Family Law Outline: Fall 2014

Cassidy Thomson

DIVORCE SUMMARY AND FRAMEWORK

Step One: Who can get divorced?

Definition of Spouse: s.2(1) Divorce Act- “either of two people who are married to each other”
- Excludes: Polygamist marriages, cohabiting (common-law) spouses
Same-Sex Divorce
- Divorce act not amended to reflect new definition of spouse when first same-sex marriages performed
- Gay people unable to divorce
- Corrected 2005
Civil Marriage of Non-Residents Act
- All marriages performed in Canada of non-residents are valid in canada
- Non-residents same-sex couples may also divorce in canada, if divorce is not possible in their country of
residence

Capacity to Divorce
Wolfman-Stotland v. Stotland
The minimum capacity required to form the intent to separate is the capacity to instruct counsel
 Couple was 92/93, lived in a home, no kids
 Woman wanted to end marriage, only complaint was that husband had fallen asleep playing bingo
 No evidence he had mistreated her
 Capacity to divorce must be as equally simple as the capacity required to marry
 Capacity required to marry (volume I materials)
 Age—at CL above 7 years of age
 Consent—no duress, no mistake/fraud
 As long as you understood the nature of the ceremony and the identity of the
party, this is enough, and were not threatened into it, you gave consent.
 Sanity: test is whether the parties are able to understand the nature of the
marriage contract, just having a mental health issue does not mean you do not
have capacity to marry.
 Need higher capacity for financial matters
 i.e. Need much higher capacity to make a will
 Divorce granted

Step Two: Grounds for Divorce

Nature of the system: mixed fault and no fault

- The 1968 divorce act contained 15 grounds that were both fault based and marriage breakdown.

ONLY ONE GROUND: s. 8(1) “A Court of Competent jurisdiction may, on application by either or both spouses, grant a
divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage
 Breakdown Proved By: one no fault element, or two fault elements s. 8(2) DA
(a) Living separate and apart for at least one year immediately preceding the divorce proceeding, and
living separate and apart at commencement of proceeding; OR
(b) The spouse against whom the divorce proceeding is brought has, since, celebration of the marriage:
i. Adultery
ii. Cruelty (towards applying spouse, with physical or mental cruelty of such a kind as to render
intolerable the continued cohabitation of the spouses)

NOTE fault not relevant to spousal support application: Initial Application - s. 15.2(5); Variation- 17(6)

Continuing Role of Misconduct?

Leskun v. Leskun, SCC 2006
- The 1985 Divorce act eliminates misconduct, as such, as a relevant consideration when making an award
for spousal support: s. 15.2(5)
- In addition, also do not consideration misconduct in variation application: s. 17(6)
- Misconduct should not creep back into the court’s deliberation as a relevant “condition” or “other
circumstance” which governs variation/ order under s. 15.2(4)
- HOWEVER: there is a distinction between the misconduct and the emotional consequences of one
spouses’ misconduct on the other
- The consequences of the misconduct are NOT irrelevant just b/c they arose from the misconduct
- HIGHLY RELEVANT to factors under s. 15.2(4) such as spouse’s capacity to be self-sufficient, which must
be considered in support application
- Failure to achieve self-sufficiency is not a breach of a ‘duty’

Why Choose Fault Based way to prove marital breakdown?

- Potentially faster, can get divorce immediately
- Esp. good for situations of domestic violence

Living Separate and Apart

Way to prove the Ground for divorce: s. 8(2)(a)

See: s. 8(3), defines the situations where spouses may be living separate and apart… and only one spouse needs the
requisite intention

Oswell v. Oswell:
Issues if spouses still living together
Living Separate and Apart:
1. Must be physical separation-- i.e. sleeping in separate bedrooms, just b/c live in same house due to
economic reasons doesn't mean that aren't separated
2. Withdrawal by one of the spouses from the matrimonial obligation with the intent of destroying the
matrimonial consortium or of repudiating the matrimonial relationship
3. Absence of sexual relations is not conclusive, but is a factor to be considered
4. Also consider discussion of family problems and communication between spouses; presence or absence
of joint social activities; the meal pattern
5. Performance of household tasks is also a factor, help may be hired for these tasks and greater weight
should be given to those matters which are peculiar to the husband and wife relationship as outlined
above.

HELD: Not separate and apart because still living their lives as if together, holidays, giving support, shopping for
gifts, attending social functions. Not sharing bedroom or sex, but indicating on tax returns still married… also
seeking counselling for reconcciliation purposes
 TAKE AWAY:
o you may be able to separate without actually leaving the family home…
o advise your client:
o they should have separate bedrooms,
o non-sexual relationship (although not determinative),
o joint social activities (don't do),
o do their own domestic services…
o household tasks may be shared in some capacity, but make it more like a roommate
relationship, clear lines should be drawn.
Date of Separation:
Riha v. Riha
- may have implications for what property is in the pool!
- Ceasing sexual relations is only one indicia of separation and is not, on its own, sufficient to establish
date of separation
- Here husband was claiming they separated in 86, wife says 94… they lived together for 10 years, no sex,
separate bedrooms… but court said other indicia from Oswell in 86 not satisfied and therefore not
separated until 94.

Adultery
Way to prove the Ground for Divorce- See: s. 8(2)(b)(i)

Definition: voluntary sex between married person and another person of the opposite sex other than
their spouse: Orford v. Orford - 1921 ONSC, Kahl v. Kahl, 1943 ONSC
- In BC:
P. (S.E.) v. P. (D.D.), [2005] BCSC 1290
Same Sex-Couples can divorce on ground of adultery in BC:
o [43]            ... While it is not for this court to engage in a searching review of evidence of current
societal views, it is clear, based on the legislative and common law developments legalizing
same-sex marriage, that there has been an evolution of societal values such that the societal
interest in marriage is focussed largely on the forming of relationships characterized by
emotional and economic interdependence. ...  Individuals of the same sex can now marry and
divorce and the common law would be anomalous if those same-sex spouses were not bound by
the same legal and social constraints against extra-marital sexual relationships that apply to
heterosexual spouses. 
- Issue if same-sex potentially given common-law definition (in provinces other than BC)
- It seems that other acts of a sexual nature may not suffice, illustrating that the act of adultery is
found in "the voluntary surrender to another person of the reproductive powers or faculties of the
guilty person." (Orford, at 22-3, per Orde J.). In Orford, it was found that artificial insemination by
the wife amounted to adultery, but see Maclennan v. Maclennan, [1958] S.C. 105 (Scot.Ct. of Sess.).

Other issues pertaining to adultery:

- Why use this ground? In the old Family Relations Act (s. 123(4)) you could get costs against the other
person who was adulterous… s. 196 of the FLA removes this, you cannot allege things that used to exist
in the Family Relations Act.
- Comes from common-law, at a time when grounds for divorce existed.
- The innocent spouse who applies, and brings the action
- The reason that the definition exists… concerns about lines of heredity and property inheritance
informed the 19th century approach to adultery.
- May be a CRIMINAL OFFENCE: CCC s. 172
Cruelty
Cruelty: mental or physical-- treatment must be grave and weighty, beyond incompatibility. Issue is not the intention to
be cruel, but rather the subjective effect of the treatment on the other spouse: Balasch v. Balasch SK 1987

 Knoll v. Knoll (1970), 1 R.F.L. 141

 Husband alcoholic
 Treated her very coarsely, rudely, disrespectfully when drunk with the “vilest epithets to her
which would not bear repetition here”
 Wife left husband, found living with him unendurable
 Minor assaults occurred
 This was under old divorce act, but the ground of cruelty was worded the same
 Uses definition of cruelty from above
 “The wife’s return to her home after a day’s work only to find her husband in an inebriated
state, given to quarrelsomeness and abuse, heaping insult upon insult and indignity upon
indignity, was clearly conduct amounting to mental cruelty of such a kind as to render
intolerable the continued cohabitation of the spouses. I cannot be convinced that our
community standards require a wife to tolerate such an intolerable situation”

Step Three: Bars to Divorce

Section 11
o “collusion” in relation to the application is an absolute bar, defined s. 8(4)—does not include separation
agreements
o Court must be satisfied that reasonable arrangements have been made for support of any children…
can’t grant until arrangements made
o If FAULT based reasons used to prove ground of divorce (i.e. adultery/cruelty), condonation (defined s.
8(3)) or connivance on part of spouse bringing proceeding is discretionary bar—court can still grant even
if this occurred if it is in the ‘public interest’ to grant the divorce.
Section 21
o If spouse refuses to remove religious barriers to remarriage of other spouse, court has power to strike
out refusing spouse’s pleadings, affidavits or any application

Step Four: Procedure

Lawyer MUST discuss reconciliation with client: s. 9

Section 3: jurisdiction—each spouse can start proceeding in province that they live in (for at least one year before).
Potential for two proceedings started in two different provinces. Resolve conflict: whichever proceeding started first has
exclusive jurisdiction. If they were started on the same day, then federal court has exclusive jurisdiction… both provincial
courts must transfer to federal court on direction of federal court.

Court MUST be satisfied there is no possibility of reconciliation before considering evidence (unless clearly
inappropriate): s. 10

When divorce order takes effect: s. 12

Marriage dissolved when divorce order takes effect; has effect throughout Canada: ss. 14/13
Legal Aid
JG v. New Brunswick… Charter and legal aid in family law

 1999 case
 Argued that NB legal aid scheme violated s. 7 and s. 15 of the charter b/c only allowed legal aid were permanent
guardianship was at issue for family law
 SCC agreed on s. 7
 State removal of children from parents constitutes substantial interference with security of the person,
particularly protection of psychological integrity
 Combination of stigma, distress and gross intrusion into the private sphere inherent in apprehension
proceedings gave rise to charter claim
 But very narrow… only in apprehension proceedings
 Obligation of state is to preserve judicial discretion to order state funded counsel rather than just provide it
 Problem though b/c then the evidence you need to get a lawyer could work against you in custody battle

Since JG limited to situations where state is removing child from home

 Milternberger … charter does not guarantee counsel for individuals involved in private custody battle
 Mills v hardy-- not extended to private litigants in custody trial
 SAK v AC-- no counsel for appeal awarded ex-wife custody with no access
 RW- application for legal aid denied in custody dispute between mom and grandma

Public Commission on Legal Aid BC

 Legal aid system is failing needy individuals and families, the justice system and our communities
 Inability to address family and poverty law matters
 Lack of accessible legal aid resources in rural communities
 Early access is key to successful outcomes
 Many people get legal aid too late, legal information is not an adequate substitute for legal assistance and
representation
 New foundation needed, with statutory recognition of legal aid as an essential public service
 Need increase in long-term stable funding from the government
 Four building blocks: entitlement, core services, priority-setting, eligibility and service delivery
 Entitlement should exist where legal problem puts into jeopardy person's own or families security and no
meaningful ability to pay for legal services
 Financial eligibility needs to be modernized and expanded… legal aid should be available to working poor, those
earning up to 200% of the poverty rate through a sliding scale of contribution
 Basic legal aid and info and limited advice should be available to all residents to the extent that other
entitlements are met
 Regional legal aid centres must be established
 Clinics must be community based and work in conjunciton with other community organizations
 Collaboration between public and private legal aid services will lead to a more effective legal aid system

WestCoast LEAF: Putting justice back on the map

 BC way off course when it comes to access to justice in family law

 Family law is the most significant unmet legal need
 Inaccessible and unaffordable legal services are a problem
  Family Law Act big improvement, BUT this means little to people who can't afford to enforce these new
rights/laws

Moving Towards Non-Adversariality: Way to combat access to justice?

 2005 report on family justice reform working group recommended adoption of more fundamentally non-
adversarial approach to management and resolution of conflict from family breakup
 Goal is to develop a family system that is more responsive, cost effective and accessible
 New rules aim to reduce expense by gearing complexity of the litigation to the complexity of the case, limiting
discovery and requiring experts to serve court rather than the parties
 Family law cases more tightly managed, mediation will be effectively mandatory on request of a party… judicial
case conference
 New set of court forms are more accessible

ADR and AGREEMENTS SUMMARY

New FLA centres alternative dispute resolution

Marriage Agreements
FRA
Property in s. 56: Division of property is 50/50 for
the Pool “property ordinarily used for family
purpose, unless there is a reason to
apportion otherwise”
Agreements s. 61: allowed marriage K for specific
Permitted division of property on breakdown
Setting Aside s. 65: If marriage K “unfair”
Agreement considering:
(a) the duration of the marriage,
(b) the duration of the period during
which the spouses have lived separate
and apart,
(c) the date when property was
acquired or disposed of,
(d) the extent to which property was
acquired by one spouse through
inheritance or gift,
(e) the needs of each spouse to
become or remain economically
independent and self sufficient, or
(f) any other circumstances relating to
the acquisition, preservation,
maintenance, improvement or use of
property or the capacity or liabilities of
a spouse
FLA
s. 81: Division of property 50/50
s. 84: pool is everything acquired during the marriage/
marriage like relationship or any increase in value of property
bought before the relationship, unless excluded under s. 85:
gifts, inheritance, anything acquired before marriage/marriage
like relationship
s. 6: general framework for agreements, encourages them.
Allows them for any family dispute matter (not just division of
property). Says they are binding and enforceable.
s. 92: agreements for property division specifically: may make
them re: property and debt, and do so unequally, or
include/exclude property in the pool or not in the pool.
Two routes: s. 93 procedurally unfair or significantly unfair
Procedurally Unfair:
o spouse failed to disclose significant property or debts, or
other information relevant to the negotiation of the
agreement;
o spouse took improper advantage of the other spouse's
vulnerability, including the other spouse's ignorance,
need or distress;
o (c) a spouse did not understand the nature or
consequences of the agreement;
o (d) other circumstances that would, under the common
law, cause all or part of a contract to be voidable.
Significantly Unfair:
o “significantly” has yet to be judicially considered
o Factors are:
(a) the length of time that has passed since the
agreement was made;

Court had discretion to reapportion, or
to include some property not included
in the pool and give to the
disadvantaged spouse to remedy.
(b) the intention of the spouses, in making the
agreement, to achieve certainty;
(c) the degree to which the spouses relied on the
terms of the agreement.

How does the Court treat marriage Ks?

Hartshorne SCC
Decided under FRA
Facts  Hartshornes were married in late 80s, were both lawyers, shortly before wedding Mr. Hartshorne
presented soon to be wife with marriage agreement, that specified the parties would keep the property
that they brought in to the marriage EXCEPT: wife would be entitled to 3% interest in family home for
every year of marriage up to 49%, she would have joint interest in car and entitled to spousal support.
Very different than FRA. He had lots of money, and she was in debt. Had one child before marriage and
had another right after.
 She took marriage K to lawyer before the wedding, and lawyer said grossly unfair… but she signed
anyway, on the day of her wedding.
 Lawyer's advice said that if it ever came to pass it was unlikely that the K would stand up… SCC does
not like this! Says lawyer should not have said this.
 Separated after 9 years of marriage… she did not work and he was earning 175,000 a year as a lawyer.
 She was only entitled to 27% of the home… she brought an action for reapportionment, spousal
support and child support.
Issue Should the pre-nup be upheld? How should marriage Ks be treated?
Held Yes; use strict K law principles
Reason Fairness means: (para. 43, 44)
s …The court must determine whether the marriage agreement is substantively fair when the
application for reapportionment is made.  The essence of this inquiry is whether the
circumstances of the parties at the time of separation were within the reasonable
contemplation of the parties at the time the agreement was formed, and, if so, whether at that
time the parties made adequate arrangements in response to these anticipated circumstances.
…
Thus, the determination that a marriage agreement operates fairly or unfairly at the time of
distribution cannot be made without regard to the parties’ perspectives.  A contract governing
the distribution of property between spouses reflects what the parties believed to be fair at the
time the contract was formed (presuming the absence of duress, coercion, and undue
influence).  The parties would usually not be expected to deal with their present situation
without any consideration of how they expect their situation will evolve over time.  If the
parties’ lives unfold in precisely the manner they had contemplated at the time of contract
formation, then a finding that the contract operates unfairly at the time of distribution
constitutes, in essence, a substitution of the parties’ notion of fairness with the court’s notion of
fairness, providing that nothing else would suggest that the parties did not really consider the
impact of their decision in a rational and comprehensive way.  Thus, central to any analysis
under s. 65(1) of the FRA is consideration of how accurately the parties predicted, at the time of
contract formation, their actual circumstances at the time of distribution, whether they truly
considered the impact of their decision and whether they adjusted their agreement during the
marriage to meet the demands of a situation different from the one expected, either because
the circumstances were different or simply because implications were inadequately addressed
or proved to be unrealistic.
 TEST:
 To determine whether marriage K unfair, first apply the agreement, then using factors from act,
determine whether the K operates unfair—consider parties’ personal and financial circumstances, and
what was contemplated at the time of entering into the agreement.

Ratio If circumstances played out the way that parties contemplated when they entered into the contract, the
contract is not “unfair” and should be upheld.
Dissent legislature intends that only fair agreements be upheld—deciding inquiry is whether or not the agreement is
substantively fair at the time of application to the court. Look at the division of family assets asa whole and
consider it together with the parties’ other financial arrangements.

Criticisms of Hartshorne:
Martha Shaffer “Domestic Contracts, Part II: The SCC’s Decision in Hartshorne”
 Hartshorne raises difficult issues with the role of K in family law
 Majority significantly narrowed concept of fairness in BC, b/c focus on people’s entitlement to enter and rely on
Ks rather than assessing all the circumstances
 Relied on her entitlement to spousal support to show not unfair… she could make up the difference
 Problematic b/c spousal support is very discretionary
 Sanctity of K don’t “second guess” parties’ arrangement approach is flawed
 Doesn’t address the emotional nature of family Ks and the inherent unfairness in the bargaining process
 Ignores power imbalances and how Ks were conceived of in the first place
 Essentially basing on the commercial model of “choice” not appropriate for family realm
 By relying on expectations, ignores fact that most people hope that they never have to resort to K because their
marriage will last
 Undermines hard fought gains by feminists b/c now women, with less power, will enter into these ks and then
have to live with it when marriage dissolves and they haven’t worked for a long time.

Post-Hartshorne Example:
Jonstone v. Write BCCA 2005
 Wife received independent legal advice that agreement was bad, but signed anyway
 Hartshorne upholds integrity of marriage K as long as things turned out as parties’ expected
 Here nothing unexpected occurred.
 So agreement is enforced.

ADR
 Family Justice Reform Working Group recommended adoption of non-adversarial approach to management and
resolution of family breakdown conflict in 2005.
 2010—new supreme court family rules
 New rules limit discovery and require experts to serve the courts rather than the parties
 More tightly managed
 Mediation effectively mandatory
 New forms are more accessible
 ADR popular
 But 90% of cases are resolved prior to trial
 Part 2 FLA prioritizes out of court settlement
 Court is last resort
 ADR presumed positive, but has critics too
 Victims of family violence are served very poorly by such procedures, b/c have to negotiate with abusers or
professionals fail to appropriately screen
 Professionals given no guidance on how to screen for family violence.
Collaborative Family Law

SIGN a CONTRACT with client and lawyer that lawyer will not represent client if they go to court, so litigation
strategy focus is GONE.
o Lawyer advertises as a collaborative family lawyer, commercial incentive to get people to agreements
b/c otherwise no one will go to you
o Lawyer has duty to negotiate in good faith
o People won’t go to court b/c it will significantly increase the cost (i.e. they have to hire a new lawyer)
o Recognizes that family law is difficult, you need a lawyer b/c you need an advocate, but you want a non-
adversarial approach.

Commentary: Pauline Tesler

 Collaborative law approach seen as “the best”
 Core element is that no participants will threat to resort to court during process
 Takes place entirely outside of the courts
 Family lawyer remains advocate
 Starts with lawyers signing binding agreements that they won’t participate in court proceedings with those
clients
 Has to have this agreement or it isn’t collaborative law
 External incentive for lawyers to commit to negotiation… lose the client if it has to go to trial
 Will try to work through a negotiation “impasse” instead… frees the “problem solver within”, people get
creative.
 Courts are poorly adapted to meet the needs of families at breakdown
 b/c court is adversarial, process there is necessarily a contest with a ‘winner’
 people try to paint the other as a monster in order to win… ask for way more than they want since judge’s
always try to find a middle ground.
 Causes hurt and damage that can never be repaired in the relationship
 Client’s think they are going to get what their lawyer is asking for, even though lawyer’s know they are asking for
way more than they think they can get
 Client’s become disillusioned
 Client’s don’t usually want a battle anyway… are seeking what’s fair… hard to determine what that is through
the court process
 In litigation, 100% of lawyer’s effort it put towards an event that only happens in 2% of cases… which is a ratio
only exceeded by firefighters and military.
 Real interests of parties are lost in litigation driven case to settlement

Criticism:
 Many negative consequences of divorce for women and children are related to poor substantive results rather
than to the process used to resolve disputes
 Collaborative divorce focuses on emotions and relationship preservations to the exclusion of substantive
concerns, fails to acknowledge and address many of the problems that cause poor outcomes, does little to
alleviate the post-divorce suffering of women and children
 Many women lack financial resources to hire lawyer, so they can’t take part in collaborative process that
requires lawyer anyway

Other Forms of ADR: Mediation and Judicial Case Conference

Mediation: from Mediate BC Website

 In mediation the parties try to resolve a dispute with the assistance of a neutral mediator.
 Mediation is a practical, affordable, flexible and confidential process to address disputes of all kinds.
 The parties, not the mediator, make the decisions about the terms of their agreement.
 Mediation is a legally binding alternative to going to court.
 For simplicity, we refer to three broad kinds of mediation:
 Civil mediation – which covers virtually every kind of dispute except “family” and “child
protection”
 Family mediation – which covers conflicts within a family including separation, divorce,
parenting arrangements, property and asset division, as well as planning tools including estate
planning, cohabitation or marriage agreements etc.
 Child Protection mediation is a form of family mediation which involves planning for the safety
and wellbeing of a child where they are disputes between the parents/guardians of the child
and provincial child welfare workers.

Family Law Mediation Process: from Mediate BC Website

 The mediator will usually arrange confidential, pre-mediation meetings individually with each party.
 The parties will discuss how the mediation process could be adapted to meet their particular needs.
 The mediator may give information about other resources, professionals and processes to assist the family. 
 Then, in most cases, the parties will meet together in one or more joint sessions with the mediator.
 The mediator and the parties will sit around a table in a private room to talk about the issues. Parties are given
full opportunities to express their views.
 The mediator is there as a neutral party to ensure all discussions are balanced, respectful and to help the parties
focus on potential solutions.
 The mediator may suggest using technology such as telephone, e-mail or web-conferencing, to support the
mediation process.  Click here for more information on Distance Mediation.
 The mediator will assist the parties in documenting any proposals for agreement, but won’t force the parties to
reach a settlement. The parties make the decision if and when to settle their issues.

Cost of Mediation: From Mediate BC Website

 Most mediators charge either by the hour or using daily or partial daily rates. The parties decide how those costs
will be shared.
 In general, the cost of a successful mediation will be less than the cost of going to court.
 Costs vary, depending on such things as:
o how many parties are involved
o the complexity of the issues under discussion
o the qualifications and experience of the mediator
o the number of sessions
o whether lawyers are participating in the mediation
 Some of the things mediators are paid or reimbursed for include:
o time spent helping parties prepare for mediation;
o time spent in mediation;
o travel time to and from mediation, if in another city;
o rental of a mediation room (if needed)

Judical Case Conference

 Normally held before any contested application is heard in a family law case
 Private session with a master of the court or judge, disputing parties and their legal reps
 Goal is to streamline costs and time, on all or a portion of contentious issues, identify and narrow the issues and
encourage settlement
 Court organizes an efficient trial on particular issues
 Judge or master assigned to manage all cases where custody is an issue… aim for all cases with children is to be
concluded within one year of commencement
  See Rule 7-1 Famly law rules

Child Custody/ Access/ Parenting Plans

Great summary of law found at: http://www.cba.org/bc/public_media/family/142.aspx

- provides simple definitions of the concepts and generally when they apply
- read first to get an excellent overview, and then delve into the outline for the issues we have
discussed in class.

Definitions
Key Words: Custody, Access, Guardianship, Contact

Under DA
Custody (from B.C. Family Law Sourcebook, based on cases)

 almost all of the rights incidental to guardianship of the person

 (e.g. right to determine a child’s education, health care, religion); and
 physical care of/control over a child
 DA s. 1: “includes care, upbringing and any other incident of custody”
 
Joint Custody: DA s. 16(4);
 orders can be made for sole or joint legal custody (decision-making)
 and/or sole or joint physical custody (some shared care)

Access: A parent who is granted access has the right to spend time with the child, usually in accordance with the terms
of the access order or agreement
 DA: French definition of ‘access’ includes ‘right to visit’ (no definition in English version)
 DA s. 16(5): includes right to make inquiries, and be given information, as to the health, education and welfare
of the child
 DA s. 16(7): court can order custodial parent to give notice re: change of residence
 under the FRA s. 21: “access” included visitation

Under FLA
Guardianship: while a child’s parents are living together and after the child’s parents separate, each parent of the child
is the child’s guardian; guardianship + parenting responsibilities + parenting time see FLA
 
Contact: a child’s guardian and a person who is not the child’s guardian may make an agreement respecting contact with
a child; contact refers to a child’s time with someone who is not a guardian see FLA

History
Beginning of 19th century, Uk, Canada, USA affirmed an almost absolute paternal right to guardianship or cusoty of
children born w/n wedlock—husband most important legal person in marriage. Emphasis of welfare of children entered
in the early 20th century, mothers now had presumption where child of ‘tender years’. However mother disadvantaged
where left husband ‘for no good reason’. 1980s child custody was neutral, best interests of child paramount.
Misconduct no longer relevant consideration. End of 20 th century, reforms of custody laws in many jurisdictions
emphasize shared parental responsibilities, eliminated language of “custody” and “access”—including FLA but not DA.
Jurisdiction Over-View
Divorce Act governs where parents are divorcing (legally married): s. 16.
 Traditionally, one parent awarded custody and the other access.
 But joint custody also possible: s. 16(4)
 People other than parents can also apply for custody: s. 16(3)
 Custody is defined as “care, upbringing and any other incident of custody”
 “Access” only defined in French, includes “the right to visit”… as well as further criteria: s. 16(5)
 CL definition of Custody:
o All rights incidental to guardianship of the person (education, health care, religion)
o Physical care and control of the child.
o Joint custody may split up these rights between parents.

Family Law Act governs where unmarried parents are separating: ss. 39-49
 Abolishes concepts of “custody” and “access”
 Replaces with “guardianship”.
 Only “guardians” may have “parental responsibilities” and “parenting time”: s. 40(1)
 Other people get “contact”: s. 58

Jurisdictional Issue: FLA or Divorce Act? **WILL BE ON EXAM***

Given the information below, MUST apply BOTH acts if it is divorce…

L.A.R. v. E.J.R., 2014 BCSC 966

[145] Although the issues of parenting time arose in the form of applications for corollary relief in a divorce action, I
am permitted to consider the parenting provisions of the Family Law Act: B.D.M. v. A.E.M., 2014 BCSC 453 (CanLII),
paras. 90-121. That part of the Family Law Act applies to trials that take place after it was proclaimed, even if the action
was begun before.

CKBM v. GM 2013 BCSC 836

Facts o Parties were legally married, had one child in 2003, divorced in 2004
o Child primarily had lived with mother since, father’s access has been largely one day of daytime access
on weekends
o Original order: joint custody, joint guardianship, primary residence with mother –supposed to be under
joyce model but order doesn’t say this.
o Issue now is that child has behavioural problems, mother wants child to go to specialist for ADHD, dad is
opposed to medication, wants CBT therapy.
o Father refuses to consent to have child assessed further, b/c form includes parental permission to
provide medications to the child if required.
o Mother seeks order to varying existing custody and guardianship orders.
Issue Should mother be child’s sole custodian? Or should joint guardianship be defined on the Joyce model terms
which were not included in the order.
Held Does not change custodial arrangements, but instead defines custody in a specific way.
Reason Use to be no problem if unclear if FRA or DA, b/c largely similar regimes:
s o Under FRA, custody same as custody under DA. Power and control.
o As joint custody became increasingly prevelant, guardianship was used to define the rights and
obligations between the parties i.e. Joyce model, dividing the various aspects of parenting into separate
spheres of authority exercised by each party.
o FLA does not distinguish between custody and guardianship… so can’t use that solution anymore.
 o Guardianship under FLA is not the same as it used to be under FRA
o Old sense of guardianship is now reflected in parental responsibilities under FLA
o Custody under DA has always included parental responsibilities as defined under FLA
o Order does not say whether it was made under FRA or DA, but sometimes judge refers to child as “child
as the marriage”, plus considering paramountcy, court must assume under DA
o Therefore, must consider application as an application under DA to vary order

Relationship has had its problems, but there is still possibility for agreement on many issues between parents,
therefore custody should not be varied.

However, set out terms of custody to help deal with impasse regarding medical treatment
o Mother also given sole authority to sign consent to get kid assessed.
Ratio Where Unclear whether FRA or DA: (1) examine pleadings (2) language of the order and (3) circumstances in
which order was granted. If unclear, have to choose DA b/c of paramountcy.

Rashtian v. Baragoush, 2013 BCSC 994

Facts o Parties have two kids

o Mother wants sole custody (brought application under DA and FRA)
o Father wants joint custody, and relied only on FRA
o Since pleadings, FLA comes in
o Note both parties unrepresented… so court doesn’t want to get into overlapping statutes issue too
much.
Issue Who should have custody/guardianship of kids, where should kids live and should FLA or DA govern?
Held DA governs, supplemented by FLA.
Reason FLA eliminates “custody”, attempt to allow courts to craft orders in best interests of child w/o emotionally
s laden battle to determine who “wins” custody.

But DA continues to refer to custody and access, and FLA only deals with guardianship:
o The new FLA is not easily and conveniently compatible with the DA because the concept of guardianship
in the new FLA subsumes the concept of custody It may become apparent that orders respecting
children should no longer be sought or made under both Acts, and as the Divorce Act must be pleaded if
a marriage is to be dissolved, and as the federal legislation is paramount, orders under that Act alone
may become more prevalent (quote from para. 18)

HOWEVER, both DA and FLA require court to consider ONLY the best interests of the child, change from FRA
which just said best interests of child “paramount” consideration.

Cannot comment on reconciliation of two acts w/o assistance of counsel. So court decides to make custody
order under DA, supplemented as necessary by orders under the FLA on guardianship

Court order joint custody under DA. DA is silent on guardianship, so under FLA notes s. 39(1) which “creates
a default position of joint guardianship unless court orders or the parties agree otherwise” (para. 26)

As set out in ss. 41(a) and 42(2), day to day decisions affecting the children will be the responsibility of the
parent with whom the kids live, all other parental responsibilities under s. 41 will be subject of discussion
and agreement between the parties.

FLA s. 15 allows appointment of parenting co-ordinator, to assist with resolving disputes and make binding
determinations if necessary. Makes order for parenting co-ordinator.
 Primary residence given to mother—dad resides in former matrimonial home, but it is under foreclosure,
and no evidence to say it will be redeemed… older child prefers to stay with dad b/c he doesn’t want to
move schools, but given dad’s precarious financial situations very likely would have to do that anyway.

Ratio Possible to reconcile the DA and the FLA by making custody determination under DA, and then applying
guardianship principles with accompanying parenting arrangement under FLA, which includes appointing a
parenting coordinator under s. 15 of the FLA.

FLA creates default position of joint guardianship where parties lived together after child born.

JMP v. DRB, 2014 BCSC 537

[100] I agree with the submission of D.R.B., however, that the parenting arrangement can be defined quite adequately
by making orders under the FLA and that there is no need to resort to the Divorce Act. There is no dispute that D.R.B. is
to remain a joint guardian of the children under the FLA. The parenting time and the parenting responsibilities can be
allocated under the FLA without the need to resort to the awarding of “custody” per se under the Divorce Act. What is
important, in my view, is that the order be precise, unambiguous and as complete as possible in the allocation of
parenting rights and responsibilities, including parenting time.

DQL v. WDH, 2013 BCSC 1291

[37] The claimant only seeks interim orders of sole custody and sole guardianship.

[38] In view of the fact that custody under the Divorce Act is to be given a broad meaning akin to the concept of
guardianship, the concept of guardianship is now set out in the FLA, only interim orders are sought, and these are
applications on competing affidavits, I decline to make any order for custody at this time as I consider that all the
necessary requirements for the children on an interim basis can be covered within the principles of guardianship set
out in the FLA.

[39] On an interim basis both parents will remain guardians of both children and both parents will have some
parental responsibilities and parenting time with respect to both children.

Current Framework
Divorce Act
Current Framework
s. 16:
(1) Court can make an order respecting custody of or access to or both of children of the marriage
(3) Spouses can apply, and other people can apply if they first get leave of the court
(4) Can grant joint custody or access to any or all of the children
(5) Definition of Access: “right to make inquiries, and to be given information, as to the health education and welfare of
the child
(8) take into account only the best interests of the child of the marriage as determined by reference to conditions,
means needs and other circumstances of the child. See below for detail on best interests of the child
(9) Past conduct not relevant, unless that is relevant to the ability of the person to parent
(10) Court shall give effect to the principle that “a child of the marriage should have as much contact with each spouse
as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of
the person for whom custody is sought to facilitate such contact”

**See sections below for trends, content of best interests principle, and access arrangements**
Note: Efforts have been made to amend DA to make it more like FLA
- 2002, Bill C-22 An Act to Amend Divorce Act
- Bill passed second reading, but died on paper when Parliament prorogued in 2003
- Subsequent governments have not tried to reintroduce this or any other bill in relation to child custody
provisions under DA
- Bill C-22 would have removed “custody” and “access” in favour of “parenting orders” and “exercise of
parental responsibilities”, which would have included parenting time and decision making
- The goal was to create new normative standard of co-operative parenting
- See: p. 129 for reference to journal articles on Bill C-22 if needed.
- Also, private members’ bills have proposed to amend DA to put in presumption of shared parenting, e.g.
Bill C-422… these bills have not passed first reading, and CBA has registered objection to such a
presumption, arguing that best interests of child must prevail.

Family Law Act

Comparison to FRA

Who is a guardian/ has custody?
Relevant Consideration
FRA
Upon separation the parent who
usually had care and control of the
child was the child’s sole guardian.
Best interests of the child
“paramount”
FLA
Default is that if living together, after
they separate each parent is the
child’s guardian: s. 39(1)
Agreement or order made after
separation or prior to may provide
that a parent is not a guardian: s. 39(2)
A parent who has never resided with
his or her child is not the child’s
guardian, unless parent under s. 30
(assisted repro): s. 39(3)
“only” consider best interests of the
child: s. 37(1)

Transitioning from FRA to FLA

Section 251  if agreement or order made under FRA prior to the coming into force of the FLA provided party with
custody or guardianship, that party will be a guardian with parental responsibilities and parenting time. If access ONLY
was provided, that party will have contact under ss. 58-59 FLA. Details of parental responsibilities, parenting time or
contact will be as described in the original agreement or order.

