Family and Matrimonial Law - SCC

The appellant's spouse disappeared in 2008.

In 2016, the appellant obtained a declaratory judgment of death.

The respondent life insurance company subsequently applied to annul the judgment, presenting evidence that the spouse was alive and living in Iran, but failed to serve the spouse with the application.

The trial judge annulled the declaratory judgment of death, finding on a balance of probabilities that the spouse had 'returned' within the meaning of the Civil Code of Québec.

The Court of Appeal upheld the decision.

The Supreme Court of Canada dismissed the appeal, holding that while the failure to serve the spouse was a procedural defect, it did not warrant dismissal of the application as it caused no prejudice.

The Court further held that the 'return' of a person declared dead can be established by any contemporaneous manifestation that they are alive, proved on a balance of probabilities, without requiring their physical return or a higher standard of certainty.

This appeal concerned whether Ontario courts had jurisdiction under s. 22 of the Children’s Law Reform Act to decide parenting issues for a child whose parents had lived in multiple countries.

The majority held that habitual residence under s. 22 turns on where the child resided and was at home at the prescribed time, not on shared parental settled intention.

Applying that approach, the Court found no basis to disturb the motion judge’s conclusion that the child was habitually resident in Ontario when the application commenced.

A dissent would have applied a parental intention approach and found habitual residence in Oman.

The appeal was dismissed with costs.

The appellant challenged the vires of the Federal Child Support Guidelines, enacted by the Governor in Council under the Divorce Act, arguing that the GIC exceeded its authority because the Guidelines require the payer parent to bear a greater share of child-related costs than the recipient parent.

The Supreme Court held that the reasonableness standard under the Vavilov framework presumptively applies when reviewing the vires of subordinate legislation, and that the 'irrelevant, extraneous or completely unrelated' threshold from Katz Group is no longer good law.

Applying reasonableness review, the Court concluded that the Child Support Guidelines fall within the GIC's extremely broad statutory authority under s. 26.1 of the Divorce Act and are therefore intra vires.

The appeal was dismissed with costs.

The appellant sought division of family property pursuant to Saskatchewan's Family Property Act after the parties executed a separation agreement without independent legal advice or financial disclosure.

The trial judge found the agreement not binding and equalized the family property, ordering the respondent to pay approximately $90,000.

The Court of Appeal applied the Miglin framework and found the agreement entitled to great weight, ordering the appellant to pay approximately $5,000.

The Supreme Court of Canada held that the Miglin framework should not be transposed wholesale into provincial family property legislation, which requires a statute-specific analytical approach.

The Court found the agreement binding and procedurally sound, with no demonstrated prejudice from the absence of legal advice or disclosure.

The appeal was allowed and the family home and household goods were divided as of the date of trial, resulting in a payment of $43,382.63 owed by the respondent to the appellant.

The appellant (mother) wrongfully retained two young children in Ontario after travelling from Dubai, UAE, where the children habitually resided.

The respondent father applied under s. 40 of the Children's Law Reform Act for a return order.

The trial judge declined jurisdiction under s. 23 of the CLRA, finding the serious harm threshold was not met, and ordered the children's return to Dubai.

The Supreme Court of Canada, 5-4, dismissed the appeal, holding that the trial judge committed no palpable and overriding error in concluding the children would not suffer serious harm, that separation from a primary caregiver does not automatically satisfy the serious harm threshold, and that the father's undertakings regarding the mother's residency should be included explicitly in the return order.

The dissent would have allowed the appeal on the basis that the trial judge materially misapprehended the evidence on both the likelihood and severity of harm.

Child protection appeal concerning the standard of appellate review for disposition decisions under child protection legislation.

A child was apprehended by the Director of Child Protection; both the maternal grandmother and the biological father sought permanent custody at the disposition hearing.

The hearing judge awarded custody to the grandmother, finding it was in the child's best interests, but the Court of Appeal reversed and awarded custody to the father.

The Supreme Court restored the hearing judge's order, holding that appellate intervention is only warranted where there is a material error, a serious misapprehension of the evidence, or an error in law.

