NCA Family Law (Canada)

# NCA Family Law (Canada) — Grounded Notes


## PART A: INTRODUCTION TO FAMILY LAW

### Federal / Provincial Jurisdiction
- **Divorce Act, RSC 1985, c. 3** — federal statute governing divorce, spousal support, parenting orders, and child support for married couples.
- **Ontario Family Law Act, RSO 1990, c. F.3** — provincial statute for unmarried cohabitants, property division, and support outside the Divorce Act framework.
- **Key principle:** The Divorce Act applies only to married persons; provincial family statutes apply to unmarried cohabitants and property division for all adult relationships.

### Marriage Formalities & Capacity
- **Civil Marriage Act, SC 2005, c. 33** — federal law requiring marriage licence, ceremony, and solemnization by authorized officiant.
- **Capacity to marry:** Requires age 18+ (16 with parental consent in some provinces); legal capacity (no existing marriage); no prohibited degrees of relationship (1st/2nd degree relatives).
- **Void vs. voidable:** Void marriage (never legal; e.g., bigamy) may be dissolved without divorce proceedings; voidable marriage (legal until challenged; e.g., failure to disclose fraud) requires court order.

### Common-Law Relationships
- **Recognition:** Ontario and most provinces recognize unmarried cohabitants as spouses for family law purposes after a specified period (typically 2–3 years of continuous cohabitation or birth of a child).
- **Effect:** Eligible for spousal support and parenting orders, but NOT covered by Divorce Act; governed by provincial statutes.

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## PART B: FAMILY VIOLENCE

### 2020 Divorce Act Amendments
- **Family violence definition:** Any conduct by a person against a family member that causes harm and includes violence or threats of violence, harassing, controlling, or threatening conduct, or conduct that is coercive in nature.
- **Explicit integration:** S.16 of the Divorce Act (parenting orders) and s.15.2 (spousal support) now require courts to consider family violence and its impact.
- **Best interests impact:** Violence is a significant factor in determining parenting arrangements; courts must consider the safety of all family members.

### Impact on Parenting Orders
- **Supervised contact:** Where violence is proven, courts may order supervised contact or contact with conditions (e.g., neutral location, no overnight).
- **Decision-making responsibility:** S.16(3) requires courts to consider: the parent's ability to put the child's best interests first; the child's relationship with each parent and extended family; the child's adjustment to school, community, and home; and the strength of the child's relationship with each parent.
- **Violence as best-interests factor:** A parent's history of family violence is a strong negative factor in assigning decision-making responsibility.

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## PART C: DIVORCE AND COROLLARY PROCEEDINGS

### Grounds for Divorce (Divorce Act, s. 8)
1. **Marital breakdown** — only ground (no fault required):
   - Separation for 1 year, OR
   - Adultery, OR
   - Cruelty (physical or mental abuse)
2. **No reconciliation bar** if 1 year has passed; even if reconciliation attempted, 1-year clock restarts.

### Jurisdiction (s. 3–5 Divorce Act)
- **Forum:** Canadian court has jurisdiction if either spouse resides in Canada on the day of application.
- **Exclusive jurisdiction:** Once divorce proceedings filed, no other court (including foreign courts) may hear the matter.
- **Corollary relief:** Can be claimed in the same proceeding as divorce or within 2 years of divorce decree.

### Recognition of Foreign Divorces
- **Presumption:** Divorce obtained in a foreign jurisdiction is recognized if both spouses were resident there or had substantial connection.
- **Exception:** Divorce obtained by forum-shopping (applying in a jurisdiction with no real connection) may be questioned; Canadian courts examine residence/connection facts.

### Corollary Relief (Divorce Act, ss. 15.2–17)
- **Parenting orders** (decision-making responsibility and contact orders)
- **Spousal support** (s.15.2 criteria and objectives)
- **Child support** (Federal Child Support Guidelines, s. 17)
- All may be addressed within divorce proceedings or in separate applications.

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## PART D: CHILD SUPPORT

### Federal Child Support Guidelines (SOR/97-175)

#### Table Amounts
- Based on annual income and number of children; amounts increase with income.
- Both parents may be liable depending on shared custody arrangements.
- Guidelines apply across Canada; provincial variations minimal.

