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
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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)