2016W Ellen ChenFAMILY LAWProf. Angela CAMPBELL
McGill Faculty of Law /Family Law
Prof. Angela Campbell /
Ellen Chen
2015-2016
Table of Contents
WEEK 1 Dynamism and State Interest
Soble, “Japan’s Top Court Upholds Law Requiring Spouses to Share Surname” (2015)
Wingrove, “New Law Sets Out Rules for Divorces on Reserves Despite First Nations Opposition” (2013)
oLeckey, “Families in the Eyes of the Law”
oReference re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588 (polygamy)
WEEK 2 Filiation by blood: Paternity
C.C.Q. arts. 522-527, 530, 533, 535, 535.1, 538-541
Ontario CLRA: ss. 4-6, 8-10
oKasirer, “Note: Establishing the Bond of Filiation and the Civilian Conception of Family Relations”
Ives, “Becoming a Father/Refusing Fatherhood: An Empirical Bioethics Approach to Paternal Responsibilities and Rights”
Smart, “Secrets and Lies”
⚜Massie c. Carrière // Bio father v. Married mother > presumption of paternity act of birth (QCCS 1972)
⚜Droit de la famille – 11394 // Bio father v. stepfather > uninterrupted possession love and affection (QCCA 2011)
⚜Droit de la famille – 09358 // Husband cuts ties with non-bio child > can’t contest possession + act of birth (QCCA 2009)
♛L. (T.D.) c. L. (L.R.) // Parents of child through sperm donor broke up > presumption of paternity assisted procreation (ONGC 1994)
♛Tenby v. Hawke // Good father vs. bio father > possession access dispute (NWTSC 1999)
WEEK 3 Filiation by Blood: Assisted Procreation
Leckey, “Where the Parents are of the Same Sex: Quebec’s Reforms to Filiation”
⚜Droit de la famille – 11729 // donor had sex with mother, wants to be father (QCCA 2011) sperm donor had intention to be father real father
⚜L.C. v. S.G. // birth mom v sperm donor wants access (QCCA 2004) sperm donor third party get access in interest of child
♛A.A. v. B.B. // 2 moms + sperm donor want to be parents (ONCA 2007) 3 parents all 3 in agreement BIOC
♛K.M. v. E.G. // Egg donor wants recognition as parent (Cal. SC 2005) donor mom has claim birth mom also has claim
⚜Droit de la famille – 072895 // Lesbian mom separate partner wants joint custody (QCCA 2007) in loco parentis join custody 3rd party custody BIOC
⚜Adoption — 091 // parents want to adopt child from surrogate mom (QCCQ 2009) circumvent surrogacy prohibition BIOC adoption allowed
⚜Adoption — 09184 // parents want to adopt child from aunt surrogate (QCCQ 2009) good faith BIOC adoption allowed
⚜Adoption – 10329 // xx v. xx (QCCQ 2010)
WEEK 4 Filiation by Adoption: Frameworks
C.C.Q. arts. 543-561, 566-578.1
Child and Family Services Act of Ontario: ss.136-139, 145.1, 145.2, 146, 149(1), 153.6, 157, 158, 160(1)
In re Robert Paul // Gay couple try to adopt each other (NYCA 1984) parent-child relationship adoption allowed
⚜Droit de la famille 1914 // Want to adopt child with semi-absent mom (QCCA 1996) totally absent mom BIOC declaration of eligibility
WEEK 5A Consent & Open Adoption
Leckey, “Adoptive parents aren’t second best”
♛Re B.C. Birth Registration No. 030279 // birth mom changes adoption consent several times (BCSC 1990) BIOC preference for natural parent adoption allowed
⚜Droit de la famille 1704 // birth mom adopted child as sole parent (QCCA 1992) adoption severs all bio link filiation with bio father
⚜J.J. c. S.V. // child of murdered mom adopted by paternal aunt, maternal grandparents want access (QCCS 2002) 3rd party access rights BIOC
⚜J.G. // birth mom wants open adoption (QCCQ 2005) open adoption access rights for birth mom adoption allowed
WEEK 5B Aboriginal Adoption
♛Racine c. Woods // foster parents of Aboriginal child want to adopt v mom refuses (SCC 1983 from MB) retraction of consent cultural background less important encourage Aboriginal identity BIOC adoption allowed
⚜Directeur de la protection de la jeunesse c. J.K. // child of Aboriginal teen mom for adoption (QCCA 2004) cultural importance diminishes BIOC eligible for adoption
♛Re Adoption of Katie // Child adopted in Inuit tradition (NWT 1961) Inuit tradition recognized adoption allowed
WEEK 6 In Loco Parentis
Divorce Act: s. 2 (definition of “child of the marriage”)
Family Law Act (Ont.): s. 1 (definition of “child”)
C.C.Q. arts. 33, 598, 599, 611
Ontario CLRA: s. 21
Rogerson, “The Child Support Obligation of Step-Parents”
♛Chartier v. Chartier // Husband tries to cut ties with ex-wife’s daughter (SCC 1999 from MB) In loco parentis BIOC cut ties post-divorce
⚜ (V.) c. F. (S.) // Ex-wife requests child support from step father (QCCA 2000) no in loco parentis in QCL narrow interpretation intent necessary intent child support
♛Cornelio v. Cornelio // father tries to cut ties to children not his (ONSC 2008) intent important in loco parentis
♛Doe v. Alberta // partner tries to get out of being a father with private agreement (ABCA 2007) private agreement works intent important in loco parentis
