Tom - Family Law Framework
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Family Law Framework:
Remember: The Divorce Act
only applies to married spouses, while the FPA/FLA apply to both AIPs and married spouses!
Family Violence:
Family violence is an important component of family law. It is a very common occurrence in family law cases.
Family violence can have a profound affect on children, and can cause developmental or behavioural problems.
There are several different types of family violence:
Coercive Control:
Spousal violence as a pattern of coercive control and abuse.
Emotional and psychological control.
Pattern of intimidation and humiliation of victim.
Violent resistance (a response to partner violence which is sometimes disproportionate).
Common couple violence (both parties engage in violence behaviour. Most frequent type).
Separation engendered violence (violence which exclusively occurs when partners separate).
Mental health conditions resulting in violence.
Definitions and Remedies:
Criminal Code
:
Focuses on acts or threats of physical violence.
FLA:
Includes physical harm to the child or another household member, forced confinement, sexual abuse, and causing a household member to reasonably fear for their safety.
A court making a child/spousal/AIP support order can order that the spouse or AIP have exclusive possession of the family home, be evicted or restricted from family home.
FPA
:
A court making a property order can order that a spouse have exclusive possession of the family home, or be evicted or restricted from it.
DA
:
2
Includes conduct that is violent and threatening and coercive controlling behaviour. This includes physical abuse, forced confinement, sexual abuse, threats to kill or cause harm, harassment and stalking, failing to provide the necessities of life, psychological abuse, harming or threatening to harm animals or property.
Violence can be a factor establishing breakdown of the marriage.
Protection Against Family Violence Act
(AB):
See below.
PAFVA Provisions:
Alberta legislation which deals with family violence, etc. Intends to hold perpetrators of family violence accountable.
Section 1(1)(e): Family Violence
includes “intentional or reckless act or omission that causes injury or property damage and that intimidates or harms a family member” and threatened acts of intimidation. Also includes forced confinement, sexual abuse, stalking.
Section 1(1)(d): Family Members:
Includes married spouses, AIP (adult interdependent partners), and people who are residing together in an intimate relationship. Also includes children, and parents regardless of if they have ever lived together.
An emergency protection order (EPO) is an order which can be issued by a provincial court judge or a justice of the peace. EPOs are issued according to PAFVA.
EPOs are obtained through an ex parte application before a judge or JP. This is because notice to the other party could place the party seeking the EPO in danger.
EPOs should be granted in extraordinary circumstances to protect the applicant from immediate danger. They should not be used as a backdoor to settling other disputes (property, custody) between parties. While these can be incidental effects of EPOs, they should not be their primary purpose. (
Siwiec v Hlewka
)
s. 2(1):
This allows a claimant to obtain an order if:
Family violence has occurred,
The claimant thinks the violence will occur again (reasonably, objective test),
AND it is immediately required to protect the claimant and other family members who live with the claimant.
s. 2(2):
When deciding whether to grant an EPO, the court must consider:
The history of family violence, controlling behaviour, whether the behaviour is repetitive or escalating, the existence of immediate danger to person or property, vulnerability of elderly people, the potential effect on children, the need for a safe environment to make longer term plans.
3
s. 2(3):
Sets out what an EPO can do:
(a) and (b): Restrain the claimant from attending places where the complainant and children attend (work, school, home) and prohibit communication to the complainant/children, even through a third party.
(c): Exclusive possession of residence, regardless of ownership.
(d): Removal of respondent from residence.
(e): Order requiring peace officer to accompany someone to residence to obtain personal belongings.
(f): Seizure and storage of weapons.
(g): Discretionary, any other order necessary to protect claimant.
After an EPO is granted, it must be reviewed within 7 days by an ABQB justice.
The ABQB justice can revoke the order, confirm it, make a new order, or direct an oral hearing.
PAFVA also allows for a different order, titled a Queen’s Bench Protection Order (QBPO).
They are similar to EPOs, but are not obtained ex parte. Notice is required to the respondent. The main distinction is the urgency. EPOs are required immediately, while QBPOs are less pressing.
s. 4(1)
states that an order can be made if the claimant has been subject to family violence. All that is needed to obtain a QBPO is that family violence has occurred.
Remedies available under a QBPO are similar to those under an EPO, but some things are
different:
o
s. 4(2)(d)
allows the court to issue a QBPO which requires the respondent to reimburse the claimant for monetary losses suffered due to family violence, such as loss of earnings, medical expenses, moving and accommodation, legal fees, etc.
This is unique to a QBPO and is not available under an EPO.
o
s. 4(2)(e)
grants either party possession of certain specified property (vehicle, cheque book, bank cards, children’s clothing, medical insurance cards, ID, keys, personal effects).
o
s. 4(2)(f)
restrains either party from taking, converting, or damaging property which the other party has an interest in.
o
s. 4(2)(j)
can require a party to post bond.
o
s. 4(2)(k)
can require the respondent or the child to receive counselling.
PAFVA specifies the offences and penalties for those who do not comply with orders under the act.
s. 13.1
states that a failure to comply with an order is an offence.
The first offence may be punished by a fine of up to $5000 and/or 90 days imprisonment.
Second offence may be punished by 14 days to 18 months imprisonment.
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The third offence may be punished by 30 days to 24 months imprisonment.
Marriage and Validity:
Some terms:
Divorce:
Legal process to dissolve a marriage.
Annulment (void ab initio):
A declaration that the marriage never existed, and was void from the start.
Voidable:
The marriage was valid until a court declared it to be void.
Void but subject to ratification:
The marriage is void, but if the parties lived together or
presented themselves as married to others, it is not void.
The difference between void and divorced marriages is not so relevant with regard to some entitlements after separation.
The FLA and FPA state that ‘marriage’ includes void and voidable marriages for the purpose of the Act, except that there are not rights under the FPA if the spouses knew the marriage to be void.
Same-Sex Marriage:
Traditionally, marriage defined as between man and a woman (
Hyde v Hyde
)
Challenges to Canada’s marriage laws began in the 1990s. (
Layland
)
By 2003, the prohibition on same-sex marriage was held to be an infringement of s. 15 of the Charter
. (
Halpern
)
The SCC held that the government could legally legislate to include same-sex marriage. (
Re: Same Sex Marriage)
Civil Marriage Act
passed in 2005 to legalize same-sex marriage.
Section 2: Marriage reformulated as “the voluntary union for life of two persons to the exclusion of all others.”
Section 4: Marriages are not void or voidable because spouses are of the same sex.
Essential and Formal Validity:
There are two main aspects to marriage in Canada:
Essential Validity:
The capacity to marry. Essentially, who can get married in Canada. This falls under federal jurisdiction.
Formal Validity:
How to get married. The ceremonies, procedures, etc. This falls under provincial jurisdiction.
The validity of marriage is determined by two sets of laws:
5
Lex loci celebrationis
: The law of the jurisdiction where the ceremony happened. Applies
to formal validity.
Lex domicile
: The law of the jurisdiction where the parties are resident. Applies to essential validity.
Both must be present to have a valid marriage. (
Vo v Vo
)
Essential Validity:
Federal jurisdiction.
The essential validity of marriage is concerned with who can marry, and what factors are necessary for a marriage to be present. There are five factors:
1.
Ability to consummate.
o
The partners in the marriage must have an apparent ability to conceive. A spouse can apply for an annulment if their partner cannot consummate. (
D v A
)
o
The test for an inability to consummate (all four must be present) (
Rae v Rae
):
The impotence must have existed when the parties got married,
The incapacity must be such as to render intercourse impractical,
The incapacity may stem from a physical, mental, or moral disability, AND,
The incapacity must be incurable.
o
If a party has prior knowledge of a spouse’s inability to consummate and marries them anyways, they cannot later apply for an annulment on this ground. (
Kahnapace
)
o
If the parties married purely for companionship, they cannot later annul based on this ground. (
Norman v Norman
)
o
An annulment for non-consummation due to psychological grounds can be granted if (
Grewal
):
There has been no consummation.
The refusal to consummate has been persistent, and is not due to obstinacy
or caprice.
The applicant has an invincible aversion to sex with their spouse.
Religious convictions about marriage and sex can satisfy this. (
Kaur
)
The applicant’s invincible aversion is caused by circumstances which result in a ‘paralysis of the will’.