Note: Access order in CFCSA deemed to be an order for contact with child: s. 59(1)

ISSUE then becomes, was the prior order under the FRA or under the DA?

CKBM v BM 2013 BCSC 836  where unclear whether an earlier order was made under the DA or the FR, doctrine of
paramountcy requires the court to assume that the order was made under the DA.

Transitional Provisions in Action

P v. B, 2013 BCPC 94
Facts o Parents separated shortly after child’s birth. Child is now 3
o Dad filed application for joint custody and specified access in 2010. Application has not yet been
 concluded.
o In midst of trial, so court needs to decide whether father is guardian of child.
o Several orders have been made specifying access in the past for both parties
o Child ordinarily lives with mother
Issue Is father guardian pursuant to FLA?
Held Yes
Reason Mother says not father pursuant to s. 251(1)(b), but father has met qualification necessary under s. 39(1)…
s
Section 251 must be read in conjunction with sections 35, 36 of interpretation act: does not alter rights
existing or accrued under the FRA

So issue is did dad have substantive right, before the repeal of FRA? If he did, right is vested. If vested, does
FLA have intention to take away vested right?

Under FRA, mother had usual care and control of child and therefore was sole guardian, unless court order
otherwise: FRA s. 27

However, previous order, which said both parties shall advise the other promptly of any medical, alternative
medical, dental appointments or treatments of child, vested limited guardianship rights to dad.

Read literally, s. 251 seems to suggest that if no custody or guardianship ordered, person is only contact and
not guardian under FLA. However, purpose of this is to translate terms from old legislation into new. It is NOT
to be used to determine issues previously not adjudicated upon that are in issue.
Ratio Section 251 only applies to issues that have already been decided, and not to situations where no decision has
been rendered yet—so the absence of a decision does not rob an individual of their guardianship.

AJH v LCH 2013 BCSC 900

Facts o Sole custody and separation agreement made in 2012
o Husband wants to set aside, b/c of the effect that FLA transition provisions have on his ability to exercise
parenting responsibilities for the child.
o Agreements states wife is to have sole custody of child, child primarly resident with her, and father has
reasonable and liberal access with child.
Issue Should agreement be varied due to unforeseen consequences?
Held No
Reason Effect of s. 251 is that because mother has sole custody of child, for the purposes of the FLA she is also the
s child’s sole guardian. Section 39(2) permits parties to enter into an agreement in which one parent ceases to
be a guardian.

Under FLA, only guardian may exercise parental responsibilities for a child: s. 40

However, no evidence to suggest that had father had legal advice regarding upcoming change in the law, he
would not have signed the agreement.

Also, the only way to solve this is through one of two routes, (neither of which was taken in this case)
1. Apply to vary separation agreement under s. 47 of FLA
o Probably wouldn’t be successful b/c threshold is “change in circumstances” which doubtful
father can show
2. Apply under s. 51(1)(a) to be appointed a guardian
o More time consuming and expensive, b/c court must be satisfied that to do so is in child’s
best interests under s. 37, but more likely to be successful.
Ratio FLA may effectively eliminate a parent from having “parental responsibilities” as defined under the FLA s. 41
due to arrangements made prior to coming into force. Even though these consequenes unforeseen, not a
 reason to vary arrangements per se. Must bring application either under s. 47 to vary, or under s. 51 to be
declared a guardian. This is an unfortunate consequence but can’t be helped.

FLA Framework
Only Guardians may have parental responsibilities and parenting time with respect to a child: s. 40(1)
Other people may have contact: s. 58

Consider:
1. Best Interest of the Child
2. Who is a guardian?
3. Parenting Arrangements
4. Relocation

1. Best Interests of the Child

Primary Consideration: Best Interests of Child—see section below for detailed consideration
 Any Court order in relation to guardianship, parenting arrangements or contact, the parties and the
court must consider the best interests of the child only: s. 37(1)
 Best interest of child are determined by: s. 37(2), and in considering those factors, a court MUST
consider any family violence: s. 38
 An agreement or order is not in the best interests of the child unless it protects, to the greatest extent
possible, the child’s physical, psychological and emotional safety, security and well-being: s. 37(3)
 Court will only consider a person’s conduct if it “substantially affects” a factor under subsection (2) and
only to the extent that it affects that factor: s. 37(4)

Brief Examples: see more in section below

DLD v. RCC 2013 BCSC 590

Facts o Parties divorcing, particularly hate each other
o Mother had child from previous relationship, G, and they had a child together, R
o Huge debt, very fancy lifestyle.. spending about 1 mill a year, 4 mill in debt
o Interim basis, parties agree they should share joint custody pursuant to divorce act.
Issue Where will children reside, and who will make major decision regarding them until the custody and access
report can be completed and the matter comes to trial?
Held Residence of children will be shared equally between the parties on 7 day rotation. Both will remain guardians
under Joyce Model, and as now provided by FLA ss. 39-45, with father having final say.
Reason Both parties made allegations of neglect, mistreatment and abuse, but court essentially does not address
s either.

Mother argues:
o Status quo has been that they live with her, she is primary caregiver, and pursuant to precedent in
Prost, status quo should be maintained pending trial unless there is actual risk to the children
Parties framed arguments in terms of Divorce Act and FRA
o However new FLA states that ONLY best interests of child should be considered in parenting
arrangements/guardianship orders
o Therefore statutory directive that things like status quo are to be considered ONLY in the
context of child’s best interest and not as a form of “trump card which overcomes all else but
risk to the child”
RATIO Even if proceeding started before FLA, primary interests of the child will be the only consideration.
D v. D, 2013 BCPC 135
Facts o Father obtained sole custody and guardianship under the FRA
o Year later, MCFD removed children b/c father had committed multiple acts of family violence
o Mother, the director, maternal grandmother, and paternal grandmother each filed application for
custody of the children.
o Mother applied for sole guardianship
Issue o Who should have guardianship of the kids?
Held o Joint guardianship of both grandmothers
Reasons o Under s. 37, the sole consideration is the child’s best interests.
o For sole guardianship, follows STH v RMG below—only can be done “in the most extreme
circumstances”, and to terminate, court must find that it is not in the children’s best interests to
have both parents retain guardianship and reallocate parenting responsibilities, citing s. 37(2) FLA
o Court stressed given parents the maximum opportunity to remain a significant part of the child’s life.
Ratio o
Cassidy’s This “high threshold” or standard, to look at whether it is “not in the children’s best interests for both to
Opinion retain with reallocation of responsibilities” seems to be running contrary to s. 37. The ONLY consideration
in making orders under this section is best interests of the child, and something is NOT in the best interests
of the child unless it protects TO THE GREATEST EXTENT POSSIBLE, child’s physical and emotional safety,
security and wellbeing (s. 37(3)).

Court should not look at in the negative or frame it that only in “extreme” circumstances, or high threshold
will guardianship be terminated under s. 51(b)… it should be done WHENEVER it is in the child’s best
interests, and where necessary to protect the child’s physical and emotional safety, security and well-being
to the greatest extent possible.

2. Who is a Guardian?
Default, ongoing guardianship at separation: While a child’s parents are living together and after the child’s parents
separate, each parent is the child’s guardian: s. 39(1)

Agreement or order made after separation or just prior to separation may provide that a parent is not a guardian: s.
39(2)

However cannot agree to be a guardian unless (a) you are the child’s parent or (b) as provided by adoption act or child,
family and community services act: s. 50

A parent who has never resided with the child is not the child’s guardian: s. 39(3), unless (i) the non-resident parent is
an additional parent under s. 30; (ii) the parent and all the guardians make an agreement that the non-resident parent is
a guardian; AND (iii) the non-resident parent regularly cares for the child.
o Constitutional Challenge: June 2013
 Two parties settled a case which would have been first constitutional challenge
 Child born as result of casual sex
 Mother did not register father
 Therefore, father not a guardian b/c never lived together and not acknowledged
by mother under Vital Statistics Act
 When mother wanted to move away, father brought injunction
 In settlement, decided that both would independently move to AB
If the child’s guardian re-partners, the new partner does not become a guardian by virtue only of his or her relationship
with the child’s parent.
Court can appoint a guardian on application under s. 51(1)(a), applicant must provide evidence regarding best interests
of the child: s. 51(2), and child must not appoint a person other than a parent as the child’s guardian w/o written
approval of the child if the child is over 12 years of age, unless it is in the best interests of the child.

o Example:
BC Birth Registry No 2004-59-020158 2014 BCCA 137
Facts o Couple separates when baby 18 months old
o Father has mental breakdown, tries to commit suicide, addicted to drugs
o Starts to see less and less of child
o Mother finds new partner
o Marries new partner, and moves w/o telling father
o Father spends two years trying to find them
o Step-father wants to adopt child, applies to court to dispense with consent of father.
Issue Who is the guardian of the child?
Should adoption order be made?
Held Step-father is guardian, father not guardian but has contact
Adoption order should not be made given legal effect of guardianship
Reason o The main concern was that if something should happen to mother, want child to stay with step-
s father
o This is addressed by guardianship order—making step-father guardian
o Inappropriate to require parent to give up parental ties in exchange for facilitating contact with child
o In terms of father still being guardian, court ordered that father should have contact with child under
s. 59
o By definition, contact can only be afforded to person who is not a guardian
o However trial judge stated that they were not deciding whether father was a guardian or not… so
that must be a mistake
o FRA in force when parties separated, s. 27 governed, stated that only the one who usually has care
and control is the guardian upon separation.
o Parties had entered into separation agreement, giving mother custody and father access
o Guardianship never expressly addressed in agreement
o Transitional provisions of FLA s. 251 provide that an order or agreement from old regime, (a)
custody/guardianship = guardian, and (b) person with access but not custody or guardianship =
contact.
o Court says that agreement gave guardianship to father implicitly, so s. 251 does not affect guardian
status of father
o Transitional provisions cannot take away vested rights.
o HOWEVER it would not be in the best interests of the child to continue father’s guardianship, given
friction between new family and father.
o Father gets contact only.

How to apply to be sole guardian? Court can TERMINATE guardianship under s. 51(1)(b) or potentially make an order
under s. 39

Examples:
TH v. RMG 2013 BCPC 0114
Facts o Two kids, A is four and B is one
o Parties together for 12 years, relationship involved heavy drug use including heroin
o A born drug addicted
o Both parents have now successfully completed treatment for addiction
o Both reside with dad and his partner (who also has three kids of her own)
o Were in a marriage like relationship and separated, A went with father and b went with mother
 originally
o Order under FRA that parties share joint custody of B, and that A’s primary residence would be with
father. And that each parent have access to the child in the other’s care.
o Social worker then removed B from mother’s care
o Since removal, B also lived with dad
o Dad now seeks order of sole guardianship under FLA, and that mother’s contact be limited and
supervised.
o Mother seeks order of joint guardianship, and parenting time with both kids. Does not oppose A
continuing to live with dad, but wants B returned to her live with her eventually.
Issue Who should be guardian of children? Should father be sole guardian?
Held Both parents are guardians.
Reasons o Pursuant to s. 251 of FLA, the joint cutody and guardianship of A means that both parents are now
guardians of A.
o No order for B, look to s. 39—both parents are presumptively guardians because they lived together
before separating.
o Pursuant to s. 40(2) they both can exercise all parental responsibilities under s. 41 b/c there is no
agreement or order otherwise.
o When statutorily deemed to be guardian under s. 39 b/c lived together after child born and then
separated, no need to apply to be guardian. You just are. Under s. 51(1)(a), can only APPLY to be a
guardian if you are not already a guardian, so s. 51(1)(a) as it applies to parents applies to parents
who separated before the child’s birth or who never lived together with the other parents and the
child
o So you cannot use s. 51 to apply to be a sole guardian.
o There is no section under the FLA where you can apply to be SOLE guardian. The only way to do
that therefore, is to apply for termination of the other guardian’s guardianship under s. 51(1)(b)
o Act does not set out what should guide the court in making a decision under s. 51(1)(b), except best
interests of the child as set out in s. 37
o Court then addresses each factor under s. 37(2)
(a) Health and emotional well-being:
o A has behavioural problems, clear mother can’t cope with this, but dad is more successful,
he can cope with A’s issues
o Nothing regarding health and emotional wellbeing of B that would impact the application
(b) Views of kids:
o Too young to consider
(c) Nature and strength of relationships:
o No evidence that stronger or weaker with either of their parents, both closely bonded
with each and both parents
o Factor is neutral
(d) History of care:
o Weighs in favour of father. Nothing to criticize his care of the children.
o Mother has had serious lapses in judgment placing kids in danger (letting abusive
boyfriend inside, leaving baby alone to chase him, going to see if intruder was in her
house with baby)
o However, father left baby in mother’s care despite her issues
o And also mother failed to follow up on blood test for B, who has hepatitis C
(e) Need for stability given ages and stages of development:
o Both need stability, given young ages and A’s behavioural problems
o Father has done good job of that with new partner
o Mother has struggled with stability, living arrangements never certain
(f) Ability of parents to exercise parental responsibilities:
o No concerns with father’s ability to do so
o Reservations regarding mother’s ability, although she has demonstrated commitment to
 improve herself which cannot be overlooked. Has no relapsed into drug use.
o So mother only lacks capacity to exercise some parental responsibilities but not others.
(g) Impact of family violence:
o No evidence between parents of family violence
o However mother had relationship with violent man (which is why B was removed from
her care by ministry)
o No longer with that man, but risk she will make same bad decisions in the future
(h) Actions of person responsible for family violence:
o Nothing for this factor
(i) Appropriateness of arrangement that requires cooperation, any increase to
safety/security/wellbeing:
o There has never been a safety risk associated with the communication of mother and
father
o Father does not object to mother attending dr.’s appointments
(j) Any civil or criminal proceeding relevant to kids safety, security or wellbeing
o Outstanding child protection case under CFCSA is the only relevant proceeding
o A decision under that is awaiting this decision
o Orders made under CFCSA will prevail at any rate

Here, b/c mother no longer with violent partner, has shown commitment to herself and improving her
parenting and therefore should not cancel her guardianship.
Ratio Sole Guardianship
The legislature established a presumption of guardianship and did not include an operative section
allowing presumptive guardian to apply for sole guardianship. Therefore must apply to terminate
guardianship under s. 51(1)(b)

Threshold to cancel presumptive guardianship’s status: only in very rare and the clearest of cases such
that it is in the best interests of the child to do so.
Cassidy’s What about s. 39(2) which allows for “an order” that a parent is not a guardian
Opinion o In my opinion this is referring to an order made under s. 51(1)(b), s. 39 does not provide
for any application etc. so the order can’t be made under that section.
o I agree with court’s decision regarding how to get sole guardianship

JLM v. GAT 2013 BCPC 96

Facts o Mother seeks order she is sole guardian
o Applied under FRA, but then FLA came into force before case heard
o Father is facing criminal charges for assaulting mother, and there is a no contact order as a result of
the charges
Issue How to apply for sole guardianship
Held s. 39(2)
Reasons Where parents living together at time of child’s birth, s. 39 applies. While s. 39 does not specifically
provide court may make a declaration of guardianship, provision would be meaningless without that
power. No logical reason why language giving court power to do so is missing from s. 39.

Meaning of legislation is clear, even if badly worded, court has power to order person not a guardian.

Rejects s. 51(1)(b) b/c s. 51(2) only directs best interests to be taken into account for (1)(a)

Here, terminates father’s guardianship b/c he has taken no interest in the child, didn’t even file a reply in
the proceedings, and therefore not in child’s best interests to continue his guardianship.
Cassidy’s Court seems to ignore s. 37 which requires a court to consider best interests in any guardianship order,
Opinion which I think should include termination of guardianship as well…

Also, s. 39 not meaningless w/o inferring power to make declaration, the power to give order is clearly
given in s. 51(b)—saying you can do it under s. 39 renders s. 51(b) meaningless! Also, if you read as
reference to s. 51(b), then provision is not confusing, and completely logical explanation for not giving
power under s. 39.

I mostly think this is a terrible decision.

3. Parenting Arrangements
*see section below for detail*
How to Make a Parenting Arrangement:
 Arrangements can be made by agreements between guardians under s. 44, court order: s. 45, informal
arrangement: s. 48

Arrangements Include:

 Parenting time is the time that a child is with a guardian: s. 42

 During parenting time, a guardian may exercise, subject to agreement or order, the parental
responsibilities of day to day care, control, supervision and decision making
 Parental responsibilities are extensive and listed in s. 41
 Only a guardian may have parental responsibilities and parenting time: s. 40
 Unless unreasonable or inappropriate, each guardian may exercise all parental responsibilities in
consultation with any other guardian: s. 40
 Parental responsibilities may be allocated among guardians, so that they are exercised by one guardian
alone, each guardian separately or all together: s. 40(2)
 Must exercise parental responsibilities in the best interests of the child: s. 43
 Contact is time spent with a person who is not a guardian: s. 58(1), s. 59(2)
 Can be made through agreement: s. 58(1), only if all guardians who are responsible for deciding with
whom the child may associate agree: s. 58(2), and court can set aside agreement if not in best interests
of the child: s. 58(4)
 Can also be made through court order: s. 59(1), and that order can be changed suspended or
terminated if there has been a change in the needs or circumstances of the child, including because of a
change in the circumstances of another person: s. 60

Example
GP v. MJRP 2013 BCSC 746
Facts o Parties had been granted joint custody and guardianship as collorary to divorce in 2009
o Parenting was shared with alternate weeks access and the appointment of a parenting coordinartor
o Mother basically sucked at life and couldn’t stick to schedule, also lied a lot
o Father applied and was granted interim custody with joint guardianship under Joyce model
o Since that time, parties have basically worked it out, father works one week on/one week off, so mother
caring for kids when he is working
o Kids are doing well
o Mother applies to be primary residence with shared custody and joint guardianship
Issue: Should interim order be varied? How should parental responsibilities be divided up?
Held: Father should have majority of responsibilities and kids should live with him.
Reason o Shared parenting arrangement has worked well, so mother’s access should continue on those grounds
s o No reason to disturb interim order, father retains primary responsibilities in terms of school registration
and extra curricular activities
o Father picks health care providers, but both parents names given to health care providers so either can
 take them
o Father needs to ensure that there is equity in terms of holidays

Considerations in Making Arrangement:

 Best interests of child (see above)
 Agreements may provide for equal parenting time and responsibility, but no particular arrangement is
presumed to be in the best interests of the child: s. 40(4)
 No presumption of equal parenting time, responsibilities, or separate or joint decision making: s. 40(4)

Changing it up:
 Orders with respect to parenting arrangements can be changed, suspended or terminated. Applicant
parent must demonstrate there has been a change in the needs or circumstances of the child, including
because of a change in the circumstances of another person: s. 47
 Guardian must not change informal arrangement without consulting the other guardian(s), unless
consultation would be unreasonable: s. 48

4. Relocation
If guardian wants to change location and NO arrangement in place:
 court order s. 45
 Where no parenting arrangement in place, and guardian wants s. 45 order to move child: court
considers best interests of child under s. 37(2) and must consider reasons for change in residence, BUT
may NOT consider whether the guardian planning to relocate would do so without the child. Note this is
just where guardian wants to move child, not if they just want to move by themselves.

If guardian wants to change location and there IS an arrangement:

 Division 6, given deference to existing order.

Best Interests of the Child

Article 3(1) of the UN Convention on the Rights of the Child: In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration

Content of Best Interests Principle:

o Notoriously indeterminate and often in the eye of the beholder
o DA gives little guidance—s. 16(8) “conditions, means, needs and other circumstances” but NOT past
conduct unless relevant to the ability of that person to act as a parent—s. 16(9). Then s. 16(10)
emphasizes maximum contact and directs court to give effect to this principle.
o Conflict between “maximum contact” under DA and s.40(4) of FLA—no presumptions of equal time?
o FLA changes best interest significantly. Section 37 sets out expanded test, new overarching concern test
—“only” and not just “paramount” as was under FRA. Judges provided with significantly more guidance
under FLA. Huge change is to consider “family violence”, defined quite expansively under s. 1 of the FLA.

RJP v. NLW 2013 BCCA 242

Application of best interests test in context of paternity testing:
o Issue: did judge err in failing to consider best interests of child in making order for paternity test?
o Mother had relationship with husband and another man during conception period
o Mother and husband now completely reconciled
 o Other man wants paternity test, and if he is the father, wants custody
o HELD:
o Not the law that you have to consider ultimate success, i.e. that other man would get custody, before
making order for paternity test
o Stigma of illegitimacy is no longer a public policy concern
o Order can be made under Rule 9-5 of Family law rules, where paternity is at issue in a proceeding
o Under FLA, now there is guidance regarding paternity tests, see ss. 26,31 and 36

Young v. Young [1993] SCJ 112

Best Interests of the Child principle from judgment of L’Heureux-Dube (dissenting in RESULT only):
o Myriad of considerations, person orientated and not act orientated
o Requires evaluation of the whole person viewed as a social being
o Court is required to predict the happening of future events rather than to assess the legal import of past
acts and judge the effect of various relationships, all the while weighing innumerable variables without
the benefit of a simple formula
o Courts must balance considerations such as age, physical and emotional constitution and psychology
both of the child and parents
o Goldstein, Freud and Solnit: Importance of continuity in child’s relationships, major focus should be to
preserve and protect the relationship between the child and his or her psychological parent
o Case by case consideration of the unique circumstances of each child is hallmark of the process
o The wide latitude under best interests test permits courts to respond to the spectrum of factors which
can both positively and negatively affect a child
o Focus on unique child before judge
o Criticism: ‘best interests’ is essentially indeterminate and fails to provide necessary direction and criteria
with which to make custody and access decisions… others note that it becomes a battle of the experts,
or that financial considerations devalues women’s work as the person with money deemed to be in the
best interests.
o No other alternative… best interests principle is probably the “least detrimental available alternative”,
most suggested guidelines or presumptions are just designed to give content to the test in furtherance
of child’s welfare
o By removing presumptions, courts are faced with competing claims and must evaluate—not just go with
one parent automatically
o Courts need to be careful that the ideals of parental sharing and equality do not overcome the lived
reality of custody and access arrangements and that the child’s needs and concerns are accommodated
and not obscured by abstract claims of parental rights.
from judgement of McLachlin (majority):
o “best interests of child” is the only test… parental “rights” play no role
o Test is broad, recognition of the diversity of situations which arise in custody disputes
o Huge deference left to judge to determine
o However not uncontrolled discretion, just very flexible
o No room for judge’s personal opinions or prejudices
o Also parliament has expressly indicated that maximum contact should be given as can be in accordance
with best interests… contact with each parent is deemed valuable

LJR v. SWR, 2013 BCSC 1344

See this case for application of best interests factors under s. 37(2) starting at para. 89

Relevance Of Conduct, Race, Gender and Sexuality

CONDUCT GENERALLY:
Section 37(4) FLA: Must not consider the conduct of a party unless that conduct substantially affects a factor included
within the best interests of the child test
Exception: Family violencesee ss. 37, 38 FLA

Section 16(9) DA: Court shall not take the past conduct of any person into account unless it is relevant to the ability of
that person to parent the child.

RACE is not currently legislated as a best interests factor under either FLA or DA…

Van de Perre v. Edwards 2011 SCC 60

Facts o Mother is single Caucasian, 24 at trial, did not finish high school, spotty work record
o Father, African American, 24 at trial, professional basketball, married, has kids with his wife, still with
wife
o When child 3 months old, mother brings action for custody and child support
o Initially father sought joint custody and liberal access, but then amended pleadings to seek sole
custody
Judicial TRIAL:
History o Sole custody to mother
o Father gets access for four one week periods quarterly during calendar year, and share of holidays at
Christmas and birthday
o Most important issue at trial was gender
o Dad essentially just focused on how bad mom was, without really establishing his own parenting skills
o Mom established she was good parent
APPEAL
o At appeal, father’s wife applies to be added as a party, and requests joint custody with her husband
o Application and joint request was granted
o Mother given generous access
o Says TJ erred in consideration of mixed race heritage of child (though not huge focus of CA decision)
o Most important issue was nuclear family
Issue o Did the trial judge err in his consideration, or lack thereof, of the child’s mixed race heritage?
o Did the trial judge err in emphasizing the father’s conduct but not the mother’s conduct?
Held No to both
Reasons Conduct
o Correct to consider conduct of father, having extra marital affairs, b/c this would potentially impact the
emotional well-being of the child if he did it again, also meant he had a weak marriage, and his wife
does all the parenting, not clear he would be able to parent on his own—works a lot, involved in NBA
social scene, wife does everything.
o Didn’t consider mother’s conduct in relation to her social life, but that’s ok b/c there was no evidence
to suggest how this might impact her ability to parent… where it is unclear how conduct might affect
ability to exercise custody, impact emotional well-being of the child, then it is irrelevant. Past or
present conduct that does not “substantially affect” the best interests of the child has no bearing on
custody determination and does not require comment.
Race
o Importance of race depends on many factual considerations
o Intervenors say that mixed race child needs to develop a means to deal with racism and a positive
racial identity and pride… parent needs to be able to do this for the child, not necessarily minority
parent should get child, but the question is which parent will best be able to contribute to a healthy
racial socialization and overall healthy development of the child.
o Intervenors submit that the main issue which parent will facilitate contact and the development of
racial identity in a manner that avoids conflict, discord and disharmony
o Race relations in the relevant communities may be important to define the context in which the child
and his parents will function. Not always possible to address these sensitive issues by judicial notice,
 even though some notice of racial facts can be taken
o Weight is a matter of discretion, but must be exercised with regard to the evidence
o Intervenors argue that race is always a crucial factor, and should never be ignored even if not
addressed by the parties.
o Court disagrees—race is but one factor, relevancy depends on context—individual analysis
o Race plays different role in adoption than it does in cases involving two biological parents desiring
custody
o b/c it is custody, one gets custody and one gets access—child is not being totally denied heritage like in
adoption
o can’t let race oversimplify a very complex discretionary decision
o the reason race is a factor is that it is connected to the culture, identity and emotional well-being of a
child… consideration in legislation re: adoption, and family law in NB
o Adoption is different, b/c in that case child ceases to have contact with bio parents—potentially
completely isolating them from their heritage. Different with mixed race child, b/c has heritage with
both parents
o Evidence regarding “cultural dilemma” of biracial children should be accepted—is relevant to best
interests test
o Need specific evidence—general information not necessarily helpful b/c lot of contradictory
information out there
o TJ did not discuss race in detail
o However TJ did state that overall concern was that child was in stable and loving environment
o This reflects the minimal weight the parties themselves placed on race in the proceeding
o Clearly TJ felt that whatever benefit child would get from being with father in terms of positive racial
identity, it was outweighed by negative findings in relation to father and his ability to parent
o No evidence was adduced that indicates that race was an important consideration
o At SCC counsel for father said that no party wanted to address race b/c it is politically incorrect—SCC
says this is totally unacceptable, if counsel think it is relevant to best interests of child then they MUST
raise evidence regarding it.

Palmore v. Sidoti, , 466 U.S. 429 (1984)

 US supreme court decision, unconstitutional to consider racial prejudice when determining best interests of the
child.
 Different in Canada

Ffrench v. Ffrench, (1994), 118 D.L.R. (4th) 571 (N.S.S.C.) (note rev’d on other grounds—child support NOT custody)

Mother, who was white, and father, who was black, were parents of two children. Parents separated after 6 years of
marriage. It was likely that the children would be considered black by society. Mother was committed to ensuring the
children had contact with their black racial and cultural background, as well as with their white heritage. Mother was
committed to ensuring the children had contact with father. Father only wished to expose the children to their black
heritage and was not likely to promote mother's access rights. Mother intended to remain in the area where the
children had strong ties, while father did not have a settled address and was likely to move around in the future. Both
parties applied for custody of the children.

Held, mother's application was allowed and father's application was dismissed. Mother was more likely to promote the
children's access to the other parent and she was more likely to provide a stable home environment. The children's best
interests and self-esteem would more likely be served by mother's encouragement of the children's mixed racial
background than by father's concentration solely on their black heritage. Father raised race at trial more to try and deny
mother custody then out of concern for his children.

Camba v. Sparks (1993), 345 A.P.R. 321 (N.S.F.C.)

Unmarried mother and father had a 2-year-old son. Mother also had a 6-year-old daughter to whom the son was very
attached. Parents had shared their child on an equal basis since birth until father removed the child from the province
without mother's knowledge. Father was a white French-Canadian and mother was an English-speaking African-
Canadian. Father did very little to promote the child's mixed racial and multicultural background. Mother did encourage
it. Father did little to encourage the child to continue a relationship with the other daughter. Father and mother both
applied for sole custody. Held, mother's application was allowed. The wishes of the parents were secondary to the
welfare of the child in determining custody. Both parties were equally competent parents. The Court considered
awarding joint custody but decided that, due to the distance between parents, the costs of communication and parents'
two different environments and personalities, sole custody was preferable. Mother was much more sensitive to the
multicultural issues that the child was likely to face. She was also more likely to be helpful as the child grew up and
encountered discrimination due to his mixed race. Mother would also encourage an ongoing relationship with father.

Violence: is a factor under FLA, not noted under DA

s. 1 FLA: defines “family violence” as including:

(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but
not including the use of reasonable force to protect oneself or others from harm,
(b) sexual abuse of a family member,
(c) attempts to physically or sexually abuse a family member,
(d) psychological or emotional abuse of a family member, including
(i)   intimidation, harassment, coercion or threats, including threats respecting other persons, pets or
property,
(ii)   unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,
(iii)   stalking or following of the family member, and
(iv)   intentional damage to property, and
(e) in the case of a child, direct or indirect exposure to family violence;

Carlson v Carlson 1991 BCCA

o Decided under DA—would this be different if decided under FLA?
Facts o Parents married at age 19 and 20
o Four kids
o Parties separated on a number of occasions
o Father physically abused mother
o Interim order made by consent, custody to mother, with generous access to father. Restraining order
against father to stay away from mother’s residence and place of employment
o Mother sought assistance from social services b/c one child has serious learning disability and two older
boys have needed counselling and assistance
o Father sought some assistance dealing with his abusive behaviour, family violence project
o Parties then disagreed as to whether they were living up to agreement… “generous access” given to
father, term is problematic b/c people have their own interpretation on what that means. Better to spell
out specific terms where parties cannot find common ground
o Vague allegations of sexual abuse… appears unsubstantiated?
o Ministry became involved, father given only supervised access—so he didn’t see kids b/c he didn’t like
this
o TJ: custody to dad, relying heavily on family court counsellor’s report
Issues Who should get custody?
Held Mother
Reason o Family court counsellor’s report was seriously flawed, neither complete nor accurate—completely
s ignores father’s violent behaviour towards mother and children, counsellor did not contact family dr.,
was not aware that at separation father took children w/o telling mother, and that father refused to
 participate with children’s therapy(? Some program), or that social workers thought him to be disruptive
o Family court counsellor did not think that father’s violence towards mother was relevant to custody…
calls father a “gentle man”, which is completely inconsistent with his own admissions to the family
violence program
o For some unknown reason, counsellor thought that mother was less caring… no support in evidence for
this, she is the one that is working to get son into special needs program, having younger children attend
counselling etc. Works two jobs and takes care of children.
o Question of status quo is troubling: well established that family courts should avoid interfering with
status quo—children have been with father for 8 months
o However not disruptive to return children to mother—they will keep going to the same schools, mother
has been very involved with access even though living with father
o Considerably less harmful to disrupt slightly by making kids go with mother than the long-term effects
they will suffer if subject to physical and verbal abuse by father.

Proving Family Violence:

TS v. AVT, ABQB 2008

o Joint physical custody ordered after allegations, but no proof, of serious sexual violence against the
mother and daughter
o Mother had claimed that she herself was sexually assaulted by father at least five times
o Children were living with mother in a stable home with siblings, the mother’s other two children
o Court saw the mother as obstructionist and father as dedicatedly attempting to foster a relationship
with his daughter
o Mother’s allegations labelled as “spurious”
o Primary residence and decision making given to father… best interest of child to have one primary
parent and for that parents not to alienate her from the other
o Father testified he would ensure the child grew up knowing her mother and the mother’s family
o Mother had not envinced the same attitude towards father

K v K, 2013 BCPC 223

- Court orders protection order against son of father
- Under FLA, can get protection order against family member, and given expanded definition of family violence,
clear that should be ordered against son—son violent towards father

MWB v. ARB, 2013 BCSC 885

o Claimants (typo? I think it is supposed to be respondent) litigation conduct, relating to selling the commercial
property and to parenting arrangements, constitute family violence under FLA = emotional abuse and
harassment (para. 199)
[204]     The best interests of children suffer when abusive oppositional behaviour
and litigation fomented by one parent’s conduct harms the health and financial
well-being of the other parent. This in turn harms the children’s economic safety
and security.

Van Kootenv. More, 2013 BCSC 1076

[34] While there is some evidence of a display of violence by Mr. More during the relationship (Mr.
More admits that he is a tall man with a loud voice), they were not related to the child, were not as
dramatic as stated by Ms. Van Kooten, did not involve physical violence to anyone, and only occurred on
two brief occasions. I am not persuaded that the instances referred to at trial place the child at risk or
will cause difficulties in each party’s ability to deal with each other. I note that Ms. Van Kooten stated at
trial that she no longer has concerns with Mr. More having access.

LAR v. EJR, 2014 BCSC 966

 o Parties legally married, have three kids
o Divorced by consent
o Father makes money from marijuana grow-ops
o Mother (L) alleges father (E) committed family violence—assaulting her, sometimes in front of kids,
threatening to set her new partner on fire, ongoing violence
o Father denies allegation, says mother is just trying to remove him from kids lives so that she can pursue
her new relationship
ISSUE: Does father’s past conduct demonstrate that his parenting time with kids should be supervised?

HELD: yes

REASONS:
o Essentially he said she said regarding the violence, except the assault on partner for which he was
convicted and sentenced criminally

[121] In general I found L. to be a credible witness. Despite what has gone on between them she was
still surprisingly fair about E.’s parenting abilities and I was struck by the apparent sincerity with which
she spoke of ensuring that the children keep a positive relationship with their father. While I ended up
disagreeing with her that there is anything detrimental to the children in E. bringing his new partner into
the children’s lives, as shown by my interim order, her position seemed to me to be the product of
excessive caution about the children’s sensitivities, rather than hostility towards E.

