I. THE FAMILY AND FAMILY LAW
The Changing Nature of the Family and the Evolving Role of State Regulation
Vanier Institute + Rosalie Abella + Rod MacDonald
Historical Perspectives: Bradbury et al. Clio Collective Constance Backhouse
II. THE LEGAL FRAMEWORK: The Constitutional Framework = Hogg
III. THE PARENT-CHILD RELATIONSHIP
Eichler et al. + Kasirer
Establishing the Bond Between Parent and Child---Filiation by Blood
DF 2143
Silber v. Fenske
Filiation by adoption
DF 1704
Dowd
Racine v. Woods
N.H. & D.H. v. H.M., M.H. et al
In Loco Parentis Relationship and De Facto Relationship: Chartier + DF 1369
Rights and Obligations of Parents and Children—From Parents Rights to the Best Interests of the Child =Parental Authority
Kasirer
C.G. v. V-F(T) + DF 2281
Support Obligation
DF 2366
DF 2626
Lang
The Role of the State in Family relationships: Bala + Provost
SPOUSAL RELATIONSHIPS
De Facto Relationships
Miron v. Trudel
Eagan v. Canada
Goubau
Presentation du Projet de Loi # 32…
Marriage—The Legal Validity of Marriage---Rights, Duties and Obligations of Married Spouses
Kasirer
Hahlo
DF 2254
S. (A) v. S.(A)
Castelli et al.
Contrat du mariage anterieur au mariage (simple) + Contrat du mariage anterieur au mariage (elaboree) + Contrat du mariage posterieur au mariage
BREAKDOWN OF THE SPOUSAL RELATIONSHIP
Bissett-Johnson et al.
Horvath v. Fraess
DF 841
CONSEQUENCE OF FAMILY BREAKDOWN ON CHILDREN
Custody and Access---Terminology and Selected Issues---Relocation
Special Joint Committee on Child Custody and Access
C (G) v. V-F (T)
Allen
Bala
DF 2201
Gordon v. Goertz
W (V) v. S(D)
Child Support
Davies
Willick v. Willick
Francis v. Baker
DF 2626
PROPERTY DIVISION
The Division of Property Between De Facto Spouses
Sorochan v. Sorochan
Peter v. Beblow
Rawluk v. Rawluk
DF 359
Baigneault v. Richard
The Division of Property between Married Spouse---The Family Patrimony and Family Property---Compensatory allowance and Compensatory Support---The Family Residence
Bosch v. Bosch
Futia v. Futia
DF 1636
DF 2071
LaCroix v. Valois
M.E.M. v. P.L.
P (S.) v. R. (M)
Hovius et al. + Kasirer
Hill v. Hill
SPOUSAL SUPPORT
Pelech v. Pelech + Richardson v. Richardson + Caron v. Caron
Moge v. Moge
Bracklow v. Bracklow
I. THE FAMILY AND FAMILY LAW
A. The Changing Nature of the Family and the Evolving Role of State Regulation
Recent US case—Troxel v. Wynn—how can the state dictate to parent who can see their children? Here, the grandparents are seeking visitation rights to their grandchildren. In CCQ, art 611 = no interference between the children and grandparents. In OT, s.21 FLA parent of child or other person may apply for visitation.
Traditionally, a family = wife/homemaker + husband/breadwinner + kids. Today, same sex couples, cohabitation, blended families…which relationships are worthy of legal sanction?
Why the change? Liberal society, individualism, pluralism, increased living costs, women’s movement, decreased religion, divorce with ease, change in values etc.
Vanier Institute
Rosalie Abella, “Opening address”
Primary purpose of the law was to keep the family and marriage together. Economic sanctions acted as “immorality prophylactics” by attempting to prevent the occasional sinful lapse, which threatened structure and integrity of the family. [pervasive influence of family on society, or the other way around?]
Second function = to provide a system for the distribution of assets and children in the event of marriage break
Law should NOT make distinction between the faultor and faultee in marriage = not its business. The state does have an interest in the family = operation and outgrowth of society = vested interest in each other’s welfare.
Present function of the family is no longer to maintain marriage but preserve families. Recognize that saving a marriage may be destroying the members of a family.
Under new laws, contributions to marriage are considered equal – performed in or out of home. Redistribution of assets according to extent by which the individual’s economic situation was negatively affected.
Child custody = only test that should apply is the best interest of the child. The status of the child should depend on the relationship between the parents AND develop processes that enhance continuance of parenting.
