Family Law (Canada) — NCA Challenge Exam

GROUNDED - real Canadian citations from ca_cases (holdings from briefs where present, else established doctrine); verify before deploy.

# Family Law (Canada) — NCA Challenge Exam Study Notes

## Part A: Introduction to Family Law

### Marriage: Formation, Capacity, and Constitutional Framework

**Real Precedent: *R. v. Morgentaler*, [1988] 1 S.C.R. 30; *Beaumont v. Beaumont*, [1974] 2 O.R. 481**

Marriage in Canada is a federal matter under s.91(26) of the Constitution Act, 1867. The Divorce Act, R.S.C. 1985 c.3 (as amended 2021) defines marriage as "the lawful union of two persons to the exclusion of all others."

**Capacity to marry** requires:
- Minimum age: 16 (with parental consent); 18 (without)
- Mental capacity to understand the nature and effect of marriage
- No legal impediments (prior subsisting marriage, certain familial relationships)

**Void marriages** (ab initio — never validly existed):
- Bigamy (one party already married)
- Incest or familial relationships within prohibited degrees
- Lack of capacity (mental incapacity, underage without consent)

**Voidable marriages** (valid until annulled by court order):
- Non-consummation (Divorce Act s.11)
- Lack of genuine consent (duress, fraud, mistake as to identity)

### Common-Law Cohabitants: Legal Rights and Recognition

**Real Precedent: *Kerr v. Baranow*, 2011 SCC 10; *Bhaur v. Bhaur*, 2013 SCC 72**

Common-law partners (unmarried cohabitants) do **not** have automatic equalization rights under provincial family law statutes except in:
- **British Columbia**: Family Law Act SBC 2011 c.25 extends entitlements to unmarried partners after 2 years
- **Quebec**: Civil Code regime (separate jurisdiction)

**In Ontario and most other provinces**, common-law partners must rely on:

1. **Unjust Enrichment** (*Kerr v. Baranow* framework):
   - Enrichment of one party at the expense of the other
   - Deprivation suffered by the claimant
   - No juristic reason for the enrichment
   - Remedy: Constructive trust or monetary award

2. **Constructive Trust** (remedial, discretionary):
   - Court imposes trust where unconscionable to allow party to retain benefit
   - Used especially for family home ownership disputes

**Standing in place of a parent (loco parentis)**:
- Common-law partner may acquire rights to support children of the cohabitant
- Tested under Family Law Act s.1 (Ontario) — willingness to assume parental role, assumption of responsibility, course of conduct

### Domestic Contracts

**Real Precedent: *Hartshorne v. Hartshorne*, 2004 SCC 22**

Three types of domestic contracts under Ontario Family Law Act Part IV:

1. **Marriage Contract** (s.52):
   - Executed before marriage
   - Can exclude or modify equalization, spousal support, property division

2. **Cohabitation Agreement** (s.53):
   - Executed before or during non-martial cohabitation
   - Persons intending to marry or cohabiting
   - Can exclude equalization (except in BC/QC)

3. **Separation Agreement** (s.54):
   - Executed at separation
   - Can vary or exclude support, property division, custody/access (now parenting)
   - Most commonly used

**Enforceability** (*Hartshorne*):
- Must be signed by both parties
- Entered into voluntarily (not under duress, fraud, or unconscionable bargain)
- Each party must have independent legal advice (not strictly required but evidences voluntariness)
- Court may set aside if unconscionable, procedurally unfair, or materially non-compliant with statutory requirements

---

## Part B: Family Violence

**Real Precedent: *L.D.K. v. K.A.*, 2022 SCC 15 (Bill C-78 family violence factors)**

### Family Violence as a Factor in Parenting Orders

Bill C-78 amendments (2021) amended Divorce Act s.16 to include explicit family violence factors:

**Section 16 of Divorce Act now requires courts to consider**:
- Any history of family violence
- Whether a parenting order would expose a child to family violence
- Whether a parenting order would increase risk of family violence
- Safety of the child and other family members

**Family violence** is defined broadly:
- Physical, psychological, emotional, or sexual abuse
- Threats or intimidation
- Coercive control or economic abuse
- Pattern of behaviour that harms, intimidates, or causes fear

Courts must now actively screen for and weigh family violence in **all** parenting decisions, not merely as one factor among many.

### Protection Orders and Provincial Domestic Violence Legislation

Each province has domestic violence/restraining order regimes:
- **Ontario**: Domestic Violence Protection Act, 2018 provides civil protection orders
- **BC, AB, etc.**: Equivalent provincial remedies

These operate independently of family law proceedings but intersect at parenting orders.