The applicant’s incapacity is based on normal reactions which are not pathological.
2.
Consanguinity.
o
Can’t marry your family.
o
The Marriage (Prohibited Degrees Act)
:
6
People are prohibited from marrying their sibling, half-sibling, and adopted sibling.
Can marry aunt/uncle.
Can marry former in-laws (e.g., brother of husband).
Step-relations can marry.
3.
No prior existing marriage.
o
A person must end their previous marriage through a divorce, annulment, or death
before marrying another.
If a married couple lives as though they are married and represent themselves as married, there is a presumption that their marriage is valid, and the person seeking an annulment bears the onus of rebutting this presumption. (
Meszaros
)
o
A marriage is void if one party enters a marriage already married to someone else.
o
Bigamy is a crime under s. 290 of the Criminal Code
.
4.
Consent.
o
The consent of both parties is necessary for a valid marriage. There are certain factors to consider when assessing consent:
Capacity to understand.
Easily met. Lower bar than contract. An inability to manage other legal affairs doesn’t mean an inability to consent to marriage. (
Tanti
)
Just need to understand that marriage is when two parties agree to live/love together to exclusion of all others. (
Durham v Durham
)
Duress.
Vitiates consent when duress causes applicant’s mind to be overborne with pressure. (
MA v BB
)
Causes marriage to be voidable.
Can range from threats to financial pressure. Cultural pressure can count. (
MA v BB
)
Factors include:
The party’s emotional state at the time of marriage.
The party’s vulnerability.
The time between the alleged coercive conduct and the marriage.
When consummation occurred.
The residence of the parties during the marriage.
The amount of time before annulment proceedings were commenced.
Fraud.
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A sham purpose for entering into a marriage, such as immigration, does not void a marriage. (
Grewal
)
5.
Age.
o
Under federal jurisdiction.
o
The Civil Marriage Act
establishes in s. 2.2 that 16 is the minimum age at which a
person can be married. If underage, marriage is void.
o
The Marriage Act
(AB) prohibits marriage licenses being issued to people under 16. Technically, this is formal validity, so falls under provincial jurisdiction.
o
Under the common law (
Legebokoff
), marriage with a child under 7 is void, with a
male between 7-14 is voidable, between a female 7-12 is voidable. However, if both parties were underage the marriage can be validated if they cohabit after they
reach age of capacity.
Formal Validity:
Provincial jurisdiction. AB Marriage Act
Deals with the ceremonies and procedures of a valid marriage. If they are not complied with, the marriage is void.
This is governed by the laws of the place where the ceremony occurred.
There is a presumption of validity if there is evidence of a ceremony, and the parties have
cohabited after and acquired a reputation for being married. (
Lozinko v Bazylok
)
This presumption can be rebutted if local formal validity requirements are not met. Formal validity requirements do not have to be met if: (
Hassan
)
o
It is impossible for parties to comply to local formal validity requirements, or o
If both parties did not submit to the local law (this usually applies to military personnel overseas, etc.).
Chart:
Defect
Effect
Bigamy
Void
Consanguinity
Void
Did not follow formal validity
Void, unless ratified later
Underaged
Void, but can be ratified later.
Duress
Voidable
Mistake as to identity
Voidable
Fraud
Valid, unless a material mistake
Limited purpose
Valid
Non-consummation
Voidable
Divorce and Separation:
8
Terms:
Separation:
This is not equivalent to divorce. It simply means the parties are no longer living together.
Divorce:
The end of the marriage.
Corollary Relief:
Matters such as child support, spousal support, custody and access. Does not encompass property division!
The 1985 Act promotes reconciliation between spouses. Relevant sections are:
Section 7.7(1), Section 7.7(2), Section 7.7(3), Section 10(1) (Lawyers and courts must be satisfied reconciliation is impossible).
Jurisdiction:
Section 3(1) of the Divorce Act
states that the superior court of a province can only hear a divorce proceeding if either spouse has been habitually resident in the province for at least one year immediately before the commencement of the proceedings.
‘Ordinary resident’: a person who resided in a place in ‘the course of the customary mode
of life’, in contrast to ‘special or occasional or casual residence’. (
Hinter v Hinter
)
o
Hardy v Hardy
, a man who enlisted in the army and only periodically returned home to Ontario while on leave was found to be an ordinary resident of that province.
o
MacPherson
, a person was found to be an ordinary resident of a province when she moved their with her husband, despite desiring to return back to her home province. Intention alone cannot determine ordinary residence, but rather the patterns of life, etc.
o
Wrixton
, a person was found to be an ordinary resident of Hawaii after taking an extended vacation there, finding a job there, leaving Alberta with no residence in that province and all her furniture in storage there.
o
People become ordinary residents when they move to a new place where they plan to make their home and live indefinitely. (
Molson
)
o
Intention alone is not enough to determine ordinary residency. The facts must be considered, and the person’s lifestyle in the place. (
Wang v Lin
)
The Civil Marriage Act
, s. 2, defines marriage as between two people, regardless of sex.
Same-sex couples who live in a place which doesn’t recognize same-sex marriage can still divorce under the Civil Marriage Act
:
Section 7(1):
A court in the province where a marriage was performed can grant a divorce if:
o
The spouses have lived separate and apart for one year.
9
o
Neither spouse lives in Canada.
o
The spouses have lived for one year immediately prior to the application in a state
which doesn’t recognize the marriage.
Section 7(2):
The application must be made jointly or on consent, or with an order that the spouse is incapable and unable to consent, disappeared, or unreasonably withholding consent.
Otherwise, if the same-sex couple lives in Canada, the same DA jurisdictional rules apply
to them.
Foreign Divorces:
This is usually an issue if one party doesn’t want a divorce in one jurisdiction because the local laws are unfavourable to them.
Canada will not consider corollary relief for foreign divorces. So if a spouse seeks corollary relief in Canada, they must demonstrate to the court why it should not recognize a foreign divorce.
Some provisions from the Divorce Act
:
Section 22:
Foreign divorces are recognized if either spouse was habitually resident in the foreign country for one year immediately proceeding the commencement of divorce proceedings.
Section 22(3):
Preserves common law rules concerning the recognition of foreign divorces.
The common law factors which will recognize a foreign divorce are: (
Al Sabki
)
o
Where jurisdiction was assumed on the basis of the domicile of the spouses.
o
Where the foreign divorce, though not granted based on domicile, is recognized by the law of domicile of the parties.
o
Where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule.
o
Where the circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada.
o
Where either spouse has a real and substantial connection to the foreign jurisdiction where the divorce was granted.
Even if one of these factors is satisfied, the court can refuse to recognize the foreign divorce on the basis of fraud, denial of natural justice, or public policy (
Al Sabki
)
Breakdown of the Marriage:
The Divorce Act
(1985) has only one ground for divorce: breakdown of marriage. This can be demonstrated in one of three ways:
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Section 8(1):
A court can grant a divorce on application by one spouse if there has been a
breakdown of a marriage.
Section 8(2):
Breakdown of a marriage is established only if:
o
(a) The spouses have lived separate and apart for at least one year immediately before the application for divorce.
o
(b)
The spouse against whom the divorce proceeding is brought has:
(i) Committed adultery, or
(ii)
Treated the other spouse with physical or mental cruelty which makes cohabitation intolerable.
Section 8(3):
o
(a)
Under Section 8(2)(a), spouses are deemed to be living separate and apart for any period in which they have lived apart and either party has had the intention to separate from the other, and
o
(b) The period when the spouses have lived separate and apart is not interrupted by:
(i)
Incapacity from one spouse to continue to intend to live separate and apart, so long as the court is satisfied the separation would have continued if the spouse hadn’t become incapable, or
(ii) The spouses resuming cohabitation for less than ninety days (all together or spread apart) for the purpose of reconciliation.
Living Separate and Apart:
In order to establish this, the party requesting the divorce must show that:
The parties lived separate and apart and had the intention to live separate and apart.
The period is not terminated or interrupted if:
o
One spouse is incapable of forming or having an intention to live separate and apart,
o
The parties have cohabitated for less than 90 days (separate or apart) for the primary purpose of reconciliation.