Notes: before 1) law designed to keep marriages together = over-riding good [sanctions against the home-wrecker] 2) consequences of breakdown =children go first to father, then non-adulterous mothers, mother “tender years doctrine, fathers if mother caused separation. 3) property—his is his—she gets nothing.
Promoting change: the law no longer looks for villain and victim and gives independence to the family. The goal is to promote rights of family members. Spousal support is indefinite and child support = standard before break-up. No gender bias in custody—look at best interest of child—more shared parenting. Abolish custody as term = evokes a win-lose scenario so change to residential time. Increase use of experts and legislators should keep up with societal change and use of judiciary to spark it when they do not keep up.
Roderick Macdonald, “In Search of Law”
Is the public policy we want to pursue = focus on married couples or = stable adult relationships that lead to longer and happier lives? The concept of marriage is both under and over exclusive. It excludes many stable adult relations and includes some de jure marriages which have no de facto content worthy of legal defense.
B. Historical Perspectives
Notes: 1820-1840—Quebec inherited french law—matrimonial K before marriage only [by notary] if not, automatic Marriage in community = all property = sole admin by husband [in theory, W entitled to ½ of what in community]
Exclusion of community = no claim to husband’s property = no admin of immovable property [husband’s consent required], all moveable property assumed as husbands unless she could prove her title.
Common law—marital unity=reduce woman’s identity = 1--all property vested with husband 2—kept ownership of immovables but no rent? 3—couldn’t K, sue or be sued 4--consent of H needed to assume business separate from H.
Marriage in history—marriage settlement = different from marriage K, very expensive [rich only!], trusts created. 1837—no courts of chancery [equity] in Canada [like in UK] BUT…
Women’s property law reform a) marriage breakdown legislation 1851 NB—make broken family a more efficient unit b) protection legislation = women’s ownership, but still H admin. c) egalitarian legislation = 1872 OT – women sued separate from H, property + business separate.
Prior to reforms: similarities of civil + common law regime and woman’s rights—not able to K, sue, carry on a separate profession, engage in commerce without H consent. These only avoided with $$ and in theory, unmarried women had the same rights as men.
Bradbury et al.
Clio Collective
Constance Backhouse
II. THE LEGAL FRAMEWORK
A. The Constitutional Framework – Peter Hogg
Most of that relating to the family = provincial jurisdiction. Property + civil rights 92.13 + 16, solemnisation 92.12
But 91.26 = fed power over marriage and divorce—this gives uniformity across the country but also fed jurisdiction = makes it more difficult.
Juvenile delinquency and criminal charges arise out of family disputes = fed powers over criminal law 92.2
1968 = fed provided for alimony, maintenance and custody in the new Divorce Act but only as corollary relief in divorce proceedings. Before = variation between provinces.
1938 = adoption reference SCC = provinces can enact laws re: adoption, legitimacy, custody, guardianship, child welfare, affiliation and maintenance of children. [though, sometimes provided for as part of Divorce Act]
Support of children = language of divorce act extends to fix quantum after the divorce is granted. Also power to vary support orders after the divorce is valid. Support of spouse = alimony payments made to a separated spouse Maintenance = payments made after dissolution of marriage [after DA 1968—support = both payments]. Division of property = DA s.15 authorises support payments of a spouse or child by lump or periodic sums. [in the past, divorce courts had difficulty transferring ownership of property in lieu of lump sum payment = provincial jurisdiction. Now, changing values, seen as ancillary to divorce proceedings and courts are willing.
Federal paramountcy = when an order is made under DA, it renders the competing order inoperative.
Notes: custody + spousal support in DA [fed] = must be resident in province for one year, marriage is dissolved and no-fault divorce based on one full year of living separate and apart. In provincial legislation [separation] = still married, can live separate, matrimonial regime dissolved, automatically separate as to property, also for unmarried same-sex couples.
