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Developments in Family Law: The 1999-2000 Term

Brenda Cossman

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Citation Brenda Cossman, "Developments in Family Law: The 1999-2000 (published version) Term" (2002) 13 Supreme Court Law Review 307.

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.~~. i I I t I DEVELOPMENTS IN FAMILY LAW: THE 1998-99 TERM

Brenda Cossman*

I. INTRODUCTION In the 1998-99 Term, the Supreme Court of Canada handed down no less than seven family law decisions. The Court addressed a broad range of family law issues, from spousal'and child support, and division of property, to child protection and child custody. The most important family law decisions issued by the Court in the 1998-99 Term were in relation to family support obligations. 'In the cases of Charlier,' Bracklow2 and M. v. H.,. the Court has steadily expanded the scope and content of support obligations. And amongst these rulings, M. v. H. which struck down the opposite sex definition of spouse for the purposes of spousal support stands as the decision with the most far-reaching implications for family law. For the first time, the majority of the Court recognized the spousal status of same-sex couples. While the Court tried to carefully limit its ruling to the specific provisions of the Ontario Family Law Act: it has nevertheless raised difficult, and as yet unresolved, questions about the definition of spouse in Canadian family law, and the extent to which the law will be able to maintain distinctions between married and unmarried couples, and between heterosexual and same-sex couples. A. number of other trends are discernible in the family law rulings of the 1998-99 Term. The Court has continued its emphasis on family law as an area in which trial judges must be given consider­ able discretion, and in which the appellate courts must therefore

* Associate Professor, Faculty ofLaw, University ofToronto. 1 Chartier v. Chartier, [1999/1 S.C.R 242. Bracklow u. Bracklow, [1999J 1 S.C.R 420. [1999) 2 S.C.R 3. • RS.O. 1990, c. F.3.

Electronic copy available at: http://ssrn.com/abstract=1144210 434 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) (2000), 11 S.C.L.R. (2d) Family Law 435 exercise considerable deference to lower court rulings. The Court family law - of expanding the private support obligations of emphasized the fact-driven and discretionary nature of family law individual family members. While family law has always been about proceedings, and the importance of appellate courts deferring to the the private responsibilities of individual family members, the trend findings of the trial court which has had the opportunity to hear the reflects the new found importance of family law in an era of evidence, and to balance the various factors accordingly. In several of privatization. Within the new neo-liberal state - characterized by a the cases, the Court declined to rule on the facts, sending the reduction of government spending, and a transfer of responsibilities determination back to the trial court. In all but one (Best'), the Court to the private realms ofmarket and family - family law is becoming agreed with the rulings at trial. Also noteworthy in the family a more important regulatory instrument for the enforcement of rulings of the 1998-99 Term was the move towards unanimity. Five private support obligations for economically dependent family of the seven rulings were unanimous. Only in M. v. H., and Best - a members. More specifically, family law is becoming more important case involving a narrow but important issue of pension valuation ­ in addressing the economic dependency of women and children at was the Court divided in opinion. The term appears to represent a precisely the same moment as the welfare state is being dismantled, significant retreat from the multiple concurring and dissenting and any form of public financial assistance is becoming more and opinions that has characterized many of the family law rulings in more elusive. recent terms.· This is not an entirely new theme within family law. Commenta­ tors have been observing the increasing tendency of the courts and legislatures to reinforce private familial responsibilities, while FAMILY SUPPORT OBLIGATIONS IN AN ERA OF II. cutting back on any public responsibility for the social costs of PRIVATIZATION raising families.' The driving force behind this privatization In the 1998-99 Term, the Court has handed down what might be unquestionably lies with the legislatures. But, the support trilogy of cast as a new trilogy in support law. Three of the family decisions ­ the 1998-99 Term demonstrate the creeping influence of the new Chartier, Bracklow and M. v. H. - deal with the question of support emphasis on fiscal conservatism and private familial responsibility obligations, specifically, with the question of who has support on judicial decision-making. Sometimes, this new fiscal conservatism obligations for whom.' The new trilogy reflects an expanding notion is explicit in the text of the decisions. Other times, it lies just of familial responsibility, bringing more and more individuals within beneath the surface. the reach oflegal support obligations. In each decision, the Court has expanded the reach of support obligations - of step-parents, of individuals whose ex-spouses fall ill, and of same-sex couples. Each decision represents a notable change in the law of support obliga­ tions. And together, the trilogy represents a significant trend in

• See Susan Boyd "(Re)placing the State: Family, Law and Oppression" (1994), • Best u. Best (1999), 49 RF.L. (4th) 1 (S.C.C.) 9 Canadian Journal of Law and Society 39 who has argued that • For a discussion ofthe division amongst the justices in family law, see Bailey "lilncreasingly...courts and administrative arms of the Canadian state are reinforcing "Developments in Family Law: The 1995-96 Term", [19971 8 S.C.L.R 447, and certain private familial responsibilities for women's poverty, in the name of feminist "Developments in Family Law: 1996-97 Term", [19981 9 S.C.L.R 389. The Court values and, in part, in response to feminist struggle in the courts, while diminishing appears to have made a concerted effort towards unanimity in its equality rights public societal commitment to alleviating that poverty." See also Eichler "The Limits ruling in Law u. Canada (Minister of Employment and Immigration), [19991 S.C.J. of Family Law Reform or, the Privatization of Female and Child Poverty" 7 Cdn. Fam. No.12, a theme which then runs through much of its family law jurisprudence this Law Qtrly. 59; Luxton "Feminism and Families: The Challenge of Neo-Conservatism" term. in Luxton, ed., Feminism and Families: Critil:al Polil:res and Changing Practices 1 A fourth support law decision, Hil:key u. Hickey (1999), 46 RF.L. (4th) 1 (1997); Fraser and Gordon "A Genealogy of Dependency: Tracing a Keyword of the (S.C.C.), deals with the question of the approach to be taken by appellate courts in U.S. Welfare State" in Fraser, Justice Interruptus: Criti<:al Reflections On the reviewing spousal and child support orders, and is discussed separately below. Postsocialist Condition (1997).

Electronic copy available at: http://ssrn.com/abstract=1144210 (2000), 11 S.C.L.R. (2d) Family Law 437 436 Supreme Court Law Review (2000), 11 S.C.L.R. (2d)

Court, began by reviewing the two lines of authority as to whether a 1. Child Support person can unilaterally withdraw from a relationship in which he or Chartier v. Chartier' addressed the question of the child support she stands in the place of the parent. In the first, represented by obligations of step-parents. The couple lived togethe: for two years, Carignan v. Carignan," and followed by the Court of Appeal in this and were then married for a year. There was one chIld, Jeena, born case, a person standing in the place of a parent can unilaterally during the relationship. The wife also had a daugh~er, Jess~ca, fr?m' withdraw from the parental relationship." In the second line of a previous relationship. The husband played an actIve role In c~mg authority, represented by Theriault v. Theriault," the courts have for both children during the relationship and, as the Court descnbed, held that a person cannot unilaterally withdraw, but rather, a court "was a father figure" for Jessica. The parties had considered must look to the nature of the relationship to determine if a person proceeding with an adoption, but did not do so. They did however does actually stand in the place ofa parent. IS falsely amend Jessica's birth registration to indicate th.at t~e Justice Bastarache disagreed with the ruling in Carignan. He held husband was Jessica's biological father. When the relationshIp that once a person is found to stand in the place of a parent, he or between the parties broke down, the father acknowledged in a she cannot unilaterally withdraw from that relationship. In his view, consent judgement Jessica as a child of the marriage and was the provisions of the Divorce Act are intended to ensure "that a granted access to her. He agreed to pay support fo: Jeena, but ~he divorce will affect the children as little as possible":'· judgment was silent on the issue of support for JessIca and the Wife. The wife subsequently commenced divorce proceedings, and sought a Spouses are entitled to divorce each other, but not the children who declaration that the husband stood in the place of a parent to were part of the marriage. The interpretation that will best serve Jessica. The husband contested the claim. An interim order ordered children is one that recognizes that when people act as parents towards the husband to pay monthly support for Jessica and for the wife, them, the children can count on that' relationship continuing and that these persons will continue to act as parents towards them. 17 suspended his access until a further order of the court, and ordered a report concerning access. The Court then addressed the question of when a parental At trial, the court ordered that the husband was required to pay relationship must have existed. The term "at the material time" has spousal support, reduced his support for his biologic~ da~ghter, ~d been inconsistently interpreted in the case law. Some cases have found that he had repudiated his parental relationship With JeSSica. interpreted it to mean "at the time of the commencement of the On appeal, the Manitoba Court ofAppeal allowed the wife's appeal of the reduction of support for Jeena, but dismissed both the husband's appeal of spousal support, and the wife's appeal for support for defmition of 'child of the marriage', a child of two spouses or former spouses includes Jessica. . (a) any child for whom they both stand in the place of parents; and (b) any child of The issue before the Court was whether a person who stands 1D whom one is the parent and for whom the other stands in the place ofthe parent". the place of parent to a child, within the meaning of section 2 of the 12 (1989), 61 Man, R (2d) 66 (C.A.). ' " The Court of Appeal was of the view that this position was most con~istent Divorce Act", can unilaterally give up that status and escape the with the reality of modern marriages, described as "often fragile and time-limited" obligation to provide support for that child after the breakd0:-vn of institutions. According to Philp J.A., it would be unfair to impose an indefmite the relationship. It Justice Bastarache, writing for an unanimouS support obligation on a step-parent who takes on obligations with respect to a spouse's children, while anowing those step-parents who did not take on such obligations to simply walk about from the relationship. U (1994), 149 A.R 210 (CA).