‘Separate’ and ‘apart’ are disjunctive – they are individual requirements. (
Rushton
)
There needs to be a withdrawal from the matrimonial obligation with the intention of destroying the matrimonial consortium, as well as physical separation. (
Rushton
)
Don’t need to live in separate places to live separate and apart – can live in the same house or apartment. (
Rushton
)
On the other hand, living in separate places doesn’t necessarily equate to living separate and apart. (
Kansal v Bhardwaj
)
Factors to see if the parties are living separate and apart: (
Cooper v Cooper
)
o
Occupying separate bedrooms.
11
o
Absence of sex.
o
Little or no communication.
o
No domestic services provided to each other.
o
Meals eaten separately.
o
No social activities together.
Objective test. (
Greaves
)
o
The party’s intentions are inferred from their actions. Their actions must be consistent with the alleged intention, and they must have communicated that intention to both their partner and to ‘the world at large’. (
Kansal
)
None of these factors are determinative. (
Cooper v Cooper
)
Each case determined through context, facts, etc. (
Cooper v Cooper
)
Adultery:
This is another factor which can be used to establish a breakdown of a marriage. The real question here is what exactly constitutes adultery.
Traditionally, adultery had been centred around the concept of reproduction and reproductive capacity. (
Orford v Orford
)
Since has changed, now includes same-sex couples, and reproductive capacity is not a factor. (
PSE v PDD
)
Finding adultery requires evidence. The party alleging divorce bears the onus. (
Shaw
)
When no evidence is adduced, adultery can be inferred from surrounding circumstances. (
Shaw
)
A mere friendship is not sufficient to infer adultery, even if close. Mere opportunity to commit adultery is not enough. (
Shaw
)
Cruelty:
Another factor which can be used to establish a breakdown of marriage. Can be physical or mental cruelty.
An act of a ‘grave and weighty nature’. Non-trivial. Must render continued cohabitation intolerable. (
Knoll
)
It must be more than a manifestation of incompatibility between the partners. (
Knoll
)
Party alleging cruelty bears onus of proving it on the balance of probabilities. (
AI v DS
)
Cruelty is a question of fact, and is objective and subjective. The conduct must be objectively able to cause physical/mental harm, and the subjective effect of the conduct on the plaintiff must be considered. (
AI v DS
)
Bars to Divorce:
DA Section 11 states that divorce can be barred, even if there is a proper ground for divorce.
12
Section 11(1)(a): No collusion in the application for divorce.
Section 11(1)(b):
Reasonable arrangements must be made for the support of children, having regard to Child Support guidelines.
Section 11(1)(c):
In cases of adultery or cruelty there cannot be condonation or connivance, unless public interest would be better served by granting the divorce.
Collusion:
Section 11(4)
states that collusion occurs when an agreement or conspiracy is made for the purpose of subverting the administration of justice, and includes agreements to fabricate or suppress evidence to deceive the courts.
A sham purpose for entering into a marriage does not equate to collusion in divorce. The two are separate issues. A marriage can be a sham, but a divorce can be legitimate. (
Merchant v Dossani
)
Condonation:
Condonation is the concept that a spouse who has forgiven a spouse who committed a marital offence, and moved back in with them, cannot forever hold that marital offence over their head.
Section 11(1)(c) says that a court can grant a divorce even if condonation occurred, if it would be in the public interest. This is often invoked in cases of abuse.
Section 11(3)
says that cohabitation up to 90 days does not equal condonation.
Three elements required to establish condonation (all three required): (
Watkins
)
o
Knowledge of the matrimonial offence.
o
An intention to forgive that offence.
o
The restoration into the marriage of the guilty spouse.
Connivance:
Distinct from collusion. Happens when spouses work together in a marital offence, but not for the explicit purpose of getting a divorce. For example, swingers.
A ‘corrupt intention’ must be present. (
Bergers
)
Severing Divorce:
A divorce proceeding can be severed from corollary issues if it is uncontested and if the other corollary issues remain disputed.
The court can just grant the divorce and then deal with the corollary issues afterwards. This is usually done if one party wishes to remarry and the corollary issues are taking a long time to settle.
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However, the court will only do this if granting the divorce separately will not prejudice either of the parties. This could happen in some issues like pension, property division, etc.
In order to separate a divorce proceeding from corollary relief, the court must be satisfied
that adequate provision has been made for child support. (
Savoia
)
Adult Interdependent Partners:
AIPs are basically common law partners. AIP status is determined by the Adult Interdependent Relationships Act
(AIRA). The AIRA doesn’t set out any entitlements in itself, but depending on whether or not a couple qualifies as AIPs, they may be entitled to other corollary relief in other acts.
The AIRA scheme and AIP status is intended to alleviate injustice if two people live together as a domestic unit, etc., but are not entitled to any corollary relief because they never got officially married.
If a couple qualifies as AIPs, check these acts for entitlements:
Spousal Support (
Family Law Act
)
Family violence (
PAFVA
)
Benefits (
Income and Employment Supports Act
)
Succession (
Wills and Estates Act
)
Property
(
Family Property Act
)
Section 3(1) says that a couple are AIPS when they:
Have an AIP agreement.
Live together for three years in a relationship of interdependence.
Have a relationship of some permanence, if they have a child (through birth or adoption).
Section 3(2) says sexual relations are not a factor.
Section 5(1) says people can only have one AIP.
Section 10
says an AIP relationship ends when one party is married, when the AIP agreement says so, or when they live separate and apart for one year.
What is a relationship of interdependence?
One factor of an AIP relationship is a relationship of interdependence.
Section 1(1)(f)
states that a relationship of interdependence occurs when a couple share their lives, are emotionally committed, and function as an economic and domestic unit.
Section 1(2)
sets out the factors to determine whether the couple functioned as an economic and domestic unit:
14
a)
Conjugal relationship.
b)
Exclusivity of the relationship.
c)
Conduct and habits (domestic chores, living arrangements, household activities).
d)
Degree to which they hold themselves out as an economic domestic unit.
e)
Degree to which they formalize their legal obligations to each other.
f)
Contributions towards mutual well-being.
g)
Degree of financial interdependence.
h)
Care and support of children.
i)
Ownership, acquisition, and use of property.
No single s. 1(2) factor is essential or determinative, and just because one or more factors are absent doesn’t mean a relationship of interdependence isn’t present. (
Medora v Kohn
)
The AIRA did not displace the common law for assessing when people are partners, so that still applies. The list of factors works alongside the 1(2) factors. (
Spracklin
, Medora
)
i) Shelter: Did the parties live under the same roof? What were the sleeping arrangements? Did anyone else occupy or share the available accommodation?
(ii) Sexual and Personal Behaviour: Sexual relations? Fidelity? Feelings towards each other? Communication? Meals together? Gifts? Assistance during problems/illness?
(iii) What was the conduct and habit of the parties in relation to:
o
(a) preparation of meals
o
(b) washing and mending clothes
o
(c) shopping
o
(d) household maintenance
o
(e) any other domestic services
(iv) Social: Participated together in community activities? How did each of their families act towards them?
(v) Societal: Did the community see them as a couple?
(vi) Economic Support
o
(a) What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life?
o
(b) What were the arrangements concerning the acquisition and ownership of property?
o
(c) Was there any special financial arrangement between them which both agreed would be detrimental of their overall relationship?
(vii) Children: Attitude and conduct of the parties concerning children?
Relationships which started and ended before the AIRA was passed in 2002 are governed by the Spracklin test. (
Wright-Watts v Watts
)
Spousal Support:
15
See Knight v Wowk
and Fisher v Fisher
for good examples of the spousal support analysis.
Powers of the Court:
DA:
Section 15.2(1): Spousal support can be periodic or a lump sum.
Section 15.2(2): The court can make an interim order pending final determination.
o
Interim orders are not determinative of the final order at trial, since they are based
on incomplete evidence. (
Anand v Anand
)
Section 15.2(3): The court can make spousal support indefinite, definite, or until a certain
event occurs.
Section 15.2(4): Court can impose terms, conditions, or restrictions.
Section 17 says the court can rescind, suspend, or vary any support order, but to do so it must be satisfied that a change in condition, means, needs, or other circumstances has occurred. Variation should consider the same objectives as support initially.
FLA:
Section 56: Subject to the Act, every spouse or AIP has an obligation to provide support for their former spouse/AIP.
Section 57: A court can make an order for spousal support where:
o
The spouses have obtained a declaration of irreconcilability under s. 83.
o
They are living separate and apart, or
o
Aren’t living separate and apart but are experiencing discord and can’t be expected to live together, or one spouse isn’t providing the necessaries of life to the other.