[122] Specifically, I believe her when she testified that E. assaulted and verbally abused her in the
relationship. Her narration of these incidents contained the sorts of idiosyncratic details that are the
hallmarks of actual recollections. A striking example was E.’s chilling explanation of why he stopped
choking her after she became unconscious. Despite describing highly emotional and unpleasant events,
there was nothing inflated or melodramatic in her descriptions. She was also disarmingly candid and
lacking in defensiveness when E. pursued the embarrassing theory that some of her injuries were caused
by vigorous sexual activity.
…
[127]     I found E. to be an unreliable and at times untruthful witness and I am unable to accept his
evidence on any of the important points in this case. His overall approach to giving evidence was to deny
and evade, rather than to offer descriptions that sounded like actual events as he would have
experienced them. At times during his testimony he adopted an oddly halting manner of speaking, which
was not present when he spoke at any other point in the trial, and left the impression that he was
making things up as he went along.

o Court then refers to FLA provisions on best interests, including family violence
o Children not exposed to physical violence towards mother (and violence only occurred during marriage
and not since separation)
o However father’s comments to mother, in presence of children, constitutes emotional violence under
FLA—far beyond usual nastiness after divorce
o Assault on new partner does not count, b/c new partner is not “family member” HOWEVER, was
extremely violent, and father harbours feelings that it was justified, shows appalling lack of judgment,
indicative of future dangerousness
o Father to continue with supervised parenting time, until he can show he is mature and it is safe to
dispense with it
o Children will live with mother, she will exercise parenting time with them except for specific times they
are with father
o Mother will exercise all parenting responsibilities under s. 41 of the FLA, make final decision, but she
must consult with father before making significant decisions and seriously consider his views before
deciding.
 o Structure set up so that he can progress to unsupervised parenting time, and then more parenting time,
if he refrains from making negative comments re: mother and partner
o Anytime he speaks negatively about mother or partner, reverts back to stage one with supervised access
only… set up so that he can progress to sharing jointly all responsibilities under s. 41

McKenzie v. Perestrelo, 2013 BCSC 1452

o Mother says father assaulted her, threatened to kill her. Police were called, he was charged but
acquitted
o Father says they tussled while having an argument, but that he did not threaten her or assault her
HELD:
o Court does not believe either party—not as serious as mother says, but not as innocent as father says
either
o Court orders joint guardianship and shared parenting responsibilities—each solely exercise while child in
their respective care
o Mother exaggerated claims regarding concern for child being in father’s care, especially in relation to
claims that he is violent when drinking… unsupported by evidence

Chancellor v. Chancellor, 2013 BCSC 1519

o Father charged, and then acquitted of assault and counselling assault, primarily b/c judge in crim
proceedings did not find crown witnesses reliable (which was mother—alleged victim, and mother’s
partner—other alleged victim)
o Prior to this, restraining orders were granted so that father could not contact mother except through
counsel and only for purposes of litigation.
o Series of “troubling” communications from father to mother, and to mother’s new partner, over
protracted period of time after separation—although not super recent at the time of this decision.
o Father said things like he was “pissed off” that partner’s stuff was on “his” property (matrimonial home),
also sent new partner a christmas card that had a picture of father and mother, with red dot over
mother’s face, and some other weird bible stuff.
HELD:
o Mother is “at-risk” family member w/n meaning of FLA
o b/c this litigation is going against father, this is a “circumstance” under s. 184 of the FLA which may
increase risk of family violence—father undoubtedly will be disappointed on some property division
issues, and therefore restraining order should continue

Gender

Tyabji v. Sandana (1994), 2 R.F.L. (4th) 265 (B.C.S.C.)

o Court goes against expert reports which recommend custody to mother and gives to father
o Experts recommended mother b/c she had new partner, and advantage to have male and female
influence for children
o But court rejects b/c mother is MLA, so very busy, and her career means she has much less time to
spend with kids than father
o Also new partner involved in politics so he doesn’t have time for kids either
o Also mother is “aggressive” while father is “calm”, better for children to be with less aggressive parent
o Seems like court is “punishing” mother for being career orientated, and not quite fulfilling expected
gender role... (IMO)

[11]      Stereotypical gender views have no place in an award of custody. Some of the evidence showed that one
of the interim orders for custody in this matter was intemperately criticized by one witness based upon an
entrenched view of gender rights. That showed a misunderstanding of the principles of law which govern
matters of custody. Custody will not be awarded on the basis of any preconceived idea about daughters being
 with mothers and sons with fathers, or about age-appropriate placements, or about the rights of working
parents of either sex not to be deprived of custody simply because they have a particular career path. In every
case the court must determine the best interests of the children and all else must give way to that. I refer
to Williams v. Williams (1989), 24 R.F.L. (3d) 86  (B.C. C.A.), and to R. v. R. (1983), 34 R.F.L. (2d) 277  (Alta. C.A.).
However, I am alive to the common sense suggestion that, often, small children will have formed a stronger
emotional and physical bond with their mother. That must be weighed against any evidence which shows
otherwise in a particular case, and against any evidence which shows that in spite of that bond at one stage of
the children's lives, as strong a bond has since formed with the other parent, or that the probable futures of the
parents puts one, rather than the other, in a position better to serve the best interests of the children from the
time of the trial onwards.
…
[48]      To summarize my reasons for preferring the father as the custodial parent, I find that he will provide
more continuity of care in the children's lives. The mother's attention as a custodial parent would be, to a
degree, sidetracked by her career agenda. The same is true of her intended husband, Mr. Wilson. At their
present ages, the children will benefit more from their father's lower key approach to life than from the
mother's wider ranging ambition. The time may well come when different priorities should prevail. I find the
children are bonded as closely to the father as they are to the mother and that until the interim custody order,
they were more used to being in his care. I depart from the recommendations of the court appointed experts
because I have had the benefit of very extensive cross-examination of the parties which was not afforded to
them.

[49]      Finally, on the question of custody, I have tried to reverse the parents' situations in my mind as a test of
this decision. If the facts as they relate to the mother related instead to the father, and vice versa, I have no
doubt at all that she would be awarded custody. As it is, I am satisfied that custody should be awarded to him.

Sexual Orientation

N v N, BCSC 1992: discreet homosexuality does not interfere with the best interests of the child

JT v. SC-T ON Sup Ct 2008

ISSUE: custody between lesbians, children conceived through artificial insemination, parties legally married and then
divorced.

Take Away: Court relies on psychological expert report which characterizes bio mom as “feminine/sensitive and
motherly” while non-bio mom is described as “fatherly” parent. Court does not challenge the sexist stereotypes, but
takes expert’s recommendation for joint custody at face value. Issue of “morality” re: homosexuality does not come up.
Joint legal and physical custody ordered under DA.

MMG v. GWS, 2006 SKQB 2006

o husband and wife separate after divorce, 16 year marriage
o husband gets custody of four children
o wife begins relationship with woman
HELD:
o not in children’s best interest for wife to leave marriage and start same-sex relationship
o this was inappropriate ‘self-focus’
o lack of disclosure re: relationship to elder children influences analysis, being discrete is a negative factor,
demonstrates inability to effectively communicate
o wife’s alienation from elder children central in her inability to get custody of youngest
o allegations that wife was incompetent parent, custody report recommended wife get custody of
youngest but court does not want to break up family, wants to maintain status quo
 o also finds that wife is very negative about husband, while husband is not even though in small town SK,
very anti-homosexual community so he had opportunity
o court wants to maintain status quo
o RESULT: joint legal custody, children to live with father, wife granted frequent access

S v. S, 1992 BCSC
o Lesbian mother lost custody of her children b/c she was moving from interior BC to Vancouver and
children should not go on her “adventure” with her
o No allegations of abuse or incompetent parenting

JSB v. DLS , 2004 ON sup ct

Facts:
o After separation, both parents want custody, both are first nations
o Father has drinking problem, but is more in touch with first nations culture
o Mother is in long-term lesbian relationship, but is less involved with community b/c it disapproves of her
lesibiansim
o Same-sex partners are discrete: mother says she will tell children about the relationship when time suits
o Original order gave joint physical custody, weekly rotation, but has proved difficult for the children
ISSUE: Who should get custody?
HELD: mother, father gets regular access

Reasons:
o Race and sexuality are only factors in analysing the best interests of the child
o Importance of factors depends on facts of the case
o Race can be a factor in determining best interests of child because it is connected to culture, identity
and emotional well-being of child.
o Same-sex couples are capable of forming “long, lasting, loving and intimate relationships”
o No evidence that same-sex families are more unstable or dysfunctional than heterosexual
o No evidence that children raised by homosexual parents will be significantly any different than child
raised by heterosexual parents in areas of psychological development
o No evidence that children raised by homosexual parents will be exposed to any greater degree of social
stigma than children of heterosexual parents are exposed to because of race or any number of
characteristics.
o If stigmitization does occur, it is only a factor to be taken into account when determining the best
interests of the child and is not a sufficient reason in and of itself to deny custody.
o Children’s sexual orientation not influenced by parent’s orientation (duh, otherwise there would be no
gay people… ha)
o “In short, [there is] no evidence that families with heterosexual parents are better able to meet the
physical, psychological, emotional or intellectual needs of children than families with homosexual
parents” quote from para. 108, quoting from K (Re) (1995), 23 OR (3d) 679

Trends
Statistics (p. 62)
In DIVORCE… Joint Custody is the norm
Stats Can 2004
o 47% joint custody awards in divorce
o Continues 17 year trend of steady increase in joint custody arrangements
o Note that under joint custody, dependents do not necessarily have equal time with each parent
o Sole custody of 45% awarded to wife
 o Decline since 1986—that year 76% awarded solely to wife
o Sole custody to husband’s in 8%

Joint custody is rising trend: especially in BC: see S.B. Boyd, “Joint Custody and Guardianship in the BC Courts: not a
cautious approach” (not assigned reading)

Presumptions

Divorce
BC lawyers suggest that the despite the fact that there is no presumption of joint custody under the DA, joint custody is
usually the starting point for negotiations.
o However, joint custody is often seen as in the best interests of the children, unless some positive
evidence to demonstrate otherwise
o What type of evidence though, can demonstrate this is unclear… courts are not consistent in decisions
regarding how much evidence is required to show that joint custody is not in best interests of the
children
o Courts’ will often affirm that “maximum contact” is in the best interests of the child
o Alternatively, joint custody can be seen as an aggravating factor when parents experiencing conflict and
so award sole custody, usually for primary caregiver parent… this gives child: stability, permanence and
predictability.

Joint Custody and Joint Guardianship are NOT the same thing
Joint Custody
o Both parents given legal custody
o Affirms both parents decision-making authority over the children
o Presumes relatively equal access
o However, joint custody does NOT mean joint physical custody—i.e. “day to day care and control”
o Children tend to live with and be primarily cared for by their mothers notwithstanding an award of joint custody

Parents also routinely consent to joint custody… Example: BTR v. UA, 2014 BCSC 1012
o This case, high conflict divorce, father seeking sole custody but at the end of trial both are ok with joint
for the youngest child.
o Section 15 report indicates that both children should live with father, but court does not buy expert’s
evidence, saying experts have been drawn into the conflict and lost their neutrality
o Finds that both parents have weaknesses and strengths
o Says older child will live with father as is child’s wish, and younger child live with both on a weekly
alternating basis
o Chalks a lot of the parents’ parenting problems up to the high conflict divorce
o Interestingly, this is a divorce case, but order is framed in terms of guardianship and parenting time
under FLA. Also reference is made to best interests test from FLA.
o Use this case as an example of how courts’ deal with high conflict custody battles…

Criticisms of Joint Custody

“Joint Custody as Norm: Solomon revisited” by Alison Harvison Young (p. 63, follow link)
o This article is a criticism of trend of joint custody, from 1994 though so a bit out of date.
o Joint custody refers to several different arrangements
o Legal custody refers to decision making, does not presuppose any living arrangements
 o Physical custody = living arrangements (can be joint as well i.e. alternate living with one parent for week
1 and then other parent the next week.)
o Joint custody is also ambiguous b/c does not say how it was arrived at, i.e. through agreement or court
order
o Some suggest should never be imposed where parents don’t agree to it
o Advocates for joint say social science is on their side, joint custody always in best interests of child
o But problem with these studies is that research does not all agree, methodology issues, also many
studies only surveyed families that agreed to have joint—can’t apply results to families that don’t
agree… also in argument people do not differentiate between legal/physical, can’t apply findings of
study regarding legal to physical b/c they are different things
o Forcing people to co-parent may increase conflict which has a negative impact on children, so joint
custody where parents don’t agree is maybe NOT in best interests of child
o When parents do “consent” to joint custody, the question becomes should courts look into this further,
require proof/evidence that they actually can get along and agree to do this and have not just agreed for
simplicity/negotiation process
o Practically, joint legal custody may mean nothing if physical custody given to mother—will likely
resemble traditional custody/access arrangement
o Where children have one primary residence, joint legal custody has little impact on contact, support,
involvement in decision making of non-resident parent
o Joint physical custody may put child at risk where there is substantial parental conflict
o Joint legal custody has not lived up to goal of making men and women equal… physical custody usually
given to mother
o In Canada, presumption of joint custody refused despite s. 15 charter challenge by father’s rights groups
o Under DA, court has power to order joint physical or legal, but there is no presumption
o PEI, presume joint legal upon separation until court/agreement otherwise, SK parents have joint legal
unless agreement/court order otherwise, MB gives non-custodial parent right to access school, medical,
psychological, dental and other records
o Lack of presumptions in Canada attributed to the centring of the Best interests of the child test
o In practice, there is almost always joint legal custody
o Feminists argue that while arrangements usually resemble traditional custody/access, by awarding joint
legal it permits father’s to continue to interfere in mother’s life b/c mother’s life is intertwined with
children’s lives.

Update on Young’s Article: p. 63

o Many different studies cited, see this page if you want to cite something
o Recent studies affirm the concerns raised
o Shared parenting only works well where parents have financial nd psychological means to cooperate
o High conflict, power dynamics, abuse… joint custody very difficult for mother and child
o No linear relationship between amount of parenting time and better outcomes for children
o Legislation leads towards shared, so this gets misinterpreted, parents believe they are entitled to shared
parenting time—even if law is actually cautious
o Presumptions for shared parenting deflects attention away from violence
o This is troubling, b/c violence usually directed at women
o If you prioritize children’s rights to meaningful relationship with father, violence takes a back seat
o Quality of relationship with parent, which is dependent on parent’s well-being, is actually the biggest
indicator of child’s well-being.

Separation of Common-law

No presumption of joint custody under FRA

Take away from the following cases:

 o Meaningful communication can be a big factor in rejecting/awarding joint custody
o Good argument against joint is to say parties can’t communicate
o Consider: could a presumption help shape behaviour? i.e. if presume joint custody unless people behave
in x manner, would this change people’s actions—would they modify their behaviour if they risked losing
their kids?

Stewart v. Stewart (1994, BCCA)

o BCCA took cautious approach to joint custody, allowed appeal of joint custody order
o Parties unable to communicate meaningfully
o While TJ found both parents to be good parents, they were hostile and antagonistic to each other
o CA found that TJ’s hope that parties would be able to get along once put on “level playing field” was
misplaced, no evidence suggested they could cooperate
o CA ordered sole custody to mother, specified access to father
o “[joint custody orders] should be made rarely and only under circumstances where the parties are
totally in agreement for all intents and purposes do not need the assistance of the court”

Robinson v. Filyk (1996 BCCA)

o Rejects legal and factual presumptions as part of best interests of child test, even though this would help
with predictability
o Therefore, no presumption of joint, BUT ALSO, no presumption that joint should not be awarded unless
parties are in agreement
o After this case, other courts awarded joint despite high conflict situations

Javid v. Kurytnik (2006 BCCA)

o Court refused joint custody, b/c not in best interests of child
o Father had not dealt with anger management or accepted responsibility for any problems
o Para. 26: “whatever reasons underlie their parents’ inability to communicate sensibly and to co-operate
in caring for Emma and Maxwell, the parents’ conflict is real and continuing”

Narayan v. Narayan (2006 BCCA)

o Claim for joint guardianship rejected
o Para. 44: “this is not an appropriate case for an order of joint custody or joint guardianship. The
defendant has admitted assaulting the plaintiff in the past, he has an obvious animosity to her and
blames her without justification for his problems and he has demonstrated lack of reliability…”

Kaplanis v. Kaplanis (2005 ONCA)

o Joint custody order (with family counsellor given final say in decision making should parties be unable to
agree) overturned on appeal, sole custody awarded to mother
o TJ erred because awarded joint custody (para. 2) “(a) where there was no evidence of historical co-
operation and appropriate communication between the parents, and (b) in the hope that it would
improve the parenting skills of the parites”
o Also TJ has no jurisdiction to give final say to family counsellor
o However court also stresses that fact that parties cannot communicate does not automatically preclude
joint custody… even though “hoping” parties will improve is not sufficient basis for awarding joint
custody.
o Need “some evidence before the court that, despite their differences, the parents are able to
communicate effectively with one another” (para. 11), this is b/c no matter how detailed the parenting
plan, there will always be some gap and parties will have to work it out
o In ONTARIO, generally, after this case courts taking cautious approach to joint custody where contested,
with a few cases ideologically driven in that joint custody was awarded despite clearly controlling,
manipulative or deceitful conduct by parent(s) (See Martha Shaffer “joint custody since Kaplanis—not
assigned reading)
 o NB comments in Kaplanis re: joint custody adopted by BCSC in Valastiak v. Valastiak, 2006 BCSC 525

Windle v. Windle (2010 BCSC)

 Note treatment of child’s views—under FLA court MUST take them into account (change from FRA)
 Communication between the parties was a BIG factor here
 Having a new, stable partner factors in as well
 Example of modern application of best interests of the child test when considering custody
Facts o Parties have three sons: Z, L, K ages 14, 11, 9
o Sons have lived with mother since separation in 2002, interim order for joint custody and guardianship
o Mother’s partner moved in with her and boys in 2003
o Partner then purchased home, mother got permission of court to move there with boys
o Have lived there ever since
o Conflict has arisen since separation
o Charge of criminal harassment against father, disposed of by no-contact order
o 19 court appearances relating to custody
o Mother now seeks sole custody and guardianship, with specified access for father in order to reduce
conflict
o Father seeks joint custody and guardianship, but with primary residence of children with him
o Court rules that primary residence shall remain with mother…
Issue Custody, Guardianship and Access
Held Mother granted sole custody and guardianship. Father to provide in writing suggested access directly to the
plaintiff by registered mail, or by telephone to mother’s partner
Reason o Father cross-examined mother on her behaviour during marriage and its breakdown, says relevant to
s her ability to parent but court disagrees, this is indicative of high conflict divorce only—father’s
interpretation of mother’s conduct is not reliable
o Significant value accorded to maintaining current primary residence of children, this is the wishes of the
children (support by evidence)
o A court ordered move would be devasting and destabilizing
o No legal or factual presumptions in favour or against any particular custodial arrangement
o Communication difficulty not necessarily a bar to joint custody, but difficulties may lead court to
conclude not in best interests of a child
o Need evidence that despite differences, parties are able to communicative effectively with one another
o Where parties unable to prevent tension, confusion and strife over access exchanges = trauma to
children and not in best interests
o Here evidence is clear parties cannot communicate w/o conflict—even in writing
o Father always writes to mother’s lawyer about access, causing unnecessary expense for mother
o No prospects for improvement in communication—would not be able to reasonably discuss and agree
on significant decisions
o Father is stressing out mother, not in best interests of child to have her health compromised, she needs
to be relieved of the situation
o Status quo means primary residence should be maintained with mother
o Status quo deserves significant weight in this case
o Mother has always been primary caregiver, her partner is also committed to the boys, home is
emotionally stable, boys are happy there
o Boys are very involved in school and community where they live
o Father made false allegations of abuse against mother
o Father’s decision to move to Kelowna, an 11 to 12 hour drive away, that escalated the conflict
o Father is adult, he needs to work to maintain trust and confidence of children
o Best interests of child for mother to have sole custody and guardianship, give mother sole authority in
what has previously been excessively stressful environment
o Access of father therefore must be made with reasonable notice to mother
 o Partner of mother is very reasonable person, generously agreed to discuss access with father and relay
information to mother
o Father must cooperate with partner, and be reasonable with him
o If partner finds father angry, unreasonable or uncooperative, then partner has discretion to require
father to provide access suggestions in writing by registered mail… father has onus of being reasonable
and cooperatie
o One month’s notice required for father to visit children in children’ town, two months if he wants
children to come to his home in Kelowna
o Shorter notice causes huge stress b/c boys have very busy schedule with extra-curriculars
o On taking into account boys’ wishes: “compulsion is counterproductive and results in significant
dysfunction” (para. 62)
o Mother’s consent not required for visit to father within the boys’ home town
o but children will not be forced to go see father in Kelowna if they don’t want to, so mother’s consent
required for that—and court is confident mother will abide by boys’ wishes
o exception is teenaged boy, b/c he is older, his visits with father whether in his home town or in Kelowna
will be on his terms… he can communicate with father directly or through mother/partner as he wishes.

FLA DOES contain presumption of joint GUARDIANSHIP: when parents of child were cohabiting prior to separation (s.
39(1) FLA)
Use above case law decided under FRA to make guesses about how decisions will be made under FLA

Some argue that ss. 37(c)(d) and (e) set up a presumption that primary caregiver should be the guardian
o No primary care giver presumptions in Canada – some in the US – courts have to decide what parent had
primary care giving responsibility
o Not a way to think about how caregiving should be shifting within families – ideally it should reflect choices
within relationship
o When we see custody and access as winning and losing is very problematic – which is why we are trying to move
away from this and towards parenting time, parenting agreements etc.

Disadvantage of presumptions:
o prioritizes physical tasks over other connections
o makes it more difficult of differently abled to be recognized as primary care givers
o it doesn’t reflect other family forms beyond breadwinner and provider

Access, Parenting Time and Contact

Statistics On Contact
National Longitudinal Survey of Children and Youth, began in 1994
o only 7% of children lived with their fathers after the separation of parents
o only 7% lived with both parents
o 86% lived with mother and had contact with father to varying degrees
o Close to half visited fathers on regular basis
o 30% saw fathers once a week
o 16% every two weeks
o 25% irregularly saw father
o 15% never saw their father
o Frequency of contact between father’s and children decreased as the time since separation increased
o 10% of children whose parents were separated two years or less ago never saw their fathers, goes to
24% if separation five or more years ago
 o Irregular visits go from 16% to 32%, and regular visits decreased from 57% to 31%

AB study: For the sake of the Children, Report of the Special Joint Committee on Custody and Access
o Most non-custodial parents were not denied access by parent or court
o Over 1/3 of custodial and non-custodial parents felt that the non-custodial parent was not visiting the
child or children as much as they would have liked
o Irregular access = disrupted schedules, disappointed children and sometimes increased costs

USA study, early 1980s, Divided Families: What Happens to Children When Parents Part
o Only one child in six saw his or her father as often as once a week on average
o Close to half had not visited with their fathers in the 12 months before the survey
o Contact with non-residential fathers dropped off sharply over time
o ½ of recently separated couples saw their fathers at least once a week, and 1/3 had not seen them in the
last year… if separation 10 or more years, only 1/10 had weekly contact, and 2/3 had had no contact in
last year
o Even where children saw father regularly, father’s assumed minimal role in the day to day care and
supervision of children

UK Study, 2007
o 1000 children ages 6 to 12 found that 26% of children did not consider their fathers to be part of their
immediate family
o Only 4% did not include their mothers in the immediate family
o Suggested that this is explained by limited post-separation contact with father

California, mid 1980s

o 2/3 of families initially adopted maternal residence for children
o Children living with their fathers tended to see their mothers more
o Large majority of children maintained contact with both parents over three year study
o Visitation with fathers dropped off somewhat among mother-residence families, rates of visition with
mothers among father-residence families increased

Conclusions of studies regarding continued contact:

o Little association between father’s visitation and children’s well-being, maximum contact not necessary
for well-being: Valerie King, “Variation in the consequences of non-resident father involvement for
child’s well-being” 1994; Denis Donnelly & David Finkelhor, “Does Equality in Custody Arrangement
Improve the Parent-Child Relationship?” 1992
o Parental conflict negatively affects children post-divorce adjustment: 2003 9 J. of Family Studies 63 (this
is what the citation said in the text… seems that it is missing)
o Child outcomes in social and psychological development do not differ by type of custody arrangement,
as long as parental conflict is not high: 2004 background paper by department of justice, “Child custody
arrangements: their characteristics and outcomes”
o 87% of non-resident parents remained involved in their children’s lives, contacting them through email
or phone at least once a week. Just under 1/3 maintained daily contact, 89% non-resident involed in
recreational activities, 71% involved in regular care activities—this decreased with non-resident’s
distance from children. ½ of non-resident parents satisfied with amount of time spent with children,
other half dissatisfied or very dissatisfied: 2009 Stats Can report “Parenting after separation and divorce:
a profile of arrangements for spending time with and making decisions for children”—based on 2006
survey, did not include non-resident parents who did not have specific arrangements.

Studies on Children’s Perspectives

 o Children value a continuing relationship with both, but understanding of shared parenting is linked to
the quality of care they receive rather than quantity of time spent: Carol Smart, “From children’s shoes
to children’s voices” 2002; Cowan, Cowan, Cohen, Pruett & Pruett, 2010
o No clear link between a child’s well-being and the form of their residence arrangement, maximum
contact is not necessarily a good thing: J. Pryor and B. Rodgers, “Children in Changing Families: life after
Parental Separation” 2001
o It is the type of parenting, not time that is significant… joint custody not better than sole custody,
parental conflict biggest indicator of reducing well-being of children: Shaffer, “Joint Custody, Parental
Conflict and Children’s Adjustment to Divorce: what the social science literature does and does not tell
us”

Change in Terminology
The excerpt below is from the text, p. 80-81

Leading up to the introduction of the Family Law Act, family lawyers were moving away from the terms “custody” and
“access” because of the win/lose dynamic it set up between parents. The “access” parent was the “McDonald’s Daddy”
or the “Disneyland Dad” – the parent who had lost. The parent with custody was perceived to have “control.” Fathers,
therefore, wanted “joint custody” because of:
1. control issues;
2. desire to continue to be seen as a “real” parent; and
3. desire to have input in their children’s lives.

Mothers, conversely, resisted “joint custody” because of:

1. control issues;
2. communication problems; and
3. fear that it meant children would have two homes, would be going back and forth, and
that this was not good for children.

Therefore, settlement oriented lawyers and mediators stopped using the terms of custody and access and talked to
clients about how they both continue to be parents post-separation and that they just needed to develop a post-
separation parenting plan. The higher the conflict, the more detailed the plan. Sometimes parenting plans provided for
equal time, or set the path in that direction, but often that wasn’t the most important point, so long as both parents
remained “equal” as parents. The new Family Law Act attempts to capture this evolution.

Content/ Limit of Access, Parenting Time and Contact

Lecture Notes: Overview
o limited statutory definition of what you are entitled to have post-divorce
o FRA didn’t define access other to say that it included limitation (even more limited than divorce act)
o FLA gets rid of access, contact defined as access by non-guardian
o Instead parenting arrangement is made: practically speaking, one parent will still have majority of
parenting time and other parent will have something like access (every other weekend type thing…)
o Access is rarely denied even if past conduct includes violence

o Problems around limited/supervised access: parent only gets access when court determined supervisor is there
o Problems flow from supervisor not being neutral (will be family member)
o Former FRA contemplated access centres but we actually have very few of those
o Often relationship between child support and child custody – access is based on support but these
things are disconnected – no correlation between time spend with child and child support
Content or Limits of Access

Young v. Young, 1993 SCC

Note: court divided based on reasoning AND result
Facts o three daughters
o married in 74, separated in 87
o Mother took custody of children
o Father had access, subject to court imposed restrictions b/c of mother’s objection to his
religious activity with children
o Father JW, mother goes to united church but doesn’t really care that much about it
o Evidence shows that two eldest daughters like their father, but dislike his religious
instruction
o Religion damaging his relationship with them
o So TJ restricted father’s access, saying he was not to discuss JW religion with children and
not expose children to religious discussions with 3 rd parties w/o consent of mother
o Both parties ordered not to make adverse remarks on the other’s beliefs
o Father enjoined from preventing blood transfusions for children, should need arise
o Basis of order was TJ’s finding that religious conflict between parents was causing problem
for children, to protect best interests of children
o CA set aside limitation on religious discussion, said best interests of child was to know their
non-custodial parent fully, including religious beliefs
o CA says need evidence of potential for real harm before you can restrict religious activities
of access parent
Issues Are the religious limitations on Father’s access valid?
Held McLachlin for majority: restrictions removed. L’Heureux-Dube for minority, restrictions remain.
McLachlin’s o Section 16(10) of divorce act, “maximum contact” , meaningful relationship includes
Reasons (Sopinka opportunity on the part of the child to know that parent well and to enjoy the benefit of
agrees with “most” those attributes of parenthood which such person has to share
of her reasons) o Provisions of DA on access summarized:
o Ultimate test is best interests of child
o Positive test, encompassing wide variety of factors
o One factor is judge must have regard to desirability of maximizing contact between
child and each parent
o But final decision on access must reflect best interests of child
o Custodial parents’ wishes are NOT ultimate criterion for limitations on access
o Limitation can ONLY be ordered where contact is in conflict with best interests of child
o Risk of harm to child is not a precondition for limiting access, it is best interests of child that
matters
o Ex: could say not in best interests of child to see access parent everyday b/c this disrupts
schedule
o Harm is very relevant when determining what access parent can say or do though… harm is
always a factor but especially so in this type of consideration
o Custodial parent has no “right” to limit access
o
McLachlin’s Ratio Ultimate criteria for limiting access is best interest of child – only test, broad, viewed objectively,
statutory requirement – as much contact with parent as is best interest-- under test, risk of harm
is not a condition precedent to limiting access however, in some cases, it may be necessary to
prove harm or risk before putting limits on what parent can do or say during access. Court places
presumptive benefit on unrestricted access.
KEY: Custodial parent has no right to limit access unless that is in the best interests of the child
L’Heureux Dube’s o Only test is the best interests of the child test
Reasons o Father claims freedom of religion infringed, but his rights are not relevant
o Power of custodial parent not a “right” for the benefit of the parent, but is a power which
(Cory and Iacobucci enables parent to discharge responsibilities and obligations to child
agreeing with o TJ has broad power under s.16(6) to impose conditions on access
“many” of these) o Limited by best interests of child perspective: 16(8)
o 16(10) means parliament has expressed opinion that time with each parent is valuable
o However, maximized contact not absolute, can be restricted by best interests
o CA wrong to say limitations can only be imposed if “real psychological or physical harm”
o Best interests of child is more than harm
o Right to access is limited in scope and is conditioned and governed by best interests of the
child
o Access is a “form of temporary possession with powers granted by an access order being
limited to those necessary to ensure the well-being of the child during the visitation periods.
Access confers no right in the parent to influence the upbringing of the child—that is for the
parent with custody or guardianship” quoted from Anson v. Anson at p. 368
o Role of access parent “very interested observer, giving love and support to [the child] in the
background” Re Pierce and Pierce, BCSC chamber 1977
o Access is the right of the child, not the parent
o Function of parental rights is not to give custody and control, but to permit discharge of
duties
o Child is not property in which parents have an interest… it is a person to whom parents owe
obligations
o Concerns of custodial parent are not necessarily unrelated to best interests of child
o Myth is that custodial parent tries to obstruct access parent… studies show problem tends
to be the reverse
o Neither child nor custodial parent can force access parents to exercise their access, access
parent has no obligations, even if access is in best interest of child
o Role of conflict in child’s well-being well demonstrated by studiesconflict most damaging
o Best interests of child is child’s positive right to be in the best possible arrangement given
the circumstances
o Vast majority of access orders contain no restrictions
o When custodial parent has concern, they bear evidentiary burden to establish access should
be curtailed… standard to be met is NOT harm, but rather that restrictions are in best
interests of child
o Custodial parent has best vantage point to observe children, assess best interests of child…
they provide the most reliable and complete source of information to judge on best
interests of the child
o Cannot disregard evidence of children themselves as well
o Expert testimony is often inconclusive and contradictory… not necessary for determining
best interests
o To interpret maximum contact in a way that requires unrestricted access defeats the very
objective of the Act, if this unrestricted access results in ultimate destruction of relationship
o CA wrong to interfere b/c there was no evidence of harm… harm not the standard
o At any rate here there is evidence of harm to relationship from father’s religious instruction
o General access rights were not threatened at all… only religious instruction
o Not an attack on father’s freedom of religion… he can believe what he wishes
HD’s ratio Presumptive deference to the custodial parent, no need to show “harm” before limiting access
parent’s access. The only test is the best interests of the child test—which is more than a right to
be free from demonstrable harm, but is a positive right for the child to have the best possible
arrangement.
Johnson-Steeves v. Lee 1997 ABQB
Facts o Father is doctor in Toronto
o Mother is essentially unemployed, survives on support from ex-husband, and child support for her two
kids with him, as well as the child support from the father in this case for their son
o Parents of child never married
o Mother brings application under AB act for permanent custody, to deny father access, and order for child
support
o Father submits in best interests of child for him to have access
o Father prepared to continue paying support
o Mother says that she entered into K with father, that he would be a sperm donor, that he would
financially support the child, but that he would not interefere with issues concerning the health and
welfare of the child
o Even if court finds no K, mother says that should distinguish access of biological father who is not
entitled access as of right and a social father who would have rights of access… says father is only
biological given circumstances surrounding conception and birth
o To grant access, mother says would impose family relationship which she did not want hence the K
o Parties were friends, and mother asked father to go on trip, she says on trip she asked him to be sperm
donor and he says she asked him to be father
o Father agrees that certain conditions were discussed, that he would financially provide, and that he
would not interfere with her decisions on immunization, schooling, and breast feeding
o No discussion about specific terms of access, or role of father, but both parties understood that father
would see child from time to time
o In hindsight, parties clearly had different views on what this meant
o Mother left birth certificate blank (for father’s name)
o
Issue 1. Is there a paternity agreement between the parents?
Held No
Reason o There was a discussion between parents about conceiving a child
o They each had their own reasons for participating
o There were certain conditions, that father would financially support and would not interefere in health
and welfare decisions affecting the child
o No discussion regarding access
o But both were aware that father would be seeing the child
o Arrangement does not constitute a legally binding paternity agreement
Issue Is there a difference between a biological father and social father? What is in the child’s best interest?
Held No difference, best interest of child to see father
Reason o Under act, a father is defined as the biological father of the child
s o Parent means mother or father
o As father is bio father, he is a parent of the child
o Under act, mother or father may apply to court regarding custody or access
o Being a parent is not enough to entitle a father to access though, must be in best interests of the child
o Mother says that father agreed not to be a social father, so estoppel bars him from claiming he is
entitled to be one
o Court disagrees
o Child does not know father (4 and ½ years old) but this is because mother has refused access
o It is good for children to know their father
o Father has been diligently pursuing access
o Mother’s claims that father is only sperm donor and not father are rejected
o Child has a father, and mother’s desire to make that not so does not mean that it isn’t
 o Just b/c mother wants her world to be a certain way, doesn’t mean that it is in child’s best interests
o Father has desire to contribute positively to child’s life, best interests of child to see father
o This is no way detracts from mother’s role as primary caregiver
o Access by father will enhance child’s life
Note Court leaves it up to counsel to make out the detail arrangements of access.
Calder says: this case emphasizes that family law forces on to people a type of family structure they don’t
want, impossible to choose to be single?
If this was under FLA, father would still be parent b/c not assisted repro (s. 26)
Shows the “heavy weight of the normative family”

Allegations of Violence

how this factors in to access/contact under FLA may be different given express provisions on violence in Best Interests
of the child

tool to deal with this is supervised access, preserves contact with child but ensures safety—varying degrees of
supervision
- Concern raised about supervision being used in situations of serious abuse, where access is better terminated,
see: Fiona Kelly, “Enforcing a Parent/Child Relationship at All Cost? Supervised Access Order in the Canadian
Courts” 2012 (not assigned reading)

Effect of violence on access/custody/contact/parenting time will always depend on the facts

In Divorce, counsel has s. 8 duty to discuss reconciliation/mediation etc. Consider how this works where there are
allegations of violence.