#### Section 7 Special / Extraordinary Expenses
- **Scope:** Daycare, health insurance, education, extracurricular, post-secondary, extraordinary medical/dental.
- **Apportionment:** Shared proportionally to parents' incomes above table amount.
- **Justification:** Must show expense is necessary and reasonable; discretionary for extracurricular.

#### Undue Hardship Claims (s. 10)
- **Test:** Payor claims application of table amount causes undue hardship; burden on payor to prove.
- **Circumstances:** Low income, high debt, other dependents, parental debt repayment.
- **Adjustment:** Court may adjust amount downward if hardship demonstrated, but not below reasonable support.

#### Variation and Termination
- **Grounds:** Material change in circumstances (income, parenting time, other support obligations).
- **Termination:** When child reaches 18 or completes post-secondary (age 22 typical limit).
- **Retroactive support:** **DBS v. SRG, [2006] 2 SCR 231** — seminal case establishing retroactive child support framework; payor's failure to disclose income does not extinguish obligation; courts may order retroactive payment with interest.

### Provincial Child Support Outside Divorce Act
- **Ontario Family Law Act, Part III** — governs support obligations for unmarried parents; same table amounts apply.
- **Enforcement:** Provincial agencies (e.g., Ontario Support Order Enforcement Act) can enforce orders directly via wage garnishment.

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## PART E: SPOUSAL SUPPORT

### Divorce Act s.15.2 Criteria and Objectives
- **Objectives:**
  1. Recognize marriage as an economic partnership
  2. Apportion financial hardship
  3. Recognize parental responsibilities and economic impact
  4. Promote self-sufficiency to extent possible
- **Factors:** Financial need, ability to pay, duration of marriage, standard of living during marriage, contribution to child-rearing and domestic responsibilities, and any other relevant circumstance.

### Spousal Support Advisory Guidelines (SSAG, 2008)
- **Non-binding guidelines:** Courts may follow or depart based on s.15.2 factors.
- **Range calculation:**
  - **Without dependent children:** 1.5–2% of income difference per year of marriage (max 50% of difference).
  - **With dependent children:** 1.5–2% of income difference per year of marriage PLUS notional child support.
- **Duration:** Usually time-limited for marriages <5 years; indefinite for long-term marriages (20+ years) or dependent children cases.
- **Durational limits:** Pay-out period = years of marriage; range narrows to 50–100% of the calculated duration at later stages.

### Moge v. Moge Framework: [1992] 3 SCR 813
- **Compensatory support:** A spouse is entitled to support as compensation for economic contributions during marriage that enhanced the other's earning capacity (e.g., wife put husband through law school).
- **Test:** Court examines the degree to which the marriage diverted economic self-sufficiency; degree is recoverable.
- **Landmark principle:** Spousal support is not solely based on need; it reflects marriage as an economic partnership.

### Bracklow v. Bracklow: [1999] 1 SCR 420
- **Non-compensatory support:** A spouse may be entitled to support even if no economic contribution to the other's earning capacity.
- **Test:** Where need exists and there is capacity to pay, and the marriage was of significant duration, support may be awarded for economic hardship alone (not tied to compensation).
- **Mutual obligation:** The court recognized a mutual obligation of spouses to share the economic consequences of marriage breakdown.

### Miglin v. Miglin: 2003 SCC 24
- **Domestic contracts and support waivers:** A valid marriage contract waiving support may be enforced even if it results in economic hardship.
- **Test:** Contract is valid if (a) executed with full understanding and voluntary consent; (b) no unconscionability at the time of enforcement or creation; (c) no material change in circumstances making it patently unfair.
- **Unconscionability:** Requires both procedural unfairness (inequality of bargaining power, lack of disclosure) and substantive unfairness (terms so onerous they shock the conscience).
- **Miglin is strict:** Courts will enforce support waivers if properly executed, even if it causes hardship.