⚜Droit de la famille 2492 // shady grandfather wants access (QCCS 1996) BIOC access rights
♛C.R. v. B.L.B. // grandmother wants access to child adopted out (ABQB 2005) adoption severs all ties access rights
WEEK 7 Parental authority and custody
C.C.Q. arts. 32-34, 598-601, 603-607, 610, 612
Divorce Act: ss. 16(1), (4), (5), (6), (8), (9), (10)
Ontario CLRA: ss. 19, 20, 21, 24, 28
Kasirer, “Note on Parental Authority”
⚜W. (D.) c. G. (A.) // father wants decision-making power from mom with sole custody (QCCA 2003) QC definition of custody non-custodial parents retains authority
♛Young v. Young // xx v. xx (SCC 1993 from BC) sole custody is sole decision-making sole custody to mom
♛Gordon v. Goertz // mom wants to move with to Australia, father tries to prevent move (SCC 1996) material change change custody order BIOC mom keeps custody
WEEK 8 Challenges to Best Interest Principle
Van Praagh, “Religion, Custody and a Child’s Identities”
Bala, Spousal Violence in Custody and Access Disputes
♛Van de Perre c. Edwards // mixed race child of basketball player (2011 SCC from BC) BIOC race is one factor not important mom has sole custody father has access
♛Pollastro v. Pollastro // mom flees with child from abusive husband (1999 ONCA) grave risk return child to father
♛Harrison v. Harrison // manipulate mom doesn’t comply with access agreement (1987 MBQB) vindictive behavior tie child support to mom’s co-operation
♛Rogerson v. Tessaro // malicious mom interfere with dad’s access (2006 ONCA) malicious behavior remove custody
♛LEG v. AG // mom wants judge to interview child in divorce action (2002 BCSC) BIOC interview at court’s discretion
WEEK 10A Support between children and parents
C.C.Q. arts. 585-590, 595
Divorce Act: s. 15.1
Family Law Act (Ont.): ss. 31, 32, 33(1), (2), (7), (11), (12), (14), (15), 34(1)
⚜Droit de la famille - 138 // 27 lazy child asks father for support (1984 QCCA) child has no need lazy not disabled support awarded
♛Skrzypacz c. Skrzypacz // son sponsored mom to immigrate, mom wants support (1996 ONPC) history of care parental support
⚜Droit de la famille 2626 // daughter wins lottery parents want support (1997 QCCS) bad faith from parents daughter’s has means parental support
WEEK 10B Child support guidelines
Federal Child Support Guidelines: ss. 1, 3, 4, 5, 8, 9, 10
Regulation to the C.C.P. respecting the determination of child support payments (Quebec): ss. 1, 2, 3, 10
♛Willick v. Willick // Ex-husband’s income increased post-divorce (1994 SCC from SK) material change increase child support
♛Francis v. Baker // Rich lawyer argue against table amount child support (1999 SCC from ON) special treatment of high income injustice in amount variation in amount
♛Contino v. Leonelli-Contino // Father increased custody time asks for reduction in child support (2005 SCC from ON) shared custody special case discretion to consider circumstance reduce support
WEEK 12 Forms of conjugal life
CCQ arts. 392-396, 2639
Ontario Family Law Act ss. 19(1), 20(1), 21(1), 29, 30
Divorce Act ss. 8, 11
Leckey, “A Decade of Same-Sex Marriage in Ontario”
⚜Quebec v. A // Unmarried partner wants support from de facto husband (2013 SCC) broadening rights to unmarried couples spousal support
WEEK 13/14 Dissolution of relationships, spousal support
C.C.Q. arts. 392, 427, 428, 429, 511, 521.6, 521.17, 585
Family Law Act (Ont.): ss. 29, 30, 33(8), 33(9), 33(10)
Divorce Act: ss. 15.2, 17(1)(a) and 17(7)
⚜Bruker v. Marcovitz // Wife wants husband to grant religious divorce (2007 SCC from QC)
♛Azam v. Jan // Married Canadian goes to marry another wife in Pakistan (2013 ABQB) marriage void
♛Moge v. Moge // Husband wants to terminate support for poor wife (1992 SCC from MB) spousal independence priority indefinite support
♛Bracklow v. Bracklow // wife got sick, husband wants to end support (1999 SCC from BC) non-compensatory support continued support
♛Miglin v. Miglin // wife wants to revise support contract years later (2003 SCC from ON) new test for changing support contractsrevise contract
♛Rick v. Brandsema // Husband sheltered assets during support negotiations > info asymmetry good faith valid support contract (2009 SCC from BC)
♛Kerr v. Baranow // owners of joint family business (2011 SCC from BC) joint family venture property in trust joint contribution award for unjust enrichment
Appendix
WEEK 1 Dynamism and State Interest
-major themes
- Place of the state: definition of family relations, fixing boundaries, reflects culture and society, potential interventions, what’s appropriate
- Bright line rules vs. discretion: power for state actors, minimum standards, legislated rules
- First word: litigants vs. defendants, background determinants on outcomes