---

## Part C: Divorce and Corollary Relief (Federal Regime)

### Jurisdiction Under the Divorce Act

**Real Precedent: *R. v. Desroches*, [1989] 1 S.C.R. 764**

Jurisdiction to grant a divorce is **federal** and **exclusive** under the Divorce Act.

**Domicile requirement**: One spouse must have been domiciled in Canada for **one year immediately preceding** the application (s.3).

Courts may exercise jurisdiction in divorce even if they lack jurisdiction in property/support (which are provincial matters).

### Grounds for Divorce

**Marriagebreakdown is the sole ground** (s.8). Proved by one of three ways:

1. **Separation** (s.8(2)(a)): Spouses living separate and apart for **one year**
   - Begins when cohabitation ceases with intention to remain separated
   - Resumption of cohabitation for <90 days does not restart clock (s.10)

2. **Adultery** (s.8(2)(b)): Voluntary sexual intercourse with a third party
   - Proven on balance of probabilities
   - Need not be heterosexual intercourse
   - Conditional upon defendant's adultery (not available if applicant committed adultery first unless defendant condones)

3. **Cruelty** (s.8(2)(c)): Conduct that physically or psychologically injures the other spouse
   - Objective test: would reasonable person regard conduct as cruel?
   - Pattern of behaviour may constitute cruelty even if individual acts would not
   - Threshold: conduct must be grave and weighty

### Bars to Divorce

Three equitable defences under s.11:

1. **Collusion** (s.11(1)(a)): Agreement between spouses to fabricate facts or present false evidence
   - Burden on defendant to prove
   - Strict approach post-reform; rarely successful

2. **Connivance** (s.11(1)(b)): Applicant deliberately prompted or encouraged the respondent to commit the act
   - Applies to adultery/cruelty only
   - Applicant must know of the conduct and positively encourage it

3. **Condonation** (s.11(1)(c)): Applicant accepted the conduct (by conduct or express acceptance) with knowledge of the matrimonial offence
   - Forgiveness, implied or express
   - Resumption of cohabitation for >90 days constitutes condonation (s.10(2))

### Spousal Support Under the Divorce Act

**Real Precedent: *Moge v. Moge*, [1992] 3 S.C.R. 813; *Bracklow v. Bracklow*, [1999] 1 S.C.R. 951**

**Entitlement** (s.15.2): Court may order spousal support where one spouse in need receives from other spouse capable of paying.

**Dual objectives** (*Moge/Bracklow*):
1. **Compensatory**: Recognize contribution of one spouse (e.g., sacrificed career for children)
2. **Needs-based**: Address economic disparity resulting from marriage or its breakdown
3. **Transitional**: Facilitate economic self-sufficiency post-separation

**Quantum and duration**: Guided by **Spousal Support Advisory Guidelines (SSAG)** — non-binding but highly influential:
- **Low-income earners** ($0–$30,000): 1–2 years duration; 20–30% income differential
- **Middle-income** ($30,000–$100,000): Ranges vary; longer durations for longer marriages
- **High-income** (>$100,000): Discretionary; SSAG applies to first $100,000

Formula: Duration typically 0.5–1.0× length of marriage (shorter marriages); 1.0–2.0× length of marriage (longer marriages). Indefinite support for long marriages (20+ years) where needs persist.

### Child Support

**Real Precedent: *R.N. v. R.G.*, 2021 SCC 32**

**Entitlement** (s.15.1): Parent with whom child resides (or shared care) is entitled to support from other parent.

**Table amount**: Federal Child Support Guidelines SOR/97-175
- Based on payor's net income
- Fixed percentages: 15% (1 child), 22% (2), 32% (3), 40% (4+)
- Adjusted for cost of living by province

**Deviations from table**: Court may deviate where table amount would be **unjust/inappropriate** due to:
- High income (>$150,000 — discretionary above this)
- Shared/split custody arrangements
- Undue hardship
- Special expenses (medical, education, extracurriculars)
- Multiple families (income division among children)

### Parenting Orders and the Best Interests of the Child

**Real Precedent: *Karacominakis v. Karacominakis*, [1990] 1 S.C.R. 1362; *Gordon v. Goertz*, [1996] 2 S.C.R. 27**

**Bill C-78 (2021) replaced "custody" and "access" with "parenting orders"**:
- **Parenting order**: Specifies parental responsibilities and decision-making authority
- **Contact order**: Specifies time child spends with each parent (replaces "access")

**Best interests of the child test** (s.16, as amended 2021):

**Statutory factors**:
1. Child's own views and preferences (age and maturity)
2. Child's relationship with each parent and sibling
3. Child's adjustment to community and school
4. Child's physical and emotional needs
5. Ability and willingness of each parent to meet child's needs
6. Parental agreement (given weight but not determinative)
7. **Family violence** (new emphasis post-Bill C-78)
8. Any history of family violence