See violence section under Best Interests of the Child above for proving violence etc.

Judges often reluctant to cut off access entirely:

Example Fullerton v. Fullerton 1994

o NBQB refused to suspend access on grounds that it was contrary to the children’s right to access
o Facts demonstrated that children were so terrified from witnessing severe abuse that they were having
nightmares about their mother being hurt

Example: Baggs v. Jesso 2007

o Father who had faced charges of sexual assault (of his daughter and her mother) was granted a month’s
unsupervised access, as well as regular access for shorter time periods
o Father was acquitted… TJ noted this did not necessarily mean he was innocent
o TJ held that violent pattern of behaviour meant that leaving child with him for “extended periods” was
not in child’s best interests
o So apparently one month was not an “extended period”

However Courts will terminate access:

Example EH v. TG 1995
o NSCA stated “parental preference and so called parental rights should not influence our consideration of
the best interests of the child”
o TJ said could not determine whether sexual abuse had occurred
o Nevertheless child would scream in presence of father, and had disclosed abuse on several occasions to
mother
 o CA terminated access on grounds that TJ did not consider psychological impact of his actions on the
daughter—denied even supervised access

Example: H(K) v. T(J) 2006 ABPC

o Father denied access/contact
o Evidence showed that he had been psychologically manipulative and had failed to take responsibility
o There were also allegations of significant violence, including punishment by belts and electric cords
o Father was also convicted of assault against children and their mother

Remedies for Denial or Frustration of Access

Consider, denial or frustration of access may not be the real problem… it might also be failure of access parent to
access regularly, resulting in disruptions for custodial parents and disaapointed children, so then custodial parent starts
denying.

Canadian Bar Association in 1998 alleged that more access parents voluntarily curtail access than custodial parents
who deny

However, Department of Justice, 1998 report For the Sake of the Children said it was unable to determine which
occurs more often.

Divorce Act
 No explicit remedy under DA for access parents who are denied access
 All DA says about access is in s. 16(5), just says the info that access parents are entitled to
 No cause of action in tort or breach of fiduciary duty by access parent against custodial for interference with
access (Frame v. Smith SCC 1987)
 Left with three remedies: contempt of Court , termination of spousal support or change of custody

Examples:

Ungerer v. Ungerer, [1998] B.C.J. No. 698 (C.A.)

Contempt of Court, Eliminating Spousal Support
- Mother refused to give father access, so that he had virtually no contact with his daughter for five years
- Mother found in contempt of court and imprisoned for 21 dayswith conditional stay for 30 days to provide
access… she did not provide access so she went to jail
- Upon release, continued to refuse access to father
- Court declined further finding of contempt b/c it was clear child did not want to see father
- Court stated (quoted at para. 21):
 Mrs. Ungerer, the mother, who is the custodial parent, in my view, and I have certainly found in the
past, has consistently refused to cooperate in access. It also is my view still and has been that she has
poisoned the child's mind against her father.  I do not think there is any question about that, and if there
is a finding of fact that has to be made in that regard, then I am making it.
...
     The problem that I am facing and the conclusion that I have arrived at is that the time has come, as
Mr. Greig says, that the Court is just completely frustrated, and I just do not see anything useful that the
Court can do any more, bearing in mind my conclusion that the decision to refuse to visit or give access
to Mr. Ungerer has now become the child's decision. I have indicated how I believe that came about, but
I do not think it matters much at the end of the day, because the child has adopted or has come to this
conclusion and simply refuses to visit. . . .
     I do not see any useful purpose in continuing this cycle of contempt/imprisonment. It does not seem
to be having any effect. I am not so concerned that it does not have any effect: If I was satisfied that
Mrs. Ungerer was still completely in control, I would keep imprisoning her until she changed her mind,
but it seems to me it has reached the point where Brenda is making her choices, if not independently, at
 least she is making them to the extent that she refuses to have any contact with her father, and so I am
unable at this juncture to make the finding of contempt that is being asked, for the reasons that I have
advanced. [emphasis original]
- So father brought application reduce child support and spousal support, b/c of mother’s reprehensible actions in
frustrating access
- Court refused to reduce child support
- Issue became whether Court could consider this type of misconduct (i.e. custodial parent refusing access) to
reduce spousal support
- Held: CAN consider the misconduct, not barred by s. 17(6) DA b/c this is not misconduct “in relation to the
marriage” under s. 15(6)
- Frustrating a court order can be sufficient to deprive an individual of their entitlement to spousal support
- Para. 42: “To turn a child against her father is reprehensible in the extreme, and that together with her other
misconduct summarized earlier in para. 34 of these reasons would be more than sufficient to warrant
termination of support in the eyes of right-thinking citizens. Most people would be offended by the prospect of
a court compelling the husband to continue paying spousal support in such circumstances, and would consider it
unjust to do so.”
- Result: fixed date for termination of spousal support set
- **note also at issue was mother’s refusal to even try to get a job… seems like mother was just a really unlikeable
person**

B(L) v. D(R), 1998 On. Sup Ct

Contempt of Court
- Mother custodial parent, denied court ordered access on at least 40 occasions
- No valid reason for doing so
- Mother alleged sexual abuse, this was unsubstantiated
- Staff at supervised access program said daughter was very comfortable around father, even more comfortable
than with mother
- Mother sent to jail for 60 days, general deterrence emphasized

Cooper v. Cooper, 2004 On. Sup Ct

Contempt; Joint custody
- 15 interim orders regarding access of father to children
- Children did not want to see father
- TJ held that mother sabotaged children’s relationship with father
- Previous Orders:
o Court ordered that counsel for mother arrange for counselling for herself, the children and Mr. cooper
to commence w/n a month of the order—no breach
o If mother did not arrange counselling, she would have to submit to psychiatric exam—no breach of one,
so not in breach of this
o If children not available for access, mother to provide comprehensive written explanation—breach,
mother indirectly conveyed to children she didn’t want them to talk to father, sabotaging his access
o Mother must comply with reasonable direction jointly recommended by therapists—breach, evidence of
counsellor for children, mother and father
- Held: Actions constitutive of offence of civil contempt of court
- Result: mother to pay fine of $10,000, and arrange and be supportive of counselling for daughter for the
purposes of reintegrating father into her life, at least twice a month—and mother must get daughter to and
from these appointments
- If mother does not comply with this order w/n 10 months for any reason, a further fine of $15,000
- If breach continues for further 6 months, imprisonment for 30 days
- Also joint custody granted to father

JKL v. NCS, 2008 On Sup Ct

Change Custody
 - Father had primary custody
- Court found father had “brainwashed” boy into hating his mother, and women generally
- Father accused mother of assaulting son, she was acquitted
- Mother sought primary custody, court awarded it
- Court also ordered boy attend “deprograming” at “Family Workshop for Alienated Children”
- Three to seven day workshop to give teens critical thinking skills, interpret their family situation and distance
themselves from emotions learned in negative home environment—children are sent their forcibly.

FLA
 Remedial framework for failure to comply with orders and agreements re: parenting time or contact under ss.
61-64
 These sections draw on approaches from other jurisdictions in an attempt to provide effective remedies to take
into account the varying circumstances where non-compliance occurs
 Before this, remedies for failure to exercise access or to allow access were only at common-law

Denial of parenting time or contact

61  (1) An application under this section may be made only
(a) by a person entitled under an agreement or order to parenting time or contact with a child, and
(b) within 12 months after the person was denied parenting time or contact with a child.
(2) If satisfied that an applicant has been wrongfully denied parenting time or contact with a child by a child's guardian,
the court on application may make an order to do one or more of the following:
(a) require the parties to participate in family dispute resolution;
(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling,
specified services or programs;
(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact
with the child;
(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the
applicant as a result of the denial, including travel expenses, lost wages and child care expenses;
(e) require that the transfer of the child from one party to another be supervised by another person named in
the order;
(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that
guardian to
(i)   give security in any form the court directs, or
(ii)   report to the court, or to a person named by the court, at the time and in the manner specified by
the court;
(g) require the guardian to pay
(i)   an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests
were affected by the denial, or
(ii)   a fine not exceeding $5 000.
(3) If the court makes an order under subsection (2) (a), (b) or (e), the court may allocate among the parties, or require
one party alone to pay, the fees relating to the family dispute resolution, counselling, service, program or transfer.
When denial is not wrongful
62  (1) For the purposes of section 61 [denial of parenting time or contact], a denial of parenting time or contact with a
child is not wrongful in any of the following circumstances:
(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with
the child were exercised;
(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting
time or contact with the child was to be exercised;
(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised
and the guardian has a written statement, by a medical practitioner or nurse practitioner, indicating that it was
not appropriate that the parenting time or contact with the child be exercised;
(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or
excuse to exercise parenting time or contact with the child;
 (e) the applicant
(i)   informed the guardian, before the parenting time or contact with the child was to be exercised, that
it was not going to be exercised, and
(ii)   did not subsequently give reasonable notice to the guardian that the applicant intended to exercise
the parenting time or contact with the child after all;
(f) other circumstances the court considers to be sufficient justification for the denial.
(2) If, on an application under section 61, the court finds that parenting time or contact with a child was denied, but was
not wrongfully denied, the court may make an order specifying a period of time during which the applicant may exercise
compensatory parenting time or contact with the child.

Failure to exercise parenting time or contact

63  (1) If a person fails repeatedly to exercise the parenting time or contact with the child to which the person is entitled
under an agreement or order, whether or not reasonable notice was given, the court on application may make an order
to do one or more of the following:
(a) require one or more of the things described in section 61 (2) (a), (b) or (e) [denial of parenting time or
contact];
(b) require the person to reimburse any other person for expenses reasonably and necessarily incurred by the
other person as a result of the failure to exercise the parenting time or contact with the child, including travel
expenses, lost wages and child care expenses;
(c) if the court is satisfied that the person who failed to exercise the parenting time or contact with the child may
not comply with an order under this section, order that person to do one or more of the things described in
section 61 (2) (f).
(2) In making an order under subsection (1) (a), the court may allocate among the parties, or require one party alone to
pay, the fees relating to the family dispute resolution, counselling, service, program or transfer.

Orders to prevent removal of child

64  (1) On application, a court may make an order that a person not remove a child from a specified geographical area.
(2) On application, if satisfied that a person proposes to remove a child from, and is unlikely to return the child to, British
Columbia, the court may order the person who proposes to remove the child to do one or more of the following:
(a) give security in any form the court directs;
(b) surrender, to a person named by the court, passports and other travel records of the person who proposes
to remove the child or of the child, or of both;
(c) transfer specific property to a trustee named by the court;
(d) if there is an agreement or order respecting child support, pay the child support to a trustee named by the
court.
(3) This section does not apply in relation to the relocation of a child within the meaning of Division 6 [Relocation] of
this Part. N.B. So can’t use this section to avoid relocation, discussed in the next section below
(4) A person required by an order made under this section to hold passports, travel records or other property delivered
under the order must do so in accordance with the directions set out in the order.

Third Party Access

DA: ss. 16(1) and (4) permit order of access in favour of third party

Order for custody

16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person,
make an order respecting the custody of or the access to, or the custody of and access to, any or all children of
the marriage.
Joint custody or access
(4) The court may make an order under this section granting custody of, or access to, any or all children of the
marriage to any one or more persons.
FLA ss. 58, 59 permits contact for non-guardians, which includes third parties
Agreements respecting contact
58  (1) A child's guardian and a person who is not a child's guardian may make an agreement respecting contact with a
child, including describing the terms and form of contact.
(2) An agreement respecting contact with a child is binding only if the agreement is made between all of a child's
guardians having parental responsibility for making decisions respecting with whom the child may associate.
(3) A written agreement respecting contact with a child that is filed in the court is enforceable under this Act as if it were
an order of the court.
(4) On application by a party, the court must set aside or replace with an order made under this Division all or part of an
agreement respecting contact with a child if satisfied that the agreement is not in the best interests of the child.

Orders respecting contact

59  (1) On application, a court may make an order respecting contact with a child, including describing the terms and
form of contact.
(2) A court may grant contact to any person who is not a guardian, including, without limiting the meaning of "person" in
any other provision of this Act or a regulation made under it, to a parent or grandparent.
(3) The court may make an order to require the parties to transfer the child under the supervision of, or require contact
with the child to be supervised by, another person named in the order if the court is satisfied that supervision is in the
best interests of the child.
(4) An access order referred to in section 54.2 (2.1) or (3) of the Child, Family and Community Service Act is deemed, for
the purposes of this Act, to be an order made under subsection (1) of this section for contact with a child.

Grandparents

Issues with Grandparents Access: should access be imposed over the wishes of the parents? Who should decide these
issues?

Bridgewater v. Lee, 1998 ABPC

- Respondents were parents of two children, applicant is maternal grandmother
- Her access was reduced and finally denied by parents after disagreements
- Grandmother claimed that preserving her relationship with children was in their best interests
- Parents said grandmother was the cause of animosity, to continue a relationship would have a destructive
effect, and not in best interests of children to see her
- Parents also argued that custody/access dispute between parents was a precondition to consider grandparent’s
rights
- HELD: application under provincial statute by grandparent did NOT require custody/access dispute between
parents first
- HELD: where access order would disrupt child’s nuclear family, courts must exercise extreme caution in
evaluating the effects of access on the best interests of the child.
- Application dismissed.

Chapman v. Chapman, 2001 ONCA

- In theory it is beneficial for children to have contact with members of extended family
- However not in best interests to force children to visit their grandmother regularly when they did not have
positive relationship with her

Parsons v. Parsons, 2002 On Sup Ct

- Maternal Grandparents brought application for access after parents have separated
- Mother entered into homosexual relationship
- Maternal grandparents were not openly critical of gay relationship, but were not wholeheartedly approving
either
- Mother denied access
 - Court found this was done in order to force grandparents to accept mother’s new partner
- Court said this was mother using her children as “bait and a prize”
- Court said mother was placing her own need for vindication ahead of her child’s feelings for and close
relationship with grandparents
- Access ordered for grandparents

FLAgrandparents (or other people) can intervene in proceeding under FLA

Intervention by Attorney General or other person

204 (1) The Attorney General may intervene in a proceeding under this Act and make submissions respecting any
matter, arising in the proceeding, that affects the public interest.
(2) Any person may apply to the court for leave to intervene in a proceeding under this Act and the court may make an
order entitling the person to intervene.
(3) The Attorney General or another person who intervenes in a proceeding becomes a party to the proceeding.

MJS v. AD, 2013 BCPC 230

- Grandparents applying to intervene in variation of access proceeding
- Grandparents had previously been denied access
- Saying they needed to be added so that they could be appointed supervisors of their sons’ access
- Court held this was indirect way of trying to challenge denial of access proceedings—res judicata applied
- Also grandparents have often interfered with proceedings between their son and the mother, causing
protracted legal proceedings—the real force behind many of their sons’ applications (grandfather represents
son, though he isn’t a lawyer)
- Intervenor status denied
- Also under s. 221(2)(c)(ii) FLA, Grandparents abusing courts process, prohibited from bringing further actions
against mother, ordered to pay $2000 to mother

Note also: Grandparents can get temporary guardian status under s. 43 (where guardian unable to fulfil parenting
duties)

Other non-parental Access

GES v. DLC, 2005 SKQB; 2006 SKCA

Facts
- Man applied for joint custody and access in relation to children that he was not genetically related to against the
will of the birth mother, a platonic friend
- Birth mother had conceived children by anonymous sperm donation
- She had asked man to be sperm donor, but he had refused
- They were close friends, he helped pay for IVF, attended pre-natal classes, was there at birth
- Man was involved in twins lives, babysitting etc.
- He was twins’ godfather
Held
- Non-parent, non-bio relative can apply for custody and access in SK if they have some connection to or
“sufficient interest” in the child—found in this case
- TJ gave great weight to psychologists finding that this was a non-traditional family unit, and held man was
similar to stepparent, had established significant relationship with children and there was emotional benefit to
maintaining relationship with him
- TJ granted access in the name of best interests of the child
- CA overruled
- CA held that man was much less than a parent
 - Conflict between adults can negatively affect a child “by undermining the position of the custodial parent,
developing divided loyalties between the [parties] and impairing the ability of the custodial parent to develop
new relationships”
- In this case, man’s care for twins not enough to warrant access order in the circumstances

Relocation
Introduction
Notes from p. 111 Volume II
- Issues around relocation arise usually where custodial parent wants to move, and other parent opposes
- Experts disagree as to what is better for children: allow move to improve well-being of primary caregiver, or
emphasize relationship with non-custodial which would prevent move?
- Some cases suggest that access/contact parents should be asked whether they might move as well—this is rare
though
- Non-custodial fathers often move after separation, resulting in less contact with their children—even virtually
disappear from children’s life—has negative effect on child well-being
- Traditionally no legal regulation of move of access/contact parent, however FLA now attempts to address this in
s. 63
- Neither DA or FRA provided explicit statutory framework to guide judges re: relocation
- Biggest case relied on was SCC Gordon v. Goertz
- FLA has provisions for relocation where a “parenting arrangement” is in place
- Under FLA pay attention to whether there is an agreement, an order, or neither—different process depending

Statutory Provisions

DA s. 16(7)
Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring
any person who has custody of a child of the marriage and who intends to change the place of residence of that child to
notify, at least thirty days before the change or within such other period before the change as the court may specify, any
person who is granted access to that child of the change, the time at which the change will be made and the new place
of residence of the child.

FLA ss. 64-71

Over-View
1. Relocation and removal of a child are not the same thing (s. 64)use s. 64 for “removal” of child (i.e. holiday)
2. Definition of Relocation under s. 65(1)
3. Division 6 applies if there is already a written agreement or order respecting parenting arrangements or contact
(s.65(2)(b))
4. Relocating Guardian has responsibility to give notice to other guardians or contact parents in some situations (s.
66)
5. Note that both guardian with whom the child lives, and the other guardian with whom the child does not live are
subject to Division 6 (s.65)—whether moving with child or not (big change from FRA and doesn’t exist under
DA… no way to prevent access parent from moving)
6. After notice given, relocation may occur if another guardian does not object (s. 68)
7. Only a guardian may make application to court to prevent relocation (s. 69(2))
8. Under division 6, if parents have substantially equal parenting time then onus on relocating guardian to show
move is in good faith; relocating guardian has proposed reasonable and workable arrangements to preserve
relationship between child and other guardians and people entitled to contact and it is in the best interests of
the child (s. 69(5))
9. Factors for determining good faith listed (s. 69(6))
 10. If parents do not have substantially equal time (at least 60/40) relocating guardian must show good faith and
reasonable and workable arrangements to preserve relationships, but presumption then is that move in best
interests of the child unless other guardian proves otherwise (s. 69(4))
11. In determining application for relocation, court is NOT to consider whether parent would still relocate w/o the
child(ren) (s. 69(7))
12. Refusal of relocation not a circumstances in and of itself to warrant variation of parenting arrangement under s.
47 (s. 71)
13. If no agreement or court order exists re: parenting arrangements or contact, then guardian who wants to
relocate will ask for exclusive parent responsibilities under FLA s. 41(b)—deciding where the child will reside

The Provisions Themselves

Orders to prevent removal of child
64  (1) On application, a court may make an order that a person not remove a child from a specified geographical area.
(2) On application, if satisfied that a person proposes to remove a child from, and is unlikely to return the child to, British
Columbia, the court may order the person who proposes to remove the child to do one or more of the following:
(a) give security in any form the court directs;
(b) surrender, to a person named by the court, passports and other travel records of the person who proposes to
remove the child or of the child, or of both;
(c) transfer specific property to a trustee named by the court;
(d) if there is an agreement or order respecting child support, pay the child support to a trustee named by the
court.
(3) This section does not apply in relation to the relocation of a child within the meaning of Division 6 [Relocation] of this
Part.
(4) A person required by an order made under this section to hold passports, travel records or other property delivered
under the order must do so in accordance with the directions set out in the order.

Division 6 — Relocation
Definition and application
65  (1) In this Division, "relocation" means a change in the location of the residence of a child or child's guardian that can
reasonably be expected to have a significant impact on the child's relationship with
(a) a guardian, or
(b) one or more other persons having a significant role in the child's life.
(2) This Division applies if
(a) a child's guardian plans to relocate himself or herself or the child, or both, and
(b) a written agreement or an order respecting parenting arrangements or contact with the child applies to the
child.

Notice of relocation
66  (1) Subject to subsection (2), a child's guardian who plans to relocate himself or herself or a child, or both, must give
to all other guardians and persons having contact with the child at least 60 days' written notice of
(a) the date of the relocation, and
(b) the name of the proposed location.
(2) The court may grant an exemption from all or part of the requirement to give notice under subsection (1) if satisfied
that
(a) notice cannot be given without incurring a risk of family violence by another guardian or a person having
contact with the child, or
(b) there is no ongoing relationship between the child and the other guardian or the person having contact with
the child.
(3) An application for an exemption under subsection (2) may be made in the absence of any other party.

Resolving issues arising from relocation

67  (1) If notice is required under section 66 [notice of relocation], after the notice is given and before the date of the
relocation, the child's guardians and the persons having contact with the child must use their best efforts to cooperate
with one another for the purpose of resolving any issues relating to the proposed relocation.
(2) Nothing in subsection (1) prevents
(a) a guardian from making an application under section 69 [orders respecting relocation], or
(b) a person having contact with the child from making an application under section 59 [orders respecting
contact] or 60 [changing, suspending or terminating orders respecting contact], as applicable, for the purpose of
maintaining the relationship between the child and a person having contact with the child if relocation occurs.

Child may be relocated unless guardian objects

68  If a child's guardian gives notice under section 66 [notice of relocation] that the guardian plans to relocate the child,
the relocation may occur on or after the date set out in the notice unless another guardian of the child, within 30 days
after receiving the notice, files an application for an order to prohibit the relocation.

Orders respecting relocation

69  (1) In this section, "relocating guardian" means a guardian who plans to relocate a child.
(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the
relocating guardian.
(3) Despite section 37 (1) [best interests of child], the court, in making an order under this section, must consider, in
addition to the factors set out in section 37 (2), the factors set out in subsection (4) (a) of this section.
(4) If an application is made under this section and the relocating guardian and another guardian do not have
substantially equal parenting time with the child,
(a) the relocating guardian must satisfy the court that
(i)   the proposed relocation is made in good faith, and
(ii)   the relocating guardian has proposed reasonable and workable arrangements to preserve the
relationship between the child and the child's other guardians, persons who are entitled to contact with the
child, and other persons who have a significant role in the child's life, and
(b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be
in the best interests of the child unless another guardian satisfies the court otherwise.
(5) If an application is made under this section and the relocating guardian and another guardian have substantially
equal parenting time with the child, the relocating guardian must satisfy the court
(a) of the factors described in subsection (4) (a), and
(b) that the relocation is in the best interests of the child.
(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant
factors, including the following:
(a) the reasons for the proposed relocation;
(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of
the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
(c) whether notice was given under section 66 [notice of relocation];
(d) any restrictions on relocation contained in a written agreement or an order.
(7) In determining whether to make an order under this section, the court must not consider whether a guardian would
still relocate if the child's relocation were not permitted.

If relocation permitted
70  (1) If the court makes an order under section 69 [orders respecting relocation] that permits a child's relocation, the
court may make any of the following orders:
(a) subject to subsection (2) of this section, if the order made under section 69 affects an agreement or order that
allocates parenting arrangements between the relocating guardian and another guardian, an order under section
45 [orders respecting parenting arrangements] or 47 [changing, suspending or terminating orders respecting
parenting arrangements], as applicable;
(b) any order necessary to ensure that the relocating guardian complies with the terms of the order permitting
relocation, including an order to do one or more of the following:
(i)   give security in any form the court directs;
 (ii)   transfer specific property to a trustee named by the court.
(2) In making an order under subsection (1), the court must seek to preserve, to a reasonable extent, parenting
arrangements under the original agreement or order.

Not a change in circumstances

71  The fact that an order is made that prohibits a child's relocation is not, in itself, a change in the child's circumstances
for the purposes of section 47 [changing, suspending or terminating orders respecting parenting arrangements].

Case Law

Gordon v. Goertz SCC 1996

USE FOR RELOCATION UNDER DIVORCE ACT

Majority:

Parent applying for change in custody or access order must meet threshold requirement “change in material
circumstances”:
1. A change in the condition, means, needs or circumstances of the child or in the ability of the parents to
meet the needs of the child
2. Which materially affects the child, AND
3. Which was either not foreseen or could not have been reasonable contemplated by the judge who
made the initial order
can’t use variation application as indirect means to appeal custody order

If custodial parent relocating, then this will almost always be a change in material circumstances b/c access parent’s
access will necessarily change.

Once threshold is met:

- Judge must embark on fresh inquiry to determine custody, based on what is in the best interests of the child,
having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective
parents to satisfy them
- Inquiry is based on the findings of the judge who made the previous order and evidence of new circumstances
- No legal presumption in favour of custodial parent, but their views are entitled to respect
- Only test is best interests of the child: not interests or rights of parents
- Judges should consider:
o The existing custody arrangement and relationship between child and the custodial parent
o The existing access arrangement and the relationship between the child and the access parent
o The desirability of maximizing contact of both parents
o Views of the child
o Custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s
ability to meet the needs of the child
o Disruption to child of a change in custody
o Disruption to the child consequent of removal from family, schools, and the community he or she has
come to know
- Essentially balancing importance of child remaining with custodial parent, against continuance of full contact
with access parent, extended family and community

25 The reduction of beneficial contact between the child and the access parent does not always dictate a change of
custody or an order which restricts moving the child. If the child's needs are likely to be best served by remaining with
the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then the
judge should not vary custody and permit the move. This said, the reviewing judge must bear in mind that Parliament
has indicated that maximum contact with both parents is generally in the best interests of the child.
Result:
- Tj failed to embark on fresh appraisal of best interests and to give sufficient weight to all factors
- However, TJ correct in continuing mother’s custody, despite intended move to Australia
- Access ordered varied to allow father access in Canada as well as Australia

Dissent:
- Custody under DA includes right to choose child’s residence
- Absent agreement or court order restricting incidents of custody, custodial parent can change residence
- Non-custodial parent can then seek variation of custody or access terms under s. 175
- Only where changes are so big as to make original order irrelevant or inappropriate should assessment of whole
situation be undertaken by court

After Gordon v. Goertz (p. 117)

- Judges always rely on Goertz: the threshold test, summary of law, and list of factors.
- Has often been applied to decisions under provincial statutes as well, not just DA
- Most moves satisfy the requirement of material change in circumstances
- Once test is satisfied, courts may consider custody afresh
- Custodial parents may be deterred from even applying for permission to move
- In minority of cases custody is moved to other parent
- Law remains unpredictable

D.A. Rollie Thompson,

- About 60% of all reported Canadian decisions permitted a requested move… gentle but noticeable decline in
permission after year 2000: "Relocation and Relitigation: After Gordon v. Goertz” 1999
- A study of 26 reported trial decisions from Jan 1 2004-Dec 31 2005 found 50% success rate: “Movin’ On:
Parental Relocation in Canada” 2004

Nicholas Bala and Joanna Harris: “Parental Relocation: Applying the Best Interests of the Child Test in Ontario” 2006
- Significant deference supposedly given to trial decisions, but ONCA overturned half
- Custodial parents have greatest success if non-custodial have only limited involvement, and when children are
younger and particularly dependent
- Expert evidence given less weight than in other child related cases, but wishes of child very significant if older
- Residence restrictions in separation agreements and joint legal custody are not significant in preventing a move,
but if there is a true shared parenting arrangements judges are reluctant to allow a move.
- Factors that are significant to judges:
o Relationship between child and parent
o Relationship between child to a new partner
o Reasons for the move: economic, social and psychological well-being of custodial parent and child
o Unilateral conduct by a custodial parent as opposed to cooperative attitude
o Age of child—more likely allowed if children under 6
o Wishes of child (not determinative but significant)
o Domestic violence and high conflict
- Interim orders to relocate = much higher persuasive burden on custodial parent who wants to move, b/c this can
establish a status quo that might be difficult to change, and interim orders effectively resolve a case which
court’s don’t like.
- Conditions concerning access and financial arrangements are also commonly used in relocation cases

Example of a Case: Woodhouse, 1996 ONCA

- Affirmed custody to mother, but only if she stayed in Canada
- Mother wanted to move to Scotland with kids
FRA Decisions re: Relocation

Generally
- Some judges paid attention to past primary caregiving, ex Chilton v. Chilton, 1996 BCCA mother allowed to
relocate to Hawaii to pursue better employment, even though parents shared joint custody and guardianship.
Primary residence with mother.
- Even though reasons for moving not relevant, courts have tied these reasons in to the best interests of the child
principle: i.e. nearer family, to get a job and improve economic situation)
- Moving parent often required to pick up a proportion of increased expenses (access), or quantum of child or
spousal support may be reduced.
- In 108 BC relocation cases between 2003-2008 (by Eiad El Fateh)
o 93% mother was proposing to move
o 6% father proposing to move
o 1 case, custodial grandparents were proposing to move
o Mother allowed to move 59% of the time
o Fathers allowed to move 38% of the time (but sample size too small to determine if father’s actually
have a harder time)
o Grandparents denied
o In total, 57% of moves allowed
o Reasons why courts decided move was in best interests of the child
 38% primary reason was b/c court found it would improve family’s financial situation
 29% primary reason was the fact that the custodial parent was the only parent who could care
for the child
 17% primary reason was that the move was in the parent’s best interests, which was in line with
the child’s
 Judges reasonably sensitive to mothers who wanted to relocate due to father’s abuse
o Reasons for NOT allowing move:
 43% primary reason was b/c it would reduce access to the access parent
 41% primary reason was inadequate planning by moving parent
 14% primary reason was disruption to child’s community ties
 Distance of move did not seem to have large effect on likelihood of approval/refusal
- Bala and Wheeler, “Canadian Relocation Cases: Heading Towards Guidelines” 2012
o Across Canada, 738 relocation cases in English between January 1 2001 and April 30, 2011, mostly in BC
and ON
 51% successful
 Mother sought relocation 92% of the time (successful 51%)
 Father sought relocation 7.5% of the time (successful 55%)
o In BC, 195 relocation cases between January 1 2001 and April 30, 2011
 Most popular reason for move was job transfer, or new/better employment (52% success)
 Then new relationship (29% success)
 Then better family support (53% success)
 Likelihood of success decreased as the involvement of non-moving parent increased.

One v. One, 2000 BCSC 1584

Fact - Mother (lives in Victoria with kids) had sole custody, but joint guardianship with father (lives in lower
s mainland)
- Mother wanted to relocate with children to Mexico for two years
- Neither she nor new spouse had job lined up, but mother was ESL teacher so thought she would be fine
- Wanted to expose kids to different culture and language
- Applied for sole guardianship so she could do this
- Father opposed move
- Mother said that father had not exercised his access rights and was behind on child support
 - Father said mother blocked his access by refusing to particular dates and insisting that access be
exercised in Victoria
Issue Should relocation be permitted?
Held No
Rsns Court summarized Post-Goertz cases on mobility, set out 12 factors that courts have considered in determining
best interests of the child:
1. The parenting capabilities of and the children’s relationship with parents and new partners;
2. The employment security and prospects of parents, and where appropriate, new partners
3. The access to and support of extended family members
4. The difficulty of exercising the proposed access and the quality of the proposed access if the move is
allowed
5. The effect on the children’s academic situation
6. The psychological and emotional well-being of the children
7. The disruption of the children’ existing social and community support and routines
8. The desirability of the proposed new family unit for the children
9. The relative parenting capabilities of each parent and the respective ability to discharge those
responsibilities
10. The children’s relationship with both parents
11. The separation of siblings; and
12. The retraining or educational opportunities for the moving parent

***These do not replace to Goertz factors, but have been used in mobility cases as a helpful guideline for what
needs to be considered***

Here: Court said that move posed too much uncertainty, would be disruptive to children’s education and their
relationships with extended family, classmates, friends.

Karpodinis v. Kantas, 2006 BCCA 272

Fact - Married in 2001, separated in 2002
s - Mother five months pregnant at time of separation
- Since birth, mother primary caregiver
- Consent order: mother is custodial parent and father has access
- Mother works in marine shipping industry—“shipping manager” makes 73,544 plus bonuses
- Flexible work schedule
- Father is shelf-stocker, makes $38,000
- Child does not stay overnight with father
- High conflict
- Mother does not get along with paternal grandparents
- Mother is losing job as result of corporate restructuring, valuable employee so company wants her to
relocate to Houston, London (UK), or Singapore
- If she doesn’t relocate, she loses her job and gets 57,000 severance
- Mother has elected Houston b/c closest to Vancouver
- Mother indicated she would not move if she could not take child with her
- Mother has suggested that she waive all child support to defray travel costs for father to access child,
and that she periodically visit Vancouver with child to further promote access
Issue Should Relocation be permitted?
Held No
Rsns TJ
- Held that threshold under Goertz was met, material change in circumstances
- But in balancing interests of mother to have good career vs. child knowing father, held move not
allowed.