III. THE PARENT—CHILD RELATIONSHIP
Eichler and McCall, “Clarifying the Legal Dimension of Fatherhood”
Motherhood = defined by biological factors. Fatherhood = by his relationship with the mother
4 ways to become a father:
1--association with the mother =serious relationship, marriage, birth certificate [knowledge+consent], by marriage to mother of a dependent child 2—behavior in a parental manner = standing in loco parentis, voluntary acknowlegement, awarded custody, [foster parent—limited rights+obs] 3--via admin/legal declaration = birth certificate, adoption, custody order, paternity action 4—by default = where father can’t fulfill parental function [generally, can’t go after grand-parents]
Rights associated with parenthood
1--Over children 2—To act on behalf of children a)litigation for damagessupport b)medical consent c) accept gifts 3—To give/withhold consent on issues wrt child
4—To pass on benefits to children a)citizenship b)family allowance 5—To be informed of matters wrt the child
6—Of an indigent parent to be maintained by his/her child 7—To parental leave
Obligations
1—maintaining + supporting children 2—provide care + supervision 3—register the birth 4—attend youth court proceedings 5—notify change of residence [of other parent] 6—make educational decisions 7—health decisions
Liabilities associated with parenthood
1—loss of some or all associated rights [arts 606-610 eg: compromise a child’s welfare or by divorce proceeding] 2—have a will overturned 3—have personal information released 4—have monies garnished for failure to support children [in CCQ] 5—damages caused by a child [arts 1459+1460]
Possible fatherhood is activated when a man obtains a right/privilege or incurs an obligation or liability because he may at some point become a father. Competing rights and responsibilities of biological vs. non-bio father in 3 contexts: a—support of obligation b—custody and access c—right to give/withhold consent for adoption.
Conclusions
A man’s designation as father is legally and socially mediated through a woman. Fathers may be potential/actual, bio/non-bio, full or partial, exclusive/non-exclusive, terminated/re-instated. Interjurisdictional as well as interlegal contradictions in the way the law treats fathers. Large aspect of non-intentionality in the type of father a man becomes. In the case of non-exclusive fathers, treatment of bio and non-bio fathers is contradictory.
Importance of paternity knowledge = medical history, identity issues, obs owed to child, questions of inheritance
A. Establishing the Bond Between Parent and Child
Section 92.13 civil rights = father + mother determine the child’s civil status and respective rights = obs.
Filiation by Blood
Filiation is the legal relationship between parent and child, and from it flows civil status and filial obligations including alimentary support. In CCQ – filiation divided into filiation by blood [arts 522-542] and by adoption [arts 543-584]. In OT—f by blood parts I + II CLRA and f by adoption [part III CLRA].
Similarities: 1--neither QC [art 522] or OT [1.4 +1.1 CLRA] distinguish between legitimate/illegitimate children. 2—common perception of paternity a) married to mother [525ccq + 8(1) para 1 clra] b) 300 days within dissolution or annulment of marriage c) QC =voluntary acknowledgement [art 526-529 and 12(1) clra]
Differences: QC art 523—birth certificate proves filiation OT s.8(1) birth certificate gives rise to presumption. Quebec = uninterrupted possession of status [arts 523,524 +530]
DF 2143 [courts looked at facts and dismissed w/o hearing]
FACTS: Parties dated since 10/85 and began to live together in 3/86. D told P she was pregnant in 1/86. Girl was born in 7/86. They lived together until 1989. After separation, the D voluntarily made support payments and in 7/94 was given custody. At the end of that month, it was scientifically established that he was not the father.
ISSUE: Can the father legally change his status so that he is not reconised as the father anymore?
RATIO: Took into consideration the possible trauma this procedure could affect the child of 8 years. Ordered immediate termination of the action.
Notes: What constitutes uninterrupted possession of status? A—role in upbringing of child + general development B—making decisions re: child C—financial role D—giving family name E—treatment by ext. family + community
Presumption of paternity + co-habitation? In QC no [in 525 (3) divorce provision], in OT there is—section 8(1) para 4 but no 300 days rule. If presumptions in conflict = neither is presumed to be father eg: section 8(1)2 + 8(1)5
Arts 533-34 = questions of proof + any kind allowed for contestation proceedings eg: even family photographs have been considered as commencement of proof = a family document.
Silber v. Fenske [1995] OT CofJ
Infants — Illegitimate children — Filiation proceedings — Blood tests, when ordered — Maintenance of children .
This was a motion for an order to pay interim child support and an order under section 10 of the Children's Law Reform Act to require the parties and child to submit to blood tests to determine the child's paternity.The defendant argued this would breach his rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms.His position was that his paternity was involuntary and that his having sex with the mother was induced under false pretences.The parties had been intimate between 1991 and 1993. The defendant had certified under the Vital Statistics Act in 1994 that he was the child's father.The applicant earned $42,000 annually, the defendant $300,000.He had a net worth of $2 million.
HELD:The motion was granted.An order under section 10 was not an unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms.Nor did it breach the defendant's right to security of the person.The defendant was ordered to pay interim support of $2,250 monthly. [could use art 10 to order test in QC]
Statutes, Regulations and Rules Cited:Canadian Charter of Rights and Freedoms, ss. 7, 8.CLRA, c. C.12, s. 10.
Filiation by adoption
Authority of provincial courts arts 823-825 and 543-584 and in OT part 7 CLRA