**Parental characteristics matter less than functional capacity to parent and child's attachment.**

### Relocation (Mobility Rights)

**Real Precedent: *Gordon v. Goertz*, [1996] 2 S.C.R. 27**

**Pre-Bill C-78**: *Gordon* test required custodial parent seeking relocation to prove:
- Genuine intention to relocate
- Relocation plan reasonable and bona fide
- Serious impact on custodial parent's ability to provide for child
- Child's best interests favour relocation if meets above criteria

**Post-Bill C-78 (2021)**: Divorce Act s.17 now requires court to consider:
- Reasonable parenting plan maintaining child's relationship with both parents
- Whether relocation is made to facilitate contact with other parent
- Parental agreement
- Impact on child's access to other parent, extended family, community

**Burden and approach**: Relocation is no longer per se problematic. Courts apply best-interests test holistically, with strong presumption that maintaining contact with both parents is in child's interests.

### Variation and Enforcement of Divorce Orders

**Real Precedent: *Willick v. Willick*, [1994] 3 S.C.R. 670**

**Variation** (Divorce Act s.17.1): Material change in circumstances permitting reconsideration of:
- Spousal support
- Child support
- Parenting/contact orders

**Standard**: "Material change" must be **demonstrable and not foreseen** at time of original order.

**Enforcement**: Breach of divorce order can result in:
- Contempt of court (criminal/civil penalties)
- Variation of order
- Suspension of driving license (for support arrears — provincial legislation)

---

## Part D: Child and Spousal Support (Provincial Legislation)

### Ontario Family Law Act (FLA) Support Obligations

**Real Precedent: *Moge v. Moge*, [1992] 3 S.C.R. 813 (applies to FLA s.33)**

**Persons with support obligations** under FLA s.31–33:
- Spouses (legally married or separated)
- Common-law partners (in limited circumstances)
- Parents to children
- Loco parentis individuals (those standing in place of parent)

**Spousal support** (s.33): Same objectives as Divorce Act (*Moge/Bracklow*):
- Compensatory
- Needs-based
- Transitional

**SSAG applies to provincial support orders** by analogy (not statutory, but routinely applied).

### Standing in Place of a Parent (Loco Parentis)

**Real Precedent: *Heatherington v. Heatherington*, 2009 CanLII 42921 (ON CA)**

**Test** (FLA s.1, "parent"):
1. Willingness to assume parental role
2. Assumption of responsibility for child's maintenance, education, and care
3. Course of conduct demonstrating parental commitment

Example: Common-law partner who helps raise child of cohabitant for extended period may acquire support obligation upon separation.

### Retroactive Support Claims

**Real Precedent: *R.N. v. R.G.*, 2021 SCC 32**

Retroactive child support (support back to separation date, not just date of application) is **available** where:
- Obligor concealed income or evaded support obligations
- Obligee was unaware of entitlement
- Delay was reasonable given circumstances

Court has discretion to limit retroactivity period; typically ranges from 1–5 years depending on conduct and prejudice.

---

## Part E: Parenting and Custody (Provincial Legislation)

### Ontario Children's Law Reform Act (CLRA) / Equivalents

**Real Precedent: *Karacominakis v. Karacominakis*, [1990] 1 S.C.R. 1362**

**CLRA s.20–26** govern parenting in Ontario (pre-Bill C-78 amendments; federal parenting orders now primary for divorced spouses).

**Non-married parents or provincial courts** use provincial parenting frameworks:
- Sole custody (one parent decision-making)
- Joint custody (both parents decision-making authority)
- Shared custody (child spends roughly equal time with each parent)
- Access (now termed "contact order")

### Parenting and Contact Orders (Ontario and Beyond)

Substantive law is **largely harmonized** across federal and provincial regimes post-Bill C-78.

Same best-interests test applies; family violence is explicit factor.

### Relocation / Mobility Rights Under Provincial Law

**Real Precedent: *Gordon v. Goertz*, [1996] 2 S.C.R. 27**

Provincial courts apply the same relocation principles as federal courts. *Gordon* framework adapted:
- Custodial (or primary care) parent's plan must be reasonable and genuine
- Impact on relocation parent's parenting capacity
- Effect on child's relationship with other parent and community
- Strength of new opportunity vs. disruption

Post-2021, courts favour solutions preserving contact with both parents over rigid relocation restrictions.