### Variation of Spousal Support
- **Test:** Material change in circumstances (e.g., loss of job, major illness, repartnering).
- **Income increase:** Payor who obtains significantly higher income may seek reduction; payee may seek increase if payor's capacity rises.
- **Repartnering:** Relationship with new partner may be a factor in reducing support, but is NOT automatic; courts examine financial reality of new relationship.

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## PART F: PARENTING ORDERS AND DECISION-MAKING

### 2021 Divorce Act Amendments: Decision-Making Responsibility
- **Terminology shift:** The word "custody" no longer appears in the Divorce Act.
- **Decision-making responsibility:** The authority to make major decisions affecting the child (education, religion, medical).
- **Contact order:** The right to spend time with the child; formerly called "access."
- **Effect:** Distinguishes legal authority (decision-making) from physical time (contact).

### Best Interests of the Child (s.16 Factors)
Courts must consider:
1. The child's needs, including contact with each parent and extended family
2. The history of care for the child
3. The child's adjustment to school, community, and home
4. The strength of the relationship between the child and each parent
5. The child's own preferences (if old enough to express them)
6. The ability of each parent to meet the child's needs
7. Each parent's willingness to support the child's relationship with the other parent
8. **Family violence:** Court must consider any family violence and its impact on the child and family members

### Relocation Under s.16.9
- **Framework:** Parent seeks to relocate with child; trigger for relocation inquiry.
- **Burden:** Relocating parent must establish relocation is in the child's best interests; high bar.
- **Factors:**
  - Reason for proposed move
  - Impact on child's relationship with non-relocating parent
  - Impact on the child's education, community, and extended family ties
  - Financial and social implications
  - Whether the non-relocating parent can be reasonably accommodated

#### **Barendregt v. Grebliunas, 2022 SCC 22**
- **Landmark relocation case:** Clarifies that relocation is NOT automatically granted to the custodial parent.
- **Best-interests test:** Relocation must be in the child's best interests, balancing continuity of care against the opportunity for a better life in the new location.
- **Burden:** Onus on relocating parent; courts scrutinize the reason and genuine necessity.
- **Updated approach:** Moves away from presumption that the primary caregiver may relocate; now focuses on child's global best interests.

#### **Gordon v. Goertz, [1996] 2 SCR 27**
- **Earlier relocation framework:** Established that relocation affecting parenting time is a material change in circumstance.
- **Variation application:** Relocation triggers a variation application if there is a change to parenting arrangements.
- **Judicial discretion:** Courts have broad discretion to approve or restrict relocation based on best interests.

### Contact Orders
- **Scope:** Specifies the right to spend time with the child.
- **Flexible:** Can be specific (e.g., every other weekend) or general (at reasonable times and places).
- **Restriction:** May be restricted, supervised, or prohibited if family violence or parental alienation is found.

### Provincial Custody Regimes (Ontario CLRA)
- **Ontario Children's Law Reform Act, RSO 1990, c. C.12** — governs custody/access for non-Divorce Act matters (e.g., unmarried parents).
- **Similar factors:** CLRA s.17 mirrors Divorce Act s.16 in best-interests criteria.
- **Equivalence:** Custody under CLRA = decision-making responsibility; access = contact order.

### International Child Abduction (Hague Convention 1980)
- **Framework:** Convention requires courts to order return of a child wrongfully removed from habitual residence.
- **Exceptions:** Return may be refused if habitual residence is disputed, consent was given, or the child faces grave risk of harm.
- **Canadian application:** Federal Divorce Act, s.17.3 incorporates Hague principles; Canadian courts are signatories.

---

## PART G: FAMILY PROPERTY (DIVISION AND EQUALIZATION)

### Ontario Family Law Act Part I: Net Family Property (NFP)

#### NFP Calculation Formula
```
Spouse A's Net Family Property = Value of All Property on VD - Debts on VD - Value of All Property Owned on Date of Marriage + Debts Owed on DOM

Equalization payment = (NFP A - NFP B) / 2 = amount the spouse with higher NFP owes to the other
```

#### Key Components
- **Valuation date (VD):** Usually date of separation; can be date of divorce or date of trial.
- **Property included:** Real property, personal property, business interests, pensions, RRSPs, insurance.
- **Debts included:** Mortgages, credit cards, lines of credit, family loans outstanding on VD.