• Supra, note 1. 10 The Court cites a number ofother cases within this line of authority including ID RS.C., 1985, c. 3 (2nd Supp.). . Laraque v. AllooLoo (1992), 44 RF.L. (3d) 10 (N.W.T.S.C.); Siddal v. SiddaL (1994), 11 It Section 2(1) of the Divorce Ac!, id., defmes a "child of the marriage" as "a child RF.L. (4th) 325 (Ont. Gen. Div); and Andrews v. Andrews (1992), 97 Sask.R 213 of two spouses or former spouses who, at the material time, (a) is under the age of (C.A.). sixteen, or (b) is sixteen years of age or over and under their charge but unable ~y 16 Chartier, supra, note 1, at 257. reason of illness disability or other cause, to withdraw from therr charge or to obtam 17 Id., at 257. the necessities ~f life." Section 2(2) further provides that "for the purpose of the 438 SupreTT1£ Court Law Review (2000), 11 S.C.L.R. (2d) (2000), 11 S.C.L.R. (2d) Family Law 439 proceedings";" others have held the relevant time to be at the time of for the child ...; whether the person disciplines the child as a parent; the hearing. Justice Bastarache held that although the needs of the whether the person represents to the child, the family, the world, either child must be determined at the time of hearing, the existence of explicitly or implicitly, that he or she is responsibility as a parent to the parental relationship under the Divorce Act must be determined at child; the nature or existence of the child's relationship with the absent the time that "the family functioned as a unit".'" If "material time" biological parent."'" was interpreted to mean at the time of the commencement of the proceedings, it would be virtually impossible to conclude that a But, not every adult child relationship will result in the adult parental relationship exists in situations where a step-parent has being found to be standing in the place of a parent. Rather, "[e]very little contact with the child after separation. He then refers to the case must be determined on its own facts and it must be established facts of the case in support of this interpretation. Until Chartier's from the evidence that the adult acted so as to stand in the place of a unilateral withdrawal from the relationship, Jessica saw him as her parent to the child." .. father. He was the only father she knew. In the Court's view, to Justice Bastarache considered and rejected the argument that allow him to withdraw from the relationship, as long as he does it in~ividuals may be reluctant to be generous towards their spouse's before the commencement of divorce proceedings, would simply be chIldren out offear that this generosity will give rise to child support unacceptable. "Jessica was as much a part of the family unit as ~bligations. "The nature of a parental relationship is complex and Jeena and should not be treated differently from her because the mcludes more than financial support. People do not enter into spouses separated."'" parental relationships with the view that they will be determined"." The Court then turns to the appropriate test for determining The Court then cites with approval a passage from Siddal u. Siddal: whether a person stands in the place of a parent within the meaning of the Divorce Act. Justice Bastarache rejects the idea that parental In many cases children are used as pawns by men and, on occasion, status could be determined exclusively from the perspective of the women who desire the attention of the children's parent and once the child. While the opinion of the child is important, it is only one of relationship between the adults fail, the children are abandoned. This is many factors that the courts should consider in determining whether not to. be encouraged. If requiring men to continue their relationship, financIally and emotionally with the children is a discouragement of a person stands in the place of a parent. According to the Court, generosity then, perhaps such generosity should be discouraged. This "what must be determined is the nature of the relationship."" type of generosity which leaves children feeling rejected and shattered Intention should not be determined only according to formal ?nce a relationship between the adults sours is not beneficial to society expressions, but should also be inferred from actions. "The actual ill general and the children in particular ... If relationships are more fact of forming a new family is a key factor in drawing an inference difficult for a person to extricate him- or herself from then, perhaps, that the step-parent treats the child as a member of his or her more children will be spared the trauma of rejection, bruised selfimage family"." The Court then provides a non-exhaustive list of the and loss offmancial support to which they have become accustomed.'" relevant factors that should be taken into account in determining whether a parental relationship exists, which include: . The Court also rejected the concern that a child might collect support from both a biological parent and a step-parent. The "... whether the child participates in the extended family in the same contribution to be paid by a biological parent should be assessed way as would a biological child; whether the person provides financially independently of the obligations of a step-parent. The obligations of parents to support a child are joint and several, and the issue of

.. Hock v. Hock, [1971] 4 W.W.R. 262 (B.C.C.A.). 19 Chartier, supra, note 1, at 259. 23 Id' J at 260.61. 20 Id.) at 259. 24 Id" at 261. 21 Id" at 260. 2S Id., at 261. 22 [d" at 260. 26 Id., at 262, citing Beaulieu J. in Siddal u. Siddal, supra, note 15, at 337. .1

440 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) (2000), 11 S.C.L.R. (2d) Family Law 441 contribution is one between all the parents who have an obligation superficial and selfish generosity "which leaves children feeling for the child. rejected and shattered once a relationship with the adults sours"."" Justice Bastarache concluded that once a child is demonstrated to The Court has sent a strong message that individuals should be very be a "child of the marriage", the obligations of the step-parent are careful about how they treat their partner's children. It will not then the same as those obligations for a child born of the marriage. stand by and watch a child be rejected by a person who he or she On the facts, the Court concluded that Chartier stood in the place of came to see as his or her parent. While the Court does not have the a parent toward Jessica. He "represented to Jessica and to the ,:,or~d power to enforce the emotional relationship, it will not allow the that he assumed full parental responsibility for her. Mr. ChartIer IS step-parent to escape the financial relationship. the only father that Jessica has known owing to the fact that the The ruling in Chartier should also be seen within the broader parties led her to believe that [hel was in fact Jessica's biological context of the' recent developments in child support law, including father".%? The fact that Chartier unilaterally withdrew from the the introduction of the Child Support Guidelines and tough new relationship with Jessica "does not change the fact that he acted, in enforcement measures. It is part of a general trend of getting tough all ways, as a father during the time the family lived together"." on "dead beat dads", who are cast as responsible for their children's Accordingly, the Court concluded that Jessica was a "child of the poverty. The new legal initiatives have been designed to get tough on marriage" and for the purposes of all rights and responsibilities these "dead beat dads" by forcing them to take financial responsibil­ under the Divorce Act should be treated the same way as Jeena, the ity for their children following separation and divorce. These "dead biological child ofthe marriage. beat dads" have been demonized through a range of discourses that Doctrinally, Chartier endorsed one of the two existing lines of case target them not only as responsibility for their children's poverty, as law, overruling Carignan, and holding that a person cannot abdicating their moral responsibility to pay for their children, but unilaterally withdraw from a parental relationship. In this respect, also for their flagrant abuse of the Canadian taxpayer, who must the Court has resolved an outstanding debate, and confirmed that subsidize the resulting welfare dependency." Throughout the step-parents, if they are found to be in a parental relationship, will legislative process, a clear link was drawn between these child continue to be responsible for child support after the spousal support initiatives and the reduction of welfare dependency. These relationship has broken down. The Court then provided some measures were all about trying to shift the costs of raising, and general guidance for determining the existence of a paren~al supporting families from the public to the private sphere. There-is no relationship, but in a conclusion characteristi~ of this term's fam~ly doubt much is to be said in favour of getting tough on these "dead law decisions, emphasized that every case wIll revolve around Its beat dads", and forcing them to take financial responsibility for their own unique facts. The ruling did not raise or in any way comment children after separation and divorce. However, what is particularly upon the Child Support Guidelines, and strictly speaking, its interesting, if these initiatives are viewed through the lens of significance is therefore limited to the interpretation of section 2 of privatization, is the timing. These initiatives became possible at the the Divorce Act. moment ofthe decline ofthe welfare state. But, the ruling does nevertheless have a number of broader If we bracket the normative question about these child support implications. Chartier represents a strong statement about children. initiatives, and return to the Supreme Court decision in Chartier, we Justice Bastarache's ruling emphases that relationships with can begin to see some of the implications of the decision. Step­ children are not to be undertaken lightly. Such relationships are not parents are now cast within the net of potentially "dead beat dads". to be entered into "with the view that they will terminated". Nor will the courts allow children to be used as pawns in the relationships

between adults. In Bastarache J.'s view, the courts must discourage 29 Id., at 262, citing with approval the views in Siddal, supra, note 15. ,. See Cossman "Family Feuds: Neo-Liberal and Neo-Conservative Visions ofthe Reprivatisation Project", Institute for Feminist Legal Studies, Seminar Series on 27 [d.) at 263. Feminism, Law and the Challenge of Privatization, Osgoode Hall Law School, Sept. 28 Id., at 264. 1998. 442 Supreme Court Law Review (2000); 11 S.C.L.R. (2d)' (2000), 11 S.C.L.R. (2d) Family Law 443

Men who treat the children of the partners with some degree of previous marriage, who lived with the couple, and were supported by generosity and kindness, are now potentially liable for a long-term both of the parties. During periods when the wife was unemployed, child support obligation. If they try to withdraw from the relation­ the husband supported the family. In 1991, the wife, who had ship .with the child(ren) on separation or divorce, they now become suffered various health problems since the beginning of the cast as "dead beat dads" trying to avoid their moral and fiscal . relationship, was hospitalized for a psychiatric illness. She has not responsibility. The Child Support Guidelines expanded the content of worked since that time, and was not expected to be able to work child support obligations, by increasing the amounts that payor again. The couple separated in 1992, and were divorced in 1995. The parents are expected to pay. The decision in Chartier continues the wife obtained an interim spousal support order of $275, increased to steady expansion of the scope of child support obligations, by $400 per month in 1994. In 1995, the trial judge found that she was embracing a new set of potential parents - or more specifically, by no longer entitled to support, since she had suffered no economic refusing to allow their withdrawal. It is part of a general trend of hardship as a consequence of the marriage or its breakdown. The finding a dad, any dad, and making him pay. It is part of a trend trial judge ordered that the support be terminated after 18 months. towards the privatization of the costs of raising and supporting The British Columbia Court ofAppeal dismissed the wife's appeal. children, by ensuring that individuals, not the state, are responsible The Supreme Court allowed the appeal, and remitted the matter for supporting their own families. to trial for assessment of the amount and duration of support. The Chartier decision does not expressly mention the objective of Justice McLaughlin, writing for an unanimous Court, held that the fiscal responsibility or savings to the public purse. Nor is it even the law recognizes three conceptual grounds for entitlement to spousal most pressing concern of the Court. Rather, the Court in Chartier is support: (1) contractual; (2) compensatory; and (3) non-compensatory. clearly moved by the idea that it would be unfair to allow Chartier to The lower courts had erred in assuming that an entitlement to walk away from a daughter that he stated was his own; that it would spousal support could only be founded on compensatory principles. be unfair to allow parents to break their relationships with children. While the law has evolved to accept compensation as an important But, at the same time, the decision both reflects and reinforces the basis of support and to encourage the self sufficiency of each spo~e increasingly popular idea that families, whoever they may include, when the marriage ends, where compensation is not indicated and are responsible for supporting their own. The idea that a person self sufficiency is not possible, a support obligation may nonetheless cannot walk away from their familial responsibility is a theme that arise from the marriage relationship itself.33 fits very well within the new world of privatization. Nothing in either the Family Relations Act" nor the Divorce Act indicates "that the only foundations for spousal support are 2. Spousal Support compensatory."" Although the focus ofthe Divorce Act is to now place greater emphasis on compensation, "it retains the older idea that Two months later, the Court delivered its ruling in Bracklow v. spouses may have an obligation to meet or contribute to the needs of Bracklow,31 involving the question of whether a ex-spouse owes a their former partners where they have the capacity to pay, even in support obligation to a sick or disabled spouse. The ruling represents the absence of a contractual or compensatory foundation for the a significant restatement of law of spousal support, which extends obligation. Need alone may be enough."" the support obligation beyond the compensatory approach estab­ Justice McLaughlin cited with approval the words of· Justice 32 lished by the Court in Moge v. Moge. L'Heureux-DuM in Moge that "marriage per se does not automatically In Bracklaw, a couple began living together in 1985, and married in 1989. The wife had been employed when the relationship started, and the couple shared expenses. She had two children from a

