution of marriage
5. Effect on children
6. They cant b/c (i) already married; (ii) same
sex couple
Gay/Lesbian Case: M. v. H. SCC extended support provisions to homosexuals; led to FLA reforms
CML Case: Walsh v. Bona (NSCA) Property distinction b/w married and unmarried ppl is ok; this is a matter of choice



TRUSTS
Resulting Trust Test
Not used often today; historically used. Look at Constructive Trusts (below)
1. Parties had an intent to create a trust.
2. Demonstrated through words or implied (courts will do so in the interest of equity)

Constructive Trust Test
Available to:
1. Unmarried people who wish to share property;
2. Married people who want a claim over excluded property;
3. Mistresses/3
rd
P w/ extensive relations can make claims (Nowell v. Town Estates artist; muse)
Requirements:
1. Enrichment (Rathwell farmers pooling resources to buy farm; given CT, instead of RT)
2. Corresponding deprivation (Rathwell)
3. No juristic reason for enrichment ie K for employment, lease etc. (Rathwell)


Remedy
If unjust enrichment and deprivation are found the court has a choice as to whether it wants to award money
or property (Beblow Ms. makes no $-contribution, but raises kids). In deciding what it wants to award the
court considers:
1. Is the Ps claim small compared to the value of the entire property?
2. Does P have special attachment to the property?
3. What hardship will occur to D if P is given the land?
4. Land does not have to be acquired through the course of the marriage (Sorochan Mr. owns farm;
Mrs. comes along w/ own ; Married ppl can get the MH via CT)
In the case of constructive trust court determine an amount of property interest the party is entitled to based
on the enrichment and deprivation (Pettkus)