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Archive For Entries On Family Law

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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

Facts and Background On November 26, 2010, the 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 […]

Marriage Commissioners Reference — Much Ado About Same-Sex “I Dos”

January 14, 2011 marked the ten-year anniversary of the first same-sex marriages registered in Canada. In 2001, two couples were the first to marry at the Metropolitan Community Church of Toronto (MCCT), but the Ontario and Canadian governments refused to recognize the marriages as legal. What followed was a legal challenge to the definition of […]

SCC Misses “Core” Issue in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union

The Supreme Court of Canada (“SCC”) has released its decision in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45 (“NIL/TU,O”). TheCourt.ca had first brought the B.C. Court of Appeal case to light nearly two years ago here. In its judgment, released November 4, the SCC re-visited the test for […]

“Letter of the Law” Poised to Undermine Equity in Divorce: A Look Ahead to Schreyer v. Schreyer

This November, the Supreme Court of Canada (“SCC”) will weave in and around federal and provincial legislation that has generated consternation over divorce and property division equity in Canadian provinces. The judges will hear party submissions from the Manitoba Court of Appeal (“MCA”) decision of Schreyer v. Schreyer, 2009 MBCA 84, a judgment that ultimately released […]