33 Bracklow, supra, note 31, at 441. 34 R,S.B.C. 1996, c. 128. 31 [1999] 1 S.C.R. 420. 36 Supra, note 31, at 444. 32 {1992J 3 S.C.R. 813. 36 Id., at 444. 444 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) (2000), 11 S.C.L.R. (2d) Family Law 445 entitle a spouse to support"." However in several passages, the Court between a range of competing objectives. Encouraging parties to states that a support obligation may arise from the marriage move on to new relationships is only one of several objectives, and it relationship itself. 38 "It is not the bare fact of marriage, so much as may not ~e able to ~e satisfied in any absolute ,way. According to the relationship that is established and the expectations that may McLaughlIn J., there IS no "statute oflimitations" on marriage: reasonably flow from it that give rise to the obligation of support under the statutes."39 . Ma~age, wh.ile it may not prove to be "till death do us part", is a In most circumstances, compensation now serves as the main s~nous ~ommltme~t n?t to be undertaken lightly. It involves the poten­ justification for support. But, according to the Court, contract and t~l. for 1.lf~long oblIgatIOn. There are no magical cut-off dates." (empha­ compensation are not the only sources of a support obligation.'· SIS In ongmal) Where a spouse achieves economic self sufficiency on the basis of his or her own efforts, or on an award of compensatory support, the . On t~e facts ofthe.case,the Court held that the trial judge erred obligation founded on the marriage relationship lies dormant. But In ~nding that the WIfe was not eligible for spousal support. She is where need is established that is not met on a compensatory or entItle~ to suppo~ on the basis of "the length of cohabition, the contractual basis, the fundamental marital obligation may play a hardshIp the marrIage breakdown imposed on her, her palpable need vital role." and Mr. Bracklow's financial ability to pay."" But, the Court held The Court then turned to the issue of quantum, and held that a that .th.e determination of quantum should be left ~o the trial judge broad range of factors are to be taken into account. Need and length who IS In a better position to address the facts ofthe case," of relationship are among the factors that may be relevant, but a Brackl?w represents a significant rewriting ofspousal support law court must not focus on only one variable. The quantum awarded (in th~~ radIcally expands the obligation. Spouses with need and no terms of both amount and duration) "will vary with the circum­ abilIty to become self sufficient, can continue to look to their ex­ stances and the practical and policy considerations affecting the s~ouses ~or support. While there is no guarantee that the obligation particular case"." The ability of the supporting spouse to pay, WIll be lIfe long, nor is there any guarantee that it will not be life obligations from new relationships, as well as factors within the long. The decision represents a striking shift in the Court's attitudes marriage are all mentioned by the Court as factors that might affect to the role of spousal support in a reasonable short period of time. As quantum. However, the Court does not attempt to provide a recently as 1987, the Supreme Court in its Pelech" trilogy held that a comprehensive or even a partial list of factors to be taken into spo~se who had fallen upon hard times could make no claim from account. Rather, its emphasis remains on the discretion of the court theIr ex-spouse unless their dependency was causally connected to to take into account "diverse aspects ofthe marital relationship"." the marriage. In the trilogy, the Court wrote that: Finally, the Court considered, and rejected, the husband's argu­ ment that the law should permit closure on relationships so that ... the fact that a ~onne~ sp~use has become or may become a public parties can move on with their lives. The statutes require a balance charge does not by ItselfJustify the variation of a spousal maintenance order: In the absence of a radical change in circumstances tied to a marriage related pattern of economic dependency "the obligation to

" [d., at 444, citing Moge, supra, note 32, at 864. 38 See Chartier, supra, note 1, at 259 ("a support obligation may nonetheless arise from the marriage relationship itself"); Bracklow, supra, note 31, at 445 ("in .. [d., at 452. certain circumstances, marriage may give rise to an obligation"); and at 448 ("[tlhe .. [d, at 453. obligation may alternatively arise out ofthe marriage relationship itself.") . '" The Court even notes that it does not exclude the possibility that the trial 39 [d., at 444. J~dge ID'ght conclude that Bracklow's spousal support payments to date may have 40 Id., at 448. dlsch,~rged the obligation, and that no further support will be required (at 454). ·n Id., at 448. Pelech v. Pelech (1986), 7 RF.L. (3d) 225 (S.C.C.); Rkhardson v. Rkhardson 42 Id.) at 450. (1986), 7 RF.L. (3d) 304 (S.C.C.); and Caron v. Caron, [19871 1 S.C.R 894. 43 Id., at 450. Heremafter known as the "Pelech trilogy".

"-:." 446 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) (2000), 11 S.C.L.R. (2d) Family Law 447

support the former spouse should be, as in the case of any other citizen, of an entitlement to spousal support. In 1987, the "mere fact" of the the communal responsibility of the state." dependency of an ex-spouse did not distinguish that spouse from other dependent persons in society, unless that dependency was Admittedly, the case was one involving contract (more specifically, causally connected to the marriage. But, in 1999, that "mere fact" of the test for variation of a separation agreement) which is easily dependency can give rise to a spousal support obligation. distinguishable from the claim to support in the first instance in Rather than fully acknowledging this change, the Court has Bracklow. But, the overwhelming policy objective in Pelech was one attempted to weave these divergent cases together and, in so doing, of encouraging individuals to get on with their lives. It was seen by provided a significant restatement of the law of spousal support. many courts and commentators alike to have implicitly endorsed a Spousal support now has three components: contractual; compensa­ clean-break self-sufficiency approach to spousal support. In Moge, tory; and non-compensatory. The Court distinguishes between two the Court ~xplicitly rejected this interpretation of Pelech. Justice models of marriage, which in turn gives rise to the three models of L'Heureux-Dube, writing for the Court, adopted a compensatory spousal support. First, there is the independent, clean-break model approach to spousal support, in which support should be directed to of marriage, which the Court says is the basis of compensatory addressing the advantages and disadvantages ofmarriage. . support." Secondly, there is the basic social obligation model of While the shift from Pelech to Moge was by far the most dramatic, the shift from Moge to Bracklow is nevertheless significant. In Bracklow, the Court has stated that it never intended spousal It ., The Court purports to adopt the classification from the work of Rogerson, support to be only about compensation. may be mostly about particularly from her classification of different models of spousal support in "Judicial compensation, but it is not exclusively so. An obligation to support Interpretations of the Spousal and Child Support Provisions of the Divorce Act, 1985 an ex-spouse can also exist in the absence of a claim to compensation (Part I)" (1991), 7 C.F.L.Q. 155, and "Spousal Support After Moge" (1996-97), 14 for advantages and disadvantages caused by the marriage. The mere C.F.L.Q. 289. However, in so doing the Court creates its own classification, collapsing fact of need, and the inability to become self sufficient may give rise several of Rogerson models into one. Rogerson identifies three models of modern spousal support: an income security model, in which spousal support is based on the to an entitlement to support. In Pelech, the need of the dependent economic need of the claimant spouse; a self-sufficiency/clean-break model, in which spouse was not seen as relevant to an entitlement to spousal spousal support is intended to promote the self sufficiency of the claimant spouse as support, unless that need was causally connected to a pattern of soon as possible, and encourage the parties to go their separate ways; and a dependency engendered by the marriage. In Moge, the need of the compensatory model, in which spousal support is intended to redress the economic dependent spouse was relevant to an entitlement to spousal support advantages and disadvantages ofmarriage. The Court however uses this work to identify two competing theories of marriage to the extent that the need was related to the advantages and and post-marital obligation. First, "a 'basic social obligation' model, in which primary disadvantages caused by the marriage. But, in Bracklow, need has responsibility falls on the former spouse to provide for his or her ex-partner", based on been severed from the advantages and disadvantages caused by the the idea of marriage as a potentially permanent obligation. This model appears to marriage. According to the Court, need alone may be enough. The correspond to Rogerson's income security model (although Rogerson identifies this as Court attempts to emphasize that the support obligation lies not in a model of spousal support, or marital breakdown, rather than a model of marriage per se). The second model identified by the Court is the "independent" model of the mere fact of marriage, but rather, in "the relationship that is marriage, in which spouses retain their economic independence throughout the established and the expectations that may reasonably flow from it." marriage. According to the Court, "the theory of spousal support that complements Need, and reasonable expectations, then, have become the basis for a -this model is the 'clean break' theory, in which a former spouse...moves on with his or non-compensatory support obligation. The doctrinal shift from Pelech her life" (at 435). While this model appears to correspond to what Rogerson identifies to Bracklow is striking. Within slightly more than a decade, the mere as the self-sufficiency approach, the Court then conflates the different models, in stating that "[t)he independent, clean break model of marriage provides the fact of need has gone from irrelevant to forming the very foundation theoretical basis for compensatory spousal support." McLaughlin writes, e.g., at 436­ 37 that "the basic premise of ... compensatory support is that the parties are equal. As such, when the relationship ends, the parties are entitled to what they would receive " Richardson v. Richardson (1986), 7 R.F.L. (3d) 304, at 311, citing from Pelech in the commercial world - what the individual contracted for and what they have lost v. Pelech (1986), 7 RF.L. (3d) 225, at 270. due to the marriage and its breakdown .. ' The mutual obligation theory of marriage iI )