CA
 - Mother has legit interest in continuing favorable employment, nothing artificial in her wish to move
- However child very young, has not had great opportunity to bond with father and his family
- All child’s familial connections on both sides are resident in Vancouver area
- Houston mother and child would be alone
- Father has given sensible reasons for why he cannot relocate to Houston
- Problem exasperated by fact that move is of such a great distance
- A move for financial reasons can conduce to the best interests of the child
- Mother has not demonstrated that TJ erred in finding that she could get sufficient employment in
Vancouver if she wanted.
- Child is of tender years, needs to bond with access parent and his family
- Have to give deference to TJ

Falvai v. Falvai, 2008 BCCA 503

INITIAL application for custody (not variation of existing custody order)
Facts - 7 year marriage
- Joint guardianship of child
- Sole custody of child to mother, “conditional” upon her continuing to live in the area where the father
lives
- Specified reasonable access to father
- Mother appeals term of custody which requires her to remain in area where father lives
- Mother wants to move from small retirement community on the Island to Vancouver b/c mother’s
extended family (including her parents) offer her emotional, financial and childcare support
- Mother plans to live in grandmother’s basement suite while she looks for a job
- Father seeks sole custody if mother is allowed to move to Vancouver
- Wants child to live with him and his new partner, in the family home where child was born and raised,
and the community where paternal grandparents live
- Custody access report (pursuant to s. 15FRA) says that there is little healthy communication between
parents, mother does not want father involved in son’s life, parents have very different ideas about
what is appropriate—father had extra-marital affair which is why they divorced—father being poor
spouse does not effect whether someone is a good parent. Father positive influence on child, mother
excellent mother—they just hate each other.
Issue Who should get custody? If mother, should relocation be permitted? Is it open to court to impose term on
custody prohibiting relocation?
Held Mother gets custody
Term imposed pursuant to s. 16(7) of DA, 60 days’ notice for moving a the child
Not open to court to prohibit relocation as term of custody
Rsns TJ
- Said custody to mother, but said she was not allowed to move b/c child needs to maintain relationship
with father
- Problem that they would be separated by water, travel means one party would have to take “long,
boring and exhausting trips by ferry”… four or five hours each way
- Child would then see visiting father as a chore and would dread it, ability to benefit from meaningful
relationship with father would be reduced.
- N.B. wow this judge really seems to hate BC ferries haha

CA
- TJ erred in referring to the reasons the mother wanted to move
- Reasons for move, absent improper motive, are irrelevant
- Maximum contact is an important but not determinative factor in best interests of the child—erred by
saying it was “determining factor”
- Gordon v. Goertz test is MODIFIED where it is an INITIAL application for custody (and not a
variation)
o Same as Goertz, only consider reaons for relocation in context of assessing parent’s ability
 to meet the needs of the child
o Consider the willingness of a parent to facilitate contact, but this is subordinate to over-all
consideration of best interests
o Same: approach issue of relocation from perspective of respect for a parent’s decision to
live and work where they choose, barring improper motive.
o Does not change custody analysis on initial application… that still requires balancing of all
relevant factors, which would INCLUDE the parent’s proposed move with the child to the
new community
o Blended analysis where all relevant custody considerations, plus only certain factors from
Goertz are considered when relocation considered on initial custody application
o The relevant Goertz factors on INITIAL application are:
 Desirability of maximizing contact between child and both parents
 Views of the child
 Custodial parent’s reason for moving where it is relevant to that parent’s ability to
meet the needs of the child
 Disruption to the child of a change of custody
 Disruption to the child consequent on removal from family, schools, and the
community he or she has come to know.
o Balance this with other relevant considerations re: best interests
o In initial application, there is no pre-existing determination that the relocating parent is the
one best suited to meet the child’s needs
o No presumption to favour or refuse custody to the relocating parent
o Evaluate competing parenting plans, focus is on best interests of child NOT reasons for the
move
- Imposing restrictions on custodial parent is contrary to historical concept of custody, however given
FRA with guardianship and custody, (can have sole custody but joint guardianship under FRA) custody
concept is narrower, only physical care and control of child. Joint guardianship under FRA permits non-
custodial parent to have continuing input into the major decisions that impact the life of the child.
- Not open to TJ to decide that best interests of child was to give sole custody to mother, but then
restrain mother from moving. Choices were between custody for mother in new location, or sole
custody to father in current home.
- Court cannot indenture an individual to a community
- Permanent conditions restricting movements of custodial parent should not be imposed
RESUL Whether or not mother can relocate is left to another day, but she does get custody, and there is no term or
T condition on that custody that she cannot move with child

FLA Decisions Re: Location

LJR v. SWR, 2013 BCSC 1344

Under s. 69(4), if relocating parent fails to establish the criteria, the FLA prohibits the relocation
nevertheless, courts should use parens patriae jurisdiction to consider if move in best interests of the child,
notwithstanding relocating parent has not met criteria under s. 69(4)

Facts - Mother wants to move with child from Kelowna to Tennessee

- Parties never married, never cohabitated… brief relationship that ended in early stages of pregnancy
- Mother has new partner, music producer/songwriter dude who owns studio in Spring Hill, Tennessee
- Partner travels to LA a lot for work
- Mother is dual citizen of USA and CAN
- For all practical purposes, mother has already relocated… does not have residence in Kelowna
anymore, lives with new partner in Tennessee
- There has been considerable travel to accommodate contact for father
 - Father has pursued meaningful and active involvement in child life since her birth
- However significant conflict between parents re: scheduling of parenting time and little sharing of the
responsibilities… both blame each other for this
Issue Should mother be allowed to relocate?
Held No.
Analysi Step One: Who is a guardian?
s - Mother is guardian pursuant to
- Father is guardian pursuant to s. 39(3)(c) of the FLA (regularly care for the child)

Step Two: How is child’s residence dealt with under the act?
- Child’s residence is dealt with in two ways:
1. Section 46 applies if no order or agreement respecting parenting arrangements exists
2. Division 6 applies if there is an order or agreement respecting parenting arrangements or
contact with the child
- Parenting arrangement defined in s. 1—arrangement respecting allocation of parental responsibilities
or parenting time or both
- Parental responsibilities defined in ss. 1 and 41
- Parenting time defined by ss. 1 and 42
- Issue: s. 65 refers to “contact” while s. 46 only refers to parenting time/ arrangements… why? court
leaves this for another day… not necessary to resolve case

Step Three: Is there an order or agreement respecting parenting arrangements in place?

- Does an interim order constitute an order regarding parenting arrangements for the purposes of s.
46?
- Held: YES
- The FLA makes no distinction between interim and final orders in relocation in s. 46 or in Division 6
- No indication that the form of an agreement or order should be considered by a court faced with
these circumstances
- Would have been easy for legislature to distinguish between final and interim orders, but they did not
- Question really should be, not the form of the order or the agreement, but whether it deals with the
required subject matter: parenting arrangements (allocation of parental responsibilities or time or
both), or contact
- Interim order on Dec 19th that deals with father’s contact with the child—therefore, under s. 65 there
is an “order respecting parenting arrangements or contact with the child”
- NB court does not note the fact that only non-guardians have contact, and father here is a
guardian… but I think this is probably more of an issue of translating an order made under the FRA
into something under the FLA rather than the court saying a guardian can have contact.
- Therefore, s. 65 applies and not s. 46

Step Four: Pursuant to s. 65 and division 6, Apply test under s. 69

- Adds additional factors to the best interests of the child
- Sections (4) and (5) create an evidentiary or procedural distinction depending on whether parents
have substantially equal parenting time
- If they have equal time, burden is on the relocating guardian
- If they do not, burden is on the other guardian to say why the move is not in best interests of the child
- (note under s. 46, no onus is set out, and only consider best interests)
- This is all meant to be done before relocation occurs, specifically s. 66 requires notice of relocation, s.
67 requires best efforts of guardians to resolve issues re: relocation
- However s. 69 does not preclude application where no notice given, or where best efforts have not
been undertaken to cooperate, however failure to satisfy these requirements is part of the good faith
analysis under sub section (4), good faith defined in sub section (6)

Step Five: do they share substantially equal parenting time?

 - No.
- Therefore if applicant mother can satisfy the court that ss. 69(4)(a)(i) and (ii) have been satisfied,
there is a presumption pursuant to the terms of the FLA that the relocation is in the best interests of
the child and should be granted, unless respondent (father) proves otherwise.
- These are preconditions to the broader best interests analysis and must be satisfied by relocating
guardian

Step Six: s. 69(4)(a)(ii), “reasonable and workable arrangements” for other guardian or contact parent
- Question is not, “is it reasonable to move to X location”
- But rather, “what is reasonable, in terms of parenting time etc. for non-resident guardian, or contact
for non-guardian, if child lives in X location?”
- Here applicant has provided plan for parenting time and contact with others that would be
reasonable if child lived in Tennessee, so satisfied.

Step Seven: s. 69(4)(a)(i) “good faith”

- Good faith defined in s. 69(6)
- Includes four considerations (but not limited to just this)
- Good faith is subjective state of mind, but to the extent that one of the factors under (6) is objective,
the objective positive or negative finding suggests an inference of whether subjectively relocating
guardian had subjective state of mind of good faith
- (a) reasons for proposed relocation: both subjective and objective, objective reasonableness or lack
thereof weighs in favour or against good faith, while subjectively there could clearly be example of
when reasons for move are not in good faith. Here, mother’s reasons weigh in favour of good faith—
she wants to be with new partner, she has security with new partner b/c he supports her and child,
there is little opportunity for employment for her in Kelowna and she can work for partner there.
- (b)enhance quality of life for child etc.: this is objective factor. Here, objectively financial picture of
new partner in Tenessee is unclear, significant geographic distance between child and other family
objectively will hurt those relationships. While clear that subjectively mother believes this is met,
objectively this factor weighs against a finding of good faith.
- (c) notice: objective, someone who gives notice objectively acting in good faith i.e. minimizing court
applications. Here applicant did give notice, supports good faith.
- (d) restrictions in written agreement or an order: here order… failure to comply objectively indicates
lack of good faith. Here nothing in order that specifically prohibits relocation. However, there is no
basis in the orders for the mother to have actually just gone and moved. Court is being asked to
endorse what has essentially already happened, mother has already moved with child to Tennessee.
This factor weighs against good faith.
- Result: applicant has not established proposed relocation made in good faith.

Step Eight: What happens when relocating guardian fails to establish good faith under s. 69(4)(a)(i)?
- Strict interpretation in isolation suggests that this means relocation is denied
- This conclusion highlights in court’s view, deficiencies in legislation
- Language of s. 69(4) is clear, says “must”
- However, if you do this, then it precludes the consideration of the best interests of the child
- It may be possible that relocation is not in good faith, but nevertheless in best interests of the child
- However, by doing so, it also incentivizes people to act in good faith and reduce in court resolution of
problems, which is the whole goal of the FLA… and also guardians must know there are consequences
for non-compliance with the act.
- How to resolve this is not provided by FLA
- FLA simply does not allow for the possibility that a relocating guardian could have improper motives
for a move, but the move is still in the child’s best interests
- Instead, s. 69(4)(a) makes a failure to satisfy either of the preconditions fatal to the application to
relocate.
- Therefore, to ensure that the best interests of the child are paramount, where division 6 applies,
 court may have to turn to parens patriae jurisdiction

Step Nine: What is Parens Patriae jurisdiction in this context?

- From SCC eve v. eve (1986), even where there is legislation in the area, courts can use this jurisdiction
to deal with uncontemplated situations where it appears necessary to do so for the protection of
those who fall within its ambit.
- Thus where s. 69(4)(a) requires dismissal of application, court must turn to parens patriae to
determine what is in the best interests of the child… use considerations from s. 37(2), and balance
fact that parent did not act in good faith or did not propose reasonable arrangements as a factor in
that analysis.
- This way, guardians cannot act in bad faith without impunity, and solution is provided to ensure that
best interests of the child is determinative of the application.

Step Ten: Apply best interests test

- Use s. 37(2), while these factors are not exhaustive, must still consider all of them.
- Absence of evidence regarding child’s emotional well-being… nothing to say she is unhappy
- Can’t consider fact that declining application will require mother to ‘undo’ the move b/c of s. 69(7)
- Child too young to have views, at any rate not in evidence
- No evidence regarding strength of relationships with grandparents on either side. Geographic
challenges have prevented close relationships with extended family.
- Mother has been primary caregiver due to child’s age, care has been contentious issue, father has
always tried to be as involved as possible.
- While applicant thinks Tennessee offers stability, unclear how well they will actually do there,
whether partner actually has money, they just lease they don’t own
- Expensive to travel back to Canada from Tennessee, once child starts school will be significant
disruption to her to travel
- Violence not relevant here
- Mother and father have not demonstrated ability to cooperate effectively, blame each other
- Cannot consider fact that mother will have to move back to Canada, b/c this would allow a guardian
to use a step unilaterly taken, without approval of the court, to establish a status quo to strengthen
their position.
- Also have to consider the finding of the absence of good faith
- Conclusion: relocation to Tennessee is not in the child’s best interest.

TC v SC, 2013 BCPC 217:

only a guardian can make an application to permit or oppose a move
a court can make an interim order appointing a contact parent as a guardian in order to allow them to contest a move
if it is in the interests of justice to do so.
example of application of best interests of child under FLA in relocation case

Facts - Mother wants to move with child from Port Coquitlam to Bellingham, Washington
- Father opposes move, in alternative seeks order for shared parenting between the parties, or further
alternative, order granting him primary residence of child with parenting responsibilities as guardian
- Mother is a facility booking supervisor for city of Vancouver
- Has new partner, resident of Bellingham
- Father works at future father-in-law’s sporting goods business, and also at two community centres.
Works long hours.
- Child has connection to father’s new partner as well
- Maternal grandmother has taken very active role in caring for child, maternal grandparents do not
oppose move, plan to visit Bellingham frequently
- Parents lived together before separating, months after their son born, parents separated
- Mother researched and drafted a separation agreement which they signed.
- Doc recommended father seek legal advice, he did not, but signed anyway… he says he felt pressured
 to sign on the spot when presented with the agreement
- Agreement provided sole guardianship to the mother, with reasonable and unspecified access.
- Had child support set, also allowed mother to legally change surname of child to mother’s surname
- For first two years of child’s life mother had primary responsibilities, father had contact but not
overnight, he paid child support
- Father then lost his job, couldn’t maintain support payments, and sought more parenting time but
mother resisted given agreement
- Mother then filed for child support payments that corresponded with father’s income
- Father filed his reply seeking order of joint custody, joint guardianship and specified parenting time
- Family case conference, 2011, parties consented to an order of specified weekend access. No orders
of guardianship or custody made.
- In 2009 and 2011 mother treated for eating disorder
- Mother proposed move to father via email
- Parties not able to come to a resolution
- Mother says drive only takes one hour (with nexus card) and wants to move to Washington to live
with her new husband
Issue Should mother be allowed to relocate?
Held yes
Reason - Have to assess relocation under Part 4, Division 6 of FLA b/c under s. 65(2) mother’s relocation can
s reasonably be expected to have significant impact on child’s relationship with father and other
persons having significant role in child’s life
- There are no final court orders, but there is the agreement, and an interim order regarding access
- Requisite notice was given by mother under s. 66
- Note only a guardian may oppose or apply for relocation under s. 69(2)… so first issue is whether
mother and/or father are guardians.
- Transitional provisions provide for guardians where pre-existing family law orders or agreements
- Section 251 says “custody or guardianship” = guardian, and “Access, but not custody or guardianship”
= only contact and not guardian
- Also s. 39(2) an agreement may provide that a parent is not a child’s guardian
- A written agreement respecting parenting arrangements that is filed in court is enforceable under s.
44(3)
- father and mother lived together with child at time of separation, each presumptively guardian under
s. 39(1) unless court order or agreement, under s. 251(1) and s. 39(2) says otherwise
- agreement provides mother is sole guardian, was signed by parties and filed in court
- under s.68, a child can be moved as long as notice provided under s. 66, unless a guardian objects
- plain interpretation of FLA provisions, father is NOT a guardian and has no standing to oppose the
move
- however, substance of father’s parenting since 2011 consent order has been regular and meaningful
- s.39(3) of FLA permits only permits parent who has never resided with parent to establish
guardianship via regular care, not parent who did reside, was presumptively guardian, and then gave
that up
- no evidence that father signed agreement under fraud or unconscionability
- therefore, FATHER IS NOT GUARDIAN and cannot oppose move.

HOWEVER COURT DOESN’T STOP THERE:

- b/c father contact parent, has no standing to oppose move
- but father has played big role in child’s life, it would be unjust for father not to be “treated as
guardian” under the Act in determining the merits of the relocation application
- Father can become guardian again on application under s. 51(1)(a), and under s. 216 court can make
interim order, and under Rule 18.1(2) of the family court rules, court can make an interim order for
guardianship without the required affidavit
- So court just goes ahead and makes interim order that father is a guardian!
- Courts says “I do so because I find that such an order is in the best interests of the child and also in
 the interests of the administration of justice to permit a parent who has had a significant role in the
life of a child to have relocation application considered on the basis of the parent having the status of
a guardian of the child” para. 57

- Court then goes ahead and applies test under s. 69

- Finds that mother has established good faith, given reasonable plan, therefore presumptively in best
interests of the child
- Court finds mother’s eating disorder has not affected child in any way, no adverse inference to be
drawn from mother seeking treatment
- Also, father kept diary about mother—court finds this very unhelpful
- Note that FLA has replaced analysis under Goertz

SB v NL, 2013 BCPC 233

effect of late filing of objection to relocation and proof of notice of relocation
Facts - Parties are bio parents of three children
- Married for about six years
- Comprehensive separation agreement, although NOT drafted by a lawyer
- Agreement filed in provincial court in 2012
- Agreement says parties share custody, with mother having primary residence
- In agreement, specifically says mother may relocate anywhere in BC or Alberta to further her education
- However, unfiled document, signed by parties, saying that separation agreement is null and void
- Mother wants to move from quesnel to prince George bc for education
- Her lawyer sent s. 66 notice to father
- Father’s lawyer applied for order prohibiting relocation 59 days later (29 days over 30 day limit)
- Father claims he never received copy of s. 66 notice
Issue What effect does a late filing of an application for an order prohibiting relocation have?
Held It means that the relocating guardian can move, without an order. However, an application to prohibit the
relocation can still be made after the 30 day time limit. If this is done, the applicant must first persuade the court
to hear the application notwithstanding late filing, which can be done by:
(a) Giving reasonable explanation for late filing, and depending on the length of delay and any prejudice
caused to the relocating guardian; OR
(b) Even if no reasonable explanation, that nevertheless based on cogent and compelling evidence,
relocation is not in the child’s best interests
Rsns - Section 68 gives a guardian opposing relocation 30 days to file application for order prohibiting, under s.
: 69
- Where notice for application to prohibit relocation filed after the 30 days, the relocation can take place
without an order, unless an order is obtained to prohibit the relocation
- Court still has authority to issue an order prohibiting relocation even if application filed after 30 day limit,
pursuant to clear wording of s. 69(2)
- “To allow full hearing of application to prohibit relocation that was filed late, court will consider the
reasonableness of the explanation for the late filing of the objection, the length of delay in filing, the
degree to which the relocating guardian would be prejudiced by allowing the late filed application to be
heard” para. 24
- “in the absence of reasonable explanation, the court should require cogent and compelling evidence
indicating relocation is not in the child’s best interests. This should be a significant test to meet, and not
simply a road bump that would nullify the intent of the legislature”
Issue What is the requisite proof of delivery of s. 66 notice?
Held Have to proof that the person received the notice (not just that it was sent). Best practice = personal delivery,
with reference in notice to the 30 day time limit.
Rsns - b/c possible repercussions of late filing is that court may refuse to hear, there needs to be proof of
: delivery of s. 66 notice
- Best practice: serve notice personally, and include reference to time limit (given high number of self-
reps)
 - Here, there is only proof that notice was mailed, not that it was received by father. Must be received to
start time limit. B/c no proof of recent, hearing not time-barred.
- Note that for purposes of s. 69(4) analysis, it is not whether notice received, but whether sent. Here
mother sent, so good faith supported by this, even if father did not receive.

KLG v. DJT, 2013 BCSC 1684

Application for relocation under s. 46(1), (no preexisting agreement or order regarding parental responsibilities,
mother applies for allocation under s. 45, and wants to relocate so wants sole responsibility of s. 41(b) (residence))
in this context, law from DA applies, and Falvai (FRA case from BCCA-above) still applies b/c it is an initial
determination of parenting responsibility.
Facts - Parties grew up in same small town in Ontario
- Lived in Chilliwack
- Have two kids
- Mother wants to move back to same small town to live in big house with her own mother
- Father opposes
- Never married
- No separation agreements or orders
- This case is also deciding spousal and child support
- Mother willing to waive child support b/c of cost father will incur to visit children in Ontario
- Note father’s parents have moved away from small town in Ontario to Chilliwack as well, they see
children regularly and don’t want them to move either
- Parties get along well, respect each other, recognize the importance of one another’s role in the
children’s lives.
- Father has huge debts, has been very passive, likely he will lose townhouse to creditors (where
children live), done nothing to try and ensure children’s security
- Father has done nothing to improve his education or job, even though employer willing to
facilitate
- Mother applies for allocation of parental responsibilities under s. 45(1)
- There are no written agreements or orders regarding parental responsibilities
- Therefore s. 46(1) applies, governs relocation application
Issue Which guardian(s) should be given responsibility under s. 41(b)?
Held Solely mother
Rsns - In allocating parental responsibilities under s. 41, only consideration is the best interests of the
child, pursuant to s. 37(1) of the FLA
- Use cases decided under divorce act s.16(10) to help guide, b/c there also only consideration is
best interests of the child
- Apply factors from Nunweiler (see below), with statutory modifications under FLA
- Apply factors under s. 37(2) of FLA
- Additionally, under s. 46(2), the court must consider in addition to best interests of the child (a)
reasons for relocation BUT NOT (b) whether guardian who is planning to move would relocate
without the child
- Apply Falvai (see above under FRA cases), when making an initial allocation of parenting
responsibilities between guardians pursuant to application under s. 45, and specifically for
responsibility regarding residence under s. 41(b), where parent wants to move and therefore s.
46 applies, court must choose between giving guardian who is moving responsibility under s.
41(b) or responsibility to other guardiancannot give responsibility to guardian who is moving
on condition that they do not move. It is either with them, with the move, or with the other
guardian. Those are the only two choices.
Nunweiler Case decided under DA, most of factors overlap with s. 37(2)
Factors 1. Threshold, “material change in circumstances” NOTE does not apply b/c this is an initial
application. Do not apply this factor.
2. Best interest of the child, having regard to all relevant circumstances of child’s needs and the
ability of the parents to satisfy them (equivalent to s. 37(2))
 3. No legal presumption, but views of custodial parent given great respect (overridden by s. 40(4) of
FLA—no presumptions at all anymore. Do not apply this factor)
4. The only issue is the best interests of the child in the particular circumstances, do not consider
the interests or rights of the parents (equivalent to s. 37(1))
5. Consider the existing custody arrangement and relatoinshp between the child and the custodial
parent and between the child and the access parent (equivalent to s. 37(2)(d))
6. Maximum contact with both parents consistent with the best interests of the child (harmonious
with s. 37(2)(a), principle of maximum contact natural adjutant to goal of maximizing health and
well-being)
7. The views of the child (equivalent to s. 37(2)(b))
8. Custodial parent’s reason for moving, only in the exceptional case where it is relevant to the
parent’s ability to meet the needs of the child (expressly overridden by s. 46(2)(a)—requires
consideration of reasons for moving, but NOT (b) whether they would move without the child.
9. Disruption to the child of a change in custody (equivalent to s. 37(2)(c)
10. Disruption to the child consequent on removal from family, schools, and the community he or she
has come to know (ss. 37(2)(a)(c)(d) and (e) encompass this)
11.

JP v. JB, 2013 BCPC 168

court permits relocation, b/c if mother moves with child, then likely child will not live in poverty anymore.
under s. 70, where relocation permitted, court can make changes to parenting arrangement. However, this is only
done to preserve existing arrangements to the extent that it is reasonably possible to do so, NOT to make fundamental
changes to the parenting structure.

Berry v. Berry, 2013 BCSC 1095

on relocation application, DA has paramountcy over the FLA if parties were legally married
the two statutes have different considerations, so DA must win out when there is a conflict
Gordon v. Goertz is the leading case dealing with relocation under the DA
nevertheless, even though FLA not directly applicable, the FLA provides a helpful analytical framework
under FLA, to qualify as “relocation” the move must has “significant” impact on relationships.
here the move is from Surrey to North Vancouver
this will have some impact, but not a significant impact.
therefore, this is actually not a relocation. Simply a change in residence. Custodial Parents can do this without consent
or court order.

Jurisdiction and Child Abduction

International
FLA s. 80 adopts Hague Convention

Hague Convention on the Civil Aspects of International Child Abduction

- Removal of child, or retention of child is considered wrongful if it breaches the rights of custody under the law of
the jurisdiction in which the child was habitually resident immediately before the removal, and those custody
rights were actually being exercised.
- Article 3: court must order return of child forthwith, unless exception under article 12,13, or 20
o 12: more than one year elapsed between removal and commencement of application to return, and
child settled in new enivornment
o 13: person seeking removal was not actually exercising custody rights, or consented or acquiesced to
removal, or grave risk that return would expose child to physical or psychological harm, or intolerable
situation, or mature child objects to being returned
o 20: to protect human rights and fundamental freedoms
Thompson v. Thompson, 1994 SCC
- Court interprets Hague Convention
- Mother moves from Scotland to Manitoba with child
- But mother only has interim custody, and on condition that she remain in Scotland
- TJ orders return to Scotland, but based on best interests of child, gives mother 4 months to do so
- SCC: no jurisdiction to impose transitory measures for the return of the child

Hoskins v. Boyd, 1997 BCCA

- Best interest of the child is a matter for the home state court

National

FLA ss. 72-79

Over-view:
o No big changes from FRA
o Extra-provincial order will be enforced if made by tribunal with jurisdiction, all parties had notice, and tribunal
had to take into account best interests (s. 75)
o Test for when court has jurisdiction in child-related case (s. 74), habitually resident in BC, BC court has
jurisdiction (s. 74(2)(b)
o Where court does not have jurisdiction, if child has been wrongfully removed to or is wrongfully retained in BC,
court may stay proceeding, order a party to return a child or order interim relief (s. 77

Definitions and interpretation

72  (1) In this Division:
"extraprovincial order" means an order of an extraprovincial tribunal that is similar in nature to an order respecting
guardianship, parenting arrangements or contact with a child;
"extraprovincial tribunal" means a court or tribunal, outside British Columbia, having authority to make an
extraprovincial order.
(2) For the purposes of this Division, a child is habitually resident in the place where the child most recently resided
(a) with his or her parents,
(b) if the parents are living separate and apart, with one parent
(i)   under an agreement,
(ii)   with the implied consent of the other parent, or
(iii)   under an order of a court or tribunal, or
(c) with a person other than a parent on a permanent basis for a significant period of time.
(3) The removal or withholding of a child without the consent of a guardian does not affect the child's habitual residence
unless the guardian from whom the child is being removed or withheld acquiesces or delays in applying for an order of a
court or an extraprovincial tribunal.

Purposes
73  The purposes of this Division are as follows:
(a) to ensure that court applications respecting guardianship, parenting arrangements or contact with a child are
determined on the basis of the best interests of the child;
(b) to avoid the making of orders respecting guardianship, parenting arrangements or contact with a child,
respecting the same child, in more than one jurisdiction;
(c) to discourage child abduction as an alternative to determining by due process the guardianship of, or parenting
arrangements with respect to, a child;
(d) to provide for effective enforcement of orders respecting guardianship, parenting arrangements or contact with
a child, and for the recognition and enforcement of extraprovincial orders.

Determining whether to act under this Part

74  (1) This section applies if an order respecting guardianship, parenting arrangements or contact with a child may be
made, respecting the same child, in more than one jurisdiction.
(2) Despite any other provision of this Part, a court may make an order under this Part respecting guardianship,
parenting arrangements or contact with a child only if one of the following conditions is met:
(a) the child is habitually resident in British Columbia when the application is filed;
(b) the child is not habitually resident in British Columbia when the application is filed, but the court is satisfied that
(i)   the child is physically present in British Columbia when the application is filed,
(ii)   substantial evidence concerning the best interests of the child is available in British Columbia,
(iii)   no application for an extraprovincial order is pending before an extraprovincial tribunal in a place where
the child is habitually resident,
(iv)   no extraprovincial order has been recognized by a court in British Columbia,
(v)   the child has a real and substantial connection with British Columbia, and
(vi)   on the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia;
(c) the child is physically present in British Columbia and the court is satisfied that the child would suffer serious
harm if the child were to
(i)   remain with, or be returned to, the child's guardian, or
(ii)   be removed from British Columbia.
(3) A court may decline to make an order under this Part if the court considers that it is more appropriate for jurisdiction
to be exercised outside British Columbia.

Recognition of extraprovincial orders

75  (1) A court must recognize an extraprovincial order if all of the following apply:
(a) the extraprovincial tribunal would have had jurisdiction to make the order under the rules that are applicable
in British Columbia;
(b) each party to a proceeding in which the extraprovincial order was made had
(i)   reasonable notice that the order would be made, and
(ii)   a reasonable opportunity to be heard respecting the order;
(c) the extraprovincial tribunal was required by law to consider the best interests of the child;
(d) it would not be contrary to public policy in British Columbia to recognize the order.
(2) On recognition by a court,
(a) an extraprovincial order has the same effect, and may be enforced, as if it were an order made under section
45 [orders respecting parenting arrangements], 51 [orders respecting guardianship] or 59 [orders respecting
contact], as applicable, and
(b) the court may, if necessary to give effect to the extraprovincial order, make any order that the court may
make under this Act.
(3) If an application is made to recognize more than one extraprovincial order and the orders conflict, the court must
recognize the order that is most consistent with the best interests of the child.

Superseding extraprovincial orders

76  (1) On application, a court may make an order that supersedes an extraprovincial order that has been recognized
under section 75 [recognition of extraprovincial orders] if satisfied that
(a) the child would suffer serious harm if that child were to
(i)   remain with, or be returned to, the child's guardian, or
(ii)   be removed from British Columbia, or
(b) a change in circumstances affects, or is likely to affect, the best interests of the child and subsection (2) of
this section applies.
(2) For the purposes of subsection (1) (b), an order may be made only if
(a) the child is habitually resident in British Columbia when an application is filed, or
(b) the child is not habitually resident in British Columbia when the application is filed, but the court is satisfied
that
(i)   the circumstances described in section 74 (2) (b) (i), (ii), (v) and (vi) [determining whether to act
under this Part] apply, and
 (ii)   the child no longer has a real and substantial connection with the place where the extraprovincial
order was made.

Wrongful removal of child

77  (1) This section applies if a court
(a) may not make an order or declines to make an order under section 74 [determining whether to act under this
Part], or
(b) is satisfied that a child has been wrongfully removed to, or is being wrongfully retained in, British Columbia.
(2) In the circumstances set out in subsection (1), a court may do one or more of the following:
(a) make any interim order that the court is satisfied is in the best interests of the child;
(b) stay an application to the court for an order, subject to
(i)   the condition that a party to the application promptly start a similar proceeding before an
extraprovincial tribunal, or
(ii)   any other conditions the court considers appropriate;
(c) order a party to return the child to a place the court considers appropriate and, in the discretion of the court,
order a party to pay all or part of the expenses reasonably and necessarily incurred for travel and other
expenses of the child and of any parties to or witnesses in the proceeding.

Extraprovincial evidence
78  (1) In this section, "senior legal executive" means the Attorney General, Minister of Justice or similar officer of a place
outside British Columbia.
(2) If a court considers it necessary to receive evidence from a place outside British Columbia before making an order
respecting guardianship, parenting arrangements or contact with a child, the court may send to the senior legal
executive of the place a request, along with any necessary supporting material, that
(a) the senior legal executive take any necessary action to require a named person to attend before the proper
tribunal in that place and produce or give evidence respecting the subject matter of the application, and
(b) the senior legal executive, or the tribunal, send to the court a certified copy of the evidence produced or
given before the tribunal.
(3) A court that acts under subsection (2) may order payment of all or part of the expenses reasonably and necessarily
incurred for the purposes of this section.

Referral to court
79  (1) If the Attorney General receives from an extraprovincial tribunal a request similar to that referred to in section
78 [extraprovincial evidence], along with any necessary supporting material, the Attorney General must refer the request
and the material to the proper court.
(2) A court to which the Attorney General refers a request under subsection (1) must require the person named in the
request to attend before the court and produce or give evidence in accordance with the request.

Matrimonial Property
Pages 146-190 Vol. II. Lectures October 30 and November 4

Introduction
FAMILY LAW ACT PART 5:

Rationales and Principles:

 All provinces in Canada have all opted for the regime of deferred community of property
o Deferred community property is based on a general theory that all marital property is to be shared
equally when the marriage partnership is dissolved. Separate property rights continue to exist during
marriage although some restrictions are placed on those rights to protect the eventual deferred
distribution between the spouses.
  All of the schemes recognize that contributions to the family through homemaking and child care are as worthy
of recognition to the accumulation of assets as are financial contributions. With respect to the manner of
holding marital property (that is, deferred community), the regimes are similar.
 BUT the major differences are:
o the nature of the matrimonial property caught in the regime,
o the event triggering the regime,
o the kind and degree of judicial discretion (if any),
o the treatment of the matrimonial home, and
o the restraints on disposition during the existence of the regime.
 The result of the move to the regime in the Family Law Act is that BC is now more in line with other provinces

Jurisdiction:
 Property is not an area of shared jurisdiction
 All property division (common law or married) is in Family Law Act, parts 5 and 6
 Except for First Nations – Derickson v Paul left a void because of IJI – but now federal legislation fills gap

Marriage as an Equal Economic Partnership:

 Most matrimonial property statutes were developed to recognize the sexual division of labour within marriage
and to ensure that both parties receive a more fair division of assets on the break down the marriage
 However, the equal economic partnership model may not always work well, because it is premised on a notion
that most or all assets accumulated during the duration of a marriage are the product of the couple’s joint
efforts and resources – this may not always be the case.