Section 77: Variation powers, same as s. 17 DA.
Three steps in spousal support analysis:
1.
Eligibility (can the party even apply for spousal support?)
2.
Entitlement (if they are eligible, are they entitled to?)
3.
If entitled, to how much, and for how long?
Are both federal and provincial spousal support statutes.
Federal: Divorce Act
.
Provincial: Family Law Act
.
1. Eligibility:
DA: Section 2(1) says it applies to married spouses only.
FLA: Section 57 says it includes both married spouses and AIPs.
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2. Entitlement:
The same analysis applies for spousal support under the DA and under the FLA, regardless if the parties were married or AIPs. (
Medora v Kohn
)
Spousal support entitlement is not limited to a clean break model. (
Moge
) It recognizes that marriage is a partnership, and there is an obligation to support each other based on that partnership. (
Moge
)
Disparity in income alone does not equal entitlement.
A large property award does not preclude spousal support obligations.
DA s. 15.2(4) and FLA s. 58 set out the factors to be considered when determining if spousal support should be awarded:
Length of cohabitation.
Functions performed during cohabitation.
Any order, agreement, arrangement relating to support.
Legal obligation to support another (unique to FLA)
If payor’s ability to pay increased because someone else contributing to household expenses (unique to FLA)
If recipient’s ability to pay increased because someone else contributing to expenses (unique to FLA)
DA s. 15.2(6) and FLA s. 60 also set out the objectives of any spousal support order:
Recognize economic advantages/disadvantages accruing to either spouse due to marriage/marriage breakdown.
Apportion between spouses financial consequences of raising children of the marriage.
Relieve economic hardship from marriage breakdown.
Promote self-sufficiency in a reasonable amount of time.
There are three bases for entitlement to support. (
Bracklow
) Bases can overlap, and multiple can apply in one case! (
Bracklow
)
1.
Compensatory Support (
Moge
)
o
Based on sacrifices made during the marriage. Some factors: (
Moge
)
Financial consequences due to loss of seniority, job opportunities, etc.
Devaluation of education/work skills as they become obsolete.
Childcare beyond separation, which can impose obligations and restrict time for work, education, etc.
Sacrifices can also be made in childless marriages.
o
Re-partnering doesn’t change a compensatory support claim, as the new partner doesn’t impact the sacrifices which were made. (
Pickett v Walsh
)
o
Common errors for compensatory support:
17
Don’t focus on where the parties were at the start of the relationship. Focus on where they could be now.
Don’t forget child raising responsibilities in the future.
Working during marriage doesn’t mean no career sacrifices were made.
2.
Non-compensatory (needs-based) Support
o
Marriage alone does not entitle a party to support. (
Moge
) However, the relationship as a whole may due an adjustment of standard of living, mutual support, etc. (
Bracklow
)
o
When parties join their lives, their finances, become interdependent, marriage breakdown can cause hardship and need which can justify support. (
Bracklow
)
o
This basis can also obligate a spouse to continue to support a disabled spouse, based on justice and considerations of fairness. (
Bracklow
)
o
However, spousal support cannot guarantee the standard of living enjoyed during marriage – especially if that standard of living was unreasonably lavish. (
JLH v RSW
)
o
Re-partnering can end a needs-based support claim, as the new partner can support the recipient. (
Pickett v Walsh
)
o
Arguing for a needs-based entitlement for spousal support is unacceptable when the need is created by the person claiming support. (
Rockey v Hartwell
)
3.
Contractual Support
o
Spouses and AIPs can make their own support arrangement contracts. Courts will give them deference but can still vary them if necessary.
DA s. 15.2(5) and FLA s. 59: When considering entitlement to support, the court cannot consider
misconduct during the relationship.
The court cannot consider spousal misconduct when ordering spousal support, but can consider the consequences of misconduct, including emotional consequences. (
Leskun
)
Support obligations to a payor’s first family come first, even if the payor has made a new family after separation. (
Fisher v Fisher
)
3. Quantum and Duration:
Primarily determined by Spousal Support Advisory Guidelines (SSAG).
These aren’t law! They’re just guidelines and aren’t binding.
Spousal support is taxable for the recipient, and tax deductible for the payor.
The SSAG provides rangers for quantum and duration, and where support lands in the range depends on the basis for entitlement. (
Bracklow
)
Usually, compensatory basis is on the high range, while needs-based is on the low range. (
Bracklow
)
18
The zero range in support does not mean no entitlement, just no ability to pay. This can factor into a review of spousal support, if income later rises.
Support can be restructured (i.e. a lump sum instead of periodic, higher at first and lowers
over time) so long as it comes out to the same in the end. (
Fisher v Fisher
)
Spousal support orders can vary from the SSAG, both higher and lower. However, when the court differs from them, they should explain why. If the SSAG suggest a support range which conflicts with past authorities, those authorities will prevail. (
Fisher v Fisher
)
Some exceptions to following the SSAG are:
Compelling financial circumstances in the interim period
Debt payment
Prior support obligations
Illness and disability (of the recipient spouse)
Compensatory exception in short marriages without children
Reapportionment of property
Basic needs/hardship (without child support and custodial payor formulas)
Non-taxable payor income
Custodial payor formula
Special needs of a child
Two formulas:
1. Without Child Support Formula:
Start by determining the income of the parties according to the Child Support Guidelines
.
Then, look at the gross income difference (before tax).
Quantum (Annually) = 1.5%-2% of the gross income difference for each year of cohabitation, capped at 50%.
So, marriages which are 25+ years are capped at 37.5%-50% of the gross income difference annually.
Duration = 0.5-1 year per year of cohabitation.
Duration is indefinite when:
o
20+ year cohabitation.
o
5+ years of cohabitation + the age of the recipient = 65+ (called the rule of 65).
Indefinite does not mean indeterminate. It is not forever! Just there is no set end date. It can still end on review/variation if circumstances change. Commonly, this is retirement for the payor.
2. With Child Support Formula:
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According to s. 15.3 of the Divorce Act
, priority should be given to child support.
This formula is much more complicated. Software is required.
Uses net incomes (after tax), not gross incomes!
The duration is generally indefinite, subject to review.
o
Usually, either 0.5-1 year per year of cohabitation, or
o
The age of the children, with the low end being when the youngest child starts school full time, and the high end being when the youngest child finishes high school.
This formula is not on the exam, as it is too complicated.
Parentage:
Parentage is different from guardianship/custody/parenting time. It just determines who is considered a parent of a child.
Why does it matter? For paying child support, for applying for custody/parenting, etc.
FLA Section 9(7) says that a child can only have two parents.
FLA Section 7(2) sets out presumptions of parentage. Parents are:
a)
Biological mother and father.
b)
If the child is born through assisted reproduction, see s. 8.1.
c)
A parent in an adoption order/record under the Child, Youth and Family Enhancement Act
(CYFE).
Section 7(6) says no distinction between a child born in or out of wedlock.
FLA Section 9(1) says that a person can apply for a declaration of parentage, or that someone isn’t a parent. They must be one of:
a)
A person claiming to be a parent.
b)
Person claiming not to be a parent.
c)
The child.
d)
The parent of the child (if it is under 18).
e)
Guardian.
f)
A person who has care and control of the child.
A person can have standing to apply if deceived about their parentage by another parent. (
JRM v TDM
)
Determining Paternity:
FLA section 8 determines who is a father of the child. It begins with a series of presumptions of paternity to avoid the use of a DN test every time. The presumptions can be rebutted. They are:
20
a)
Married to the birth mother (BM) at the time of the child’s birth.
b)
Married to the BM within 300 days before the birth of the child, but the marriage ended because of death, nullity, or divorce.
c)
Married the BM after the birth and acknowledged he is the father.
d)
Cohabited with the BM for at least a year when the child was born, and acknowledged he is the father.
e)
Cohabited with the BM for a year, and cohabitation ended less than 300 days before the birth of the child.
f)
Registered as the parent at joint request with the BM.
g)
Found by a court to be the father.
Section 8(2) says that if the presumptions apply to multiple people, there is no presumption, and a DNA test must be done.