- Legal fictions
- Compromised autonomy
- Vulnerable groups, gender issues
- Imposition of narratives & “protection”\
-Definitions of family
- traditionally as alliance, preservation of wealth
- many modern challenges, between non-romantic partners, informal
-NB. QCL highly favor formalized relationships
-NB. QCL doesn’t recognize common law relations
-NB. Courts often highly scrutinize contracts involving family matters
Soble, “Japan’s Top Court Upholds Law Requiring Spouses to Share Surname” (2015)
-Legal issue interacts with identity and marriage status
-Court refused to change law, sent to parliament
Wingrove, “New Law Sets Out Rules for Divorces on Reserves Despite First Nations Opposition” (2013)
-Bill S-2 federal law on matrimonial property extended to First Nations reserves
-Original issue of reserves federally governed but matrimonial property provincially governed
-New law lacks resources to operationalize and implement
-Imposition of Western legal ideas of protection, property and justice
-Tension between community-specific values vs. broader social interest and idea of equality
-Underlying assumptions of Bill S-2
- Property ownership, private property
- Ability to exit relationships
- Priority of the individual over larger context
- Marriage as economic partnership with economic entitlements
oLeckey, “Families in the Eyes of the Law”
-4 oppositions in family law
- Parties to whom the laws are addressed, private vs public
- Reasons for identifying family relationships, instrumental vs symbolic
- Bases for recognizing family relationships, formal vs functional
- Political conceptions of equality, formal v substantive
-2 main arguments:
- address simultaneously all of the aforementioned tensions and acknowledge them
- Formal equality does not necessarily bring about substantive equality.
-4 Legal models for regulating adult rltnshps: marriage, private law, ascription, registration
- Marriage: focused on sexual intimacy, all-or-nothing legal obligations
- Private law arrangements are typically contractual, will of the individual
- Ascription: various indicia of relationships bearing functional resemblance, get rights & obs. automatically after fulfilling some state requirements
- Registration: similar to private law arrangements (parties’ will dictates rights/obs) except makes relationship known to the state
oReference re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588 (polygamy)
-s. 293 CCC prohibits polygamy – is this prohibition offensive to Charter?
-Historically Aboriginal groups, Mormons and some Muslims
-Dr. Wu: increase in number of common law households, decrease in marriages
-“…reasonable person would be forced to recognize that the prohibition appropriately corresponds to the serious harms that are associated with polygamy in a manner that promotes the very interests that underpin s. 15.”
-Court is willing to recognize social dynamism in families, but draws a line at polygamy
-Example of social dynamics vs. state intervention esp. criminalization
WEEK 2 Filiation by blood: Paternity
-Vertical relationships: no choice, very strong, hard to break
-Horizontal relationships: easily terminated, characterized by choice and autonomy
-NB. Filiation is legal parentage ≠custody is legal effect ≠practical relationship
-NB. Best interest of child has very little role in determining filiation, all about legal rules
-Parental status comes with many rights and responsibilities
-Time is essential in determining filiation
-Courts usually can’t order DNA tests unlike criminal cases
-Presumption of paternity (POP)
- Law assumes biological link between child and partner of birth mother
- Meant to protect stability of marriage, fidelity
- Only for married couples and civil union of opposite sex
- Help legitimacy of the child
- Cohabitation enjoys no presumption of paternity
-QCL scheme[1] “Filiation”
- 522 all children have same rights regardless of paternity, not disadvantaged by parents’ status
- Filiation by blood i.e. natural birth with a man and woman
- Hierarchy of modes of acknowledgement
- Automatic hierarchy, no genetic test involved
- 523 act of birth(legal document, produces birth certificate) first, then uninterrupted possession of status (UPS)
- 524 establishing UPS
-Nomen, name, now less important legally
-Tractatus, treatment
-Fama, reputation as a father of the child
- 525 presumption of paternity, 300 day limit
- 526 voluntary acknowledgement
- 527 acknowledgement by declaration
- Heavily favors formal relationships
- Doesn’t recognize de facto or psychological relationships
C.C.Q. arts. 522-527, 530, 533, 535, 535.1, 538-541
522.All children whose filiation is established have the same rights and obligations, regardless of their circumstances of birth.
