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Marriage and Divorce RECENT DEVELOPMENTS IN CANADIAN LAW: MARRIAGE AND DIVORCE Bruce Ziff 1. INTRODUCTION ...................................... 123 II. M ARRIAGE .......................................... 124 A. The Social Context ............................... 124 B. FunctionalPerspectives on Marriage: Non-Marital Cohabitation ......................... 127 C. Marriage (andNullity) ............................ 129 1. Introduction .................................. 129 2. Limited Purpose Marriages ...................... 130 3. D uress ...................................... 133 4. Marriage Within the ProhibitedDegrees ............ 134 III. D IVORCE ........................................... 137 A . Introduction ..................................... 137 B. Jurisdictionto Grant a Divorce Decree ............... 138 C. Groundsfor Divorce .............................. 140 D. Duties and Bars to Relief .......................... 144 E. CorollaryRelief Under the Divorce Act: Generally ....................................... 147 R Spousal Support ................................. 148 1. Jurisdiction .................................. 148 2. Interim Orders ................................ 148 3. Permanent Orders: Time of Application ............ 149 4. Types of Support Orders ........................ 151 5. Principlesof Spousal Support .................... 153 6. Agreements on Divorce ......................... 160 7. Variation and ProvincialOrders .................. 166 G. The Custody and Support of Children on Divorce ....... 168 1. Jurisdiction .................................. 168 2. Definitions and Types of Orders .................. 169 * Assistant Professor of Law, University of Alberta; Visiting Professor, Osgoode Hall Law School. The author wishes to thank Professor Mary Jane Mossman of Osgoode Hall Law School for providing comments on an earlier draft of this work. 122 Ottawa Law Review [Vol. 18:121 3. Principlesfor Awarding Custody, Access and Support ...................................... 172 H. Divorce Decrees ................................. 176 I. Recognition of ForeignDivorces ..................... 177 J. Appeals ........................................ 177 K. Evidence and Rules of Court ....................... 179 L. M ediation ...................................... 179 M. Enforcement of Support and Custody Orders ........... 182 N. Conflicting Federal and Provincial Orders ............ 184 IV. MATRIMONIAL PROPERTY ................................ 188 A . Introduction ..................................... 188 B. Caselaw Developments ............................ 191 C. Legislative Reforms ............................... 199 1. PropertySubject to Division ..................... 201 2. Triggering Events .............................. 202 3. Principlesfor the Division of Property ............. 203 4. Agreements Respecting Property .................. 205 5. The MatrimonialHome ......................... 207 6. Alterations to Principlesof Separate Property ....... 208 V. CONCLUSION ........................................ 208 19861 Marriage and Divorce I. INTRODUCTION It has become trite to describe the metamorphosis in Canadian family law over the last two decades as dramatic; equally, it would be myopic to fail to see that the process of transition is far from complete. The signs of change are manifest everywhere. When the last survey of family law was published in this journal in 1978,' reform of matrimonial property law was coming into vogue. Presently, each province possesses comprehensive legislation in this field, complemented by a burgeoning body of reported caselaw. Incremental adjustments have been introduced in some provinces, while elsewhere a wholesale re-evaluation of the current rules has been undertaken. 2 There have been reforms touching on such matters as adoption, 3 child protection4 and support. 5 Some of the dinosaurs of family law, such as the actions for breach of promise or damages for adultery, have become extinct in some provinces and are threatened with extinction in others. 6 The unified family court concept has become a reality in seven Canadian jurisdictions, either on a limited or province- wide basis, 7 and family mediation (or conciliation), in its private and government-supported forms, is increasingly attracting attention as an effective device for conflict resolution. 8 In the Senate, reforms have been introduced relating to marriage and major changes in divorce law have been implemented by the current Conservative government. 9 After years I S. Khetarpal, Annual Survey of CanadianLaw: Family Law, 10 Ottawa L. Rev. 384 (1978). 2 These developments are considered in PART IV of the Survey infra. 