Category: Family Law

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Parental Access for Crown Wards: The “highly adoptable child”

When a child is made a crown ward, how much access should the biological parent have? While Ontarian courts have had to determine this issue in numerous child protection cases, the analysis was complicated by recent statutory amendments. In 2011, there was a significant statutory amendment made to the Children and Family Services Act, RSO 1990, c C11 [CFSA]. Previously, an access order barred a crown ward adoption. Now, pursuant s. 141.1.1(1) of the CFSA, children who are crown wards with an access order can be adopted. In Children’s Aid Society of Toronto v SB, 2014 ONCJ 518 [SB 2014],...

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Wrestling over Wills and Wealth in Neuberger v York

Nothing riles a family up more than a good ‘ol contested probate of will. This is especially true if there are millions to be had. This month, the Court of Appeal for Ontario (“ONCA”) issued a ruling in Neuberger v York, 2016 ONCA 191 that allows one faction of a family to challenge a will where the other faction of that family is set to receive substantially more from the will. The Facts The warring clan is that of the now deceased Sarah and Chaim Neuberger, prominent Toronto philanthropists and real estate giants. A holocaust survivor, Mr. Neuberger came to...

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Morassut v Jaczynski: Property Division for Common Law Spouses by Stealth?

One of the criticisms laid against Ontario’s family law and succession law statutes is that they do not make allowance for people living in non-traditional relationships. The law provides a comprehensive formula for property division for married people when they divorce or one of them dies, but there is no similar entitlement for “common law” spouses who cohabit without being married. However, judicial decisions show more flexibility, particularly as Ontario courts are influenced by jurisprudence from British Columbia (where the statutes are also more liberal). One provision that does exist in Ontario’s statutes is dependant’s relief, under which a common...

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The Law on Relocation of Children after Marital Breakdown

One of the most difficult issues in family law is deciding when to permit the “primary caregiver” parent to move with the children to a place far away from the other parent. Lawyers who work in the area tend to agree that outcomes are highly unpredictable. Ordinarily, only a small percentage of divorcing parents go to court over custody matters. However, it is estimated that in relocation cases as many as 60 per cent may go to court. In addition, an unusually large proportion of the decisions at first instance are appealed. This high degree of conflict is costly for...

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A Very Long Limitation Period for Unjust Enrichment Claims: McConnell v Huxtable

Statutes of limitations are intended to add clarity to the litigation process but, ironically, sometimes have the opposite effect. Ontario’s Limitations Act, 2002, SO 2002, c 24, Sch B [Limitations Act], was meant to reduce the multitude of different limitation periods with the aim of having a two-year limitation on most types of actions. However, the Limitations Act remains riddled with exceptions — most notably, the limitation periods set out in a long list of other statutes are allowed to prevail over those in the Limitations Act. The case of McConnell v Huxtable, 2014 ONCA 86 [McConnell], reveals one more unexpected gap...

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The Ontario Court of Appeal Clarifies Rules for the Division of Property in Buttar v. Buttar

On its face, the Family Law Act, R.S.O. 1990 (“FLA“) appears to set down a fairly clear rule for the division of property in a divorce.   The net family property (“NFP”) that is in the hands of each spouse is calculated, and the one who has more pays an amount to equalize their positions.  The recent case of Buttar v. Buttar, 2013 ONCA 517, shows just how complicated this division can be for couples who have substantial property interests.  The Court of Appeal had to go through some tricky points of statutory interpretation, with the result that significant portions of...

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Quebec (Attorney General) v A—Much ado about saying “I do”

In a decision handed down on January 25th, 2013, the Supreme Court of Canada dealt with a Charter challenge to certain spousal support and property division articles in the Québec Civil Code. These provisions only applied to married or civil union spouses and it was argued that these provisions were unconstitutional under section 15(1) of the Charter because they did not apply to cohabiting couples. Québec (Attorney General) v. A, 2013 SCC 5, (also known as Eric v Lola) showcases a divided approach to two of the main policies underlying the family law regime: protection of choice and autonomy over...

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Gametes – The New Property

The third question on my first year property law exam asked whether Canadian law classified body parts (organs, limbs and reproductive material) as property. Unfortunately for my class, Justice Russell of the Supreme Court of British Columbia answered that question on April 25th, 2012 in J.C.M v A.N.A. 2012 BCSC 584 – two short weeks after the exam. While this is a trial level decision from BC, and thus not binding in Ontario, the decision sheds light into the courts’ response to advancements in medicine. Facts In 1998, two women, J.C.M. and A.N.A., began a spousal relationship. As a couple, they purchased...

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No pre-nup? The Division of Property in Common Law Separations, Kerr v. Baranow

A common law relationship is when two people live together in a marriage-like relationship. The two people can be of the same sex or the opposite sex. For Ontario family law purposes, you must cohabitate for 3 years, or have a child and a relationship of some permanence. Despite the decreased rate of marriage and the corresponding increase in common-law unions, legislatures have declined to extend marital property sharing to common law couples.  Upon a marriage ending, there is an automatic right to equalize family property acquired during the marriage; if you are in a common law relationship, you have no...

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Murderous Lovers’ Row Not Saved by the Criminal Defense of Provocation: R v Tran

Facts and Background On November 26, 2010, the Supreme Court of Canada (“SCC”) decided the criminal case of R v Tran, 2010 SCC 58 – an appeal for a conviction of second-degree murder by a former Edmonton Sun production plant worker that clarified the defence of provocation for violent spouses. The facts of the case seem straight out of a clichéd made-for-TV drama. A man estranged from his wife sneaks into their former home to discover her in bed with her new lover. The man, the appellant in this case, then flew into a homicidal rage, stabbing his estranged wife’s lover...