(2000), 11 S.C.L.R. (2d) 448 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) I Family Law 449 I marriage which is the basis of the non-compensatory support. ~hat ~ow from marriage, particularly from women's continuing role According to the Court, both of these models permit variation by m chI~d care. But, the broadening of support beyond compensation contract, which thereby provides the third basis for a entitlement to has hIt a more controversial cord. Should marriage give rise to a support. These three models of spousal support can be seen to potentially lifelong obligation of support? Does this accord with correspond to the three Supreme Court rulings: (1) contractual reasonable expectations about the role and status of marriage in (Pelech); (2) compensatory (Moge); and (3) non-compensatory society? In the context of a long-term and traditional marriage, a (Bracklow). compens~t~~ approach to spousal support would certainly recognize Despite the Court's efforts to integrate its earlier rulings in this the possIbIhty that a spouse would never be able to achieve self restatement ofthe law of spousal support, Bracklow must be seen as sufficie~cy, and that support would in fact then be life long. The a significant departure from the previous law. Bracklow represents a ~ore ?dficult and controversial question is whether marriage should broadening of the support obligation to include spouses in need, but gIve nse to a potentially lifelong obligation of support in the absence whose lives do not fit within the model of compensatory support. It of any claim to compensation. In a world oflegal regulation that has represents a return to an understanding of spousal support that had increasingly recognized the reality of divorce and second families fallen out of favour; namely, an income security approach in which can or should marriage give rise to a support obligation that is not marriage itself creates an entitlement to potentially lifelong support. related to a pattern of dependency or economic disadvantage caused Although the Court does not adopt the language of income security, by the marriage? Quite arguable, such a claim does not fit with preferring instead that of "basic social obligation", the idea societal expectations about the role and status of marriage. At the underlying this model is one in which the marital relationship may s~me time, many would sympathize with the plight of a sick or create a very long-term support obligation." disabled ex-spouse, who in the new post-welfare world, would face The broadening of spousal support in Moge to include the idea of almost certain poverty and destitution. The return to a more compensation for the economic advantages and disadvantages traditional "til death due us part" vision of marriage must be seen caused by marriage received considerable support'" The Court w~thin the context of these very recent developments, in which to be recognized the wide variety of factors that inhibit women from WIthout a family is to be without any alternative source of economic becoming self sufficient on marital breakdown, and revised the law support. ofspousal support to specifically redress the economic disadvantages The Bracklow decision does not expressly mention the importance of fiscal responsibility, ofreducing dependence on state or saving the and divorce, by contrast, posits marriage as a union that creates interdependencies public purse. But, the ubiquitous theme of privatization haunts this that cannot be easily unraveled". A compensatory model of spousal support was not, in decision nonetheless. The Court was responding to an increasingly Rogerson's typology nor in the framework articulated in Moge, intended to reflect the common scenario in which ex-spouses simply have nowhere else to idea of an independent marriage or a clean-break divorce. Quite the contrary, it was turn for their support. And it was responding within the context of intended to reflect and redress the particular nature of economic interdependencies created by marriage. The Court has effectively collapsed the self-sufficiency approach the increasingly popular idea that families should take responsibility and the compensatory approach into one. for their own; that the family, not the state, should be responsible for The Court then goes on to identify three models of spousal support: (1) compensa­ needy persons. This is in no way to suggest that the Court is a tory, which corresponds to the independent model of marriage; (2) non-compensatory, driving force in fiscal conservatism and privatization. But, it does which corresponds to the basic social obligation of marriage; and (3) contract, which suggest that many of the ideas underlying this drive to privatization apparently corresponds to both models of marriage and their theories of spousal support. In so doing, the Court has confused Rogerson's models of spousal support, ?ave crept into our social and legal imaginations, and have come to conflating theories of marriage with theories of spousal support, and collapsing mfluence the Court's understanding of the appropriate role of different theories and principles ofspousal support into one another. spousal support law. Bracklow, like Chartier, is an empathetic 50 See Rogerson, id. decision. The Court appears to be moved by the idea that to leave the 6' See, e.g., Rogerson "Spousal Support After Moge" id.; Sheppard "Uncomfort­ wife without support would be unjust. And, in this new post-welfare able Victories and Unanswered Questions: Lessons from Moge" (1994-95), 12 Cdn. J. ofFam. Law 283. 450 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) (2000), 11 S.C.L.R. (2d) Family Law 451 world, it may well be so. But, in so doing, the Court has significantly reading in the words "two persons". The Ontario Court of Appeal rewritten the law ofspousal support. upheld the decision. Court ofAppeal Justice Charron, writing for the majority," agreed that section 29 discriminated on the basis of 3. Same-Sex Couples and Spousal Support sexual orientation, an analogous ground within section 15. She further held that this discrimination was not a reasonable limit within section 1. The objectives of the FLA of providing for the (a)M. v. H. equitable resolution of economic disputes that arise when intimate relationships between individuals who are financially dependent By far the most significant and far reaching decision of the 1998­ breakdown, and of alleviating the burden on the public purse by 1999 Term is that of M. v. H. ," which involved the question of the shifting obligations to support needy persons from the state to spousal support obligations of same-sex couples. For the first time, spouses, would both be furthered by the inclusion of same-sex the majority of the Supreme Court recognized the spousal status of couples. Court of Appeal Justice Charron would have granted the same-sex couples. The Court held that section 29 of the Ontario same remedy as Epstein J. of reading same-sex couples into section Family Law Act'" (FLA) discriminated on the basis of sexual 29, but she suspended the implementation of the declaration of orientation by excluding same-sex couples from the definition of invalidity for one year, to give the Ontario legislature time to amend spouse. The principal majority judgment of Cory and Iacobucci JJ." the FLA. held that the section denied gay men and lesbians the right to apply Justice Cory, writing for the majority on section 15, held that for spousal support from a same-sex partner. According to the Court, same-sex relationships may be a conjugal within the meaning of section 29 violated the right to equality guaranteed by section 15 of section 29 of the FLA. In his view, "same-sex couples will often form the Canadian Charter of Rights and Freedoms, and was not a long, lasting, loving and intimate relationships. The choices they reasonable limit within the meaning ofsection 1. make in the context of those relationships may give rise to the M. v. H. involved two women who lived together in a same-sex financial dependence of one partner on the other"." According to the relationship for ten years. When their relationship broke down in Court, the exclusion of these couples from section 29 draws a 1992, M. commenced an action against H. seeking, inter alia, spousal distinction on the basis of sexual orientation, an analogous ground support pursuant to Part III of the FLA Section 29 of the Act under section 15. Justice Cory concluded that the distinction in defined spouse beyond married persons to also include unmarried section 29 was discriminatory. Section 29 of the Act violates the opposite-sex couples "who had cohabited ... continuously for a period human dignity of lesbian and gay couples by promoting the view that of not less than three years"." M. challenged the constitutionality of they are "less worthy of recognition and protection" and "incapable of the definition of spouse, arguing that the exclusion of same-sex forming intimate relationships of economic interdependence as couples violated section 15 of the Charter. The motion was heard by compared to opposite-sex couples"." Further, the exclusion of same-sex Epstein J. who held that section 29 of the FLA did violate section 15, couples in the Act further "perpetuates the disadvantages suffered by and was not saved by section 1. She extended the definition of spouse individuals in same-sex relationships and contributes to the erasure of in section 29 by severing the words "a man and a woman" and

.. Court of Appeal Justice Finlayson wrote a dissenting opinion, in which he concluded that the defmition ofspouse in s. 29 did not violate s. 15 ofthe Charter. He " [1999] 2 S.C.R. 3. adopted the dissenting opinion of Laforest J. in Egan lJ. Canada, [1995] 2 S.C.R. 513 .. R.S.O. 1990, c. F.3 that addreSSed the meaning of marriage as a basic social institution. The legislature .. Justice Cory wrote the s. 15 portion ofthe analysis, and Iacobucci J. dealt with was entitled to limit protection to opposite-sex couples because of their traditional and the s. 1 and remedial issues. Chief Justice Lamer and L'Heureux-Dube, McLachlin distinct role in the procreation of children. Even if s. 29 did violate s. 15, he would and Binnie JJ. concurred with their joint judgment. Justice Major and Bastarache J. have.~pheld its validity under s. 1. each wrote separate concurring judgments. Justice Gonthier dissented. M. lJ. H., supra, note 52, at 50. .. FLA,s.29. .. Id., at 57. 1

!i

Supreme Court Law Review (2000), 11 S.C.L.R. (2d) I 452 1 (2000), 11 S.C.L.R. (2d) Family Law 453 their existence.""' Thus, Cory J. concluded that the definition of spouse I support for dependent spouses" has long been expressly acknowledged in section 29 ofthe FLA was in violation of section 15 ofthe Charter. in legislative debates... In the section 1 analysis, the majority held that the exclusion of Justice Iacobucci noted that although same-sex relationships may same-sex couples was not rationally related to the objectives underly­ not typically be characterized by the same economic inequalities as ing the spousal support provisions in Part III of the FlA Justice opposite relationships, this does not justify their inability to make a Iacobucci affirmed the objective of the Act as outlined by the Ontario' claim for support.•s The degree of dependence will affect the amount Law Reform Commission in its Report on the Rights and Responsi­ and duration, if any, of a support award. In his view, the objectives 60 bilities of Cohabitants Under the Family Law Act ("OLRC Report") of the legislation of promoting an equitable resolution of economic and as adopted by Charron J.A. in the opinion of the Court of disputes when relationship breakdown and reducing the burden on Appeal: "The purpose of the FLA is to provide for the equitable the public purse-would only be furthered by the inclusion of same-sex resolution of economic disputes that arise when intimate relation­ couples in section 29.66 The Court further concluded that the ships between individuals who have been financially interdependent availability of alternative remedies, such as the equitable remedy of break down. (Parts I_IV)."" In terms of the spousal support provisions unjust enrichment or the law of contract were not adequate in Part III of the Act, the Court again adopted the objectives as stated substitutes for same-sex couples. 67 by the OLRC Report as "the equitable resolution of economic disputes Justice Iacobucci concluded that the exclusion of same-sex couples that arise when intimate relationships between individuals who from section 29 of the FLA could not be justified under section 1 of have been financially interdependent break down" and the the Charter. On the issue of remedy, the Court declared section 29 to alleviation of "the burden on the public purse by shifting the be of no force and effect, with a suspension of the operation of the obligation to provide support for needy persons to those parents and declaration of invalidity for six months to enable the legislature to spouses who have the capacity to provide support to these individu­ consider ways of bringing this provision, and other laws, into als"." Justice Iacobucci rejected the argument that the objective of conformity with the equality rights in the Charter.G8 Justice Iacobucci the legislation was to redress the disadvantage suffered by women in was of the view that reading same-sex couples into the definition of opposite-sex relationships: spouse in section 29 of the Act was an inappropriate remedy. If members of same-sex couples were read into the definition of spouse, ....in my view, this general social reality does not detract from the they could be subject to spousal support obligations without being able principle that dependencies can and do develop irrespective of gender in to opt out by entering a domestic contract under Part IV of the Act." intimate conjugal relationships. It seems to me that this is the true mischief which the gender-neutral support provisions of the FLA are Common law couples can opt out of their statutory support obligations by signing cohabitation and separation agreements pursuant to designed to address. 63 sections 53 and 54 respectively. These provisions are expressly limited The Court further observed that the goal of "reducing the strain on to contracts signed by "a man and a woman". the public purse" by "shifting the financial burden away from the government and on to those partners with the capacity to provide .. Id., at 69. .. Id" at 74. 66 Id., at 76. Justice Iacobucci specifically noted "... it is nonsensical to suggest that the goal of reducing the burden on the public purse is advanced by limiting the right to make private claims for support to heterosexuals. The impugned legislation 69 Id., at 57-58. has the deleterious effect of driving a member of a same-sex couple who is in need of 60 Ontario Law Reform Commission in its Report on the Rights and Responsibili- maintenance to the welfare system and it thereby imposes additional costs on the ties ofCohabitants Under the Family Law Act (1993), at 43·44. general taxpaying public," " M. v. R., supra, note 52, at 63. ., Id" at 77-79. " Id., at 67. See also at 72. 68 Id., at 87. 63 Id., at 68-69. 69 Id., at 86. 454 Supreme Court Law Review (2000), 11 S.C.L.R.'(2d) (2000), 11 S,C.L.R. (2d) Family Law 455

