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Family Law: Notable Cases



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. Upon his death, the husband's family challenged the validity of the marriage in order to deny his widow financial relief. The courts contended that the couple’s intention to comply with the Act was sufficient to validate the marriage, and that a technical irregularity does not nullify a marriage that has been entered in good faith.

Heil v Heil, [1942] SCR 160, [1942] 1 DLR 657
(Non-consummation - Invincible repugnance) - The Supreme Court concluded that the wife in this case was psychologically incapable of having sexual relations and therefore allowed the marriage to be annulled. The court 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 wanted her brief marriage to be voided, stating that her husband, a Greek national, tricked her into the marriage so that he might remain in Canada. The couple never cohabited and the husband allegedly refused to meet his marital obligations. The court 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. The decision established that the requirements to annul a marriage is more rigorous than setting aside a regular civil contract.

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"). The SCC held that - 

  • the proposed Act 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 is consistent with the Canadian Charter of Rights and Freedoms
  • the proposed Act does not violate the religious freedoms of others - the equality rights of one group does not constitute a violation of the rights of another;
  • s.2(a) of the Charter may protect religious officials from having to officiate marriages that are contrary to their religious beliefs.

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 mother wished to revoke her consent. The CAS and the adoptive parents refused to return the child to her because 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

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 the father’s request for a parenting coordinator as well. The father’s subsequent appeal was dismissed. The decision discusses the role of parenting coordinators, and interpreted legislation concerning their appointment.

Seneviratne v Seneviratne, 1998 ABQB 289
The applicant contested the duration her ex’s award for support per their arbitration agreement and appealed to have it set aside. The court denied the appeal because, in accordance with 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 in their agreement, 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. The decision discusses the test for invoking settlement privilege in a litigious dispute.

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 SCC ultimately awarded custody to the sister. The decision 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.

Liaison Librarian

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Matthew Renaud
E.K. Williams Law Library
(204) 474-6371
Subjects: Law