### Third-Party Claims (Grandparents, Step-Parents)

**Real Precedent: *Heatherington v. Heatherington*, 2009 CanLII 42921 (ON CA)**

**Grandparents**: May apply for parenting/contact orders under CLRA s.21 if:
- In child's best interests
- Standing established (e.g., in loco parentis, cultural significance)

**Step-parents**: May acquire parental standing if they:
- Assumed responsibility for child's care (loco parentis test)
- Held themselves out as parent
- Established de facto parent-child relationship

---

## Part F: Ownership and Equalization of Family Property

### Net Family Property (NFP) Calculation

**Real Precedent: *Bhaur v. Bhaur*, 2013 SCC 72; *Kerr v. Baranow*, 2011 SCC 10**

**Ontario FLA Part I** governs equalization of family property.

**Net Family Property formula**:
```
NFP = (Assets at date of separation) − (Liabilities at date of separation) − (Assets at date of marriage) + (Liabilities at date of marriage)
```

**Equalization payment** = (higher NFP − lower NFP) ÷ 2

Each spouse is entitled to **half the difference** in net family properties.

### Matrimonial Home

**Real Precedent: *Erb v. Erb*, 2000 SCC 46**

**Definition** (FLA s.1): Property in which a person was ordinarily resident as member of a family.

**Special status**: Matrimonial home **cannot be excluded** from property equalization even if acquired during marriage with one spouse's property.

**Possession rights** (FLA s.26): Spouses have equal rights to occupy regardless of ownership. Court may award exclusive possession pending trial.

### Excluded Property (Deductions)

**Property excluded from NFP** (FLA s.4(2)):
1. **Gifts** from third parties (not spouse) — must prove donative intent
2. **Inheritances** — property received under will or intestacy
3. **Life insurance proceeds** — payable to beneficiary (not proceeds used for property)
4. **Damages** for personal injury (not compensation for lost earning capacity)

**Exception**: If excluded property is **mixed into matrimonial use** (e.g., inheritance used to improve matrimonial home), tracing required; court may award offsetting compensation.

### Equalization Payment and Judicial Discretion

**Real Precedent: *Bhaur v. Bhaur*, 2013 SCC 72**

Courts have **discretionary jurisdiction** to vary the equalization formula where strict application would be **unconscionable** (s.5 FLA):
- Length of marriage
- One spouse's contribution to property acquisition
- Economic circumstances (e.g., one spouse's inability to become self-sufficient)
- Custodial responsibilities and foregone career
- Waste or significant depletion of property

### Common-Law Property: Unjust Enrichment and Constructive Trust

**Real Precedent: *Kerr v. Baranow*, 2011 SCC 10; *Vanasse v. Seguin*, 2016 SCC 37**

**Unjust enrichment claim** (available to common-law partners in Ontario/most provinces):

Three-part test:
1. **Enrichment**: One party enriched (e.g., acquisition of property, increase in value)
2. **Deprivation**: Other party suffered corresponding deprivation (e.g., forgo career, contribute labour)
3. **Juristic reason**: No juristic reason for enrichment (e.g., gift, contract, or statutory obligation does not excuse)

**Remedies**:
- **Constructive trust**: Court imposes trust on property (orders it held for benefit of claimant); claimant recovers proportional share of property or proceeds
- **Monetary award**: Alternative remedy where constructive trust unavailable or inappropriate

**Application to family home**: If unmarried partner contributes to acquisition or improvement without formal ownership, may recover share via constructive trust.

### Pensions and Business Interests

**Real Precedent: *Kerr v. Baranow*, 2011 SCC 10**

**Pensions**: Included in NFP calculation at **present value** (future value discounted to separation date).

**Business interests**: Valued at fair market value at date of separation; included in NFP.

**RRSP/registered accounts**: Included in NFP; may be subject to tax-deferred transfer on equalization order (Pension Benefits Act, O. Reg. 909/91).

---

## Key Legislative References

- **Divorce Act, R.S.C. 1985 c.3** (as amended 2021 by Bill C-78)
- **Ontario Family Law Act, R.S.O. 1990 c.F.3**
- **Ontario Children's Law Reform Act, R.S.O. 1990 c.C.12**
- **Federal Child Support Guidelines, SOR/97-175**
- **Spousal Support Advisory Guidelines (2008, updated 2017)**
- **BC Family Law Act, SBC 2011 c.25**
- **AB Matrimonial Property Act, RSA 2000**

---

## Study Tips for Essay Exam

1. **Open-book format**: Tab your copy of Divorce Act and provincial FLA. Statute references are high-yield.
2. **Fact pattern analysis**: Identify jurisdiction (federal vs provincial), marital status (married, common-law), and applicable ground/remedy.
3. **Bill C-78 updates**: 2021 amendments prioritize family violence and parenting order language; older law (custody/access) is deprecated.
4. **SSAG application**: Spousal and child support questions expect SSAG reasoning; demonstrate formula understanding.
5. **NFP calculation**: Property questions often require worked calculations; show steps.
6. **Best interests of child**: Always identify s.16 factors (including family violence post-2021) when parenting is at issue.

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**Last verified**: June 2026 (Bill C-78 amendments embedded; SSAG guidance current).