Framework
Does FLA, FRA or Matrimonial Property on Reserve Apply?
o Bresette
o Matrimonial Property on Reserve Act

If FLA:
Step One: Determine when the two people were spouses
o Definition of spouse: s. 3
o Definition of “marriage like” see common-law
o Determine START of relationship
o Determine date of SEPARATION: s. 3 and s. 83

Step Two: Determine What Property is in the Pool

o All property that is not excluded property, as well as debt (s. 84)
o Excluded: things from before relationship, or after separation (s. 85)
o Excluded: gifts from third parties (s. 85)
o Onus on party wanting to exclude property to prove: 85(2)
o Definition of debt s. 86
o Use s. 96 or constructive trust to get excluded property

Step Three: Determine Entitlement

o Spouses can make agreement (s. 92)
o Follow agreement unless agreement set aside (s.93/94)
o Otherwise, entitled to equal division on date of separation (s. 81)
o Valuation at date of hearing or agreement (s.87)
o Court can order unequal if “significantly unfair” or procedurally unfair (s. 95)

Step Four: Also Consider

 o Interim Orders (ss. 88-91)
o Powers of the court to give effect to property division s. 97

Does the FLA apply to the couple’s property?

FRA or FLA?

Bresette v. Henderson, 2013 BCSC 1661

Facts:
- relationship ended on Feb 5th 2012
- common-law
- brought application in relation to property on equitable principles of constructive trust and unjust enrichment
- after FLA enacted, amended claim and brought under FLA as well (b/c couldn’t under FRA b/c not married)

Issue: Does FLA apply to common-law spouses whose relationship started and ended prior to the FLA coming into force?

Held: Undecided

Rsns:
- Transitional provision s. 252, continues proceedings under FRA so new Act does not apply to those
- But property claims could not be brought under FRA for unmarried, so not brought under FRA
- Transition section does not say what to do with these types of proceedings
- Note also here that wife’s pleadings brought within two year limitation period s. 198(2)(b) for bringing claims
after end of marriage-like
- Court does not decide b/c one party unrepresented and lack of legal argument
- Instead says result would be the same whether in common-law or FLA so no need to decide

Definition of Spouse:
 FLA now includes unmarried cohabitating partners in division of property scheme (parts 5&6) + married like
relationship for 2 yrs
 FRA included unmarried cohabiting partners, but not for division of Property (parts 5 &6))…
 Problems – kids make spouses quick…you have now have to opt out, what does “continuous” mean?
 When did it start and when did it end?? That is the deadline for the pool of assets…this is going to be messy and
contentious for many people…

Proving “Marriage-Like Relationship”

 In B.C., access to property division and spousal support is dependent on meeting the definition of spouse in the
legislation.
 To meet the definition of spouse, the Family Law Act requires unmarried cohabitants to show that they have
lived together in a “marriage-like” relationship and have done so for a continuous period of at least 2 years or
they have a child together (see s. 3(1) of the FLA)
o [BUT Note that for property division, the definition of spouse excludes the DFN that includes having a
child together and requires the two year period.]
 Section 3(3) of the FLA specifies that the relationship between spouses begins on the earlier of the date on
which they began to live together in a marriage-like relationship or the date of their marriage.
 Section 3(4) clarifies that spouses may be separated despite continuing to live in the same residence.

Gostlin v. Kergin (1986) 3 B.C.L.R. (2d) 264 at 267 – 268 (C.A.)

o Ask whether the unmarried couple’s relationship was like the relationship of the married couple in that
the unmarried couple have shown they have voluntarily embraced the permanent support obligations of
s.57 [of the Family Relations Act].
 o If each partner had been asked, at any time during the relevant period of more than two years, whether,
if their partner were to be suddenly disabled for life, would they consider themselves committed to life-
long financial and moral support of that partner, and the answer of both of them would have been
“Yes”, then they are living together as husband and wife. If the answer would have been “No,” then they
may be living together, but not as husband and wife.
o Other Objective Criteria:
 Did the couple refer to themselves, when talking to their friends, as husband and wife, or as
spouses, or in some equivalent way that recognized a long-term commitment?
 Did they share the legal rights to their living accommodation?
 Did they share their property?
 Did they share their finances and their bank accounts?
 Did they share their vacations? 171
 In short, did they share their lives?
 And, perhaps most important of all, did one of them surrender financial independence and
become economically dependant on the other, in accordance with a mutual arrangement.
 Molodowich v. Penttinen [1980] O.J. No. 1904 (1980), 17 R.F.L. (2d) 376
o THERE IS A LARGE CRITERIA SHEET ON PAGE 172 TO GO THROUGH

Rossi v. Barbieri, 2013 BCSC 832

court found that woman was not a spouse under FRA or FLA
o Parties lived together for nine months
o Then ceased relationship for fifteen months
o And then lived together again for another seven months
o Relationship was not “revived” by getting back together, but it was “recreated”
o Did not have the two years necessary to be considered spouses
o Therefore no entitlement under either act.

G(JJ) v. A(KM) 2009 BCSC 1056

Fact - Woman says ceased before they stopped living together, were living together as roommates
s - Man disagrees, says when she moved out.
Issue When did marriage-like relationship cease?
Held Marriage like relationship ceased when she moved out.
Rsns - Cessation of when they stopped cohabiting is NOT determinative of the issue
- Court must examine relationship as a whole and consider all the various objective criteria referred to in
the authorities
- Presence or absence of one factor is not determinative
- Each relationship is unique, apply flexible approach in context of particular relationship
- Common-law relationship ends “when either party regards it as being at an end, and by his or her
conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one.”
Quoting Hodge, SCC 2004 at para. 38
- In cessation of marriage-like relationship, key factors Include:
o Absence of sexual relations
o Clear statement by one of the parties of his or her intentionto terminate the relationship
o Physical separation of the parties into different rooms of the same house or different residences
o Cessation of the presentation to the outside world that they are a couple
- Here woman had given affidavits and written statements just three months before she moved out
describing herself as man’s wife (statements to ICBC, statement in tenant dispute)

History: Unmarried Cohabitants

Division of Property for Unmarried Cohabitants across Canada
  The new Family Law Act removes the distinction between married and common law couples for the purposes of
property division (see the definition of “spouse” in s. 3 of the FLA as compared to in s. 1 of the FRA).
 The property division legislated in Part 5 of the Act is available to married couples and to couples who have lived
together in a marriage-like relationship for a continuous period of at least 2 years (s. 3(1)(b)(i))
o Note that s. 3(1)(a)(ii) includes cohabiting couples who have a child together in the definition of
“spouse,” but this does not apply to Part 5 of the FLA; couples with a child must live together for a
continuous period of two years before they can access the property division scheme in the FLA.
 This change was in reaction (or as a result) of NS v Walsh – which found that common law spouses were not
entitled to the statutory scheme for the division of matrimonial property (the legislation did not violate the
charter)

Nova Scotia (Attorney General) v. Walsh 2002 SCC 83 (WHY COMMON LAW SPOUSES ARE NOT ENTITLED TO
DIVISION MARRIED DIVISION OF PROPERTY SCHEMES UNLESS THE LEGISLATION SPECIFICALLY OPTS THEM IN)
Facts Walsh, a heterosexual common law spouse who had lived with her partner for 10 years in a marriage-
like relationship, claimed that the definition of spouse under section 2(g) of the Act (which applied the
presumption of equal division of matrimonial property to married spouses) discriminated against
common law spouses in violation of section 15(1) of the Charter.
Issue Does the Act (Nova Scotia) violate s.15 of the charter by not including common law spouses in the
definition?
Held No. The majority of the court held that the application of the MPA to married persons only is not
discriminatory because the distinction reflects and corresponds to the differences between those
relationships and common law relationships and it respects the fundamental personal autonomy and
dignity of the individual.
Dissen Per L'Heureux-Dubé
t
Note FLA is not like this case - Part 5 of the Act is available to married couples and to couples who have lived
together in a marriage-like relationship for a continuous period of at least 2 years (s. 3(1)(b)(i))

Québec (Attorney General) v. A, 2013 SCC 5 (Eric v Lola) – 5/4 decision

o Regime in Quebec affirmed…
o Spouses make active choices and that should be respected…
o However – there was a very strong dissent from Abella who said that section 15 needs to give recognition to
roles of assumed and compensate the functional characteristics of relationship for those who live in de facto
union.
o Section 15 should apply and allow the protected measures (in the statute) that go beyond mere contractual
nature of their agreement.

CONSTRUCTIVE TRUST:
 For thirty years the SCC laid out a series of cases in constructive trust to allow those in domestic partnerships the
ability to claim property rights (that were not available to them but were available for married couples).
 While the Family Law Act’s provisions now supercede the common law in B.C. on this matter, keep in mind that
the following case law still applies in other provincial jurisdictions that do not provide for property division of
unmarried cohabitants.
o The case law still applies in other provincial jurisdictions that do not provide for property division of
unmarried cohabitants.
o There have also been cases involving non-spousal claims for property in a family context, such as a
realtor succeeding against the estate of someone to whom he had “acted as a ‘son’” (Lineham v. Forfert
Estate, 2003 BCSC 1324), and a daughter-in-law claiming part of a family farm (Wiffen v. Wiffen [(2001),
23 RFL (5th) 443 (B.S.S.C.)]).
 FURTHERMORE: Constructive trust may be way in the future that one spouse may be able to at property that is
“outside of the family pool of assets” under the FLA.
 o For example: Lets say one spouse (we will call them the “home owning spouse”) owns the house
completely before the relationship. The relationship lasts for 20 yrs and during this time the other
spouse (the “non-property spouse”) maintains the house (repairs, upgrades etc). The FLA act would
grant the property to the home owning spouse (because it is excluded property) and split the
appreciation in equity 50/50 between the two spouses during the length of their relationship.
 Is this fair? And what happens if there is no gain inequity and the non-property spouse gets
nothing?
 A claim in constructive trust may work!

Murdoch v. Murdoch (1973), 41 D.L.R. (3d) 367 (S.C.C.) DISSENT is now law
 Spouses Irene and James
 She is claiming for one-half of the interest in the family ranch.
 She worked on lands with her husband in order to earn the money that was used to purchase the ranch, but it
was registered in his name.
 She also cared for the ranch entirely when he was away, which happened for long periods at a time. When the
marriage broke up, she sued for one half of the interest in the family ranch.
 HELD: Court looked for the principles of a resulting trusts: a financial contribution to the purchase of an asset OR
common intention to share ownership at time of acquisition (say that was not present)
 Dissent:
o Articulates the doctrine of constructive trust (which today applies to same and opposite sex couples (it is
the same as law of unjust enrichment..)
 Benefit to owner
 Loss or deprivation
 No juristic reason

Pettkus and Becker (1980), 19 R.F.L. (2d) 165 (S.C.C.)

 This is how the dissent in Murdoch became the law
 In this case there was a 20-year cohabitation during which the couple ran a successful bee-keeping business. At
the end of their relationship – Ms. Becker commenced the action for an entitlement to a one-half interest in the
lands and a share in the bee-keeping business.
 Constructive Trust:
o 1. an enrichment;
o 2. a corresponding deprivation; and
o 3. an absence of any juristic reason for the enrichment.
 Why do we do this?
o “where one person in a relationship tantamount to spousal prejudices herself in the reasonable
expectation of receiving an interest in property and the other person in the relationship freely accepts
benefits concerred by the first person in circumstances where he knows or ought to have known of that
reasonable expectation – it would be unjust to allow the recipient of the benefit to retain it”

Sorochan v. Sorochan, [1986] 2 S.C.R. 38

 He owned all the property first – but she worked it:
 In this case the SCC said that there is a clear link between the contribution and the assets (a link does not need
to connect to the acquisition of the property)
 How do we determine this link?
o “While it is important to require that some nexus exit between the claimant’s deprivation and the
property in question, the link need not always take the form of a contribution to the actual acquisition
of the property.”

Peter v. Beblow (1993), 150 N.R. 1 (S.C.C.)

 In Murdoch, Pettkus, and Sorochan they were all business like ventures – what about the family home? Can
working that alone provide a constructive trust?
  12 yr relationship…she took care of kids and home…before he paid for this…should law recognize the services as
unjust enrichment??
 Ms. Peter was found to have satisfied all three requirements for unjust enrichment. The law on constructive
trust thus evolved further; contribution to care of the household and childcare duties without compensation
enhanced the value of the property, sufficient to make out Ms. Peter’s proprietary claim.

Forrest v. Price (1992), 48 E.T.R. 72 (B.C.S.C.)

 Applied these doctrines to same sex relationship

Kerr v. Baranow, 2011 SCC 10

 This case expands on the principles in Peter v Beblow
 It uses the term “family joint venture” to expand constructive trust within family units and to family assets
o “I conclude, therefore, that the common law of unjust enrichment should recognize and respond to the
reality that there are unmarried domestic arrangements that are partnerships”
o “This sort of sharing, of course, should not be presumed, nor will it be presumed that wealth acquired
by mutual effort will be shared equally. 
o Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a
share of the other’s property or any other relief. However, where wealth is accumulated as a result of
joint effort, as evidenced by the nature of the parties’ relationship and their dealings with each other,
the law of unjust enrichment should reflect that reality.” (para. 85)
 Take aways:
o 1. The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services
approach. 
o 2. Where the unjust enrichment is most realistically characterized as one party retaining a
disproportionate share of assets resulting from a joint family venture, and a monetary award is
appropriate, it should be calculated on the basis of the share of those assets proportionate to the
claimant’s contributions.
o 3. To be entitled to a monetary remedy of this nature, the claimant must show both
 (a) that there was, in fact, a joint family venture, and
 (b) that there is a link between his or her contributions to it and the accumulation of assets
and/or wealth.
o 4. Whether there was a joint family venture is a question of fact and may be assessed by having regard
to all of the relevant circumstances, including factors relating to
 (a) mutual effort,
 (b) economic integration,
 (c) actual intent and
 (d) priority of the family.
 But all this can be rebutted!

Effect of Kerr v. Baranow

DPS v. BHL, 2011 BCSC 327

example of application of constructive trust

KLK v. KTW, 2011 BCSC 411

Laura Achoneftos, “no pre-nup? The division of property in Common Law separatations, Kerr v. Baranow

Marta Siemiarczuk, “Family Law: Kerr and Vanasse create no presumption of shared property”
Division of Family Assets under FLA

Dividing Property under the Family Law Act

1. Is it family property pursuant to s. 84? Or family debt under s. 86?
2. If no, then not subject to division, except under s. 96.
3. If yes, is all or part of it excluded under s. 85?
4. If no, then it is divided equally (s.81(b)) based on fair market value (s.87(a)) as at date of agreement (s.87(b)(i) or
Hearing (s.87(b)(ii), subject to s. 95.

General Considerations (p.177):

 Under the FLA, there will be two categories of asset:
o assets presumptively excluded from division and
o assets that are presumed to be divided equally.
 Under the Family Relations Act, almost all property owned by either or both spouses was up for division,
regardless of who owned an asset or when it was acquired; all that mattered was whether the property was
"ordinarily used for a family purpose."
o The FRA scheme for dividing matrimonial property centered on whether property was “ordinarily used
for a family purpose” (OUFP). Under the FRA, the fact that an asset was acquired prior to the marriage
was immaterial (though this could be considered at the reapportionment stage under s. 65). The FRA
definition of a family asset was found in s. 58: “property owned by one or both spouses and ordinarily
used by a spouse (or a minor child of either spouse) for a family purpose.” The FRA expressly categorized
pensions, home ownership, retirement savings, and ventures or business assets to which the non-
owning spouse contributed as all family assets
 When will the FRA be used?
o old act remains relevant for old agreements/orders – unless new agreement is made…

Triggering Event (separation):

 Date the couple meets the definition of spouse for when assets will be considered part of relationship (Gostlin v.
Kergin & Molodowich v. Penttinen)
 s. 81 gives equal entitlement and responsibility to all family property and family debt
o s. 81(b) says this is triggered by separation:
o separation defined in s.3(4) and s. 83(1)
o likely similar to “living separate and apart” under DA

Agreements and Court Orders

 Court cannot make order re: division of property where there is an agreement, unless all or part of the
agreement is set aside (s. 94(2))
 Set aside agreements under s. 93 (see marriage agreements above)
 Otherwise, BCSC can make an order for division of property on application by a spouse (s. 94(1))
 But remember,

What Property will be shared and what will be excluded?

 s. 81 equal entitlement and responsibility – family property and family debt
 s.86 says what is family debt
 s. 84 says what is family property: family property includes property at breakdown of the relationship (unless
excluded) – this crystalizes all the property from when they became spouses to when the breakdown occurs
o s. 84(1) gives a general provision includes all real and person property that, on the date of separation, in
which at least one of the spouses
 (i) owns or
 (ii) has a beneficial interest in.
 o This section also provides that property acquired after separation but derived from family property (or
the disposition of family property) is included in the pool of family assets.

o Section 84(2) specifically lists certain types of property for inclusion:

 (a) a share or an interest in a corporation;
 (b) an interest in a partnership, an association, an organization, a business or a venture;
 (c) property owing to a spouse
 (i) as a refund, including an income tax refund, or
 (ii) in return for the provision of a good or service;
 (d) money of a spouse in an account with a financial institution;
 (e) a spouse's entitlement under an annuity, a pension, a retirement savings plan or an income
plan;
 (f) property, other than property to which subsection (3) applies, that a spouse disposes of after
the relationship between the spouses began, but over which the spouse retains authority, to be
exercised alone or with another person, to require its return or to direct its use or further
disposition in any way;
 (g) the amount by which the value of excluded property has increased since the later of the date
 (i) the relationship between the spouses began, or
 (ii) the excluded property was acquired.

 Tracing of assets is possible in s. 84(1)(b), if after separation there is property that was derived from family
property, it can be traced back and included as family property

 s. 85 says what is excluded property:

o (a) property acquired by a spouse before the relationship between the spouses began;
o (b) gifts or inheritances to a spouse;
o (c) a settlement or an award of damages to a spouse as compensation for injury or loss, unless the
settlement or award represents compensation for
 (i) loss to both spouses, or
 (ii) lost income of a spouse;
o (d) money paid or payable under an insurance policy, other than a policy respecting property, except
any portion that represents compensation for
 (i) loss to both spouses, or
 (ii) lost income of a spouse;
o (e) property referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse;(f)
property held in a discretionary trust
 (i) to which the spouse did not contribute,(ii) of which the spouse is a beneficiary, and(iii) that is
settled by a person other than the spouse;
 (g) property derived from property or the disposition of property referred to in any of
paragraphs (a) to (f).

Reapportionment
 s. 95 provides the test for when property can be re-apportioned other than 50/50
 It uses the words “significantly unfair”. It is arguable a stricter test than the FRA which used the words
“unfairness” – However, its like a less hard test than in Ontario where they used the word “unconscionably”
 S 95 (2) gives a long list of considerations
 S 95(3) – relationship to spousal support – can use unequal division where spousal support is insufficient…
o “The Supreme Court may consider also the extent to which the financial means and earning capacity of a
spouse have been affected by the responsibilities and other circumstances of the relationship between
the spouses if, on making a determination respecting spousal support, the objectives of spousal support
under section 161 [objectives of spousal support] have not been met.
 o This has been interpreted to say do Spousal Support first – then see if the assets should be re-
apportioned differently.

G(L) v. G(R), 2013 BCSC 983

meaning of “significantly unfair”
“a caution against a departure from the default of equal division in an attempt to achieve ‘perfect fairness’. Only when
an equal division brings consequences sufficiently weighty to render an equal division unjust or unreasonable should a
judge order depart from the default equal provisions”

HJS v. KCS, 2013 BCSC 998

woman wants man to adhere to separation agreement
man wants to set aside separation agreement.
o FLA doesn’t apply b/c started under FRA and no agreement to continue under FLA (s. 252 FLA)
o However, consider s. 93 b/c that is essentially a codification of Miglin
o Example of court refusing to set aside agreement

Mular v. Lawrence, 2013 BCSC 1158

claim for unequal division of property based on ss. 95(2)(a),(f) and (i)
main claim is that def caused significant decrease in value to home.
o FRA governs decision, b/c s. 252 started under FRA
o Unreasonable conduct of def in refusing to sign conveyance docs on eave of sale of matrimonial home has lead
to unfairness to the plaintiff if equal division of proceeds of sale (sold at much lower than initial K)
o Conduct is generally not a consideration when effecting an unequal division, but may properly be considered
where a party has dealt with an asset in a manner that reduces the amount available for distribution an dis
unfair to the other party

Other Key Sections/issues

 S. 87 – You value the property at the time the agreement takes place – not the time of separation.
o So for example, dividing the equity of property, the value of the property is determined on the date of
the agreement
o This is contrasted with the date of separation (which is used to determine what assets will be divided)
 s. 83 – time of separation like the divorce act – If they reconcile for 90 days they aren’t considered separated
 s. 85 Debt is now in the pool…
 s.85 (2) – onus on partner to show it should be excluded…
 Hobbies – no longer an issue (was under the FRA when they could show the property wasn’t for a matrimonial
purpose – FLA all you show is whether it was acquired in relationship)
 Section 90 of the FLA can be used to grant one party exclusive temporary use of the family residence and
personal property in it.
 Section 97 of the FLA gives the Court the authority to make any order necessary to give effect to a judicial
reapportionment of property under Part 5 or Part 6 of the Act.The FLA also provides for an interim distribution
of family property under s. 89 for specific purposes.
o Likely use cases decided under ss. 124, 125 and 65 of the FRA for how these provisions will play out

Matrimonial Property on Reserves:

Derrickson v. Derrickson , [1986] 1 S.C.R. 285

 Westbank Indian band
 Male Spouse had a certificates of possession
 SCC held that part 5 of FRA wasn’t applicable to Indians because of interjurisdictional immunity – 91(24). Ie, the
Provincial legislation couldn’t apply because it went to the heart of “lands reserved for Indians”
 And while S.88 makes general laws apply, it would found that this section would not apply.
 This left a giant hole for jurisdiction for matrimonial property on reserve
Paul v. Paul, [1986] 1 S.C.R. 306
 Sartlet Band & one spouse had a certificate of possession and there was violence in the relationship
 Mrs. Paul applied to court for interim occupancy order – overturned by CA/SCC
 Interim order in conflict with Indian Act – occupancy in conflict with 91(24)

The Critique of these cases:

 This perpetuates colonialism by making people on reserves have to fight these cases as a division of powers
issue.
 This cases erases social/political context of dispute and doesn’t consider indigenous ppl and land, inequalities
etc…

George v. George (1996), 24 R.F.L. (4th) 155 (BCCA)

- Aboriginal couple built a house on reserve and lived there for 19 years before separation
- Court found Mr. George in “lawful possession”
- Even though no CP
- b/c had been used by couple as their matrimonial home, qualified as a family asset
- wife entitled to compensation order for her interest in the asset

In 2007, the Matrimonial Property on Reserves Act was passed to fill void in legislation:
 This took a long time to pass (because of successive failing minority governments)
 But it was developed in collaboration with communities
 Comparable rights and protections to non-reserve property owners
o 1. Equal right to occupancy of the family home
 Provides spouses or common-law partners with an equal entitlement to occupancy of the family
home until such time as they cease to be spouses or common-law partners.
o 2. Requirement of spousal consent
 Provides spouses or common-law partners with protection against the disposition or
encumbrance of the family home without their consent.
o 3. Emergency protection orders
 Allows a court to order that a spouse or common-law partner be excluded from the family home
on an urgent basis (in situations of family violence).
o 4. Exclusive occupation order
 Enables courts to provide short to long term occupancy of the family home to the exclusion of
one of the spouses or common-law partners. The duration of this order could range from a
determined number of days to a longer period, such as until dependent children reach the age
of majority.
o 5. Entitlement of each member spouse or common-law partner to an equal division of the value of the
family home and any other matrimonial interests or rights
 Ensures that the proven value of a couple's matrimonial interests or rights in or to the family
home and other structures and lands on the reserve are shared equally on relationship
breakdown.
o 6. Order for the transfer of matrimonial interests or rights between member spouses or common- law
partners
 Allows a court to transfer, in some circumstances, the matrimonial interests or rights between
member spouses or common-law partners together with, or instead of, financial compensation.
o 7. Entitlement of surviving spouses or common-law partners
 Ensures that when a spouse or common-law partner dies, the surviving spouse or common-law
partner may remain in the home for a specified period of time, and can apply, pursuant to the
federal rules, for half of the value of the matrimonial interests or rights as an alternative to
inheriting from the estate of the deceased.
o 8. Enforcement of agreement
  Critique: it didn’t receive endorsement from native women’s association of canada
o Still Unaffordable with long waiting periods

Spousal Support
Introduction
 Requires one spouse to pay financial support to the other on a regular basis (occasionally lump sum)
 Looks at income and income stream rather than property or assets
 Relevant provisions – Divorce Act ss. 15.2, 15.3, 17; Family Law Act, ss.160-174
 FLA has been changed to mirror DA

Websites that I found useful!

http://www.familylaw.lss.bc.ca/resources/fact_sheets/spousal_support.php

http://resources.lss.bc.ca/pdfs/pubs/Living-Together-or-Living-Apart-eng.pdf

Jurisdiction
If Married Divorce Act – ss. 15.2(1)(4)(6)
These section will guide analysis of entitlement to support in
a divorce
If cohabitating in marriage like FLA ss. 161-162 – these have been amended to reflect the DA
relationship
NOTE: Judicial interpretation of spousal support provisions under the DA have been applied to
provincial statutory provisions – and since FLA is basically the same as DA in those sections,
makes sense that same principles would apply

Intersection of Matrimonial Property and Spousal Support

FRA s. 65 Reapportionment of Property
 Courts started importing Moge principles (that support awards should play a role in compensating a
spouse for econ consequences of marriage) in scheme for division of matrimonial property via section
65(1)(e)
o Eg. Lodge v Lodge - Courts reapportioned property in favour of Mrs b/c s. 65(1)(e) of FRA
permits the courts to “reapportion family assets where an equal division would be unfair having
regard to the needs of each spouse to become or remain economically independent and self-
sufficient”

The Family Law Act

 S. 95 expressly permits Supreme Court to order unequal division of family property if it would be
significantly unfair to equally divide them. One factor court can consider is:
o (3) the extent to which the financial means and earning capacity of a spouse have been affected
by responsibilities and other circumstances of the relationship between the spouses if, on
making a determination respecting spousal support, the objectives of spousal support under s.
161[objectives of spousal support] have not been met

Boston v. Boston, [2001] 2 S.C.R. 413

if pension included in distribution of property, only the portion of payor’s pension earned after separation, and
therefore not subject to division, to be considered as income in basis for continuing spousal support.
Facts: Husbands pension included in net family property for purposes of division of property, so he was required to pay
her a certain amount, and had to pay her in form of matrimonial home; also had to pay spousal support. Once he
retired, started collecting pension; argued that he shouldn’t have to now pay spousal support out of pension b/c that
pension had already been accounted for and this would amount to Double Dipping
Held: no double dipping – “it is generally unfair to allow the payee spouse to reap the benefit of a pension both as an
asset and then again as a source of income”
Dissent: HDB and Lebel - Once you refer to something as double dipping, end result is going to be pretty clear. There are
different principles that guide spousal support and division of assets so nothing wrong with it being considered twice.
Fair to consider both assets and income that could be generated from one source;

Criticism: Afshan Ali

- Three problems:
o Construction of issue as “double dipping” prejudices the circumstances
o Majority conflates regime of equaliziation of net family property with spousal support
o Policy implications makes it apparent that the decision gives little credence to systemic hardship women
experience upon marriage breakdown
- Legislation makes it so that you are entitled to pension twice, it includes it as property and income
- Characterizing as double dipping belies fact that non-pensioned spouse rightfully entitled to recover from
pension twice as a result of payor’s two distinct legal obligations for property and support.
- These regimes serve different objectives so both should be upheld
-

Meiklejohn v Meiklejohn
Pension case, but court found that general rule against double dipping didn’t apply b/c:
o significant portion of pension was not equalized because it was undervalued at the time of the agreement
o portion was earned after separation and employer subsequently “sweetened” the pension
o parties couldn’t agree unequalized portion of pension
o significant portion of spousal support was based on need, not compensation
o most of wife’s assets are tied up in RRSPs and matrimonial home and isn’t unreasonable for her to retain those,
so she has no ability to generate income from assets.

CONSIDER: s. 169 of FLA

ALSO… support obligations may continue after death: s. 170, 171 FLA

Basic Framework
Step 1: Do you meet definition of spouse?
 FLA s. 3.1
 DA s. 2.1
Step2: Was there a separation agreement?
YES Look to TEST from Miglin to see how much weight to attribute to agreement

Step 3: are there dependent children?

 YES  sort out custody and access first
 DA s. 15.3/FLA s 173 says priority goes to child support

Step 4: is there entitlement to support?

 DA s 15.2(6)/FLA s. 161 – to be determined in accordance with objectives of support
 Can be compensatory or non-compensatory (Moge, Bracklow)
  NOTE: Previously in case law, division of property would take place first BUT, under FLA: spousal support comes
first b/c of s. 95.3 which says that if objectives of spousal support weren’t met, you can consider apportioning
unequal division of property

Step 5: what is quantum of support:

 DA s. 15.2(4)/ FLA s. 162
 AND guidelines (not law, but pretty persuasive)

Step 6: Once you have support, does the amount need to be varied?
i) DA  s. 17(4.1) courts needs to be satisfied that a change in the condition, means, needs, or other
circumstances of either former spouse has occurred…
ii) FLA  167(2)(a) similar test to above

NOTE: one thing Calder ALWAYS brings up is the fact that for most ppl who are receiving spousal support, it is their main
source of income – so make sure to incorporate that into any analysis you do!

Definition of Spouse
DA s. 2.1 Either of two person who are married to each other
FLA s. 3.1  Married; or
 in marriage like relationship and live together for 2+ years; or
 have a kid and live together (NOTE: this is for spousal support but NOT
division of property)

Test for proving ‘marriage like relationship’ or ‘conjugality’

Molodowich v Penttinen
 7 indicia
 and in BC, subjective element

…For more info go to Matrimonial property section

Same sex M. v. H., [1999] 2 S.C.R. 3 – include same sex couples for purposes of spousal
couples support (doesn’t really matter b/c both defs are gender neutral now)

Separation Agreements and Variation of support

FLA s. 164 outlines similar approach to that taken in Miglin (below) but provides more detailed instructions for courts
and incorporates some of SCCs holding from Rick v Brandsema (below)
Section 164(3) deals with circumstances when the agreement was signed and permits variation where:
(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the
negotiation of the agreement;
(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance,
need or distress;
(c) a spouse did not understand the nature or consequences of the agreement;
(d) other circumstances that would under the common law cause all or part of a contract to be voidable.
Section 164(5) deals with circumstances arising later:
(a) the length of time that has passed since the agreement was made;
(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a
spouse;
(c) the intention of the spouses, in making the agreement, to achieve certainty;
(d) the degree to which the spouses relied on the terms of the agreement;
(e) the degree to which the agreement meets the objectives set out in section 161 [objectives of spousal
support].
Miglin v Miglin
***Spousal support agreement, treat application to court to change as an INITIAL application and not an application to
vary.

Facts: Ms were married in 1979, and they co-owned a hotel that was managed by husband; wife responsible for admin
and housekeeping tasks and received $80,000 salary. She was primary caretaker of 4 kids. They separate in 1993, enter
separation agreement in 1994 in which Mrs release husband from spousal support obligations. At time of separation,
they had four kids betwee 2-7.5 years old. Also entered into a 5 year ‘consulting’ agreement for $15,000 where Mr paid
consulting fee to Mrs (at trial this was basically found to be spousal support). Kids primary residence was to be with
mom, but they were to share parenting responsibility. The husband's initially amicable relationship with the wife
changed when the wife sold the matrimonial home and converted to Judaism. The husband caused the hotel not to
extend the consulting agreement. Before the agreement was terminated, the wife brought proceedings pursuant to s.
15 of the Divorce Act for sole custody of the children, spousal support and child support in accordance with the Child
Support Guidelines. The trial judge awarded the wife monthly spousal support in the amount of $4,400 for five years and
monthly child support of $3,000. The husband appealed. The wife cross-appealed the five-year time limit in the support
order and the Court of Appeal granted her claim.
Trial  awards spousal support for 5 years
CA  upheld trial decision but removed time limit
Issue: when should judge order spousal support under s. 15.2 when there is already a pre-existing agreement that
addresses the matter?
Held: Overturns Pelech  Courts NOT bound by strict Pelech standard
 Parliament intends to promote negotiated settlement of collory matter (s. 9(2) DA)
 Need certainty that agreements will be enforced, otherwise little incentive to enter in to them, can’t defeat
policy goal under s. 9(2) by disregarding agreements in making spousal support orders

New TEST for when to intervene in face of preexisting agreement

Step one: court looks to circumstances in which agreement was negotiated and executed to determine whether there is
any reason to discount it. Look at:

1. Circumstances of Execution: look at the circumstances at the time of its negotiation and execution
 were there any circumstances of oppression, pressure or other vulnerabilities, taking into account all of the
circumstances, including those set out in s. 15.2(4)(a)(b) and the condition under which negotiation were
held—i.e duration and professional assistance
 this is not a search “unconscionability” as understood in common law of K
 but do not presume imbalance of power or exploitation by stronger party; presence of vulnerabilities alone
will not justify intervention
 need evidence that agreement should not stand on basis of fundamental flaw in negotiating process
 emotional stress that accompanies divorce will not automatically mean negotiating process flawed,
otherwise would be impossible to make an agreement
 degree of professional assistance often will overcome any systemic power imbalances between the parties
 court should be loath to interfere where vulnerabilities not present, or compensated for by presence of
professional assistance, or have not been taken advantage of. Because this means agreement is genuine
mutual desire to finalize terms of separation and indicative of their substantive intentions. continue to
stage two
 If power imbalance vitiated the bargaining process, the agreement should not be read as expressing the
parties’ notion of equitable sharing in their circumstancesstop analysis here. .

2. then look at the substance of the contract, (if satisfied that conditions of negotiation were OK)
  to determine the extent to which the agreement takes into account the factors/objectives listed in the act
(at time of agreement), including both 15.2(6) and 9(2), thereby reflecting an equitable sharing of economic
consequences of marriage and breakdown. note if part of comprehensive settlement;
 Only a significant departure from general objective of act will warrant court intervention on basis that there
is no substantial compliance with act;
 More vulnerable the parties were at time of formation of agreement, more searching a review
NOTE: determination that agreement fails to comply with act doesn’t mean whole agreement has to be
set aside – can set aside part of it (ie. Quantum might be ok, but time limit isn’t, so just set aside time
limit)
 If agreement in substantial compliance continue
 If not, intervene on part that isn’t, and stop.

