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The University of Manitoba campuses are located on original lands of Anishinaabeg, Cree, Oji-Cree, Dakota, and Dene peoples, and on the homeland of the Métis Nation. More

Family Law: Notable Cases

Families and the Law

Marriage

Alspector v Alspector, [1957] OR 454, 9 DLR (2d) 679
(Formal Validity) – An Ontario couple wedded according to Jewish custom, but did not obtain a marriage license because they had intended to move to Israel, where their union was binding. The husband later died while they were still living in Ontario. His family sought to deny his widow financial relief by challenging the validity of the marriage. Interpreting s.33 of the Marriage Act, the courts contended that the couple’s intention to comply with the Act was sufficient to validate the marriage, and that technical irregularities does not nullify a marriage that has been entered in good faith. The Court of Appeal pondered whether the provisions in the Marriage Act are mandatory or merely intended as administrative directives, and concluded that nullifying a marriage as a consequence for noncompliance is conditional and not absolute. This was an important decision in defending the validity of common-law marriages.

Heil v Heil, [1942] SCR 160, [1942] 1 DLR 657
(Non-consummation - Invincible repugnance) - An Ontario doctor applied to have his marriage annulled, claiming that his wife, whom was absent throughout most of their marital life, was incapable of consummating the marriage. The Supreme Court concluded that the wife was indeed psychologically incapable of having sexual relations and therefore affirmed the trial judge’s decision to allow the annulment. Following G v G, [1924] AC 349, the SCC stipulated that, in order to support a claim of non-consummation, a spouse cannot have simply refused sex, but must be either physically unable to consummate or have an "invincible repugnance” toward the prospect of it.

Iantsis v Papatheodorou, [1971] 1 OR 245, 15 DLR (3d) 53
(Mistake) The wife in this case wanted her brief marriage to be voided, stating that her husband, who was born in Greece, tricked her into the marriage so that he might improve his chances of remaining in Canada. She alleged that they never cohabited and that after he applied for citizenship, he refused to meet his marital obligations. The judges found that immigration fraud does not constitute a grounds for an annulment unless the deception causes the party to make a mistake regarding the nature of the ceremony, or with the identity of one of the parties to the marriage. It also set the precedent that marriage is more than a simple civil contract, so the requirements to annul a marriage as a result of fraud is more rigorous than would be for a regular civil contract to be set aside.

RE: Same-Sex Marriage, 2004 SCC 79
(Essential and Formal Validity; Definition of Marriage)
The Governor in Council referred four questions to the Supreme Court regarding the Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes (a.k.a. "The Same-Sex Marriage Act"). Among their crucial responses to the questions, the SCC held that - 

  • the proposed law is intra vires (i.e. within the powers of) Parliament since its pith and substance pertains to marriage;
  • the Living Tree doctrine permits a redefining of civil marriage as a legal institution;
  • s.1 of the proposed Act was consistent with the Canadian Charter of Rights and Freedoms - its purpose (to extend the right to civil marriage to same-sex couples) corresponds with the intention of, and flows from s.15(1) of the Charter;
  • that the proposed Act does not potentially violate the religious freedoms of others, rather, recognising the equality rights of one group does not constitute a violation of the rights of another;
  • that s.2(a) of the Charter is broad enough to protect religious officials from being compelled to perform civil or religious same-sex marriages that are contrary to their religious beliefs.

 

Cohabiting + Same-Sex Couples

Kerr v Baranow and Vanasse v Seguin, 2011 SCC 269

Pettkus v Becker, [1980] 2 SCR 834, 117 DLR (3d) 257

M v H, [1999] 2 SCR 3, 171 DLR (4th) 577

Miron v Trudel, [1995] 2 SCR 418, 23 OR (3d) 160

 

Racine v Woods, [1983] 2 SCR 173, 1 DLR (4th) 193

Hepton v Maat, [1957] SCR 606, 10 DLR (2d) 1

Re Baby Duffell-Martin v Duffell,  [1950] SCR 737, [1950] 4 DLR 1

Trociuk v British Columbia (Attorney General), 2003 SCC 34

Agar v McNeilly, [1958] SCR 52, 11 DLR (2d) 721

Re: Assisted Human Reproduction Act, [2010] 3 SCR 457, 410 NR 199
A number of provisions in The Assisted Human Reproduction Act SC 2004, c 2 were deemed unconstitutional by the Supreme Court of Canada.

Catholic Children’s Aid Society of Metropolitan Toronto v S (1989), 69 OR (2d) 189, 60 DLR (4th) 397
Adoption - Denial of birth parent’s access to child.