In his dissenting opinion, Gonthier J. concluded that the exclusion In a separate, concurring opinion, Bastarache J. disagreed with of same-sex couples from section 29 did not violate section 15 of the the majority's statement of the objective of the legislation. In his Charter and, even if it did constitute such a violation, it was a view, the Court ofAppeal, and the majority of the Court, mischarac­ reasonable limit within the meaning of section 1. His disagreement terized the objective of the legislative as recognizing intimate with both the majority opinion of Cory and Iacobucci JJ., as well as relationships and reducing dependency on the public purse. Rather, the minority opinion of Bastarache J., was articulated as' a "the primary legislative purpose in extending support obligations disagreement about the purpose of the legislation. Justice Gonthier outside the marriage bond was to address the subordinated position examined the theory and practical operation of the FLA's spousal ofwomen in non-marital relationships. But for this social problem no support regime. In contrast to the majority opinion, he provides a legislation would have been passed to impose support obligations on historical overview of the development of spousal support law, unmarried cohabitants."7' In his view, there is nothing in the tracing the gradual emancipation of women from legal impediments legislative history of the FLA to suggest that "intimacy" was in any to full equality. He referred extensively to the 1974 OLRC Report. In way related to the purpose. The focus of the debates at the time were his view, the purpose of the FLA was intended to "recognize the on the disadvantaged economic position of women, the household specific social function of opposite-sex couples in society and to division of labour, and the hardships that women suffer on address a dynamic of dependence unique to both men and women in separation.7• Justice Bastarache held that this objective continues to opposite-sex couples". According to Gonthier J., this dynamic of be important. However, it is also necessary to take into account the dependence flows from three "basic realities": effect of the definition in section 29 on excluded groups. In his view, the exclusion of same-sex couples "is not a valid means of achieving First, this dynamic of dependence relates to the biological reality of the the positive purpose of section 29, economic equality within the opposite-sex relationship and its unique potential for giving birth to family. By defining restrictively the scope of the family concept, children and its being the primary forum for raising them. Second, this section 29 in effect is restricting the reach of equality."7' Justice dynamic relates to a unique form of dependence that is unrelated to children but is specific to heterosexual relationships. And third, this Bastarache thus concurred in concluding that section 29 was dynamic of dependence is particularly acute for women in opposite-sex unconstitutional. relationships, who suffer from pre-existing economic disadvantage as compared with men. Providing a benefit (and concomitantly imposing a (b) Legislative Implications ofM. v. H. burden) on a group that uniquely possesses this social function, biological reality and economic disadvantage, in my opinion, is not discriminatory."· Despite the Court's emphasis that the appeal did not in any way challenge traditional conceptions of marriage but, rather, specifically Justice Gonthier was of the view that the FLA is directed at limited the definition of spouse in section 29 of the FLA,7. Iacobucci individuals who are in relationships which are fundamentally J. acknowledged the broader implications of the ruling in his final different from same-sex relationships. The primary purpose of the remarks on the remedial issue: statute is to recognize the social function of opposite-sex couples, and to address the dynamic of dependence that flows from this unique ... declaring section 29 of the FLA to be of no force and effect may well relationship.7l He concluded that the distinction drawn by section 29 affect numerous other statutes that rely upon a similar definition of the was not based on stereotypical assumptions, but rather, takes into term "spouse". The legislature may wish to address the validity of these account the real needs and circumstances of women in opposite-sex statutes in light of the unconstitutionality of s. 29 of the FLA. On this relationships, including biological reality.72

73 Id" at 188. 70 at 99. ld., 74 Id" at 194. 71 [d.) at 104. 7' fd at 199-200, 72 ld, at 142. 7' See id., at 28, 48 and 83, ]

(2000), 11 S.C.L.R. (2d) Family Law 457 456 Supreme Court Law Review (2000), 11 S.C.L.R. (2d)

point, I agree with the majority of the Court of Appeal which noted that required to undertake a comprehensive review of all common law if left up to the courts, these issues could only be resolv~d on a definitions of spouse. The words of Iacobucci J. strongly suggest that case-by-case basis at great cost to private litigants and th~ pubh.c purse. ifthe legislatures fail to do so, these definitions will be reviewed and Thus I believe the legislature ought to be given some latitude In order struck down by the Court on a case-by-case basis. to address these issues in a more comprehensive fashion. However, it is not at all clear that it is only common law defmi­ tions ofspouse that are vulnerable in the aftermath ofM. v. H. Many With this remedy, the Court has handed the issue back to the provincial family law statutes continue to draw distinctions between legislature. Despite its insistence throughou~ th~ dec~sion that ~t was married and unmarried couples, particularly in the context of only deciding the narrow issue of the constItutiOnahty of sectiOn 29 division of property and intestate succession. M. v. H. did not of the FLA, the Court has signaled to the legislatures that there. are address the rights of married couples, nor the distinction between broad implications to its ruling in M. v. H. It has directed l~~sla­ married and unmarried heterosexual couples. But, in combination tures to examine all the statutes with similar spousal defimtiOns, with the Court's earlier ruling in Miron v. Trudel,'· which held that and told them to "address these issues in a more comprehensive the exclusion of common law couples from an insurance scheme was fashion". Yet, ironically, it has done so in the language o~ ju~~cial discrimination on the basis of marital status, there is now serious deference.'" The Court has recognized the limitations of the JUdiClary reason to question the viability ofthe distinction between all married in addressing these issues - that the courts can only proceed .on a and unmarried couples - same or opposite sex. As Ryder and case-by-case basis addressing the narrow issue of law before It. !t Cossman have argued elsewhere: "If Miron leans strongly towards has been suggested that the responsibility for bringing the l~w III merging the legal status ofmarried and common law couples, and M. line with constitutional norms therefore now more appropnately v. H. does the same for common law couples and same-sex couples, than before lies with the legislatures, who can address these spousal then the end result is momentum towards conferring the entire definitions in a comprehensive fashion. But, the underlying message package ofmarital rights and responsibilities on same-sex couples."" is also clear - if the legislatures do not act, then the courts will, at Finally, and despite the Court's strong insistence to the contrary, no small expense to all involved. . the ruling in M. v. H. does have implications for the common law The question that the legislatures must now seriously address IS definition of marriage, which restricts marriage to opposite sexes.·' precisely how far reaching is the rul~ng in!"!. ~. H.? W?at.are the Under the existing legal regime, gay and lesbian couples have no implications of the ruling? The most ImmedIate ImphcatiOn Illvolves means to choosing to have their relationships recognized as spousal. section 29 of the FLA. If the Ontario government fails to take any The decision in M. v. H., strictly speaking, only addresses the question action, section 29 will be of no force and effect, which would mean of ascribed spousal status - that is, when the law will ascribe a that the spousal support obligations of the FLA wou~d only.apply to spousal status for purposes of legal rights and responsibilities. But, married couples. Given that this is a very unattra~tIve optIon for .a many gay and lesbian couples seek to have their relationships government firmly committed to "reducing t~e str:uns. on the pubhc recognized by choice rather than by ascription. And the reasoning in purse", that is, an aggressive fiscal co~servatIsm: It w.lll be forced ~o M. v. H. at least raises the question of the constitutionality of take some action to bring section 29 III conformlty WIth the Court s ruling. It could adopt a minimalist approach, simply including s~e­ sex couples in section 29, with the requisite amendments to sectIons 7! [1995] 2 S.C.R. 418. 53 and 54 dealing with cohabitation and separation agree~ent:s. 79 Cossman and Ryder, OM. v. H: Time to Clean Up Your Acts," Constitutional However, this would avoid the broader implications of the ruhng m Forum (forthcoming). For a discussion of the constitutional norms of the distinction between married and unmarried couples, see also Cossman and Ryder, Gay, Lesbian M. v. H. for other statutes that use an extended definition of spouse. and Unmarried Heterosexual Couples and the Family Law Act: Accommodating a A government committed to abiding by the Court's ruling would be Diversity o[Family Forms (1993). 80 Layland v. Ontario (Minister o[Consumer & Commercial Relations) (1993),14 O.R. (3d) El58 (Gen. Div.). On same·sex marriage, see Bailey "Hawaii's Same-sex Marriage Initiatives Implications for Canada" (1998) 15 Cdn. J. ofFamily Law 153. 77 See, e.g., Iacobucci J.'s comments onjudicial deference, id., at 60-61. 458 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) (2000), 11 S.C.L.R. (2d) FamiIyLaw 459 excluding gay and lesbian couples from the legal and social recognition institution of marriage, which has particular cultural and religious of marriage. In the immediate aftermath of M. u. H., the House of significance. This is of added importance because the constitutional Commons approved a motion that affirmed the definition of marriage jurisdiction to regulate the legal capacity to marry lies with the as a union between a man and a woman.·' According to Minister of federal government." Justice McLellan: «A marriage is a union between one man and one Even conservatives are considering the idea that a domestic woman." She added that "We on this side agree that the institution of partnership may be a way to abide by the requirements of equality marriage is a central and important institution in the lives of many rights, while still defending a traditional definition of marriage."' Canadians." " Obviously, the motion indicates that Parliament will not be changing the opposite-sex definition of marriage in the foreseeable future. But, the motion is not legally binding, and does (c) What is a Spouse? nothing to prevent the courts from declaring that the opposite-sex Given these potentially broad ranging implications, the ruling in definition of marriage is unconstitutional. To defend the opposite-sex M. v. H.leaves a number ofimportant questions unaddressed. One of definition of spouse, Parliament would then have to be prepared to use the crucial questions that same-sex challenges to spousal definitions the notwithstanding clause. Given an Angus Reid poll released the have raised over the years is what makes a spouse a spouse? What is day after the Parliamentary motion, which indicated that a majority of the nature of a spousal or familial relationship? This is a central Canadians (53%) are in favour of gay marriage,"' it is not clear how question that legislatures attempting to conform to the ruling in M. politically viable such an option might be. v. H. are now having to address. Indeed, earlier Supreme Court An alternative approach being considered in a number of different opinions have included a much more fulsome discussion of the·scope policy circles involves the idea of a domestic partnership regime. A and content of spousal and familial status; notably, in the dissenting domestic partnership regime would allow couples to register their opinion of L'Heureux-Dube J. in Mossop (1993) in favour of relationships, and thereby entitle the couples to a range of spousal recognizing same-sex couples as spouses," and on the other side of rights and responsibilities. Domestic partnership was first enacted in the debate, in the dissenting opinion of LaForest J. in Egan (1995)."' Denmark in 1989, and has been followed by a number of U.S. These two opinions canvass the various policy arguments in support municipalities.'" The Ontario Law Reform Commission (OLRC) of and against the recognition of same-sex couples as spouses. The recommended the adoption ofa domestic partnership regime in 1993.·' ~uling in M. v. H. might be seen to endorse the spirit of L'Heureux­ The introduction of a Registered Domestic Partnership scheme DuM J.'s opinion in Mossop, given its conclusions that the opposite­ would allow individuals to choose to incur the economic rights and sex definition of spouses was discriminatory. However, the majority obligations associated with marital status, without affecting the ruling in M. u. H. carefully avoided explicitly doing so. In fact, the ruling in M. v. H. steered carefully away from a policy discussion of the meaning ofspouse. 81 House of Common Debates, JWle 8, 1999, motion approved by a vote of 216 to 55. The motion, brought by the Reform Party, and endorsed by the Liberal Government, is not however legally binding. .2 ld. •• ld., at 54. The OLRC recommended a scheme in which both parties would me •, McIlroy, "Most in poll want gay marriages legalized", The Globe and Mail, a registration form, witnessed and signed, stating that they wish to enter "an June 10, 1999, at AI. economic partnership ofprimary importance in each other's lives", and that they meet .. The legal effect ofa domestic partnership is the same as marriage, Act No. 372 the statutory requirements for doing so, which would include a statement that neither of June 7, 1989. For a discussion, see Nielson, "Family Rights and the Registered of the parties is married or the registered domestic partner of another person. The Partnership in Denmark" (1990), 4 Int. J. L. & Fam. 297. For a discussion of U.S. scheme should also provide a mechanism for the revocation of a domestic partnership domestic partnership schemes, see Bowman and Cornish, "A More Perfect Union: A agreement. See OLRC Report, id., at 53-56. Legal and Social Analysis of Domestic Partnership Ordinances" (1992), 92 Colum. L. •, See, e.g., Knopff, "The Case for Domestic Partnership Laws", Policy Options, Rev. 1164. June 1999, at 53. •• Ontario Law Reform Commission, Report on the Rights and Responsibilities of 56 Mossop v. A.G. Canada, [1993] 1 S.C.R. 554. Cohabitants under the Family Law Act (1993). " Egan v. Canada, [1995) 2 S.C.R. 513. 460 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) (2000), 11 S.C.L.R. (2d) Family Law 461