Where negotiation of agreement not imputed and agreement in substantial compliance with act….
Step two: Court to determine if the agreement still reflects the original intention of the parties and the extent to which
it is still in substantial compliance with the objective of the act? (or in other words - where current circumstances
represent a significant departure form range of reasonable outcomes anticipated by the parties, in a manner that puts
them at odds with the objectives of the Act, court may be persuaded to give agreement little weight)
 court likely won’t interfere but for significant change in parties circumstances from what could reasonably be
anticipated at time of negotiation (BUT change doesn’t have to be “radically unforeseen”, and no need for
“causal connection”)
 examples of things that likely aren’t unforeseen on pg. 246:
o changes in job market
o parenting responsibilities under agreement might be more onerous than imagined
o transition into workforce might be challenging
o health can’t be guaranteed as constant
 courts focus should be on agreements continued correspondence to parties original intention as to their relative
positions and overall objectives of the act

NOTE: Although material change is a threshold requirement on application to vary a pre-existing spousal support (s. 17),
there is no similar requirement for originating a spousal support order under s 15

Calder Comments: significant weight is given to separation agreements; this is very similar to Hartshorne (marriage
agreement case)

Dissent: had very different analysis than majority: threshold test should be one that insists on substantive equality of
parties during the marriage and at time of separation by ensuring the agreement equitably apportions the economic
consequences of the marriage of its breakdown; Threshold for overriding support agreement is whether the agreement
is objectively fair at the time of the application; contractual model has limited value in spousal support context; even if
agreement is not strictly speaking unconscionable, it may nonetheless be inappropriate for the court to uphold it; while
it is important to respect will of parties, in fam law context, parties “freedom” to contract may be significantly
constrained by social and economic factors and may be decidedly unequal

Note on Rick v Brandsema

validity of separation agreement with attention to mental health of one of patients
facts: Mrs. R and Mr. B separated after 27 years; had 5 kids, and a dairy farm; Divorced, signed separation agreement
gave wife less than 50% of family business and consent order dismissing all claims (NOTE this is division of assets NOT
spousal support). R brought action for variation claiming misrepresentation of value of disclosed assets, that agreement
was unconscionable given her own history of mental health, alleging physical and sexual assault.

Judicial history: R successful at trial  TJ found agreement unconscionable b/c B had exploited mental instability during
negotiations; BCCA overturns – mere presence of vulnerabilities doesn’t justify trial courts intervention. SCC allows Mrs.
Rs appeal and agrees with TJ
Analysis: Husband’s failure to make full/honest disclosure of assets, and exploitation of what he knew to be her mental
instability resulted in negotiated settlement that was much less than what she would have gotten under FRA; In light of
emotional environment that follow disintegration of relationship, special care must be taken to ensure assets are
distributed through process that is, to extent possible, free form informational and psychological exploitation; if
exploitation results in agreement that deviates substantially from objective of governing legislation, resulting agreement
might be unconscionable

Calder likes this: because of the uniqueness of negotiating environment, bargains entered into between spouses on
marriage breakdown are not, and should not be seen to be, subject to the same rules as those applicable to commercial
contracts negotiated between two parties of equal strength  recognition that can’t treat fam law Ks the same as
commercial law Ks
Calder’s Criticism:
 fact that divison of assets is being treated the same as spousal support; spousal support is ongoing and can be
revised; property is not, once its divided its gone so we need to be able to rely on decisions
 type of evidence Mrs R had to present was problematic (disempowering to attest to mental health status)
 Finally OBVIOUSLY unconscionable agreements and non-disclosure can’t stand – do we really need the SCC to tell us
this???

Note on LMP v LS
Fact: A year after they were married, W diagnosed with MS, assessed as permanently disabled, unable to work; had 2
kids so she stayed at home with them; husband was lawyer; separated after 14 years; husband agreed to pay
child/spousal support; AGREEMENT INCORPORATED INTO COURT ORDER; H applied for variation of spousal support in
separation agreement; 4 years post separation, W applies for increase in support based on husbands increased income;
husband applied to terminate support – argued that she could work part time
Trial – husband successful; QCCA upheld trial judgment

Held: case should be considered as application to vary spousal support order, not initial application after an agreement
has been made, therefore Miglin not relevant because the agreement had been incorporated into a court order. Held
that TJ erred in not determining threshold question of whether a material change had occurred and therefor wrong to
have hearing on wife’s ability to work; Majority held that material change had not occurred, improper to vary order.
(two concurring judge thought that general principles of Miglin and deference to private agreement should apply to
both initial and variation applications)

PKC v. JRR, 2014 BCSC 932: Example of miglin application, brings in FLA to divorce
Fact - Parties married for 23 years
s - Marriage ended june 6 2010
- Two children, one in grade 11 the other out of school (no child support sought for that one)
- Woman is 53, was housewife during marriage, is an interior designer
- Man is dentist with his own practice
- Teenager has mental health issues, woman can’t work b/c she has to look after him
- Minutes of settlement executed by both parties following a mediation
- Man significantly understated his financial information
- Settlement provided for annual disclosure of financial info, which man has not done
- Minutes of settlement NOT incorporated into court order
Issue Should an order of retroactive child support and spousal support be made?
Held yes
Rsns - Same principles apply to child and spousal for retroactive support, from Baranow
- Factors:
a. Needs and circumstances of the recipient
b. Conduct of the payor
c. The reason for delay in seeking support; and
d. Any hardship occasioned by the award
 - Conduct is particularly important when it amounts to failure to disclose income

[157]     Regarding conduct, the courts have strongly condemned non-disclosure and late disclosure as
constituting misconduct which will not be tolerated. The Supreme Court of Canada in Rick v. Brandsema, 2009
SCC 10 (CanLII) confirmed the duty to make full and honest disclosure of financial information.
[158]     In  Kerr, the Supreme Court emphasized that the focus of concern about conduct must be on conduct
broadly relevant to the support obligation, for example concealing assets or failing to make appropriate
disclosure (para. 212)

Is this an original order or a variation?

[189]     The reason this is important is because there is no jurisdiction under the Divorce Act to vary the spousal
support provisions of an agreement. Section 17(1) of the Divorce Act confers jurisdiction on the court to vary,
suspend or rescind a support order. Where there is no previous order, the court's jurisdiction to vary
under s. 17 of the Divorce Act is not engaged (D.N.L. v. C.N.S., 2013 BCSC 858 (CanLII)). Therefore, the test of
showing a material change of circumstances is also not engaged.
[190]     Filing an agreement only makes the agreement “enforceable” as if it were contained in an order, it does
not actually become an order, and is not deemed to be one (Cominetti v. Cominetti, [1993] B.C.J. No.1486 (S.C.)).
[191]     The court can proceed under the Divorce Act on the basis that it is being asked by the claimant to make
an original order pursuant to s. 15.2 of theDivorce Act (Stevens v. Stevens, 2013 BCSC 1899 (CanLII)).
…
[195]     The distinction between a variation under s. 17 and an original order under s. 15.2 is important in terms
of the role of the Minutes of Settlement. On an application for an initial order, all of the factors listed
in s. 15.2 must be considered and weighed, including the existence of an agreement. On a review, the court does
not craft a fresh order going back to those listed factors (unless the circumstances require a complete rescission
of the original order) but rather focuses on whether there has been a material change in circumstances since the
original order was made (L.M.P. v. L.S., 2011 SCC 64 (CanLII), at paras. 21-28).
…
[199]     Under the Divorce Act, the approach is mandated in Miglin v. Miglin, 2003 SCC 24 (CanLII) which
described the proper treatment of an existing agreement when a court is arriving at an initial order for spousal
support.

However, court holds that alternatively wife can use FLA…

[205] The FLA requires a slightly different approach than the Divorce Act.

[206] Section 164(3) of the FLA authorizes the court to set aside or replace an agreement respecting spousal
support with an order but only if satisfied that one or more of the following circumstances existed when the
parties entered into the agreement:
(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the
negotiation of the agreement;
(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance,
need or distress;
(c) a spouse did not understand the nature or consequences of the agreement;
(d) other circumstances that would under the common law cause all or part of a contract to be voidable.

[207] Section 164(3) of the FLA authorizes the court to set aside or replace an agreement respecting spousal
support with an order but only if satisfied that one or more of the following circumstances existed when the
parties entered into the agreement:
(a) the length of time that has passed since the agreement was made;
(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a
spouse;
(c) the intention of the spouses, in making the agreement, to achieve certainty;
(d the degree to which the spouses relied on the terms of the agreement;
 (e) the degree to which the agreement meets the objectives set out in section 161 [objectives of spousal
support].

[208] The claimant relies on the same circumstances as outlined above with respect to the Divorce Act,
namely:
a) The settlement was reached based on estimated income figures provided by the respondent that were
significantly understated in comparison to his actual earnings in 2010;
b) The respondent’s failure to make full financial disclosure pursuant to the terms of the settlement;
c) The significant deterioration in P.’s emotional and psychological functioning which has prevented the
claimant from pursuing work.

Note Para. 84/85 on quantum: cites BCCA cases which say that to go outside the spousal support advisory guidelines
will constitute a reviewable error absent strong and explicit justification.

Walton v. Walton, 2014 BCSC 1044 variation of child support

CLL v. DKL, 2014 BCSC 1020 variation of child support

Entitlement
Can Family Law Address the poverty of Women and Children?
 May assist those who are separating from partner with significant assets, but has limited capacity to deal in a
fundamental way with female and child poverty
 Fam law deals with symptoms of property, not causes
 Fam law remedies are based on privatized model of econ responsibility that expects individual family members
to support dependents
 Response to privatization critique: socially responsible model – women, men and community/state all have
responsibility towards raising kids; this model also proposes equalizing econ position of women with that of men
 Gov trends towards privatization/financial restraint means that social responsibility model unlikely

Who is responsible for support and why?

3 models at play in spousal support law, and all articulated in provisions of DA (and now FLA)

i) Needs and Means – spousal support as an income security scheme; s. 15.2(4); (FLA) s. 162
 The primary responsibility of family is to provide a cushion of economic security to those citizens unable to
meet their own needs
ii) Economic Advantages and Disadvantages of Marriage – or the Compensatory/Loss of Opportunity Model of
Spousal Support; s. 15.2(4)(b); 15.2(6)(a)(b); (FLA) s. 161(a)
 Marriage and economic support per se don’t justify support – it is the consequences that flow from the
marriage (eg. Wife sacrifices career for marriage)
iii) Self-sufficiency, spousal independence and the ‘clean break’ model of spousal support; s. 15.2(6)(d); (FLA) s.
161(d)
 Idea that law of spousal support should recognize marriage has ended, and law should help ppl disengage
from economic entanglement that was create by marriage
NOTE: in making an argument for support, you will need to back it up through use one of these reasons
Messier v Delage [1983] SCJ No 80 (1983)
This case sets stage for debate about “clean break” picked up in Pelech trilogy; other than that it isn’t useful
Facts: parties married in 1962, separated in 1974, divorce in 1975. Two kids, custody given to mother along with support
of $1600/month. She took care of kids, didn’t work outside home and enrooled in education program. In 1978 older
kids goes to live with father and a year later he gets custody; offers to pay $500/month for daughter but asked that
other support obligations be terminated; argued that five years since separation, mother had had time to reorganize life
(didn’t argue that he was unable to pay, but rather that obligation had been fulfilled). Quebec superior court awards
$1200/month to mother; mothers support was to terminate in 1980, while daughters would continue. QCCA strikes
termination of mothers support
Held: upholds QCCA decision; although recognizing principle of “individual responsibility” implying an obligation on part
of a divorced spouse to work towards self sufficiency, there is no reason to cancel support in advance on assumption
that she will no longer need or be entitled to it at that time; doesn’t mean support should continue indefinitely
Dissent: Lamer would have restored termination date – “if the divorce terminates the marriage, it is desirable that DA
should apply to ensure the termination of al relations, even those that are financial, provided this must be borne in mind
– that such a thing is possible”

Same Sex Spouses and the Objectives of Spousal Support

M. v. H., [1999] 2 S.C.R. 3

Charter challenge to spousal support; purpose of spousal support
Facts: Lesbian couple separate; Ontario legislation defines spouse as heterosexual; they challenge definition under s. 15;
one spouse is economically disadvantaged
Held: Yes. Def is discriminatory, same sex couples should be included
Analysis: objective of support is important to finding – Ct articulates purpose of support 
 allow persons who become financially dependent over course of relationship some financial relief resulting form
breakdown of relationship;
 intended to deal with the economic consequences, for both parties (regardless of gender), of the marriage or its
breakdown
 shifts financial burden off public purse and on to those partners with capacity to provide support for dependent
spouses
Calder comments: privatization of social safety net clearly coming into play in this case

Three Conceptual Grounds for Spousal Support

SEE: DA s. 15.2; FLA s. 161

Canadian fam law recognizes three conceptual grounds for entitlement to spousal support:
 Contractual (Miglin)
o Situations where parties have entered into marriage or separation agreement;
o Courts tend to respect private agreements and encourage parties to settle their own affairs
 Compensatory (Moge)
o When spouse has foregone opportunities or endured hardships as a result of marriage
o Eg. One spouse (usually woman) who leaves workforce to care for kids
 Non compensatory (Bracklow)
o Where recipient spouses needs exceeds the entitlement to be compensated
o Obligation derives from the “basic social obligation” of the marital relationship itself

Legislation

Divorce Act

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a
spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over
and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

FLA

Objectives of spousal support

161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the
following objectives:
(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the
spouses or the breakdown of that relationship;
(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to
provide support for the child;
(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the
spouses;
(d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

i. Contractual (self Sufficiency Model)

Causal Connection and Self Sufficiency: “The Trilogy”

Pelech v. Pelech, [1987] 1 S.C.R. 801; Richardson v. Richardson, [1987] 1 S.C.R. 857; Caron v. Caron, [1987] 1 S.C.R. 892
Facts: all 3 cases flow from 1968 DA and the courts discretion to vary spousal Ks. In all cases, a separation agreement
was negotiated that included spousal support provisions
Issue: when can judge override support provisions of valid separation agreements?
Held: applicant must prove 1) a radical change of circumstances between time of contract and variation application and
2) that is causally related to pattern of economic dependency caused by the marriage (change has to be linked to fact of
marriage, and in particular, from a pattern of dependency.) This more easily allows spouses to make a ‘clean break’
Application: In Pelech, the court holds that this test applies in seeking an initial support order under DA, or a variation of
such an order. However in Story v Story, BCCA says that causal connection test in Pelech only applies when there is an
application to vary an agreement that was intended to be final or where 17(10) of DA applies.
NOTE: Pelech trilogy gets overturned Miglin (below) – it is just used to exemplify the self-sufficiency model of spousal
support

ii. The compensatory model

Moge v Moge [1992] S.C.J. No. 107  very important case – reinforced trend away from focus on self sufficiency
Facts: parties married in Poland in 1955; immigrated to Canada; had ‘traditional’ marriage - husband primary bread
winner, wife was a homemaker, she looked after 3 kids and worked part time; parties separate in 1973; divorce in 1980;
Upon separation, Mrs M receives minimal settlement that was varied when she lost her job; She is getting $150/month
when Mr applies to terminate support
Judicial history: TJ terminates support after particular date; Man C.A. ordered spousal support indefinitely; Appealed to
SCC; Mr M argues that Mrs. M should have been self-sufficient and if she wasn’t, it wasn’t connected to the marriage, so
he shouldn’t have to pay
Issue: Should support be terminated (or more broadly, what to consider when ordering/terminating spousal support?
What is purpose of spousal support?)
Held: Appeal dismissed - Mrs. M sustained significant disadvantage due to econ breakdown of marriage; long term
responsibility for upbringing of children of marriage after separation had impact on her ability to earn an income;
continues to suffer economic hardship as a result of the “breakdown of the marriage”; she had failed to become
economically self sufficient notwithstanding best efforts
HDB write majority opinion
 Rejects causal connection test from trilogy; distinguishes it in two way:
o 1. Trilogy decided under older divorce act and this no longer guides law
 o 2. Trilogy dealt with separation agreements and variation form them – not applicable to situation of
court ordered spousal support
 Purpose of Spousal Support:
o Fair and equitable distribution of resources to alleviate econ consequences resulting from marriage or
breakdown
o Marriage is econ partnership that creates financial benefits for both parties, so you have to look at what
effect has been on impairing or improving each parties position
o Analysis applies equally to both parties BUT most cases will be woman who suffers economic
disadvantage
o Under s. 15.2(6) – have to look at all factors, not just means and needs  factors emphasize equitable
distribution of economic partnership and that court has overriding discretion to be exercised on a case
by case basis
 Spousal support takes on special significance when the parties have little assets to divide… only way to effect the
equitable distribution of resources is spousal support (para. 45)
 Objectives of DA are not necessarily independent of one another, they may overlap or operate independently,
depending on the circumstances; economic variables of divorce do not lend themselves to the application of any
one single objective (para 51)
 No priority given to one objective or one factor over another (para 53) Takes judicial notice of feminization of
poverty to support this conclusion: to emphasize only self-sufficiency would be to unfairly financially penalize
women, can’t have been legislature’s intent.
 Marriage does not automatically entitle a spouse to support: “the four objective set out in the Act can be viewed
as an attempt to achieve an equitable sharing of the economic consequences of marriage or marriage
breakdown. At the end of the day however, courts have an overriding discretion and the exercise of such
discretion will depend on the particular facts of each case, having regards to the factors and objectives
designated in the act” para 77
 To exercise discretion, just must exam ALL FOUR bjectives in the act to achieve equitable sharing of economic
consequences of marriage or marriage breakdown (78)
 If someone has to care for child after marriage, numerous financial consequences of this aren’t reflected in the
child support: lifestyle limitations and burdens on parent, where you can live, types/hours for work, education
opportunities etc. (para. 81)
 Great disparities in standards of living absent support are indicative of the economic disadvantage created by
the marriage (para 84)
 KEY paras 42-44

The second observation I wish to make is that, in determining spousal support it is important not to lose
sight of the fact that the support provisions of the Act are intended to deal with the economic consequences, for
both parties, of the marriage or its breakdown. Marriage may unquestionably be a source of benefit to both
parties that is not easily quantified in economic terms. Many believe that marriage and the family provide for
the emotional, economic, and social well-being of its members. It may be the location of safety and comfort,
and may be the place where its members have their most intimate human contact. Marriage and the family act
as an emotional and economic support system as well as a forum for intimacy. In this regard, it serves vital
personal interests, and may be linked to building a "comprehensive sense of personhood". Marriage and the
family are a superb environment for raising and nurturing the young of our society by providing the initial
environment for the development of social skills. These institutions also provide a means to pass on the values
that we deem to be central to our sense of community.

Conversely, marriage and the family often require the sacrifice of personal priorities by both parties in
the interests of shared goals. All of these elements are of undeniable importance in shaping the overall
character of a marriage. Spousal support in the context of divorce, however, is not about the emotional and
social benefits of marriage. Rather, the purpose of spousal support is to relieve economic hardship that results
from "marriage or its breakdown". Whatever the respective advantages to the parties of a marriage in other
areas, the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect
of the marriage in either impairing or improving each party's economic prospects.
 This approach is consistent with both modern and traditional conceptions of marriage in as much as
marriage is, among other things, an economic unit which generates financial benefits (see M. A. Glendon, The
New Family and The New Property (1981)). The Act reflects the fact that in today's marital relationships,
partners should expect and are entitled to share those financial benefits.

Take home point: Compensatory model is more in keeping with DA; changed jurisprudence of spousal support, with
important emphasis on gendered division of labour, and need to redress some of that inequality through long term
spousal support

McLachlins’ Concurrence:
 Spousal support variation are one of stat interpretation, so must apply statute
 Looks to 17(7) – variation provisions
 Argues all 4 objectives need to be taken into account, self sufficiency is only 1 factor
 Hypothetical arguments about what different choices might have lead to are irrelevant, as long as spouse did
not act unreasonably.
Calder Comments: HBD are complete shift from causal connection test; this case clearly acknowledges the effects of
marriage breakdown

Post Moge: A Discretion-Based Model?

 Moge reverses post trilogy trend of minimalist support awards
 Women could expect recognition of sacrifices made during marriage to not enter workforce

iii. Non compensatory Model (Basic Social Obligation)

Bracklow v Bracklow [1999] SCJ No. 14

Compensatory is not ONLY basis for support
Facts: second marriage for both parties. Mrs had two kids who lived with them. Mr worked throughout relationship as
heavy-duty mechanic; Mrs. was accountant; at outset, she earned more, but fell ill and didn’t return to work; lived with
a number of physical and psychological ailments; he became primary economic support. Separated after 3 years,
Judicial History: TJ and BCCA both conclude that Mrs isn’t entitled to support b/c relationship wasn’t long, no econ
hardship fell on Mrs as a consequence of marriage (little bit of causal connection coming into play here…) but Mr agrees
to pay certain amount anyways
Issue: is sick/disbled spouse more entitled to spousal support when marriage ends?
Held: Yes! You might be required to pay for more than just compensatory reasons
Analysis: para 43  “spouses may have obligation to meet or contribute to the needs of their former partners where
they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation”;
marriage per se does not create obligation to pay spousal support, but obligation may flow from marriage relationship
itself; There is no one philosophy or fixed rules for determining entitlement to support. Recognition that there are
multiple basis to determine support, no more emphasis on overarching philosophy.
 Law recognizes three conceptual grounds for entitlement: (1) compensatory (2) contractual and (3) non-
compensatory (para 15)
 Starting presumption is that marriage is a thing of mutual support
 Can change by K, or arrange fairs to unequivocally show you are financially intertwined, but otherwise married
people are.
 “basic social obligation model” primary responsibility falls on former spouse to provide for their partner rather
than on the government. , founded on historical notion that marriage is a potentially permanent obligation….
This is what underlies the non-compensatory support.
 DA premised on doctrine of equitable sharing of economic consequences of divorce (para. 34—from Moge)
 Use all objectives and factors from DA to determine entitlement
 Where compensation is not indicated and self-sufficiency is not possible, support obligation may arise from the
marriage relationship itself on non-compensatory model
  Resolve support issues by considering all three grounds for support: contract, compensatory and non-
compensatory
 First two objectives are compensatory
 Third and fourth encompass both compensatory and non-compensatory
 Moge articulates the compensatory basis for support
 Where need is established and not met through contractual or compensatory principles, fundamental marital
obligation plays a role and gives entitlement to support. (para 49)
Calder comments: only clear ruling from this case is that spousal support is not exclusively compensatory (as might have
been assumed post Moge); also, tempting to defines this as an illness case, but they only refer to illness at the very
beginning.

Impact of Bracklow
 marriage is no longer a life-long union – we allow people to divorce fairly easily and to form new relationships
and commitments
 on the other hand – we also know that marriage and cohabitation can create complex interdependencies that
are hard to unravel; not every former spouse is going to be able to become economically self-sufficient – and
certainly not easily or quickly
 the SCC’s message that there is no one model or philosophy of support – and there are no fixed rules or
guidelines for determining spousal support

TimeLine of Spousal Support Cases

 Messier v. Delage – which directed judges to make awards that were “fit and just” on the facts before the court; lead
to fairly generous awards, and in particular, precluded crystal-ball gazing
 then – Pelech trilogy – and its test of “causal connection” which narrowed the basis and led to an emphasis on clean
breaks, widespread use of time-limited orders
 then 1992 – pendulum swing back in the direction of a broader basis for spousal support with the release of Moge
and its reconceptualiztion of spousal support around the idea of compensation
 then: Bracklow – with talk of spousal support as a “basic social obligation” – some would argue – a further
broadening of the basis of spousal support

Impact of Spousal Misconduct and Economic Self Sufficiency on Entitlement

DA, FLA on Fault

 DA s 15.2(5) very clear – misconduct is not relevant to breakdown of marriage
 FLA s. 166 – generally you can’t consider misconduct, but creates exception:
166  In making an order respecting spousal support, the court must not consider any misconduct of a
spouse, except conduct that arbitrarily or unreasonably
(a) causes, prolongs or aggravates the need for spousal support, or
(b) affects the ability to provide spousal support.

 Also consider FLA s. 167, court can change spousal support order if there was a lack of financial dislcosure

Leskun v Leskun
Facts: Mr and Mrs married 20 years; right before marriage breaks down, Mrs loses her job, there are a series of family
deaths AND finds our her husband is having an affair. BCCA – Southam holds that husband’s conduct has left wife “bitter
to point of obsession” so she wasn’t able to make new life, so appropriate to compensate wife. Got around DA s. 15.2(5)
by tying analysis to quantum and not entitlement
NOTE: Mrs. was self rep litigant; Court appoints amicus curiae so court can hear all legal reasons
Issue: What role does adultery play in entitlement to support? NOTE: DA is very clear – fault is not relevant to
breakdown of marriage
Analysis: SCC distinguishes between emotional consequences of misconduct and the misconduct itself (a bit fishy); one
purpose of spousal support is to promote economic self-sufficiency of each spouse (is so far as its practical) but this is
only one factor of many; Ct finds that in addition to being devastated, she had other factors preventing her from
becoming self sufficient
 Para. 21: “there is, of course, a distinction between the emotional consequences of misconduct and the
misconduct itself. The consequences are not rendered irrelevant because of their genesis in the other spouse’s
misconduct. If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse
unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which
must be considered in determining the right to support, its duration and its amount. The policy of the 1985 Act
however, is to focus on the consequences of the spousal misconduct not the attribution of fault.”
 Failure to achieve self-sufficiency is not a “duty”, just one factor to be taken into account
Calders Comments: under this is belief that there is something very wrong about adultery

Editorials on Leskun
Rogerson - “Divorce Ruling is Far from Faulty”
 Even though courts say they don’t take fault into consideration, they often consider emotional devastation of
marriage breakdown as a factor
 This judgment wasn’t as crazy as everyone is making it out to be because judges have been basically doing this
all along

Cossman “Cheater, Beware”

 Adultery as a consideration is back!
 Court does dance around misconduct and emotional consequences of misconduct, but really, we clearly find
something very wrong about adulterous relationships

Cases under FLA

Peterson v. Lebovitz, 2013 BCSC 651

Fact - Husband seeks termination of spousal support
s - Wife says a virtually identical application was brought before and rejected by the court
- On previous application, court found husband was underemployed and not disclosing financial info
- Continues to fail to make full disclosure
- Has paid very little support (for spousal and child) unless compelled by enforcement program
- He says wife is not full time student, but very clear that she is a PhD student
- Husband is clinical counsellor
Issue Should spousal support be terminated?
Held No
Rsns the Court finds that pursuant to s. 166 of the FLA that Mr. Peterson has acted arbitrarily or unreasonably to both
hide his financial circumstances and in so doing has adversely affected his ability to provide both spousal and
child support.

Quantum
FLAs. 162
The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means,
needs and other circumstances of each spouse, including the following:
(a) the length of time the spouses lived together;
(b) the functions performed by each spouse during the period they lived together;
(c) an agreement between the spouses, or an order, relating to the support of either spouse.

DAs. 15.2(4)
In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration
the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.

Spousal Support Advisory Guidelines

NOTE: EXAMPLES THAT SHE WENT THROUGH IN CLASS ARE IN THE HANDOUT (ON COURSE SPACES) – I DIDN’T INCLUDE
THEM HERE
 Initially introduced in draft in 2005 to assist with determination of amount and duration under DA.
 Concern was mountain over the highly discretionary nature of spousal support awards and the uncertainty that
was playing out in court (similar fact situations leading to different awards)
 Final version released in 2008
 For FLA  they have been strongly endorsed by BCCA in determining amount and duration; but they don’t not
fit every circumstance

Yemchuck v Yemchuk BCCA

 First appellate court to consider spousal support guidelines
 Guidelines “are intended to reflect the current law rather than to change it” and “build upon the law as it exists”
 Not official law, but not “evidence” or “expert evidence” that needs to be proven in court
 Both NB and ON appellate courts followed this decision

Introduction and Summary

 Unlike child support guidelines, they are not legally binding
 Can’t be used to override existing agreements
 Deal with amount and duration NOT entitlement
 Devised under DA, but b/c FLA now mirrors DA we can apply them to FLA as well
o In fact, have been used in BC more than anywhere else
 Basis of entitlement is important not just as threshold issue, but in determining location within formula range or
to justify depart from ranges as exception
 Can use www.mysupportcalculator.ca to calculate range BUT remember if you do this on exam, have to explain
what the basis for the awards are

The without child formula

 two crucial factors:
o Income difference between spouses
o Length of marriage
 Idea behind this: Merger over time  as a marriage lengthens, spouses more deeply merge their econ/non econ
lives
 Captures both compensatory and non compensatory objectives

The Without Child Support Formula

Amount determined ranges from 1.5 to 2 percent of the difference between the spouses’ gross
incomes
(the gross income difference) for each year of marriage (or, more precisely, years of
cohabitation), up to
a maximum of 50 percent. The maximum range remains fixed for marriages 25 years or longer
at 37.5 to
50 percent of income difference. (The upper end of this maximum range is capped at the
amount that
would result in equalization of the spouses’ net incomes–the net income cap.)
Duration ranges from .5 to 1 year for each year of marriage. However, support will be
indefinite (duration not specified) if the marriage is 20 years or longer in duration or, if the
marriage has lasted 5 years or longer, when the years of marriage

the with child formula

 Used for cases with dependent children and concurrent child support obligations
 Cases raise different considerations:
o Priority to be given to child support
o Usually reduced ability to pay
o Tax and benefit issues arise
 Rational is also different: compensatory
 Support not driven by length of marriage/marital dependency/merger over time, but presence of dependent
children and need to provide care and support for those children
 Econ disadvantage flow from present and future child care needs (s. 15.2(6)(b) DA

The Basic With Child Support Formula

1. Determine the individual net disposable income (INDI) of each spouse:
• _Guidelines Income minus Child Support minus Taxes and Deductions = Payor’s INDI
• _Guidelines Income minus Notional Child Support minus Taxes and Deductions Plus
Government Benefits and Credits = Recipient’s INDI

2. Add together the individual net disposable incomes. By iteration, determine the range of
spousal support amounts that would be required to leave the lower income recipient spouse
with between 40 and 46 percent of the combined INDI.

Duration of basic with child support formula

 Initial orders are indefinite (duration not specific)
 Provides durational range intended to structure process of review and varaiton to limit cumulative duration of
spousal support
 Reflects underlying parental partnership rational
 Two possible tests:
Length of marriage test (likely governs for marriage of 10+ years)
 modeled on duration under miwthou child support formula (1/2 to one year of support for every year of
marriage, and will likely govern for most marriages of ten years or more
Age of children test (likely governs marriages less than 10 years)
 lower end of durational range is until youngest child starts full time school. Upper end is until last or younger child
finishes high school.

Shared and Split custody

 Slight variation in computation of individual net disposable income as backing out of child support obligations is
a bit more complicated
If custodial parent is paying spousal support:
 Spouses guideline incomes are reduced by grossed up amount of child support and then without child support
formula applied to determine amount and duration

Ranges
 Location of amount within range will be driven by factors in chapter 9 (strength of compensatory claim,
recipients needs, age, number, need and standard of living of children, need and ability to pay of the payor,
work incentives for payor, property division and debts, self sufficiency)
Restructuring:
 Allows amount/duration under formulas to be traded off against each other, so long as overall value of award
remains within global amount
 Can be used in three ways:
o Front end load awards by increasing amount beyond formulas range and shortening during
o extend duration beyond formula’s range by lowering monthly amount
o formulate lump sum by combining amount and duration

Ceilings and floors

 define boundaries of typical incomes to which formulas can be applied
 ceiling  income level for payor spouse above which any formula gives was to court discretion (Gross annual
income for payor of $350,000)
 Floor  income level for payor below which no support is usually paid (set at $20,000)
 Cliff Effect Exception  for cases where payor spouse income is > $20,00 but < $30,000, spousal support may
not be award or may be reduced below low end of range
 Exceptions also available to allow spousal support below income floor

Exceptions
 Any formula, even with restructuring, with have limits; there will always be exceptional cases
 Guidelines are advisory only, so departures always possible on case by case basis, if formula outcomes are
inappropriate
 Guidelines do contain short list of exceptions of common categories of departure:
o debt payment;
o prior support obligations;
o illness and disability;
o the compensatory exception in short marriages without children;
o reapportionment of property (British Columbia);
o basic needs/hardship under the without child support and custodial payor formulas;
o non-taxable payor income;
o non-primary parent to fulfil parenting role under the custodial payor formula;
o special needs of a child; and
o section 15.3 for small amounts and inadequate compensation under the with child support formula.
Application
 formulas intended to apply to initial order and to negotiation of initial agreements (including interim
agreements)
 but given uncertainty of current law, not possible to apply to full range of issue that can arise on variation and
review
 can be applied on applications to reduce spousal support b/c of changes in income (eg. Payor spouse’s income
goes down or recipient spouse’s income goes up)
 can be used to cross over between formulas (ie if children are no longer dependant)
 no formula can be constructed to resolve issues around recipient spouse’s remarriage or re-partnering, or
subsequent children
W v W [2005] B.C.J No 1491 (S.C)
Issues: the husband's income for child and spousal support purposes; whether there should be an equal division of the
family assets or a reapportionment in favour of the wife; and spousal support, including the question of what if any use
should be made of the Spousal Support Advisory Guidelines,
Held: Advisory guidelines are consistent with law in BC; just b/c there is regime in BC that allows for reapportionment
doesn’t make them an inapplicable tool – if there is reapportionment, the extent of the reapportionment can be
considered when calculating spousal support within the range provided by the formula;
Redpath v. Redpath BCCA 2006: If a particular award deviates substantially from the Guidelines range, with no
exceptional circumstances to explain the anomaly, the standard of review should be reformulated to permit appellate
intervention

Variation
NOTE on VARIATION: most spousal support cases in course pack involve not original applications for spousal support
award but an application to vary an earlier spousal support award. The basic test for variation under DA is s. 17 and sets
a threshold test that must be met:

17.(4.1)  Before the court makes a variation order in respect of a spousal support order, the court shall satisfy
itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred
since the making of the spousal support order or the last variation order made in respect of that order, and, in
making the variation order, the court shall take that change into consideration.

In FLA, Similar test for change is contained under s. 167(2)(a). 167(2) also states that a court might change suspend or
terminate an order prospectively or retrospectively if (b) there is evidence of a substantial nature that was not available
during the previous hearing has become available or (c) evidence of a lack of financial disclosure by either spouse was
discovered after the order was made

Legislation

Divorce Act
17, 17(1), 17 (4.1), 17(7

17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or
retroactively,
(a) a support order or any provision thereof on application by either or both former spouses

Factors for spousal support order

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a
change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of
the spousal support order or the last variation order made in respect of that order, and, in making the variation order,
the court shall take that change into consideration.

Objectives of variation order varying spousal support order

(7) A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its
breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage
over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of
time.