CHAPTERI
FILIATION BY BLOOD
SECTIONI
PROOF OF FILIATION
§1.—Title and possession of status
523.Paternal filiation and maternal filiation are proved by the act of birth, regardless of the circumstances of the child's birth.
In the absence of an act of birth, uninterrupted possession of status is sufficient.
524.Uninterrupted possession of status is established by an adequate combination of facts which indicate the relationship of filiation between the child and the persons of whom he is said to be born.
§2.—Presumption of paternity
525.If a child is born during a marriage or a civil union between persons of opposite sex, or within 300 days after its dissolution or annulment, the spouse of the child's mother is presumed to be the father.
The presumption of paternity is rebutted if the child is born more than 300 days after the judgment ordering separation from bed and board of married spouses, unless the spouses have voluntarily resumed living together before the birth.
The presumption is also rebutted as regards the former spouse if the child is born within 300 days of the dissolution or annulment of the marriage or civil union, but after a subsequent marriage or civil union of the child's mother.
§3.—Voluntary acknowledgement
526.If maternity or paternity cannot be determined by applying the preceding articles, the filiation of a child may also be established by voluntary acknowledgement.
527.Maternity is acknowledged by a declaration made by a woman that she is the mother of the child.
Paternity is acknowledged by a declaration made by a man that he is the father of the child.
- Contesting filiation
- 530 uncontestable paternity can’t challenge filiation if act of birth agrees with possession of status
-Protect care of children through protecting family unit over blood ties
-UPS + act of birth = solid filiation
- 533 proof of filiation
- 535 no court order for bodily substance unless court action
SECTIONII
ACTIONS RELATING TO FILIATION
530.No one may claim a filiation contrary to that assigned to him by his act of birth and the possession of status consistent with that act.
No one may contest the status of a person whose possession of status is consistent with his act of birth.
531.Any interested person, including the father or the mother, may, by any means, contest the filiation of a person whose possession of status is not consistent with his act of birth.
However, the presumed father may contest the filiation and disavow the child only within one year of the date on which the presumption of paternity takes effect, unless he is unaware of the birth, in which case the time limit begins to run on the day he becomes aware of it. The mother may contest the paternity of the presumed father within one year from the birth of the child.
533.Proof of filiation may be made by any mode of proof. However, testimony is not admissible unless there is a commencement of proof, or unless the presumptions or indications resulting from already clearly established facts are sufficiently strong to permit its admission.
535.Every mode of proof is admissible to contest an action concerning filiation.
Any mode of proof tending to establish that the husband or civil union spouse is not the father of the child is also admissible.
535.1.Where the court is seized of an action concerning filiation, it may, on the application of an interested person, order the analysis of a sample of a bodily substance so that the genetic profile of a person involved in the action may be established.
However, where the purpose of the action is to establish filiation, the court may not issue such an order unless a commencement of proof of filiation has been established by the person having brought the action or unless the presumptions or indications resulting from facts already clearly established by that person are sufficiently strong to warrant such an order.
The court determines conditions for the sample-taking and analysis that are as respectful as possible of the physical integrity of the person concerned or of the body of the deceased. These conditions include the nature and the date and place of the sample-taking, the identity of the expert charged with taking and analyzing the sample, the use of any sample taken and the confidentiality of the analysis results.
The court may draw a negative presumption from an unjustified refusal to submit to the analysis ordered by the court.
536. In all cases where the law does not impose a shorter period, actions concerning filiation are prescribed by 30 years from the day the child is deprived of the claimed status or begins to enjoy the contested status.
If a child has died without having claimed his status but while he was still within the time limit to do so, his heirs may take action within three years of his death.
- Filiation by assisted procreation
- Majority of hetero couples go through anonymous donation
- 538 parental project, genetic material of 3rd party
-Can be done with 1 person, no need for a partner
-If have partner, partner must consent
- 538.1 establish filiation by act of birth, then possession of status
- 538.2 donor can’t claim bond of filiation, unless donated through sexual intercourse, 1 year right to claim filiation after birth
-Amicalement assisté
-During one year period the filiation status of the other spouse is legally precarious
-Considered more intimate than medically assisted
-Legislator wants to discourage this method?
-May be favoring role of a father