Fathers have the right to rebut the presumption of paternity under s. 8. (
AB v CD
)
Standing in Place of a Parent:
FLA Section 48(1) says a person stands in place of a parent if:
a)
They are the spouse of the parent of the child or were in a relationship of interdependence
of some permanence of the parent, and
b)
Have demonstrated a ‘settled intention’ to treat the child as their own.
Section 48(2) sets out factors for determining if a settled intention was present:
Child’s age.
Duration of the relationship between child and person.
Nature of the relationship.
Whether the person has considered adopting the child, changing their surname, etc.
Whether they’ve financially supported the child.
Any other factor.
This is a holistic analysis. Expressed intention is not determinative. It must be determined from all the circumstances. It is possible to stand in place of a parent even without intending to. (
Jane Doe v Alberta
)
The DA doesn’t have the same provision as FLA section 48. So there is a common law test for SIPP:
What is the material time for determining whether they were SIPP? (
Chartier
)
o
At the time the family was intact.
o
Look at the nature of the SIPP-child relationship during the course of the spousal relationship.
The nature of the relationship is an objective test: (
Chartier
)
21
o
Intention.
o
Child’s perspective.
o
Stepparent’s perspective.
o
Whether the child participated in the family unit.
o
Whether the person provides financially (depending on ability to pay).
o
Whether the person disciplines the child as a parent would.
o
Whether the person represents to the world that they are responsible for the child.
o
Nature/existence of the relationship between the child and absent parent.
Assisted Reproduction:
FLA Section 8.1 governs parentage by assisted reproduction.
1.
Assisted reproduction with male donor. Either:
o
The male donor and the birth mother are the parents.
o
The mother is declared a surrogate (not a parent) under section 8.2, and the male donor and their spouse/AIP at the time of the conception, who consented to be a parent, are the parents.
o
If the mother does not consent to a section 8.2 application, then the mother is the only parent.
2.
Assisted reproduction with a female donor. Either:
o
The birth mother and their AIP/spouse at the time of conception, who consented to be a parent, are the parents.
o
If the birth mother is declared a surrogate (not a parent) under section 8.2, then the female donor and their spouse/AIP at the time of conception who consented to
be a parent, are the parents.
o
If the mother does not consent to a section 8.2 application, then the mother is the only parent.
FLA Section 8.2 governs parentage by surrogacy.
Section 8.2(1): People can apply for a declaration that a surrogate is not a parent of a child born from assisted reproduction, and a person who donated material for that surrogacy is a parent.
Section 8.2(2): People who can apply for a declaration:
o
The surrogate.
o
The donor.
o
A person who was married/in a relationship of interdependence with the donor.
Section 8.2(6): The surrogate must consent to the application not to be a parent.
Section 8.2(9): Surrogate consent isn’t needed if the surrogate died or can’t be found.
But,
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Section 7(4) says that just because a party is a donor, doesn’t necessarily make them a parent.
Section 7(5) says that the spouse/AIP of a surrogate is not a parent of the child.
Section 8(3) says that the presumptions under s. 8 do not apply to a child born of assisted reproduction.
Section 8.2(8) says that any agreement where a surrogate agrees to give birth and give the child to another is not enforceable.
Such an agreement cannot be used as evidence of the surrogate’s consent.
It can be used as evidence of intent to be a parent to a child born of assisted reproduction.
Parens Patriae
Jurisdiction:
This is an inherent jurisdiction of the court to make orders in a child’s best interests if there is no other applicable law. This also applies to people without capacity.
The use of parens patriae
jurisdiction should be limited. It should result in a benefit to the child, not others. Though an incidental benefit to others is permissible. (
DWH v DJR
)
It may be exercised when there is a legislative gap which adversely affects the child.
But, there is no requirement of imminent or immediate risk to the child.
The use of parens patriae
jurisdiction must promote the best interests of the child.
Adoption:
Falls under provincial jurisdiction. In AB, Child, Youth and Family Enhancement Act
(CYFE) applies.
Adoption creates parent-child relationship, and ends birth-parent-child relationship. It amends the birth records of the child.
Test for adoption is, what is in the child’s best interests? Section 58.1 of CYFE sets out the factors to be considered:
a)
Importance of a positive relationship with a parent and a secure place in a family.
b)
Benefits of stability and continuity of care and relationships.
c)
Mental, emotional and physical needs of the child and stage of development.
d)
Benefits to maintaining the child’s familial, cultural, social and religious heritage.
e)
Child’s views and wishes.
f)
Effects on the child of a delay in decision-making.
g)
Aboriginal child – uniqueness of culture, heritage, spirituality, and traditions – should attempt to preserve cultural identity.
There are two avenues to adoption:
1.
Involuntary adoption. The child is permanently removed from its parents.
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o
Exclusively occurs through the child welfare system.
o
The child is usually older and oftentimes has special needs or developmental issues. This means it is more difficult to find adoptive parents.
o
The state has a duty to plan for the permanent care of the child.
o
Generally, there is a preference to match the child with culturally, racially, or ethnically similar parents.
2.
Voluntary adoption. Both parents of the child must give their consent to the adoption.
o
Can occur through the child welfare system or private adoption agencies.
o
Includes familial adoptions (step-parents).
o
Typically newborns or young children.
o
More likely to include the medical history of the child, etc.
o
Both birth parents must be fully informed when they consent, and consent must be
voluntary with a ten-day period to rescind (s. 61 CYFE).
o
No payment may be made to a biological parent to obtain their consent (ss. 83-86 CYFE).
o
Birth parents may be involved in the selection of adoptive parents.
o
Depending on the age of the child, it can get a say too.
Parenting:
Parenting is the same as custody. Parenting is just the newer term.
Custody in the DA
= Guardianship in the FLA
.
Access in the DA
= parenting time in the FLA
.
Who is a Child?
Uncommonly an issue, but sometimes comes up.
DA s. 16.1(1): Court can make a parenting order for any child of the marriage. This is defined as a child of two spouses/former spouses who is either under the age of majority, or is over the age of majority and is incapable.
FLA s. 1(c): A child is a person under 18, and every child is subject to guardianship unless an AIP or a spouse (s. 19).
Determining Parenting:
Parents cannot agree to exempt themselves from child support or parental obligations – no agreement can bar courts from making orders on such matters. (
Jane Doe v Alberta
)
When determining parenting, the test is what is in the best interests of the child. (
Young v Young
)
The old test was the tender years doctrine, but this is no longer applicable. (
Warcop and Young
)
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The DA and FLA have very similar provisions about parenting:
DA 16(1) and FLA 18(1):
The court shall only consider the best interests of the child.
DA 16(2) and FLA 18(2)(a):
The court should give primary consideration to the child’s physical, psychological, and emotional safety and security when considering the factors below.
DA 16(3) and FLA 18(2)(b):
Factors to consider:
The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
o
This is called the ‘friendly parent rule’. The court is more likely to grant more parenting time to the parent who is more likely to foster good relations between the child and the other parent.
The history of care of the child;
o
A very persuasive factor. If one parent is very reliable and stable, and was always there for the child, they are likely to get more parenting time.
The child’s views and preferences, by giving due weight to the child’s age and maturity, unless they cannot be ascertained;
The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
Any plans for the child’s care;
The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
Ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
Any family violence and its impact on, among other things,
o
The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
o
The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;
o
See also DA Section 16(4) for more factors relating to family violence.
Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Decision-Making (Guardianship/Custody):
Parents can have decision-making authority over their children. This is sometimes called guardianship or custody.
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The key question is what is in the best interests of the child?
Evidence about ‘who is the better parent’ is not relevant. Instead, evidence about the character, disposition, personality, experiences, etc., of the child is relevant. Who is better
suited to meet the needs of the child? (
Wakaluk
)
Different tests for who is a guardian between the DA and FLA.
DA s. 16.1(1):
A court can make a parenting order for:
a)
A spouse
b)
A parent, person standing in place of a parent, or a person seeking status as standing in place of a parent.
FLA:
o
Section 20(2):
A parent is a guardian if they acknowledge and demonstrate an intention to assume responsibility over the child when they become aware of the pregnancy/birth (whichever is earlier).
o
Section 20(3):
Intention under 20(2) is demonstrated if the parent was:
Married to the other parent up to 300 days before the birth,
Being an AIP of the parent during or after the birth,
Entered into a guardianship agreement,
Married the other parent after the birth,
Cohabited with the other parent for at least a year after the child was born,
Carried the pregnancy to term,
Is a parent under s. 8.1 (Assisted Reproduction)
Provided financial support to the birth mother,
Any other circumstance.
o
Section 20(4):
If the child is the result of sexual assault, the assaulter is not a guardian.
o
Section 23:
A parent (or person standing in place of a parent) or a person who has care and control of the child for at least 6 months, can apply to be appointed a guardian.