FLA

Changing, suspending or terminating orders respecting spousal support

167 (1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so
prospectively or retroactively.
(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and
take it into consideration:
(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order
respecting spousal support was made;
(b) evidence of a substantial nature that was not available during the previous hearing has become available;
(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.
(3) Despite subsection (2), if an order requires payment of spousal support for a definite period or until a specified event
occurs, the court, on an application made after the expiration of that period or occurrence of that event, may not make
an order under subsection (1) for the purpose of resuming spousal support unless satisfied that
(a) the order is necessary to relieve economic hardship that
(i) arises from a change described in subsection (2) (a), and
(ii) is related to the relationship between the spouses, and
(b) the changed circumstances, had they existed at the time the order was made, would likely have resulted in a
different order.

Child Support

Framework
Step One: Is there a parent-child relationship?

Step Two: Determine Custody

o Child support owed by all non-custodial parents

Step Three: Determine Quantum

o Child Support Guidelines are LAW under both DA and FLA

Step Four: Is any child support owed retroactively?

Step Five: Variation

Step Six: Enforcement

Defining the Parent-Child Relationship

Key leg.= Family Maintenance Act, Divorce Act, Family Law Act

Divorce Act
Key def.= “child of the marriage” (DA s2), “stands in place of parent” ( defined by case law)

(1) “child of the marriage”

« enfant à charge »
“child of the marriage” means a child of two spouses or former spouses who, at the material time,
 (a) is under the age of majority and who has not withdrawn from their charge, or
 (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other
cause, to withdraw from their charge or to obtain the necessaries of life;

Child of the marriage

(2) For the purposes of the definition “child of the marriage” in subsection (1), a child of two spouses or former spouses
includes
 (a) any child for whom they both stand in the place of parents; and
 (b) any child of whom one is the parent and for whom the other stands in the place of a parent.

Stands in the Place of a Parent

Chartier v Chartier, 1998, SCC (“stands in place of parent” under DA)
Facts o CL rship started 1989, married 1991; child J born 1990
o Separated May 1992, reconciled for month, permanent separation Sept 1992
o W had child, Jess, from previous rship, H played active role in caring for both children (discussed H
adopting Jess, but didn’t; amended birth cert. to say falsely that H was biological father & changed her
last name)
o 1994: consent judgment under FMA, access to both children and pay support for J; but order silent on
maintenance for Jess/W
o 1995 W commenced divorce proceedings, requested declaration that H stood in place of parent for Jess;
H contested
- Interim order: H must pay support for Jess and W; suspended access; report recorded H desire
to sever rship w Jess
o TJ: spousal support, reduction in support for J, costs to W; H repudiated parental rship w J
o CA: only heard W appeal on reduction of support for J, set aside cost order
Issue Under what circumstances may adult who has acted as parent pursuant to DA s2 (“child of marriage”)
withdraw from that position?
Held Person standing in place of parent cannot withdraw from obligations, in this case H stood in place of parent
for J, obliged to pay child support.
Reason o Conflicting case law
s o Loco parentis “in the place of a parent” is creature of 19 th c. patriarchy
 now, must take modern understanding: what is in best interests of child of marriage, not biological
parenthood or legal status of children
o Carignan v Carignan (father didn’t stand in loco parentis to child, not liable to pay support
o In this case, CA confirmed judgment in Carignan b/c: (1) marriage today is “fragile, often time-limited,”
so shouldn’t have too many obligations, (2) understandable and easily det’d basis for imposing/excusing
resp.
o SCC: doesn’t agree w Carignan b/c doesn’t take into account modern approach to stat. interp.,
objectives of DA is for divorce to affect children as little as possible
o [39] What is proper test for det’g whether person stands in place of parent? INTENTION (may be explicit
or inferred from actions) – look at a number of factors, objectively:
- Whether child participates in extended family same way as biological child
- Whether person provides financially for child
- Whether person disciplines child as a parent
- Whether person represents to child, fam, world that they’re resp. for child
- Nature/existence rship of child to (missing) biological parent
o Duration doesn’t matter; if meets intention test to be “child of marriage” under s2, same obligations to
child as biological child, same rights as biological parent
o Fact-specific analysis
o What about if get support from biological parent + stepparent? Obligation is both joint and several,
should be assessed separately from each other
Ratio Once child is “child of marriage” (using intention test) under DA s2, parent cannot unilaterally withdraw from
obligations.

FLA
Federal Child Support Guidelines provide for child support from person who “stands in place of a parent”

So must consider FLA s1 def. of “parent” and

"parent" means a parent under Part 3 [Parentage];

s146 def. of “guardian,” “parent” and “stepparent”

In this Part and section 247 [regulations respecting child support]:

"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to
obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;
"guardian" does not include a guardian
(a) who is not a parent, and
(b) whose only parental responsibility is respecting the child's legal and financial interests;
"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to
provide support for child];
"stepparent" means a person who is a spouse of the child's parent and lived with the child's parent and the child during
the child's life.

*FRA didn’t define “guardian” so it will all be new case law

FLA s 147(1) outlines when obligation to pay child support ends (for all parents) *new in FLA

(a) When child becomes spouse; OR

(b) When child voluntarily withdraws from parents’ control (onus on parents to show no violence & living
conditions not intolerable; onus shifts to child to show why support should continue)

Chartier v Chartier (DA case) does not apply to FLA; some cases say stepparent can unilaterally withdraw

Contracting Out of Parental Obligation:

Doe v Alberta, 2007 ABCA (Note)
Facts o W had AI w sperm from anonymous donor after H refused to participate as didn’t want to be parent; signed
K re. him having no obligations/rights as parent
o TJ: K will not necessarily legally bind them & all 3 rd Ps (i.e. govt); intention is relevant, but not determinative
(Chartier).
o CA: upheld
o SCC: leave to appeal refused
Issue Does K absolving person of parental rights/obligations override statute for person “standing in place of parent”?
Held NO: cannot K out of parenting rights/obligations under Alberta FLA.
Ratio Cannot K out of parenting rights/obligations if you qualify as parent under statute.

Crown Wards and Children with Disabilities:

JMS v FJM, 2005, Ont SCJ (Note)
Facts o Years after divorce, M sought to vary child support order to inc. amount paid
o Son made permanent Crown ward & stayed in group home (many costs borne by govt), but M had to pay
for costs when he visited & pay $80/mo. twd group home)
o Can M even claim child support costs for son in first place? (no longer under “care, custody or control” of M
under Ont Family Services Act, so no longer “child of marriage” for purposes of DA)
o TJ: still “child of marriage” b/c son hadn’t taken action to withdraw; child support ordered
o CA majority: Crown ward no longer in the charge of their parents, so isn’t “child of marriage” (M is in
position of access parent, who isn’t entitled to child support if less than 40% of child’s time); however,
Children’s Aid Society could collect child support from F
o CA dissent: Crown ward may still be in the charge of their parents for purposes of DA child support scheme;
fact-specific inquiry (in this case, another child lived at home w M and received child support – no child
support to M would result in inequality b/w able-bodied child and Crown ward)
- “Charge” = rship of financial support & dependence, rather than physical care, control & custody
- This also avoids anomalous result of affluent M whose child sent to boarding school still deemed
“child of marriage” and receives child support, vs. Crown ward isn’t deemed & doesn’t receive
support (discriminatory based on income)
Issue Is Crown ward a “child of marriage” for purposes of child support under DA?
Held NO: maj. says isn’t in the charge of their parents, so isn’t “child of marriage” for purposes of child support under
 DA.
Ratio Parents of crown wards no longer entitled to child support under DA.

18 y/o in jail “child of marriage”?

MA v FA, 2013 BCSC
Facts o F challenged child support obligation b/c one of children serving youth sentence
o M argued T’s incarceration directly related to psych problems, which render T dependent on F’s financial
support
Issue Is child in jail a “child of marriage” for purposes of child support?
Held Depends: if less jail than a year, likely; if more than that and no evidence of parent providing financial
support, then probably not.
Reason o Child presumptively entitled to child support until reaches age of majority (19 y/o); Incarceration for
s short time doesn't change fact that parent still must incur costs of child (i.e. larger apartment, furniture,
etc.)
o This case, longer sentence (more than 1 yr), no evidence that M providing financial support
o FLA s147(1)(b) lays out when parent no longer has to pay child support (when child “voluntarily”
withdraws from parent’s charge)
o DA doesn’t include word “voluntarily”  but doesn’t make a difference, in this case (word “voluntarily”
is just meant to carve out instances when undue influence cause child to withdraw, NOT when child is
incarcerated)
o F required to pay child support until Jun 1, upon release in Aug (at 19 y/o), situation to be reassessed
(whether “child of marriage” will depend on more factors)
Ratio Parents of children under age of majority in jail may be entitled to child support.

Ceasing to be “Child of the Marriage”

CLL v DKL, 2014 BCSC (“material change in circumstances” to vary support order)
Facts o F under order to pay child support for 3 children, after age of 19 y/o, depending on events (finish uni
degree, turn 24 y/o, etc.)
o Went into arrears allegedly due to financial circumstances (owed $25k)
o F seeking declaration to stop payments b/c: (1) he has been alienated from child 1; (2) child 2 hasn’t
finished her degree even though she has enough credits (didn’t apply to graduate); (3) child 3 got in car
accident so took 1 yr off school then started working  argues these are “material change in
circumstances” to warrant variation in child support order
- M seeking payment for missed child support
Issue What constitutes “material change in circumstances” so as to vary support order?
Held Alienation, taking break from studies doesn’t count; read agreement purposively
Reason o Support should continue to Child 1 b/c alienation was not as a result of M or children
s o Support should stop for Child 2 when she turned 24 y/o
o Support should continue to Child 3 b/c hasn’t ceased efforts to obtain degree and isn’t yet 24 y/o
Ratio “Material change in circumstances” for purposes of varying support order is high bar.

Quantum: The Guidelines

Jurisdiction:

CL spouses’ child support under FLA:

s150(1) incorporates Fed Guidelines

s150(2) court may order different amount when parties consent & amount reasonable

s150(4) court may order different amount when parties agreement benefits child (i.e. support given up in
exchange for other parent’s share of house so child can keep living in it)
 Child Support Guidelines Regulation BC Reg 61/98 makes Fed Guidelines applicable in BC (as of April 14, 1998)

Divorcing married spouses’ child support under DA

s. 15.1(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in
accordance with the applicable guidelines.

Federal Child Support Guidelines, SOR/97-175 May 1 1997

 Recommendation from Fed/Prov/Territorial “Family Law Committee,” departed from traditional Canadian approach
(judicial discretion)
 Criticism: decontextualized! underlying issue of child poverty in Canada; this disproportionately impacts custodial
parents (non payment of child support huge issue)
 Objectives: (a) fair standard so child can benefit from income of both parents, (b) objectively determinable, (c)
efficient, (d) formal equality (children in similar situations to be treated similarly), consistent, predictable (Guidelines
s1)
 Presumptive Rule: to be determined based on table (Guidelines s2)
 Regular Child Support calculation based on (REQUIRED):
1. Income of non-custody spouse ($6,700 - $150,000)
a. Determined by T1 from CRA, w a few adjustments laid out in Guidelines Schedule III
i. But Court has leeway (i.e. average over 3 yrs Guidelines s17, impute income when spouse
has shares/dividends from corp. Guidelines s18, spouse intentionally under/unemployed,
spouse is tax-exempt, diverting income, etc. Guidelines s19)
b. Many financial documents required by court to det. income (lists on Irwin Law text, pp. 267) –
disclosure is significant!
i. This info can be resubmitted every year if other spouse requests.
c. OR Spouses may agree to amount & amount must be reasonable based on required documents.
d. Income of custody spouse irrelevant (seems to assume that custodial parents spends max. amount
on children regardless of child support)
2. Number of children (1-6 children/fam)
 Factors affecting departure from Guideline Amounts:
1. Agreements & Consent Orders: if “reasonable arrangements” for “support of child,” DA s15.1(7) (Court to
use Guidelines as advisory in determining reasonableness DA s15.1(8))
2. Special Provisions for Child DA s15.1(5) not clear what constitutes “special”
Asset division isn’t necessarily a “special provision” for a child (McRae)
*this is the provision that allows pre-Guidelines agreements to continue
3. Age of Child: over age of majority but unable to withdraw from charge of parent still entitled to support as
per regular formula (unless court considers diff. amount appropriate Guidelines s3(2))
a. No upper limit on age of children entitled to support
b. Much judicial discretion to account for this
4. Relation to Child*: parents who “stand in place of parent” not necessarily bound by Guidelines, but such
amount as Court considers appropriate considering other parents’ (presumably not custodial parent though)
legal duties to provide for child (Guidelines s5)
a. Interesting b/c biological/adoptive parents not able to point to other parents’ income/required
payments
5. Size of Income: under $6,700, nil; over $150k, base amount for $150k + appropriate amount (Guidelines s4)
6. Custody Arrangements:
(1) Split custody set-off (both parents have custody, what would they be entitled to separately, one
parent pays difference) Guidelines s8;
(2) Shared custody (look at general calculation amount, not extraordinary expenses; should result in
transfer payment if incomes different so children don’t switch b/w diff. standards of living)
Guidelines s9
 “40% rule:” access less than 40% of time, pay Guidelines amount; access 40% of time or more,
Court has discretion
7. Undue Hardship*: Guidelines s10(2) non-exhaustive list example situations incl. where spouse has:
a. Debts incurred pre-separation to support family
b. High costs to exercise access to child
c. Legal duty under judgment/order to support another person
d. Legal duty to support a child, not being a “child of the marriage”
e. Legal duty to support another person (due to illness/disability)
 before Court makes order due to undue hardship, must consider diff. HH standards of living (unlikely
to vary support if payor HH higher standard of living than custodial HH) Guidelines s10(4) Schedule II

Note: often arises in context of obligations due to 2 nd families (must show exceptional circums. not just
inevitable consequence of dividing resources)

 deviations under this section require reasons Guidelines s10(6)

 payor claiming hardship bears burden of proof

 Special & Extraordinary Expenses Guidelines s7 (DISCRETIONARY/OPTIONAL: based on (1) necessity – child’s best
interest, (2) reasonableness of expense – consider means of the spouse & fam’s standard of living pre-separation); to
compensate for:
o Child care costs
o Child’s medical/dental insurance costs
o Child’s medical costs, not covered by insurance, more than $100/event
o Extraordinary primary/secondary school expenses (based on need)
o Post-secondary education
o Extracurricular expenses
 “Guiding Principle” of extraordinary expenses: spouses share extraordinary expenses in proportion to their
incomes *only place where custodial parent’s income is relevant
Criticism: “add-ons” reduce predictability of scheme (will encourage the litigation the table format for the
general support is intended to combat)

*Discretion & adjustments may apply in following sections (see above for explanation):

s 5: Spouse in place of parent

s 8: Split custody

s 9: Shared custody

s 10: Undue hardship

Simon R Fodden, Family Law (Irwin Law Text)

pp 266-275 of http://site.ebrary.com/lib/uvic/docDetail.action?docID=10210322

Application of Child Support Principles

McCrae v McCrae, 1999, BCSC (basic application + extraordinary expenses)

Facts o M & F divorced w separation agt in 1993 (F pays $750/mo. child support for Madeleine; 1995 inc. to
$1,000/mo); no court order
o M seeks variation of agt (to $2,950/mo, retroactive to 1997) due to increased needs & new Guidelines
 - F argues no change in circumstances, and pleads hardship for him (new wife, he supports her 3
children)
o M seeks extraordinary expenses (list below)
o M requested disclosure of financial docs in 1997, shortly after Guidelines came into effect; action for
production brought, adjourned 4 times!
o F: has own law corp., pays salary to himself, his wife, distributes rest to 3 new children + Madeleine
through family trust  she hasn’t actually received any of this ($57k allocated to her over years)
Issue 1. Should Guidelines apply? 2a. If yes, what is F’s income for general support purposes? 2b. Does he have valid
hardship claim? 3. What are the extraordinary expenses? 4. What is F’s income for extraordinary expense
purposes? 5. Should award be retroactive?
Held Guidelines used to det. reasonableness; no undue hardship; retroactive award
Reason Re 1: Applicability of Guidelines
s - Order for support may be varied w “change in circumstances” (& introduction of Guidelines themselves is
change, Guidelines s14(c)) but here, no order…
- However, when bringing action to vary separation agt under DA s15.1, don’t need chance in circums. (and
here there’s change in circums. regardless b/c F’s income inc. and Madeleine’s needs inc.)
 look to Guidelines to det. whether reasonable to vary original agt
Re 2a: Income for Guidelines purposes?
- F benefiting from tax savings due to income arrangement; clear that amount on income statement doesn’t
reflect actual funds available to pay child support
 going w income statement would violate objectives of Guidelines
- F essentially income splitting, so must take into account new wife’s salary
- Similar case went w co’s pre-tax income, Court does that here too
= $250k
Guidelines s4 deals w incomes over $150k:
- Presumption: child receives amount on table, unless undue hardship Guidelines s10
-Re 2b Undue Hardship: F argues this (b/c new responsibilities), but Ct says “obligation to natural
daughter cannot suffer”
 Guidelines amount significantly higher than amount in separation agreement ($1,721/mo)
Re 3: Extraordinary expenses?
- Extraordinary expenses test:
(1) is it extraordinary expense under Guidelines s7(1)(f)? Consider (not exhaustive):
Combined income of parties
Nature/amount of expense
Nature/number of activities
Special needs/talents of children
Overall cost of activities
(2) is expense reasonable & necessary?
 Applied: child care (yes, r&n); medical/dental premiums (no, borne by every fam., and here there’s high
income); ortho (yes, r&n); counselling (yes, r&n); testing/ tutoring (yes, clearly r&n); dance/piano/catechism
(no, given fam. income)
Post-secondary reserve: Ct says in this case, this should be a separate fund, not part of child support
($250/mo. into RESP or similar)
Re 4: F’s income in order to calculate extraordinary expenses?
- Income diff. b/w parents = F 81%, M 19%, so should bear extraordinary expenses in proportion to that
(minus tax benefits) [calculation example Coursepack pp 301-302]
- M to provide F w copies of receipts for extraordinary expenses annually, must advise if expense no longer
incurred
Re 5: Effective date of support (retroactive)?
- Custodial parent should not be penalized for issue taking 2 yrs to get through court (MacMinn)  Ct to
figure out how much child support due from separation to present day
- Applied: retroactive order appropriate b/c F’s inaccurate income filings delayed
Ratio Guidelines as basis for determining reasonableness in seeking to vary pre-Guidelines separation agreement;
 extraordinary expense test

CSG s 9: Green v Green, 2000, BCCA (shared custody, 40% rule)

Facts - M & F separated 1995, joint custody over 2 children; disagree over whether to send to private catholic
school or public school
- F brings action to reduce support due to Guidelines s9 b/c he’s w children 40% of time (this isn’t contended)
- M claims private school expenses as “special expenses”
Issue How to apply Guidelines s9 (reduction in child support when shared custody)?
Held Section 9 is fact-specific assessment, using judicial discretion.
Reason - Presumably policy behind s9 is that inc. above 40% access result in reduction of childcare costs for custodial
s parent
- Under 40%, bound by Guidelines, over 40, wide discretion
- Over 40%, challenge is to find “one size fits all” formula that preserves the certainty which is objective of
Guidelines and doesn’t exacerbate diff. standards of living b/w 2 homes
- Fact-specific determination based a lot on income of parents
- 2 approaches outlined in Spanier v Spanier (1998 BCSC):
(1) set-off amount b/w each parent’s entitlement under Guidelines, proportional w % of time;
(2) custodial parent takes % of total Guideline amount (i.e. 60%)  BCCA: this results in “cliff effect”
 BCCA: isn’t only two options; Courts haven’t found a way to apply s9 equitably, so need judicial discretion!
Guidelines s9(a): set-off approach shows F entitled to relief fr full Guidelines amount;
9(b): F’s expenses inc. due to time w children (food, some housing, transportation)
9(c): M’s financial circums. less favourable and less secure than F’s
 Court reduces child support by $250 (seems to make amount up), adds “special cost” for private school
Ratio Consider 3 factors in making assessment under Guidelines s9 (judicial discretion)

CSG s 9: Contino v Leonelli-Contino, 1995, SCC (shared custody; 40% rule)

Facts - M & F divorced, share joint legal custody of son (F pay M $500/mo. child support); M started school at night,
F took son 2 more nights/week, bumped him above 40%
- F sought order reducing child support on this basis (Guidelines s9)
- Motions judge: reduced child support to $100/mo.
- Divisional ct: full table amount ($688/mo.)
- CA: reduced to $399/mo. based on set-off & adjusting by 67% to account for M’s fixed costs
Issue What is appropriate test when applying Guidelines s9?
Held 3-stage analysis, weigh factors with judicial discretion based on facts.
Reason SCC:
s Section 9 three-stage analysis (consider 3 factors, weight given to each will vary):
9a. Consider Table amounts (simple set-off is preferable starting point + discretion)
9b. Budgets/actual expenses in addressing needs of children (req. evidence), look at standard of living in both
HHs, apportion costs b/w parents based on income
9c. Broad discretion (considering objectives of Guidelines) (req. evidence)
- Courts are not to apply “common sense” assumptions about cost, or add multiplier
- Applied: no evidence to suggest costs of M decreased of costs of F increased as result of taking son for 2
extra nights  original child support restored
Ratio Guidelines s9 is fact-specific assessment, w 3 factors to weigh in guiding judicial discretion; court is not to use
“common sense” assumptions about cost or multipliers, but rather should review evidence.

CSG s 4: Principles for Incomes over $150,000

Section 4 Test from Francis v Baker (as articulated in Metzner v Metzner 2000 BCCA):

1) Presumption in favour of Table amounts

2) Parties must rebut presumption in order to vary table amount (up or down)
3) This requires clear and compelling evidence
4) Factors to consider in determining variation expressly listed in s4(b)(ii)
 5) Fact-specific inquiry
6) Balance b/w “predictability, consistency, efficiency” and “fairness, flexibility, recognition of actual conditions,
means, needs and other circumstances of the children”
7) Guidelines haven’t displaced DA (whose objective is maintenance of children rather than HH equalization or
spousal support)
8) Court must consider evidence (child expense budget)
9) Test for payor to demonstrate that expense is unreasonable is that it’s so high “as to exceed the generous ambit
w/in which reasonable disagreement is possible”

CSG s 4: Francis v Baker, 1999, SCC (leading case when payor over $150k)
Facts - M & F divorced 1983, 2 children, F pays $30k annual child support; M apply to court to inc. child support
under Guidelines
- M income $63k; F income $945k (net worth $78 mil)
- TJ: discretion to award Table amount of $10k/mo.
- CA: dismissed appeal (“inappropriate” in s4b means “inadequate;” in alt, in this case, amount was not
inappropriate)
Issue Proper application of Guidelines s4?
Held Under s4, presumption towards table amounts, but judicial discretion to both increase or decrease amount
indicated by Guidelines table
Reason SCC:
s - Stat. interp. of “inappropriate:” grammatical and ordinary meaning w/in scheme and objectives of
Guidelines  “unsuitable” (not “inadequate”)
- Presumption in favour of table amount; payor can rebut presumption to reduce amount, payee can rebut to
increase amount
- Judicial discretion above $150k income, but must consider factors listed in s4(b)(ii) (child expense
budgets helpful; imprecise nature should be recognized by Courts)
- Applied: F failed to show that TJ’s discretion exercised in unreasonable manner
Ratio Guidelines table figures may be varied upward or downward under s4b, but presumption toward table figure;
if judicial discretion, consider all factors in s4(b)(ii)

CSG s 10, DA s. 15.1(7): Greene v Greene, 2010, BCCA (income over $150k)
Facts - 2000 M & F entered into consent order; share joint custody/guardianship of child; agreed to reduce support
to half of Guideline amount ($600 total) to compensate for F costs to access children (M moved w children)
- 2008 M brought action to increase child support due to F increased income
- Chambers judge: varied consent order to $1,600/mo. + $6k retroactive for 2009
- M appealed to CA, seeking $2,159/mo. (full Guidelines amount), retroactive to 2006 + penalty for late
disclosure
Issue Can parents make agts that supersede Guidelines amount?
Held Yes: but only if it doesn’t detract from child’s right to child support
Reason - DA s 15.1(7) allows court to award child support in amount diff. from Guidelines if spouses agree & amount
s is reasonable; however, DA directs child support be det’d in accordance w Guidelines
- only provision in Guidelines dealing w access costs is s10 Undue Hardship  infer that leg. intent was to not
allow access costs as basis for deviating from table unless meet reqts for undue hardship (which can only be
met if access costs reduce standard of living of payor to below that of payee)
- Child support is right belonging to child, not parent; parents cannot waive/bargain away rights of children
to support
- Open to parents to reach agt to share access costs, but can’t short-change children in relation to
child support, must be justified on some other basis
- Applied: F didn’t justify reduction in Guidelines amount, so ordered to pay $2,159/mo. and retroactive back
1 year
Ratio Cost of access cannot be used to reduce child support obligations under Guidelines table unless falls under
s10 undue hardship
CSG s 3(2): Post-Secondary Education
[see also DA s. 15.1]

CSG s 3(2): Farden v Farden, 1993, BCSC (“child of the marriage”)

Issue Is child over age of majority in post-secondary education still “child of marriage” for purposes of DA child
support?
Reason - 8 factors identified:
s Full or part-time studies?
Applied for student loans?
Career plans of child
Ability of child to contribute to their own support
Age of child
Child’s past academic performance
Plans parents made for children’s education (esp. if made during marriage)
Whether child unilaterally terminated rship w payor parent
Ratio Whether adult child in post-secondary is “child of marriage” is fact-specific analysis

CSG s 3(2): WPN v BJN (Neufeld v Neufeld), 2005, BCCA (“child of the marriage”)
Facts - M & F separation agt incl. table amounts until 19 y/o, unless still “child of marriage” under DA
- BCSC 2002: order requiring F to pay 50% of undergrad tuition
- Chambers 2004: order requiring F to pay 50% of education + accommodation for 4 yrs medical school  F
appealed, new evidence that she was doing 3 yr program
Issue Is child over age of majority in post-secondary education still “child of marriage” for purposes of DA child
support?
Held Maybe: fact-specific inquiry, apply factors from Farnden
Reason - Chambers applied 8 factors from Farnden; 2 factors at issue at BCCA were:
s Is child eligible for student loans?  not necessary to exhaust every source of funding before going to
parents
What education plans were made by parents during marriage?  F has sufficient income and
education goals of child are reasonable
- Ct stated there were no errors, not “minimum set of criteria,” but rather factors to consider in fact-specific
determination
Ratio Adult child in post-secondary may be “child of marriage” for purposes of DA child support (fact-specific
inquiry)

CSG s 3(2): Haley v Haley, 2008, Ont SCJ (hiatus in studies)

Facts - Separation agt w F paying child support until child turned 18 & not in full-time attendance at education
institution
Issue Can child support requirement be revived despite hiatus in studies?
Held Yes; fact-specific inquiry
Reason - Appropriate endeavour, w reasonable costs and reasonable prospect of advancing career and maximizing
s child’s potential
- Applied: child can work summer to contribute $5k, parents to split rest of tuition and entitled to Guidelines
table amount of $471/mo. child support
Ratio Hiatus in post-secondary studies does not bar award of child support; fact-specific inquiry

Determining the Amount of Child Support for an Adult Child

Guidelines s3(2) Where child support order made to child over age of majority, amount should be:

(a) amount in Guidelines table, or

(b) amount Court considers appropriate (considering the “condition, means, needs and other circumstances of
the child and the financial ability of each spouse to contribute to the support of the child”
+ Guidelines s7: provides for “special or extraordinary expenses,” which incl. post-secondary education in s7(1)(e)

[look to Neufeld, above, for example of application]

Retroactive Child Support

Test from DBS v SRG, 2006, SCC:

 Recipient parent must act promptly in monitoring child support paid; onus on recipient parent to trigger
“effective date” for change in child support *Abella: effective date will be when payor given “effective notice”
 Conduct of payor may be considered in awarding retroactive support (i.e. parent buys children one-off gifts, pays
for hockey – may contribute to amount owed) *Abella: blameworthy conduct may change presumptive start
date to when circumstances changed materially, otherwise conduct doesn’t matter
 Limitation period of 3 years *Abella: unnecessary judicial fettering

*Note Abella, J. concurrence: move away from “needs-based approach” to child support, child’s right to increased
payment given rise in parental income may be deduced

Greene v Greene, 2010, BCCA (retroactive child support considers parents’ behaviour)
Facts - Facts above: 2000 M & F entered into consent order; share joint custody/guardianship of child; agreed to
reduce support to half of Guideline amount ($600 total) to compensate for F costs to access children (M
moved w children); 2008 M brought action to increase child support due to F increased income (retroactive to
2006)
- Chambers: F incurred access costs, paid for hockey/skiing (extra costs), so rendered F’s conduct “non-
blameworthy;” less than Guidelines amount, retroactive to 2009
Issue Should F pay retroactive child support due to increased income? Has he est’d hardship? If retroactive, what is
effective date?
Held Retroactive support due, effective date 2 years; both parents at fault for oversight. Hardship claim requires
evidence (even if not argued under Guidelines s10).
Reason - Onus on F to est. hardship (when argued); he did not do so, just asserted it (must provide evidence)
s - Both parents were remiss:
- M didn’t inquire when F’s income seemed to increase (bought townhouse)
- F relied on support order made when children were 3 yrs old even after income increased; if relied
on paying for hockey/skiing as making up for it, that was misguided; saying purchasing townhouse is
“increased access cost” is obliging children to contribute to his purchase of a capital asset
 Court: compromised by awarding retroactive support to 2008 (rather than to 2006 as requested by M),
minus additional expenses F paid (hockey/skiing)
Note: may be diff. if there was evidence of hardship to children
Ratio Support is the right of the child; conduct of parents to be considered when determining retroactivity.

Arrears and Variation of Child Support

Ghislieri v Ghislieri, 2007, BCCA (approved Earle; arrears requires evidence as to cause)
Facts - F unemployed, accrued arrears of $20k in child support
TJ: orders cancellation of arrears
Issue Should arrears be cancelled due to F unemployment/low income?
Held Does not cancel arrears, new hearing to det. why F unemployed/low income.
Reason - Approves Earle v Earle (1999 BCSC) where det’d parents’ resp. for child support based on parental capacity
s to earn, not actual earnings
Ratio Parents failing to make child support payments must show clearly why they did not do so.

Earle v Earle, 1999, BCSC (variation, arrears, basic principles)

Reason - Child Support Basic Principles:
s 1. Joint legal obligation: on both parents; so imp. that can’t get a divorce w/out providing for support
of children!
2. Right of the child: to get support, NOT custodial parent (confirmed by Guidelines)
3. Ability to pay: not on what parent earns, but on earning potential
- Variation:
Requires “material change in circumstances” (would have resulted in diff. order from original)
Pre-Guidelines orders being diff. from Guidelines not enough, order must be unreasonable
- Arrears (form of variation):
a. Significant change: substantial onus on person seeking variation to est. significant change
Test under old FRA: grossly unfair not to vary
Test under DA: material and long-lasting change
b. Postponement of payment/payment over time: if no variation, can still make payment plan; very
fact-specific, requires complete disclosure of payor’s financial situation
- Args made to cancel arrears:
- Cannot afford to pay right now: not enough; need to also not be able to pay in the future, and then go
through regular analysis
- Financial circumstances changed: heavy onus on you to prove this, under oath (usually affidavit), no
hearsay *reminder lying under oath is CC offence:
 Change significant and long-lasting
 Change was real, not one of choice
 Every effort made to earn money, but wasn't successful
- New obligations: raises q of priority, few obligations take priority over child maintenance
- Payee parent delayed in coming to court to enforce payment: isn’t a factor (expensive to bring
proceedings)
- Payee parent will get windfall: “rule against hoarding” doesn’t apply to child support, would be
against public policy to allow ppl to hold back paying and be relieved of obligation
- Children didn't suffer b/c others assisted: this arg doesn’t recognize that you have obligation
- Child doesn’t need the money now: ditto
- Payee parent agreed I didn’t need to pay: ditto, denies child right to support
- Payee parent prevented me from having access: not connected, isn’t factor
- I spent lots of money on the children apart from support payments: up to payee parent to decide how
to spend support in best interests of child, not payor parent
- I didn't have legal advice when order was made: no, in itself, reason

Retroactive Child Support, Arrears, and Variation under the FLA

FLA s 152.1: orders under FLA may be varied prospectively or retroactively

B/c of changed circumstances

OR b/c new/substantial info becomes available (re. finances, for example)

Enforcement of Child Support

Collecting child support money owed can be done by:

FLA

(BC) Family Maintenance Enforcement Act: creates Director of Maintenance & Enforcement, who upon
application, will enforce support order; broad powers (can get debtor’s address, get ICBC to hold back
issuing/renewing driver’s lic.)

DA
 (Fed) Family Orders and Agreements Enforcement Assistance Act: provides for arrangements b/w Fed and Prov
govts re. disclosing financial info about debtor, garnishing fed payments or denial of fed license (i.e. passport)
when bad arrears

Rules of Court

Supreme Court’s equitable / inherent jurisdiction

Dickie v Dickie, 2007, SCC (non-compliance w Fam Court order)

Facts - F, plastic surgeon, had significant arrears on child/spousal support, fled country to Bahamas (Canada doesn’t
have reciprocal enforcement of judgments there)
- F convicted of contempt of court, jailed
Issue Was F legitimately jailed for contempt of court after non-compliance w court orders (to pay M’s legal costs
and support)?
Held Yes: flagrant non-compliance requires severe consequences.
Reason - Court can exercise discretion to refuse to hear appeal of someone who hasn’t complied w court orders
s - Remedies like paying security $ when payor outside reach of prov. enforcement OK (creative enforcement
appropriate when payor has means but refuses to pay)
- Calder: support debt is different kind of debt, contributes to feminization of poverty.
Ratio When wilful noncompliance w fam court orders by person w ability to pay, consequences should be severe.
Support debt is a different kind of debt.

McIvor v The Director of Maintenance and Enforcement for the benefit of Margorie McIvor and Marjorie McIvor, 1998,
BCCA (child support & access to children)
Facts - 3 children stopped seeing F, he stopped support payments, was notified to re-commence payments but
didn’t
- Director of M&E sought order to enforce divorce decree w arrears
- Same time, F sought to vary order to reduce $300/mo. and cancel arrears
- Chambers: cancelled much of arrears, reduced support to $200/mo.  Director appeals
Issue Did F demonstrate material change in circumstances to warrant variation in order under DA s17(4)?
Held NO: fact that children refused to see him is not material change in circumstance warranting variation
Reason - F created situation where arrears unmanageable due to his financial situation
s - F argued that M slow to enforce order:
Ct: Cherry v Cherry: child cannot waive their right to support, neither can custodial parent
Ratio Child support and access are not linked, dependent on each other. Children have right to support.