Rather, the Court focused on the narrow question of whether a the decision of the Court of Appeal, "that there is nothing to suggest same-sex couple could be conjugal within the meaning of section 29. that same-sex couples do not meet the legal definition of 'conjugal"'," As noted above, section 29 defines a spouse as a man and a woman According to the Court, same-sex couples are capable of meeting the who have cohabited for a period of three years, or in a relationship of requirement of conjugality. some permanence if they are the parents of a child. "Cohabit" is Certainly same-sex couples will often form long, lasting, loving defined in section 1(1) as "living together in a conjugal relationship".' and intimate relationships. The choices they make in the context of Conjugal, however, is not defined in the statute. The meaning of a those relationships may give rise to the financial dependence of one conjugal relationship has been left to the courts to interpret, and a partner on the other. Though it might be argued that same-sex number ofnot entirely satisfactory definitions have been offered over couples do not live together in "conjugal" relationships in the sense 90 the years. In M. v. H., the Court does little to clarify the meaning of that they cannot "hold themselves out" as husband and wife, on this conjugal. Rather, it simply cites Molodowich v. Penttinen01 as setting issue I am in agreement with the reasoning and conclusions of the out "the generally accepted characteristics of a conjugal relationship. majority ofthe Court ofAppeal:' They include shared shelter, sexual and personal behavior, services, But, the Court then says virtually nothing else about the meaning social activities, economic support and children, as well as the of conjugality. In citing with approval the test from Molodowich - a societal perception of the couple"." The Court agreed with the Court somewhat obscure little case from an Ontario district court - the of Appeal that these dimensions of family life will be present in Court first appears to have endorsed a function approach to the varying degrees, and that it will not be necessary for a couple to definition of conjugality that looks at the different dimensions or satisfy all of these dimensions for their relationship to be conjugal. functions of family life. This functional approach has been criticized "In order to come within the definition, neither opposite-sex couples for its focus on an idealized notion of marriage, and for only nor same-sex couples are required to fit precisely the traditional recognizing unmarried relationships to the extent that they are marital model to demonstrate that the relationship is "conjugal".93 functionally equivalent to this idealized marital relationship. As The Court noted that an opposite-sex couple might be considered Ryder and Cossman have argued elsewhere: to be in a conjugal relationship although they do not have children nor sexual relations. ... measuring all relationships against this norm of an idealized marital The weight to be accorded the various elements or factors to be relationship is extremely problematic. In attempting to reduce a spouse considered in determining whether an opposite-sex couple is in a relationship to certain idealized marital functions, this approach as­ conjugal relationship will vary widely and almost infinitely. The sumes that there is a single and dominant model ofmarriage and family same must hold true ofsame-sex couples." which can be clearly defined. Of course, the reality is that marital Echoing its recent statements that family law issues must be relationships are extremely diverse ... The idealized functional approach determined according to wide variety of factors (see Bracklow and sets up a monolithic and mythical image of the marital relationship Chartier), the Court held that the approach to determining whether against which all relationships are evaluated. In so doing, this approach undermines the diverse ways in which individuals may choose to live in a relationship is conjugal must be "flexible", since the "relationships relationships, and thereby undermines the goal of accommodating and of all couples will vary widely." The Court then concluded, affirming respecting the diversity and equality ofliving arrangements. W

Justice Cory appeared to recognize the danger of this functional o' For a discussion of the problems with the notion of conjugality, see Cossman approach to conjugality, in noting that neither opposite-sex nor and Ryder, Gay, Lesbian and Unmarried Heterosexual Couples and the Family Law same-sex couples are required to fit precisely within the traditional Act: Accommodating a Diversity ofFamily Forms (1993), at 77-83. 01 (1980), 17 R.F.L. (2d) 376. ., M. v. H., [1999) 2 S.C.R. 3, at 50, citing Molodowich v. Penttinen, id. 0' ld., at51. S:! ld. 96 ld., at 50. .. ld., at 51. 97 Cossman and Ryder, supra, note 79, at 78.

;i:.. 462 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) (2000), 11 S.C.L.R. (2d) Family Law 463 marital model. The Court then appears to pull back from a clear (d) Privatising Support Obligations functional approach, emphasizing instead that the factors to be Finally, M. v. H. must be seen through the lens of the continuing taken into account in determining whether a couple is conjugal "will privatization of family support obligations." The result of the ruling vary widely and almost infinitely", since "the relationships of all is the expansion of the scope ofspousal support obligations to include couples will vary widely"." In so doing, the Court retreated to its. a whole new set of relationships. Individuals within same-sex increasingly characteristic emphasis on judicial discretion. relationships now fall within the realm of"family" members who will The ruling in M. v. H. thus does little to advance or clarify a legal be expected to provide support for one another - both during the understanding of conjugality. The Court declined to address in any relationship, and after the relationship breaks down. Indeed, the serious way the question ofwhat makes a spouse a spouse. Given the skeptics among us might argue that it is not surprising that the first far reaching implications of the ruling in M. v. H., this is a serious major victory in the recognition of same-sex spousal relationships oversight. Conjugality has long been the dividing line between those does not involve any government benefits. Rather, the Court itself heterosexual relationships that would be included in the definition of placed considerable emphasis on the goal of "reducing the strain on spouse, and those that would not. After M. v. H., conjugality ~as n?w the public purse" by "shifting the financial burden away from the also become the dividing line between those same-sex relatiOnshIps government and on to those partners with the capacity to provide that will be included in the section 29 definition of spouse, and those support for dependent spouses."'OO The ruling is consistent with the that would not. Moreover, the ruling in M. v. H. requires that agenda of fiscal responsibility - of expanding the private support legislatures now undertake a serious statutory audit of their obligations of individual family members, and thereby reducing the common law definitions of spouse, and extend those definitions to demands on the state. include same-sex couples who live in conjugal relationships, the idea It is also worth noting that the ruling in M. v. H. did not expressly of conjugality will become the dividing line between these couples for overrule the Court's earlier ruling in Egan.'o, In Egan, Sopinka J., a broad range of other statutory rights and responsibilities. the swing vote, relied on the idea of government incrementalism, Conjugality remains the key in deciding whether a relationship is holding that the Government should be given flexibility in extending spousal or not, yet any legal definition remains elusive. In empha­ social benefits to same-sex couples, who were still a relative new sizing that the various factors the Court has provided little more equality seeking group. In M. v. H., the Court distinguished Egan, on than an "I know it when I see it" approach. Such an approach will be the ground that there was "no concern regarding the financial difficult enough for lower courts to apply, who will be called upon to implications of extending benefits to gay men and lesbians."'02 Quite balance a range ofcompeting facts and factors with little guidance as to the contrary, the case was one in which "the extension will likely to the appropriate legal test. It is even less helpful for legislatures go some way toward alleviating those concerns because same-sex considering the broad implications ofthe ruling in M. v. H. for a vast couples as a group will be less reliant on government welfare if the array of spousal definitions. It is unfortunate that the Court did not support scheme is available to them."'" In one interpretation, then, take the opportunity to provide more direction on the meaning of that might be favoured by fiscally conservative governments, Egan conjugality. and M. v. H. might be taken to stand for the proposition that