3 See, e.g., Child and Family Services Act, 1984, S.O. 1984, c. 55, Part VII. See generally D. Phillips, The Child and Family Services Act: The Mechanics and Roles of Court, Lawyer and Professional, 46 R.FL. (2d) 299 (1985). See also Child and Family Services Act, S.M. 1985-86, c. 8, Part V; Child Welfare Act, S.A. 1984, c. C-8.1, Part 6. 4 See, e.g., Child and Family Services Act, 1984, S.O. 1984, c. 55, Part III; Child Welfare Act, S.A. 1984, c. C-8.1, Parts 1-3; Child andFamily Services Act, S.M. 1985-86, c. 8, Part III. 5 See generally FamilyLaw in Canada, 4th edition of Power on Divorce and other Matrimonial Causes 195-242 (C. Davies ed. 1984) [hereafter cited as Family Law in Canada]. 6 See, e.g., The Equality ofStatusAct, S.M. 1982, c. 10, s. 2. The action for breach of promise has been the subject of study in Manitoba and British Columbia. Law reform commissions in both provinces have recommended the abolition of this cause of action: see Manitoba Law Reform Commission, Report on Breach of Promise to Marry (1984); Law Reform Commission of British Columbia, Report on Breach of Promise of Marriage (1983). See also Family Law Reform Amendments Act, S.B.C. 1985, c. 72, ss. 35-36 (assentedto 5 Dec. 1985; to come into force on a date fixed by regulation). See generally Family Law in Canada, supra note 5 at 51, 87-114. 7 Statistics Canada (Canadian Centre for Justice Statistics), Family Courts in Canada (Catalogue 85-508, 1984). The Report does not mention the recent Manitoba reforms: see An Act to Amend the Queen's Bench Act, S.M. 1982-83-84, c. 81, s. 52. 8 See text accompanying notes 333 to 346 infra. 9 Divorce Act, 1985, S.C. 1986, c. 4. Ottawa Law Review [Vol. 18:121 of planning, there is new legislation concerning young offenders' 0 and now there is talk of adjusting this new regime to remedy some of the defects that have become apparent since its implementation." Increasingly, the CanadianCharter ofRights and Freedoms'2 is imposing its presence on the development of family law jurisprudence. 13 This survey will touch on developments that promise to have the most profound impact on two pivotal concepts in family law - marriage and divorce - and emphasis will be placed on changes that have a national dimension. Fortunately, the various developments in statutory law and the barrage of reported jurisprudence have also prompted the publication of scholarly works concerning many facets of Canadian family law. These are cited extensively and permit an abbreviated treatment of certain issues. I. MARRIAGE A. The Social Context Marriage has been described in many ways (some hardly complimen- tary), but for present purposes it serves well to remember that it is a social phenomenon, a functional as well as a legal concept and a constitutional head of power. In the first context, it is obvious that marriage continues to be of pervading importance in Canadian society,' 4 even though the crude marriage rate has declined in this country in recent years. During the period from 1951 to 1983, the following pattern has emerged:' 5 10 Young Offenders Act, S.C. 1980-81-82-83, c. 110 (as amendedby S.C. 1984, c. 31,s. 14; S.C. 1985, c. 19,s. 187). See generally N. Bala&H. Lilies, Young OffendersAct: Annotated (1984). 1 "1 hope to place before Parliament legislation to amend the Young Offenders Act in the new year. I would like to have it passed prior to the summer recess, if possible." H.C. Deb., 33d Parl., Ist sess., vol. I at 9620 (19 Dec. 1985) (Hon. Perrin Beatty, Solicitor General of Canada). 12 Constitution Act, 1982, Part I, enacted by the CanadaAct, 1982, U.K. 1982, c. 11. 13 A discussion of the Charteris beyond the scope of this survey. For a considera- tion of Charter issues related to family law, see generally N. Bala, Families Children and the CharterofRights, in Families, Children and the Law (J. Wilson ed. 1985); N. Bala & J. Redfearn, Family Law and the "Liberty Interest": Section 7 of the Canadian Charterof Rights, 15 Ottawa L. Rev. 274 (1983). Note also that copious amendments have been made to legislation throughout Canada in an effort to conform with s. 15 of the Charter, which came into force on April 17, 1985. See, e.g., The Equal Rights Statute Amendment Act, S.M. 1985, c. 47. 14 See generally M. Eichler, Families in Canada Today: Recent Changesand Their Policy Consequences (1983); Marriageand Divorce in Canada (K. Ishwaran ed. 1983); The CanadianFamily (K. Ishwaran ed. 1983). 15 Statistics Canada (Health Division), Marriagesand Divorces: Vital Statistics, vol. II, Chart I (Catalogue 84-205, Annual, 1985). 19861 Marriage and Divorce Year Marriages per 1,000 population 1951 9.2 1956 8.4 1961 7.0 1966 8.0 1971 8.8 1976 8.2 1981 7.7 1982 7.6 1983 7.4 In isolation these figures reveal very little. Obviously, they say nothing about the reasons for the decline' 6 and it would be rash to conclude that they are evidence
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