#### Excluded Property (s.4(2) FLA)
- **Gifts and inheritances:** Unless used for family purposes (e.g., inherited home used as matrimonial home).
- **Personal injury awards:** Not family property.
- **Insurance proceeds:** Generally excluded unless for lost income.
- **Matrimonial home:** Always family property even if owned before marriage or acquired with excluded funds.

#### Deductions
- **Debts:** Only valid debts on the valuation date (not incurred after separation for separation expenses).
- **Mortgages on excluded property:** May reduce the excluded property value.
- **Notional child support paid:** Deductible in some cases to avoid double recovery.

#### Unconscionability and Unequal Division
- **Test:** Equalization payment is unconscionable if it results in a grossly unequal distribution (Miglin framework applies).
- **Unequal division:** Court may order unequal distribution under FLA s.5 if equalization is unconscionable; burden on applicant.

### BC Family Law Act / AB Matrimonial Property Act Analogues
- **BC:** Community property regime; most property acquired during marriage is divided 50/50.
- **AB:** Similar to Ontario FLA; equalization-of-entitlement model.
- **Exam acceptance:** Candidates may use BC or AB law if intending to practise there.

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## PART H: MATRIMONIAL HOME

### Ontario FLA Part II: Possession and Disposition (ss. 20–25)

#### Right to Possession
- **Exclusive occupation:** Even if not title holder, a spouse has statutory right to remain in the matrimonial home.
- **Eviction protection:** A spouse cannot be evicted without a court order.
- **Both spouses reside:** Presumption that both have equal right; one spouse may seek exclusive possession order on grounds of family violence or best interests of child.

#### Designation of Matrimonial Home
- **Definition:** The property where the family resides at the time of separation.
- **One or many:** A family may have multiple properties; only one is the "matrimonial home" for FLA purposes.
- **Effect:** Matrimonial home cannot be disposed of without spouse's consent or court order.

### Sale and Division Proceeds
- **Family home proceeds:** Often subject to equalization; treated as part of each spouse's net family property.
- **Mortgage debt:** Deducted from proceeds; net equity divided according to FLA principles.

---

## PART I: DOMESTIC CONTRACTS

### Types of Agreements

#### Marriage Contracts (FLA s.52)
- **Scope:** Signed before or after marriage; governs property, support, parenting.
- **Requirements:** Writing, signed by each party, and (usually) witnessed.
- **Parenting terms:** Binding on support and property; parenting decisions can be addressed but must always be subject to the child's best interests.

#### Cohabitation Agreements (FLA s.53)
- **Scope:** Signed before cohabitation; governs property and support for unmarried couples.
- **Effect:** Creates a "spouse" status for family law purposes if the agreement stipulates.

#### Separation Agreements (FLA s.54)
- **Scope:** Signed after separation; final settlement of all spousal and property issues.
- **Binding:** Very difficult to set aside; high bar for unconscionability.
- **Parenting review:** Parenting terms can be modified if there is a material change in circumstances and a child's best interests require modification.

### Formal Requirements
- **Writing:** Contract must be in writing.
- **Signature:** Both parties must sign.
- **Witnessing:** Generally required (varies by province and agreement type).
- **Independent legal advice:** Highly recommended (not required by statute, but failure to obtain it may be evidence of unconscionability).

### Setting Aside: Unconscionability and Duress
- **Unconscionability test (Miglin):**
  - Procedural: Inequality of bargaining power, lack of disclosure, failure to advise of legal rights.
  - Substantive: Terms so grossly unfair they shock the conscience.
- **Duress:** Contract signed under threat or coercion; vitiated by duress.
- **Failure to disclose:** One party concealed assets or income; grounds to challenge.

### Miglin Test for Support Waivers: 2003 SCC 24
- **Effect:** A valid waiver of spousal support is enforceable.
- **Test:** (a) Contract was executed with understanding and voluntariness; (b) no procedural or substantive unconscionability at creation or enforcement; (c) material change in circumstances must be significant enough to make the waiver patently unfair (high bar).
- **Interpretation:** Courts will enforce support waivers even if they cause hardship, provided they were properly negotiated.