.. For a similar critique of the lower court decisions in M. v. H., see Boyd "Best Friends or Spouses? Privatization and the Recognition of Lesbian Relationships in M. v. H." (1996),13 edn. J. ofFamily Law 321. '00 Id., at 69. 101 Egan u. Canada, supra, note 89. '02 M. V. H., supra, note 92, at 81. 103 Id. .. M. v. H., supra, note 92, at 51. 464 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) (2000), 11 S.C.L.R. (2d) Family Law 465 governments are only obliged to extend legal rights to gay and maintained child support at the same level even though it was now lesbian couples ifit does not cost them any money. only for one child, and increased the amount of spousal support. The While such an interpretation is likely to become harder and Manitoba Court of Appeal reduced the amount of child support to harder to sustain, particularly given Iacobucci J.'s words of warning $900 per month, held that there was no justification for the increase to the legislatures, it is still worth noting the extent to which the. in spousal support, restoring the original amount of $1000 per ruling in M. u. H. fits within an agenda of privatizing support month. obligations. Alongside the rulings in Chartier and Bmcklow, M. u. B. The question on appeal before the Court was the appropriate can be seen as part of the steady expansion of the scope and content standard for appellate courts in reviewing spousal and child support of family support obligations. The Court can be seen to be reflecting orders made at trial. Justice L'Heureux-Dube, writing for the Court, the increasingly popular sentiment that families, not the state, emphasized that family law legislation gives trial judges consider­ should take care of their own. Step-parents, spouses whose partners able discretion in determining and varying support obligations. They become ill or disabled, and same-sex couples have become part of an must balance a range of objectives and factors, based on the expanding familial medley who will be held responsible for particular facts of the case. In her view, this fact-based and supporting dependent persons. This is not so much a criticism of the discretionary nature of these determinations requires that "trial ruling of M. u. H. as it is an attempt to contextualize the ruling judges must be given considerable deference by appellate courts within broader social and legal trends. Indeed, any other outcome in when such decisions are reviewed."'" She observed that the Supreme the case would have been a terrible set back for the equality rights of Court has often emphasized that appeal courts should not overturn same-sex couples. But, the victory is one that fits, at least for the support orders unless there is an error in law, a significant moment, within the agenda of fiscal conservatism and the privatiza­ misapprehension of the evidence, or unless the award is clearly tion ofsupport obligations. wrong.'06 An appeal court should not intervene simply because it would have made a different decision, or balanced the factors differently. This deference is required in order to recognize that the 4. Standard ofReview ofSupport Orders discretion involved in making a support order is best exercised by A fourth case, Hickey u. Hickey'" involved the question of the the judge who has heard the evidence directly, that it avoid giving appropriate standard of review by appellate courts in reviewing parties an incentive to appeal, and that it promotes finality in family spousal support and child support orders at trial, and the principles law litigation.'07 ofvariation of spousal and child support orders. The couple had been The Court then turned to the principles for variation of a child married for 15 years, and had two children. When they separated, support order, as set out by the Court in Willick u. Willick,'06 which they entered into a separation agreement in which the mother require that a court satisfy itselfthat there has been a change in the gained sole custody of the children, and the husband agreed to pay conditions, means, needs or other circumstances of either spouse or $1000 per month in spousal support and $750 per month per child in of any child of the marriage. This change must be material and not child support. The agreement was incorpora~ed into the terms of an trivial or insignificant. '09 The Court concluded that the factors order for corollary relief when the parties divorced. When the older considered by the trial judge demonstrated no error of law. The child stopped living at home, the father brought a motion to vary the increased means of the payor spouse, the increased costs of order to delete support for his daughter. The mother agreed with the supporting children as they grow, and the increase in cost of living, removal of the daughter from the support order, but applied for an increase in spousal support, and in the amount of child support for the other child. The motions judge removed support for the daughter, 10< Id., at 16. 106 Id., at 16. 107 Id., at 17. ,.6 [1994J 3 S.C.R 670. ,.. (1999),46 RF.L. (4th) 1 (S.C.C.). 109 Supra, note 104, at 17. (2000), 11 S.C.L.R (2d) Family Law 467 466 Supreme Court Law Review (2000), 11 S.C.L.R. (2d)

DIVISION OF PROPERTY justified the increase in support. 110 In terms of variation of spou~al III. support, the Court similarly observed that there must be a mat.enal In Best v. Best,112 the Supreme Court addressed the valuation of change in the conditions, means, needs or circumstances o~ eIther pensions in the division of property under Part I of the Ontario spouse. As with child support, the change must be matenal, not Family Law Act.1I3 The case involved a couple who had been married trivial or insignificant. The trial judge had held that there was a. for 12 years. The husband had contributed to his defined benefit material change based on cost of living. Justice L'Heure~-Dube pension for more than 20 years before he married. The couple agreed observed that courts have held that inflation can constItute a to value the pension using a termination method, meaning that the material change. She concluded that "the decreased ~~cha~ing pension's value at separation would be calculated by assuming that power that occurs because of the increased costs of hVIng IS a the husband had stopped working on the date of separation. material change that affects the real value of the payments received However, the couple disagreed over the precise method to be used to and therefore the needs of the payee spouse.,,1II As a result, she value the pension's growth during the marriage. The wife argued for concluded that the trial judge had made no error oflaw in his order. a value-added valuation method, while the husband argued for a pro Doctrinally, Hickey says little that the Court has not said bef?re. rata method. Under the value-added method, the rate of growth The ruling simply affirms earlier rulings on the app:o~nate increases over time, reflecting the effects of compounding. Each standard of review for support orders in general and the vanatIOn of successive year of the pension had an increasingly higher value. child support orders and spousal support orders in particular. The Under the pro rata method, the value of the pension increases at a Court affirms its earlier ruling in Willick, and confirms that a constant rate over time, with each year of pensionable service similar standard of material change applies to spousal support treated equally. orders. The decision is somewhat more interesting from the point of In this case, the husband acquired 20 years of'pensionable service view of the more general trend of the Court of deference towards prior to the marriage, which would not be included in the calculation increasingly broad trial court discretion in family law matters. It of net family assets. 11. The wife argued in favour of the value-added provides a general statement of the trend refle.cted in ~any of the method, which would reduce the value of her husband's date of other decisions of the 1998-99 Term that famIly law Involves the marriage deductions and, therefore, would entitle her to a larger balancing ofmany factors best left to the discretion of t~e t~al court. share of the pension. The trial court used the value-added method. In Chartier the Court emphasized that the determInatIOn of a The court allowed the husband to meet his equalization obligation in parental rel~tionship will revolve around the uni~ue circu~stances monthly instalments over a ten-year period, but rejected his request of the individual case. In Bracklow, the Court agaIn emphaSIzed the that the payment be made if and when the pension was received. importance of balancing a broad range of factors, and declined to The Ontario Court ofAppeal upheld the trial decision, agreeing that actually rule on the facts. In M. v. H., the Court held that the the value-added method was the most appropriate method, and determination of a conjugal relationship will require that the courts awarded costs to the wife. Il6 balance a wide range of fact and factors. In Hickey, the Court simply affirms that these are family law decisions that are best left to the discretion oftrial courts.

112 (1999),49 R.F.L. (4th) 1 (S.C.C.). 113 RS.O. 1990, c. F.3. 11. Part I of the FLA provides for the equalization of the value of assets acquired during the marriage. The value of the property owned on the date of marriage is deducted in the calculation of net family property. In this case, the parties disagreed as to method ofvaluing the pension as ofthe date ofmarriage. no [d., at 18, citing Williek. 116 (1997) 35 O.R. (3d) 577 (C.A.). 111 (1998),46 RF.L. (4th) 1. 468 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) (2000), 11 S.C.L.R. (2d) Family Law 469

The majority opinion of the Supreme Court, written by Major J.,ll6 pension assets, and strongly urged the legislature to take appropri­ allowed the appeal, and held that the pro rata method wa~ the ate action: . preferred method for defined benefit plans. 1I7 The Court observed that the section 4(1) of the FLA does not prescribe how the value of It is the parties who suffer from the lack of legislative guidance. The any particular asset is to be determined, and did not indicate any. known costs of this litigation are disproportionate to the amount in preference as between the pro rata and valued-added methods for dispute. Duelling actuaries are an unfortunate consequence and a valuing the defined pension benefit."· Nor does the FLA require that serious expense in divorce cases involving defined benefit pensions. This the value of a defined benefit plan be calculated in the same way as regrettable situation will continue until legislation is enacted to provide other assets."9 The legislative silence meant that the husband's guidance on the valuation of defmed benefit pension in equalization defined benefit pension had to be valued according the method that calculations. The necessity of such assistance has been raised in the past by family law practitioners, the actuarial profession, the courts and valued the pension most equitably.'" In Major J.'s view, the pro rata the academy, in the hope of resolving this complicated and expensive method would best achieve the purpose of the FLA of the equitable Issue.. 123 . division of assets between the spouses. The pro rata method better reflected the nature of such pensions by averaging their present The Court did not reverse the lower courts finding on the assumed value and accurately take account ofthe pension's nature as a future retirement age to be used in calculating the value ofthe pension. The asset. '21 There was considerably less speculation involved. 122 agreement to use the termination method justified the disregarding Justice Major concluded by observing that the FLA was in need of of the post-separation evidence that the husband did not in fact take reform to provide further guidance for the equitable division of an early retirement. Further, the Court concluded that the trial judge's decision to allow the husband to meet his equalization payment in instalments over a ten-year period was entirely within