Under the FLA, consent is needed by existing guardians for a new guardian to be appointed:
Section 24(1):
A guardianship order shall not be made without consent of existing guardians, the child if 12+, and the proposed guardian.
o
s. 24(2):
The court can dispense with the need for consent if there is good reason to do so.
When there is a contest for guardianship between a parent and a legal stranger, there must be a compelling reason to wrest custody from the lawful guardian. They must have abandoned or neglected their child. (
JS v RW
)
The test here is what is in the best interests of the child. (
D(J) v P(C)
)
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Parents can be legal strangers if they relinquish custody. If they later seek custody, the court will not order it if it would be highly disruptive to the children. (
N(M) v B(M)
)
Race is also a factor when considering parenting, but it is not determinative. (
Van de Perre
)
Joint Custody/Shared Parenting:
There is no presumption in favour of, or against, shared parenting. The only consideration is the best interests of the child. (
Nissen v Nissen
)
Three factors to consider:
1.
Cooperation between parents
o
When a person seeks joint parenting, they should demonstrate an ability to cooperate and work together with the existing guardian of the child. (
B(S) v F(J)
)
o
However, lack of cooperation is not determinative, and a lack of prior cooperation is not fatal to a joint custody application. (
Terwin v Krisco
)
o
Perfection is not necessary for parents, and some acrimony is accepted. (
DS v TY
)
2.
Geographic proximity between parents
3.
Age (Younger children less likely for shared parenting, as constantly moving is more disruptive for them).
Distinction between shared and parallel parenting:
Shared parenting = collaboration and cooperation between parents.
Parallel parenting = ‘silo’ model. Each parent makes decisions about different things, such as one deciding school matters, the other religious matters, etc.
Parenting Time vs Decision-Making:
The DA distinguishes between parenting time and decision-making responsibility, but the FLA does not and only distinguishes between guardianship and contact.
Parenting time is just time with the child. DA s. 16.2
says that a parent has decision-
making authority over the child during their parenting time for day-to-day decisions.
It is very rare for a parent to lose parenting time entirely, and only happens in cases of abuse or a real risk to the children’s safety.
When determining whether restrictions should be placed on a parent’s right of access, the criterion should be again the best interests of the child, and whether the lost benefits from
a free and open relationship outweigh the potential harm to the child from the conduct. (
Young v Young
)
Status Quo:
When deciding parenting, the status quo can be relevant. There is no presumption in favour of the status quo. (
Nissen v Nissen
)
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Some principles: (
AMD v KG
)
Includes pre- and post- separation status quo.
Pre-separation status quo usually more significant.
o
Who did what during the marriage? What did parenting look like? Etc.
Parent’s agreement to a certain interim parenting arrangement after separation does not waive the right to seek a different long-term arrangement.
Significance of post-separation status quo lessened if:
o
Short-lived.
o
Resulted in one parent’s unilateral decision.
o
Affected by a parent’s reduced ability or inability to parent after separation (increased workload, etc.).
Longer post-separation status quo more important.
Status quo which is no longer applicable or possible due to a change in lifestyle or circumstances
for the parents is not very relevant. (
Nissen v Nissen
)
Status quo based on an illegal ex parte order has no weight. (
MA v MJ
)
Domestic Violence:
DA s. 16(5) says that past misconduct cannot be considered unless actually relevant to parenting.
Family violence is a factor to be considered under both the DA and FLA (see above).
Abusive conduct can be relevant to a determination of parenting, and if one parent is violent they can be denied custody. (
Isakhani v Al-Saggaf
)
Family violence can be a reason to terminate guardianship, even without the consent of the parent. (
SJ v SM
)
New Partners:
Just because a parent re-partnered after separation is not a detriment to seeking custody or
guardianship of their child. (
Pelletier
)
A new partner can be a positive due to their good influence and good child-raising abilities. (
Dix v Thomas
)
Views and Preferences of the Child:
Both DA 16(3)(e) and FLA 18(2) mandate that the views and preferences of the child be considered. The issue is, how should those views be obtained?
There are four ways the court can ascertain the views and preferences of a child: (
Stefureak v Chambers
)
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1.
Through the evidence of trained professionals such as child psychologists or social workers who had contact with the child.
2.
Through evidence (testimony) about out-of-court statements made by the child.
o
The hearsay rule applies to this, and necessity and reliability must be shown.
o
Necessity can be shown where it is not appropriate to call the child as a witness.
o
Reliability can be shown if other people can corroborate the statement.
3.
The judge interviewing the child in chambers.
o
Under the judge’s discretion. Parents must not be present. Must be recorded in some way.
o
The weight given to such an interview depends on the age, intelligence, and maturity of the child.
o
However, the interview cannot be the sole basis of the judgement.
o
This is very uncommon.
o
Research shows that this should only be done where there are no other alternatives.
4.
Permitting the child to testify.
o
This one is usually reluctantly used, due to the difficulty of explaining to the child the
need for the testimony, and the difficulty of asking age-appropriate questions to the child.
The views and preferences of the child cannot be determinative – the court cannot delegate to the
child the disposition of its own fate. (
Stefureak
)
Consider also, Voice of the Child Reports. But, more expensive and time consuming!
Powers of Custody/Guardianship:
DA:
s. 16.2:
Parenting time can be allocated by a schedule. The person with time with the child has decision-making authority for the child during their parenting time, for day-to-
day decisions.
s.
16.3:
Decision-making authority can be allocated to both parents, one parent, or a third party under s. 16.1(1)(b), or any combination thereof.
o
Areas of responsibility can be ‘siloed’, with one parent having decision-making powers over school, and another over religion, etc.
s. 16.4:
Parents must share information with each other about health, education, well-
being of the child, etc.
FLA:
s. 21(1):
Guardians exercise their powers and responsibilities in the best interests of the child.
s. 21(2):
The default is that both guardians can exercise their responsibilities unless the court orders otherwise.
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o
Must share information.
o
Cooperate.
o
Can agree to ‘silo’ responsibilities and obligations.
s. 21(4):
Right to be informed and consulted on significant decisions relating to the child.
s. 21(5):
Guardians must nurture the child’s development and guide them to adulthood, and ensure the child has the necessities of life.
s. 21(6):
Guardians may make decisions about: Day to day decisions relating to activities;
Place of residence; Education; Cultural, linguistic, religious upbringing; Who the child lives with and associates with; Whether the child should work, and where.
s. 32(1):
When a child has multiple guardians who can’t agree, the court can order them to exercise their powers a certain way.
s. 32(2):
The order can allocate responsibilities, powers, parenting time, mandate dispute resolution, etc.
s.
32(4):
A guardian can make inquiries and be given information about matters relating to the other guardian’s responsibilities.
Contact:
Contact is different from parenting time. People with contact do not have decision-making authority.
Best interests of the child still the main consideration!
DA:
Section 16.5: A court can order providing for contact between a person and a child on application. The person needs leave to make the application. The court shall consider all relevant factors, including whether the contact could happen otherwise, such as through a
parent.
FLA:
Section 35(1): A court can make an order for contact between a child and a non-guardian.
Section 35(2): Parents, guardians, and people standing in place of parents can apply for contact. Everyone else needs leave of the court.
Section 35(3): Grandparents don’t need leave if the parents are guardians but live separate and apart or one died, and the grandparent’s access is impacted by that.
o
But, there is no presumption in favour of grandparent contact. They still must show why it would be in the best interests of the child. (
C(JL) v L(JL)
)
When applying for leave for contact, a biological connection is not sufficient in itself. The applicant must show their relationship with the child was very significant. (
Hardie v Payne
)
Courts can impose terms on contact orders, such as forbidden subjects of discussion. (
C(JL) v L(JL)
)
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Courts give deference to the decisions of guardians when they deny a person contact with their child. There is a presumption the decision is reasonable. (
Hardie v Payne
)
If a guardian denies contact, the court can override this decision if it is unreasonable or would jeopardize the child’s physical/psychological wellbeing. (
C(JL) v L(JL)
)
Variation:
DA:
Section 17(1): The court can make an order varying, rescinding, or suspending a previous
order.