The Court held that a biological tie carries minimal weight in a best interests analysis and does not serve as a tie-breaker; a court may also consider the conduct of a child protection agency in determining how the status quo arose and assessing the weight of evidence presented by or through the agency.

The appellant mother was awarded primary residence of the children at trial and permitted to relocate approximately ten hours from the respondent father's residence.

The father successfully appealed to the British Columbia Court of Appeal, which admitted post-trial financial evidence under a test distinct from Palmer and used it to overturn the relocation order.

The Supreme Court of Canada allowed the appeal, holding that the Palmer test governs all additional evidence tendered on appeal for the purpose of reviewing the decision below, whether the evidence relates to events before or after trial.

The new evidence failed the Palmer due diligence criterion because it could have been available at trial with reasonable diligence, and its admission was not in the interests of justice given the availability of legislative variation procedures.

The trial judge's relocation analysis under Gordon v. Goertz was free from reviewable error, and the Court of Appeal wrongly intervened in the absence of a palpable and overriding error.

Former de facto spouses underwent Quebec family mediation, after which the mediator prepared a summary of mediated agreements; one spouse later denied the existence of any binding contract and objected to the summary being admitted in evidence.

The majority held that the settlement exception to settlement privilege recognised in Union Carbide applies in family mediation governed by the standard COAMF contract scheme, because the procedural safeguards inherent in the regime protect vulnerable parties without requiring absolute confidentiality.

The majority further clarified that the unsigned summary of mediated agreements is not itself a contract, but that parties may bind themselves by conduct or communications after mediation ends.

A concurring minority would have held that family mediation sessions are absolutely confidential and that the Union Carbide exception is incompatible with the Quebec family mediation regime, yet agreed the appeal should be dismissed given the limited record.

The appeal was unanimously dismissed with limited solicitor-client costs awarded against the appellant non-profit organisation.

The appellant mother sought permission to relocate with the child, which was granted by the trial judge.

The Court of Appeal set aside the trial judge's orders on mobility, custody, parenting arrangements, and spousal support, finding misapprehension of evidence and failure to consider relevant factors, and ordered a new trial.

The Supreme Court of Canada found no reviewable error by the trial judge, even assuming the fresh evidence tendered by the respondent would have been admitted.

The trial judge's orders on mobility, custody, parenting arrangements, and spousal support were restored.

Côté J. dissented, holding the appeal should be dismissed as moot given she would have admitted the fresh evidence and remanded the matter to the Court of Queen's Bench.

The appellant mother sought to change a custody order following her relocation from the Niagara region to the Ottawa area.

The trial judge rejected a proposed settlement, dismissed the motion to change, and ordered the children's primary residence to remain with the respondent father in Niagara, a decision upheld by the Court of Appeal.

One week before the Supreme Court hearing, the parties jointly advised that changes had occurred affecting the record, including that the daughter had been residing in Ottawa for over a year.

The parties had not filed a motion for new evidence regarding the children's current best interests, leaving the record incomplete.

The Court unanimously dismissed the appeal without costs, directing any ongoing dispute to be resolved in the Superior Court through a variation order.

The appellant father applied to retroactively reduce child support and rescind approximately $170,000 in arrears accumulated over 16 years of non-payment, relying on alleged income decreases and a current inability to pay.

The motion judge retroactively reduced the arrears to $41,642 but the Court of Appeal reversed and ordered the full arrears paid.

The Supreme Court dismissed the appeal and established a unified framework under s. 17 of the Divorce Act governing both retroactive decreases and rescission of arrears.

For retroactive decreases, a presumption arises in favour of varying support back to the date of effective notice, up to three years before formal notice, with D.B.S. factors guiding any departure from that date.

For rescission of arrears, a strong presumption against rescission applies and is only rebutted where the payor establishes on a balance of probabilities that they cannot and will never be able to pay even with a flexible payment plan.

The appellant sought a retroactive variation of a child support order under s. 152 of British Columbia's Family Law Act after the child beneficiary had reached the age of majority and the original order had been terminated.