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## PART J: ALTERNATIVE DISPUTE RESOLUTION

### Collaborative Law
- **Process:** Each party has counsel; parties and lawyers commit to negotiate and resolve without litigation.
- **Advantage:** Confidential, faster, preserves relationship (useful when co-parenting).
- **Risk:** If process breaks down, lawyers must withdraw and parties must hire new counsel for litigation.

### Mediation
- **Process:** Neutral third party assists parties in negotiating settlement.
- **Confidentiality:** Communications in mediation are generally privileged and inadmissible in court.
- **Binding:** Non-binding unless parties agree to binding arbitration.

### Arbitration
- **Process:** Parties submit dispute to private arbitrator; decision is binding.
- **Advantage:** Faster and more confidential than court.
- **Limitation:** Limited appeal rights; arbitrator's decision is final (subject to very narrow grounds for review).

### Parenting Coordination
- **Purpose:** Helps parents implement parenting orders; resolves ongoing disputes about parenting decisions.
- **Authority:** Typically appointed by agreement or court order.
- **Scope:** Does not hear custody disputes; enforces existing parenting arrangements.

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## PART K: CHILD STATUS AND PARENTAGE

### Ontario Children's Law Reform Act: Presumptions of Parentage
- **Presumption of paternity:** A man married to the child's mother is presumed to be the father.
- **Rebuttal:** Presumption can be rebutted by DNA evidence showing no biological relationship.

### Assisted Reproduction and Parentage
- **Intended parents:** Under provincial family statutes, intended parents (including same-sex couples) who arrange assisted reproduction are the legal parents.
- **Sperm/egg donors:** Generally not the legal parents if conception is through IVF or assisted means (unless they are the intended parents).
- **Surrogacy:** Intended parents are the legal parents; surrogate is not (subject to statutory conditions).

### Paternity and DNA Testing
- **Presumption rebuttable:** Once biological parentage is established by DNA, the legal presumption is displaced.
- **Support obligation:** Biological father has support obligation even if previous presumption existed.
- **Best interests:** Court may order DNA testing in disputes over parentage if it is in the child's best interests.

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## ADDITIONAL NOTES: EXAM PREPARATION

### Key Themes for Essay Practice
1. **Jurisdiction:** Federal / provincial split; Divorce Act vs. FLA; which statute applies?
2. **NFP calculations:** Multi-step formula; watch for excluded property and post-separation debt.
3. **Spousal support:** SSAG ranges; Moge/Bracklow/Miglin frameworks; variation on material change.
4. **Child support:** Guidelines + s.7 expenses; undue hardship claims; retroactive support (DBS principle).
5. **Parenting:** Best interests factors; relocation (Barendregt test); family violence impact.
6. **Relocation:** High bar post-Barendregt; child's global best interests focus.
7. **Domestic contracts:** Miglin unconscionability test; support waivers enforceable if properly negotiated.

### Common Exam Traps
- **Terminology:** Use "decision-making responsibility" and "contact order," NOT "custody" and "access."
- **SSAG:** Non-binding guidelines; courts often depart; show both range and reasons for departure.
- **Relocation:** Barendregt (2022) updates Gordon (1996); do not apply old presumptions.
- **Retroactive support:** DBS established framework; payor's non-disclosure does NOT eliminate obligation.
- **Property:** NFP calculation requires careful date identification; excluded property is NOT always immune.

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**DATA CONFIDENCE:** HIGH for landmark Supreme Court of Canada cases (Moge, Bracklow, Miglin, Contino, Gordon, Barendregt) — all confirmed in ca_cases database. Statutory provisions and well-established doctrines verified against current (2025) Divorce Act and Ontario FLA. VERIFY before deploy against latest judicial updates and any 2025 syllabus amendments.

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*Last Updated: 2026-06-24*
*Exam: NCA Family Law (Canada)*
*Jurisdiction: Ontario (primary); BC/AB variations noted*