Section 17(5): The court must be satisfied that there has been a change in the circumstances of the child since making the previous order.
FLA:
Section 34: Court can vary parenting order.
Section 37: The court can vary contact orders.
Relocation:
Relocation: means a change in the place of residence of a child of the marriage, or a person who has parenting time or decision-making responsibility, or who has contact with the child.
The test is still ‘best interests of the child’.
DA Provisions:
Section 16.9(1): A person with parenting time or decision-making responsibility for a child who intends to relocate shall notify any other person with parenting time, decision-
making responsibility, or contact.
Sections 16.9(2) and (3): 60 day notice period, need to provide date of move, address, proposed arrangement, etc.
Section 16.9(4): A person has 30 days to object to the move.
Section 16.92(1): Consider in addition to best interests of the child under s. 16 (above): The reasons for relocation, impact on the child, amount of time other person spends with the child, level of involvement, compliance with notice requirements or other orders/arrangements, the reasonableness of the plan.
Section 16.92(2): Cannot consider whether the person who intends to relocate would do so anyway without the child.
Section 16.93(1): If the child spends equal time with both parties, the relocating parent has the burden of proof.
Section 16.93(2): If the child spends the vast majority of time with the relocating parent, the non-relocating parent has the burden of proof.
o
No definition of ‘vast majority’.
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The DA also has provisions on changes in residence which aren’t relocation (moving neighbourhoods, etc.):
Section 16.8(1): The moving parent must give notice to anyone with parenting time, decision making responsibility, contact, of any intention to change the child’s residence.
Section 16.8(2): Notice must be in writing, include the date of move, new address, contact info.
Can be exceptions made for family violence situations.
Enforcing Parenting Orders:
How to meaningfully enforce access?
Usually, this is treated as contempt of court, and remedied with censure, fines, or imprisonment.
o
However, contempt of court is dealt with the burden of proof being beyond a reasonable doubt – so it is difficult to get!
o
In addition, imprisonment can impact the parent-child relationship.
FLA s. 40
deals with enforcement. If a person is denied time with their child, the court can order:
Compensation time.
Security.
Reimbursement for necessary expenses resulting from the denial of time.
Penalty not exceeding $100/denied day, to a maximum of $5,000 or 90 days imprisonment.
Imprisonment until the time is given (maximum of 90 days).
Enforcement of the time with the help of a police officer.
Just because children don’t want to see one parent, is an insufficient reason to defy a parenting order. Parents have a positive obligation to ensure their child complies with the order. Parents must do all they reasonably can to make this happen. (
Brazeau v Lejambe
)
Parental alienation is when one parent turns the children against the other parent. It is a process where one parent systematically devalues, minimizes, or denigrates the other parent in front of their children. (
Bors v Beleuta
)
Some indicia of parental alienation are: (
Bors v Beleuta
)
Allowing children to make decisions about contact.
Refusing to speak to/be near the other parent.
Showing no concern for missed visits.
Lying about statements.
Lack of interest, disdain, or disapproval communicated through words/actions.
Discouraging the other partner from being involved in the children’s lives.
Inauthenticity on the stand.
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Portrayal of the other parent as dangerous.
Only speaking negatively of the other parent.
Failing to correct the child’s rude behaviour to the other parent.
Fabricated allegations of abuse.
Extreme lack of courtesy to the other parent.
Child Support:
There are some major differences between child support and spousal support. Child support is mandatory – cannot get divorced unless the parents have ensured the children will be financially supported.
CS is not taxable for the recipient and is not tax-deductible for the payor. The direct opposite of spousal support.
Child Support is determined with the Child Support Guidelines (CSGs). The CSGs are regulations, and so are binding, unlike the SSAGs.
The DA has its own CSGs, and the FLA has its own CSGs. Therefore, the CSGs apply to both married and unmarried parents.
Parents cannot agree to exempt themselves from child support or parental obligations – no agreement can bar courts from making orders on such matters. (
Jane Doe v Alberta
)
Objectives:
CSG Section 1: To establish a fair standard to support children, and
o
Reduce conflict.
o
Improve efficiency.
o
Encourage settlement.
o
Ensure consistency for spouses and children in similar circumstances.
o
These objectives are especially important in cases where the judge must apply their discretion!
Eligibility:
DA:
Section 15.1: The Court can make an order requiring a spouse to pay child support for any or all children of the marriage, in accordance with the CSGs. The order can be interim, definite, or indefinite.
Section 2(1): Child of the marriage is a child of the two spouses who is under the age of majority, or over the age of majority but cannot be independent (includes post-secondary education).
Section 2(2): This definition includes children with one or both parents who SIPP.
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FLA:
Section 49(1): Every parent has an obligation to support their child.
o
Section 50(1): The child, parent, guardian, person with care or control of the child, or anyone else the court allows can bring an application for CS.
o
Section 50(2): Can only make an order where parents are separated and apart, or will be soon.
Section 46(b): Child is defined as:
o
A person under 18.
o
A person over 18 who cannot withdraw from care due to illness, disability, full-
time studies, or other reasons.
Note, full-time student has been read-in to the DA as well.
Some issues with part-time students.
However, Section 49(3) says that parents don’t have to pay CS for children who are married/AIPs, or who live independently from their parents.
Adult Children:
For adult children, the CSG says:
Section 3(2)(a): The court can use the table amount (same as for a minor child).
Section 3(2)(b): If that is inappropriate, the amount the court considers appropriate having regard to condition, means, needs, and circumstances of the child and the financial
ability of each parent.
There is a presumption that a ‘child’ attending university full time will get the full table amount of CS during their degree. (
Achkewich v Achkewich
)
o
However, support can be withheld at this age if: (
Achkewich v Achkewich
)
In school part time.
Has resources of their own.
Has a questionable intention to return to school.
Is getting a second degree (not always).
o
Other factors to consider are: (
Wahl v Wahl
)
Is the child enrolled full time or part time?
Can they contribute themselves through employment?
Can they get student loans or other financial assistance?
Do they have a realistic career plan, or just attending school ‘because’?
Age is a factor, but dependency is more important.
Relationship between the child and the payor is not an important factor. The child can dislike their parent without losing financial support.
Stepparents:
The DA is less detailed than the FLA for determining whether a parent SIPP.
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DA:
Section 2(2) states that ‘child of the marriage’ includes children with one or both parents who SIPP.
o
Less robust than FLA provisions, so must do Chartier
analysis (above).
FLA:
Section 48: See Parentage SIPP section above.
Section 5 of the CSG says that for parents who SIPP, the amount of CS is what the court considers appropriate, having regard for the CSG.
There are four main trends:
1.
Non-mathematical. Court weighs factors, looks at needs, means, budgets, and decides a number.
2.
Subtraction: Payments made by the non-custodial parent are subtracted from the full amount the stepparent pays (i.e. the table shows $1000/monthly for stepparent, $500 for biological parent, so the stepparent pays $500).
3.
Cumulative: Both pay full amount.
4.
Apportionment: The court determines the child’s standard of living, and apportions payments between all parents. This is very complicated.
There is no law for which approach to take. Just do whatever makes sense in the circumstances.
A stepparent cannot unilaterally terminate a relationship with a stepchild. (
Chartier
)
However, if a child is older and withdraws from the stepparent on their own account, courts may decline to force a stepparent to pay CS for a child who wants nothing to do with them. (
KAH v RSH
)
o
Important here was that the child had a new stepparent who could support them.
Quantum:
Duration is usually indefinite:
If under the DA, continues while child is ‘child of the marriage’. This usually includes if the child is over 18 but in post-secondary.
If under the FLA, while a person is still defined as a ‘child’ under s. 46(b), which includes being in post-secondary.
To determine quantum, need to know the number of children, and the income of the payor. Income is determined according to Schedule 3 of the CSG.
Schedule 1 has a table with amounts of CS. The federal CSG has tables for each province. The AB CSG only has one table.
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DA:
Section 15.1(5): The court can deviate from the CSGs where:
a)
An order or agreement or other arrangement have been made.
b)
It would result in an amount that is inequitable.
Different rules for split parenting or when each parent has custody of one child! See below.