The Supreme Court of Canada unanimously allowed the appeal, holding that s. 152 of the Family Law Act confers jurisdiction on a court to vary a child support order retroactively regardless of whether the beneficiary remains a dependent child at the time of the application and regardless of whether the order is still extant.

The majority further held that the payor's sustained failure to disclose actual income over eleven years constituted blameworthy conduct justifying retroactive support dating back to the original 2001 consent order.

The concurring reasons of the Chief Justice and Martin J. articulated broader policy grounds rooted in the best interests of children, access to justice, and the gendered dimensions of child poverty.

The appellants, as liquidators of a deceased spouse's estate, sought a declaration that the value of the family residence — held under a discretionary trust controlled by the surviving spouse — should be included in the partition of the family patrimony under art. 415 of the Civil Code of Québec.

The majority held that family residences held in trust are not in principle outside the scope of the family patrimony and that the 'rights which confer use' at art. 415 C.C.Q. are not limited to real rights.

Wide discretion should be accorded to the trier of fact in determining whether such rights exist, and the absence of an intention to evade family patrimony rules is irrelevant.

The trial judge's finding that the surviving spouse held rights which conferred use was supported by the evidence and disclosed no palpable and overriding error.

The dissent would have dismissed the appeal, finding that the trial judge erred by conflating the trustee's powers with rights and failing to consider the purpose of the trust and the beneficiaries' rights.

Appeal allowed (Côté and Karakatsanis JJ. dissenting).

The appellant wife and the respondent husband filed parallel divorce proceedings — the husband first in Belgium, the wife three days later in Quebec.

The husband applied to stay the Quebec proceedings on the basis of international lis pendens under art. 3137 C.C.Q., seeking to enforce his revocation of over $33 million in gifts made during marriage under art. 1096 of the Belgian Civil Code.

The Supreme Court held that the burden of proving susceptibility of recognition of the foreign judgment rests on the party seeking the stay, though that burden is not onerous; a prognosis or possibility of recognition suffices.

The majority further held that even where the conditions of art. 3137 C.C.Q. are met, the Quebec court retains discretion to decline to stay its ruling, and that discretion was not unreasonably exercised by the Superior Court.

The Court of Appeal's intervention in the trial judge's exercise of discretion was unwarranted; the criterion of possible recognition of the Quebec judgment in the foreign country is not determinative where the Quebec judgment would be effective in Quebec.

This appeal addressed habitual residence under Article 3 of the Convention on the Civil Aspects of International Child Abduction after a parent retained children in Canada beyond a time-limited consent period.

The Court adopted a hybrid, multi-factor approach that evaluates all relevant circumstances, including but not limited to parental intent and the child's links to each state.

The Court also endorsed a non-technical approach to Article 13(2), requiring proof of sufficient maturity and a genuine objection before discretion is exercised.

Although the matter was moot, the appeal was resolved to clarify national law and emphasize expeditious handling of return proceedings.

The appellants challenged the legality of the Federal Child Support Guidelines through judicial review in the Federal Court.

The Supreme Court held that provincial superior courts can address the validity of the Guidelines when necessary in proceedings properly before them, and that the Federal Court reasonably exercised its discretion to decline judicial review because that route was not appropriate in the circumstances.

The appeal was dismissed, with concurring reasons cautioning against treating the case as a definitive ruling on exclusive federal jurisdiction to invalidate all federal regulations on administrative grounds.

The Supreme Court considered whether provisions of the Civil Code of Quebec limiting family patrimony, compensatory allowance, partnership of acquests, and spousal support to married and civil union spouses infringed s. 15(1) of the Charter by excluding de facto spouses.

A 5-4 majority on s. 15(1) found the exclusion violated equality rights based on marital status.

However, the Chief Justice found the infringement justified under s. 1, joining the four judges who found no s. 15(1) violation, resulting in a 5-4 decision upholding the constitutionality of the impugned provisions.

The dissent would have struck down some or all of the provisions as unjustified discrimination against de facto spouses.