R v Mugford, [1970] SCR 261, 9 DLR (3d) 123
As a result of an unplanned pregnancy, a 19 year old woman contacted the Children's Aid Society to discuss her options and sign adoption papers. Shortly after the baby was adopted, the young mother sought to regain custody by revoking her consent. The CAS and the adoptive parents refused to return the child to her on the basis that he had adjusted to his new home. The Supreme Court held that the birth mother had not abandoned the child, and ordered that CAS return the baby to her. This was a landmark decision for the rights of mothers.

Dissolution of Families

CAM v DM (2003), 231 DLR (4th) 479, 67 OR (3d) 181
The parties agreed to mediation through the Family Law Appeals Pilot Project, which proved unsuccessful. The applicant later wished to present fresh evidence, but the Court of Appeal adhered to the pilot project's directives (which state that matters resulting from the mediation process are privileged), and deemed the evidence inadmissible. The Court reasoned that it did not want to invalidate the pilot project’s proceedings, saying there is public interest in preserving confidence in the integrity of the court's process.

Fleetwood v Percival, 2014 BCCA 502
The parties’ settlement provided for joint custody and entitled the mother to select their son’s school. Upon enrolling the child in kindergarten, the father challenged her decision. The judge affirmed her choice, and declined his request for a parenting coordinator as well. The father’s subsequent appeal was dismissed after the Court found that the trial judge did not err in principle, nor fail to adequately consider all the facts. The Court's decision discusses the role of parenting coordinators, and interpreted legislation concerning their appointment.

Seneviratne v Seneviratne, 1998 ABQB 289
After executing an arbitration agreement, the wife appealed to set aside the husband's award for support, contesting its duration. The court held that the arbitrator’s decision could not be appealed because, pursuant to s. 44(3) of the Arbitration Act, the question of law (i.e. the duration of spousal support) was expressly referred to the arbitrator, and included in the agreement. The arbitrator’s decision could only be set aside if the decision was unreasonable. Furthermore, the parties did not apply s. 44(1) of the Act which would have provided for their right to appeal on a question of law and/or, fact.

Sinclair v Roy (1985), 20 DLR (4th) 748, 65 BCLR 219
A family court counselor who was assigned to the parties to help resolve their differences out of court was served with a subpoena to testify in the subsequent trial. The counselor applied to have the subpoena set aside, arguing that any evidence that she might give is privileged and therefore inadmissible. The judge agreed that her testimony/evidence was inadmissible and set aside the subpoena. The decision discusses the test for invoking settlement privilege in a litigious dispute.

Starr v Gordon, 2010 ONSC 4167
In light of the child custody arbitrator’s past association with the respondent’s lawyers, the applicant requested that the submission for arbitration, as well as the resulting award, be set aside due to reasonable apprehension of bias of the arbitrator. The applicant also requested a restraining order against the respondent. The respondent then applied for a summary judgment to dismiss the applicant’s claims. All of the respondent’s requests for summary judgment failed, except the one for setting aside the submission for arbitration. The decision discussed bias and the need for transparency.

Gordon v Goertz, [1996] 2 SCR 27, 134 DLR (4th) 321

This important case further expounds on the Best Interest of the Child test and applies it to matters of parental relocation. 

Young v Young, [1993] 4 SCR 3, 108 DLR (4th) 193

The Supreme Court established the test that is applied in determining custody and access under the Divorce Act. It fleshes out the principle that it is the right of children that custody and access decisions be governed by their best interests, and that these interests are based on the child's perspective, not those of either parent. 

C(G) v V-F(T), [1987] 2 SCR 244

Prior to her death, an ailing mother relocated to France with her children, whose care she subsequently entrusted to her sister and brother-in-law. With the divorce and custody order not yet finalised, the father took Habeus Corpus proceedings. The children's aunt and uncle thereby sought custody of the children. The SCC ruled in favour of the second trial judge and custody was ultimately awarded to the aunt and uncle. However, the SCC clarified what constitutes "serious cause" when considering total or partial deprivation of parental authority, as well as the use of a “child's best interest” as a criterion for awarding custody to a third party. The SCC also rejected the notion of “legal” custody as being distinguishable from physical custody.

Kaplanis v Kaplanis (2005), 249 DLR (4th) 620, 194 OAC 106

The mother appealed the joint custody order of the couple’s child. The Court of Appeal set aside the joint custody order because it held that the trial judge erred in his directive that the couple attend therapy to improve their parenting skills. It was determined that joint custody was not possible since there was no co-operation and appropriate communication between the couple following trial. The Court emphasised that it must consider the best interest of the child – which is not to be confused with the wishes of the child - and the father failed to show how joint custody would be in his child's best interest. The custody order was therefore be modified to award the mother sole custody.

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Matthew Renaud
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Subjects:Law