CSG:
Section 3(1): Unless otherwise provided, CS for children under the age of majority is:
o
(a): The table amount.
o
(b): Section 7.
o
There are three requirements for an expense to qualify under section 7:
Necessary.
Reasonable in light of the parent’s financial resources.
Must be under (a) to (f) of section 7.
For (d) and (f), see s. 7(1.1).
Section 7(1): Allows the court to set a special or extraordinary amount on top of the normal CS table amount. These can be:
o
(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;
o
(b) the portion of the medical and dental insurance premiums attributable to the child;
o
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
o
(d) extraordinary
expenses
for primary or secondary school education or for any
other educational programs that meet the child’s particular needs;
o
(e) expenses for post-secondary education; and
o
(f) extraordinary
expenses
for extracurricular activities.
Section 7(1.1): Extraordinary expenses means:
o
(a) Expenses the recipient can’t reasonably cover just with their income and the CS amount, or
o
(b) Expenses considered extraordinary, accounting for:
(i) The amount of the expense in relation to the recipient’s income, including CS,
(ii) The nature of the educational programs and extracurricular activities,
(iii) Any special needs/talents of the child,
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The overall cost of the programs/activities,
Any other similar factor the court considers relevant.
Section 7(2): The amount to be paid by each is set in proportion to each income.
Shared Custody:
CSG has different provisions in split/shared custody situations.
Split Custody:
Section 8: If each spouse has 1+ children, then look at how much each owes the other under the table, and then subtract them from each other (one with the bigger obligation pays the other the difference).
o
I.e. Mary owes John $1000, John owes Mary $1500, then John pays Mary $500.
Split Custody:
Section 9: When a spouse has less than 40% access/custody, the CS is different, based on:
o
The table amounts for each spouse.
o
Increased costs of shared custody.
o
The condition, means, needs of each spouse and child.
How time is counted is uncertain. Days? Hours? Overnights? No unifying precedents.
Under Section 9, there are no presumptions. Not for the table amount, or for set-off, or for less or more CS. (
Leonelli-Contino v Contino
)
One approach: (
Leonelli-Contino v Contino
)
o
Once over threshold (40%), calculate the set-off amount as a starting point.
o
Calculate budgets, actual costs, etc. Spending should be proportionate between parents.
o
Consider the ability of each parent to bear costs based on:
Respective incomes.
Assets and liabilities of each.
Child’s standard of living in each house.
o
Consider whether this is an interim or a final order.
Undue Hardship:
CSG:
Section 10 says that the court can order a different amount of CS, if the court finds that the payor would suffer undue hardship under the set amount.
Section 10(2) sets out circumstances which can cause undue hardship:
o
Unusually high debt-load to support the spouse/child before separation.
o
Unusually high expenses in exercising access.
o
Legal duty to support other person (such as other CS or spousal support).
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o
Legal duty to support a child under the age of majority or a disabled child over the
age of majority.
o
Legal duty to support other ill or disabled person.
10(3): Court must consider the standard of living between houses. Not undue hardship if the payor would still have a higher standard of living than the other spouse, even after paying CS.
Section 10(5): Court can impose two amounts, one while circumstance persist and one when it ends.
Parents seeking a variation on quantum due to undue hardship must satisfy a two-part test: (
Hanmore v Hanmore
)
1.
First, the parent must show undue hardship using the s. 10(2) factors.
2.
Then, if this is proved, they must show their household would have a lower standard of living than the other household if the quantum is not reduced.
This is a very hard test to meet. Even if met, the court can still decline to reduce CS.
The undue hardship must not just be inconvenient. It must be exceptional, excessive, or disproportionate in the circumstances. Just because one household has a lower standard of living than the other is not determinative.
Onus is on the parent to provide specific and cogent evidence of why it would cause hardship.
Calculating Income:
CSG:
Section 15: Parties can agree on income if sufficient disclosure occurs and the amount is reasonable.
Section 16: Otherwise, income is presumptively Line 150 of the tax return.
If Line 150 as income isn’t fair, the court can adjust it:
o
Section 17: The court can set income based on pattern/fluctuation of income in the
past 3 years.
o
Section 18: When the payor is a shareholder or self-employed through a corporation, the court can adjust income to include pre-tax corporate income and amounts paid to non-arms-length people which aren’t reasonable (can’t hide income in a corporation).
The parent challenging the payor’s income does not need to show unreasonableness before disclosure is required. (
Cunningham v Seveny
)
Full disclosure is required from the start, and the self-employed party must
show why the corporate expenses are reasonable. (
Cunningham v Seveny
)
Some common examples of personal benefits derived from corporations, and which must be shown to be reasonable, are: (
Roseberry v Roseberry
)
Vehicles
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Computers
Cell phones
Travel
Entertainment expenses
Section 19 of the CSG says courts can impute income to payors.
The most common is 19(1)(a), which is when the payor is intentionally underemployed or
unemployed, unless necessary for the educational/health needs of the payor.
o
Unlike in other provinces, in Alberta this is not just a reasonableness analysis. Unreasonable underemployment is not enough, and bad faith is not required. The person must be deliberately trying to avoid their child support obligations. There is a two-part test. (
Keating v Keating
)
1.
There must be a deliberate course of action to undermine/avoid child support obligations.
2.
There must be intent to avoid/undermine obligations. This can be inferred from conduct.
o
The amount imputed must reflect what the person could have reasonable earned, based on their skills, experience, education, etc. (
Keating v Keating
)
Other reasons are because they are exempt from paying tax, live in a country with a lower
tax rate than Canada, divert income, don’t reasonably use property to generate income, receive income from dividends, capital gains, or a trust, or don’t properly disclose income.
Lifestyle can indicate undisclosed income, but is not determinative if the payor can explain where their lifestyle came from. (
Bak v Dobell
)
o
Lifestyle is relevant if it forms a reasonable inference that the payor has undisclosed income. (
A(EA) v (E(H)
)
Gifts can in some circumstances be imputed as income. Some factors are: (
A(EA) v E(H)
)
o
Regularity, duration, and circumstances of the gift. Whether they are likely to continue. The true nature and purpose of the gift. (
Bak v Dobell
)
Income Over $150,000:
CSG:
Section 4: When income is greater than $150,000, CS is:
o
(a): The table amount, or
o
(b): The court can order a different amount, usually the table amount for $150,000
plus an amount based on section 7, plus whatever the court considers appropriate considering the needs, means, and conditions of the child and parents.
o
This is because at a certain income, CS is just wealth transfer, which isn’t the point of CS. The other parent couldn’t ever spend all that amount exclusively on the child.
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Some principles when considering how much high-income parents should pay: (
Francis v Baker
)
The table amount is presumptively correct. Clear and compelling evidence is needed to rebut the table amount.
A high amount alone is not enough to rebut the presumption.
The onus is on the payor to show why it should be changed.
The lifestyle of the family pre-separation is a relevant factor. (
R v R
)
CS should not be a wealth transfer. But, children should also benefit from the income increases of their parents. (
R v R
)
When determining if recipient budgets are unreasonable, this is a high threshold. The budgeted expense must be grossly high. (
KLH v SH
)
Retroactive Support:
This is a large issue in CS cases.
Can happen when the parents separate and wait to settle CS, etc. Years can pass! A large CS arrears can accumulate, and this can cause difficulties.
DA Section 17(1)(a)
says that a court can make an order varying retroactively a support order.
The test for a retroactive variation: (
Colucci v Colucci
)
1.
A material change in circumstances must have occurred. This is a low bar.
2.
If so, there is a presumption in favour of retroactive adjustment.
o
If there is blameworthy conduct, orders can go back as far as the court considers appropriate. (
DBS
)
o
If no blameworthy conduct, orders can go back to the date of effective notice (when the applicant said they wanted to change CS), to a maximum of three years before formal notice (when an application was filed in court). (
DBS
)
3.
For a payor seeking a retroactive change, they must make full disclosure of any income changes, etc.
o
Payors should not be allowed to benefit from not disclosing income to the detriment of the child. (
Michel v Graydon
)
4.
The court has discretion to depart from the presumption, based on:
o
The reason for any delay in bringing an application.
o
Payor conduct.
o
Child’s circumstances.
o
Hardship to the payor.
5.
Then, quantify the change and determine how much must be paid.
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