116 Supra, note 112, with Lamer, C.J, Gonthier, Cory, McLaughlin, Iacobucci, his discretion. It deserves deference precisely because the choice of Bastarche and Binnie JJ. concurring. method for settlement is highly contextual and fact based. Justice 117 The Court discussed the difference between defmed benefit pension plans, and Major, further noted that there was no advantage iIi using an "if and defmed contribution pensions plan, focusing on the appropriate method of valuation when" approach to equalization payments, since it would result in a for the former. continued financial link between separated spouses, as well as create 118 Supra, note 112, at 39. 119 Id., at 42. difficulty in determining the share to be paid. 120 Id., at 45. In her dissenting opinion, L'Heureux-DuM J. concluded that the 121 Id., at 50. See, also, a general discussion at 46-52. The Court again empha­ value-added method adopted by both the trial court and the Court of sized the difference between deCmed contribution plans and defmed benefit plans: Appeal was more consistent with the FLA, and produced a fairer "The value of a defined contribution pension is directly related to the contributions made by the employer and if applicable, the employee. Each contribution is used to value. In her view, there was no justification for using a different purchase investment assets; the greater the contribution, the more investments are valuation method. The value-added method better captured the purchased, the greater the final pension benefit", Id., at 45-46. As Major J. notes, in letter and spirit of section 4(1) of the Act. She provided three main this scheme, the plan increases in value more quickly when the contributions are of reasons in favour of this method, which would in this case, support greater value. By way of contrast, "an employee's interest in a deCmed benefit plan is the greater pension increase in value over the marriage years. First, not tied to specific pension assets or to the amount of contributions. The pension it better reflects the time value of money, which makes the value of benefit formula in this case fiXed the benefit with reference to years of service and the highest salaries earned ... Unlike an interest in a deCmed contribution plan, the the mention greater the closer one gets to the actual commencement ultimate alUlUalized benefit paid to an employee under a defmed benefit plan is of benefit payments.'" Second, most pension schemes calculate the unrelated to the size of contributions or rate of return on investment", Id., at 46. In the Court's view, the value-added method may be appropriate for a deCmed contribution plan, taking into account the effect ofcompounding, it is not appropriate for the deCmed benefit plan. 123 Id., at 63. 122 ld., at 52. ,2< Id., at 74. 470 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) (2000)? 11 S.C.L.R. (2d) Family Law 471 annual benefit payable to an employee in relation to the highest IV. CHILD PROTECTION years of salary. The value-added method would recognize that the significance of those highest years falling within the period of the In New Brunswick (Minister ofHealth and Community Services) v. marriage. 125 Third, early retirement provisions, which make years of L.(M.),130 the Supreme Court addressed the question of parents' right service later in a career more significant, belies the idea that all ?f access to children placed in permanent guardianship. The case years of pension contribution must be equal value.I" Finally, she Involved a couple whose three daughters were placed in a foster noted that it would be perfectly logical for the legislature to make a family. The Minister of Health and Community Services had been awarded a permanent guardianship order under the Family Services policy choice that benefited the non-employee spouse when the 13 couple is closer to retirement. "The later years of marriage often Act. ) The couple had lived together for 16 years. Their married life represent a time when a return to the employment market and the was described. by the trial court as "dysfunctional", involving opportunity to participate in the investment market is more difficult numerous break-ups and reconciliations. R.L. had a history of and, in many cases, impossible".'" In her view, "Parliament and the criminal convictions and drug use. M.L. was described as illiterate legislature have repeatedly demonstrated their intent to protect as having a limited intellectual ability, and as requiring medicai those who may prove to be more vulnerable in our society by reason supervision for anxiety and depression. She suffers from behavioral of growing older".128 If using this value-added method to result in and impulsive disorders. The trial judge concluded that her hardship or an unconscionable result, L'Heureux-DuM J. suggested parenting skills could not be significantly improved. He concluded that a remedy would be available under section 5(6) ofthe Act. that the permanent guardianship order - which transferred all Until such time as the legislature undertakes the reform urged parental rights and responsibilities to the Minister - was in the upon by the Court, the question of the appropriate valuation of a best interest of the children. The trial judge subsequently made an defined benefit pension plan has been resolved in favour of the pro order pursuant to section 60(2) of the Act prohibiting the parents rata method. As the Court notes, this is not the first time that the from having any contact with the children. In his view the order was legislature has been urged to undertake reform. The Ontario Law in the best interests of the children because "the attempts by the Reform Commission in its Report on Pensions as Family Property respondents to contact the children are greatly disturbing to their outlined the many problems with valuation and division of pension sense of security and stability".132 under the Ontario scheme, and strongly recommended the need for In a brief decision, the New Brunswick Court of Appeal allowed reform.'" The Court has echoed this view, and sent a strong message the parents appeal in part, setting aside the order prohibiting access, that legislative reform is seriously required to allow for more but uphold the permanent guardianship order. In its view, "there is efficient and equitable divisions ofproperty on marital breakdown. nothing on the record that would warrant the complete abrogation of access by the natural parents".'33 The Minister was directed by the Court ofAppeal to submit a plan regarding the parent's visitation to the trial judge for approval. The issue before the Supreme Court was '" Id., at 75. whether the courts have jurisdiction to make an access order in "8 Id., at 75. conjunction with an order for permanent guardianship, either under mId., at 75-76. I,. Id., at 76. the Act or by virtue of their parents patriae jurisdiction. The Court , 12. Ontario Law Reform Commission, Report on Pensions as Family Property: Valuation and Division. At 1, the Report stated: "The valuation and division of pensions in Ontario presents many problems. Currently the law contains no special provision for valuing pensions and gives little guidance on the appropriate method to use. Couples face considerable difficulty and expense in valuing these assets for 130 [19981 2 S.C.R. 534. Family Law Act purposes. ... Since there are no standard guidelines for the various 131 S.N.B. 1980, c. F-2.2. economic assumptions and methods that must be used, the parties and their lawyers 132 Justice Boisvert's order issued May 8, 1997, as quoted in S.C.C. decision, spend considerable time negotiating questions of valuation. Failure to agree on these supra, note 130, at 553. issues often results in lengthyjudicial proceedings." 133 Supra, note 130, at 548. 472 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) (2000), 11 S.C.L.R. (2d) Family Law 473 also had to address whether the Court of Appeal had erred in its order.138 However, he also emphasized that access is the exception holding that there was "nothing" to justify the trial judge's decision. and not the rule in the context of permanent guardianship.13' The The unanimous decision of the Court was delivered by Gonthier J. Court cited with approval the decision of the Court of Appeal in Re who held that the Family Services Act provides courts with the G.(M.A.) that it will "only be in rare situations that access will be jurisdiction to make an access order in conjunction with an order for ordered"."o On the issue of the preservation of family ties, Gonthier permanent guardianship. There is no inconsistency in principle J. held that the best interests of the child must remain the primary between an permanent guardianship order and an access order. consideration. ,

Brunswick Family Seruices Act, confirming the decision of the New judge noted that an order granting custody of the child to his Brunswick Court of Appeal in Re a.(M.A.). The Court's ruling in adoptive grandfathers was not commensurate with uprooting him L.(M.) is helpfufin consolidating the principles that should guide the from his culture. He emphasized that the child was ofmixed heritage Court in determining the exceptional circumstances in which access - that his was African American on his father's side, aboriginal on might be ordered. It does not, however, represent a significant his mother's side, and had lived a significant part of his life with his change or departure in the case law. The decision also reflects the adoptive grandparents in a non-aboriginal culture. The trial judge general trend visible throughout the 1998-99 Term of deference to stated that "this is not a case oftaking an aboriginal child and placing trial courts in family law proceedings. The ruling includes a strong him with a non-aboriginal family in complete disregard for his culture statement of the importance of appellate court's deferring to the and heritage. The fact is that M. is the [adopted] daughter of [the discretion of the trial judge and, on the facts, held that the Court of respondents] and 1. is their grandson."''' The Court ofAppeal reversed Appeal's intervention with the trial court ruling was inappropriate. the decision of the trial judge, awarding custody of the child to the biological grandfather. '50 According to the Court of Appeal, the trial V. CHILD CUSTODY judge has placed undue emphasis on economic matters and had "underemphasized ties of blood and culture". 15' H.(D.) U. M.(H.)'<7 involved a custody dispute between a child's In a very brief ruling, the Supreme Court allowed the appeal."" adoptive and biological grandparents. The child, 1., was born in 1995. The two paragraph judgement delivered by Lamer C.J. held that the The father is an Mrican American who lives in the United States, trial judge had committed no error, and that his order should be where the adoptive grandparents (the respondents) also live. The restored. A motion for a rehearing was dismissed on May 3, 1999. '63 mother, M., is a member ofthe Swan Lake First Nation ofManitoba. The biological grandfather had applied for a rehearing on the basis She was given up for adoption by her biological parents and was tha~ the respondents had failed to serve the Sagkeeng First Nation, adopted by the respondents when she was four years old. When she an mtervener in the British Columbia Court of Appeal, with their became pregnant with the child, she lived with them for some time application for leave to appeal. In an unanimous opinion, the Court before and after the birth of the child. Following the birth of the reviewed the facts of the case and the lower court judgments. The child, M. was unable to look after the child, and the adoptive Court reviewed its own finding, in somewhat greater detail that in grandparents took over his care. The child was subsequently its original ruling: removed by M. from the grandparents care, and taken to British Columbia where he eventually came into the care of the British We concluded that in fact the trial judge had given careful attention to Columbia Ministry of Children and Families. Both M's biological the aboriginal ancestry of I., together with all the other factors relevant father and her adoptive parents made a claim for custody of the to I.'s best interest, and that there was no error in his decision ... that child. justified its reversal by the Court of Appeal. The importance of the The trial judge found that both the biological grandfather and findings of the trial judge in custody cases cannot be forgotten. They adoptive grandparents were capable of offering the child a good should not be lightly set aside by appellate courts.'" home. u, The court considered the importance of the child's aboriginal heritage and the ability of his biological grandfather to preserve that On the question of rehearing, the Court held that although the heritage. However, he also considered other circumstances including Rules of the Supreme Court require service of an application for the stability of the respective homes, and concluded that the child's aboriginal heritage could not be the determining factor. The trial 1<, [d., at 2154. '50 (1998), 156 D.L.R. (4th) 548 (RC,CA). ,., [d" at 554. ,<7 H.(N.) and B(D.) v. M.(H.), H(M.) and the Director of Child, Family and 15' Supra, note 147, Community Services, [1999)1 S.C.R. 328. 163 H.(D.) v. M.(H.), [1999) 1 S.C.R. 761. ,.. [1997J RC.J. No, 2144 (QL) (RC.S,C.). ,.. [d., at 764. 476 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) (2000), 11 S.C.L.R. (2d) Family Law 477 leave on the parties, the Sagkeeng First Nation did not bring itself with culture, it has nothing to do with ethnic background. It's two within the meaning of party in the court below. The Court was women and a little girl, and one of them doesn't know her. It's as simple further of the view that it would not be fair to allow the applicant, ~s that: all the rest is extra and of no consequences, except to the people who had participated fully in the hearings, and who could have Involved, ofcourse. 160 notified the Sagkeeng First Nation of the proceedings, to now complain of the respondent's oversight. Finally, the Court concluded Justice Wilson concluded that the; trial judge in the case had that this was not one of those "truly exceptional cases where the b.ala~ced all the relevant factors appropriately. She rejected the applicant could show a potential failure of justice at the original SIgnIficance of inter-racial adoption, writing that "inter-racial hearing".I5' ~doption, like inter-racial marriage, is not an accepted phenomenon ou~ H.(D.) v. M.(H) presented the difficult issue of the appropriate In pluralistsociety,""o and further suggested that the implication role of cultural heritage in child custody proceedings. The issue has of thIS aspect of the adoption had been "overly dramatized" by the long been a controversial one, which both the Courts and legislatures mother in this case. have attempted to address. The Supreme Court could have taken the Racine v. Woods - particularly the passages cited - have come opportunity to address this difficult issue and, in particular, to under heavy criticism in the intervening years. '" While the idea that reexamine its ruling in the case of Racine v. Woods.'" In that case, the !mportance of bonding increases over time remains compelling, Wilson J., writing for the Court, rejected a mother's application for the Idea that the importance of cultural heritage decreases over time custody of her daughter, finding in favour of the foster parents. 167 is highly contested. Indeed, there has come to be considerable According to Wilson J., "when the test to be met is the best interests evidence that the significance of race and cultural heritage does not of the child, the significance of cultural background and heritage as dimin~sh with age.I.' Admittedly, H(D.) v. M.(H) involved some very opposed to bonding abates over time. The closer the bond that comphcated questions of identity since the child was of mixed develops with the prospective adoptive parents the less important heritage, and the child's mother had been raised by non-Aboriginal the racial element becomes".'" Justice Wilson then cited from the parents who were now taking care of the child. But, it was precisely testimony of one ofthe expert witnesses in the case: because of these complicated issues of identity and bonding that the Court might have taken the opportunity to revisit the issue and, I think that this whole business ofracial and Indian and whatever you perhaps, distance itselffrom some ofthe less than sensitive remarks want to call it all has to do with a parameter of time and if we had gone in ~acine ~d Woods.'"' But, the Court declined. In what is becoming back to day one and L.W. is now being relinquished by her mother in an Increasmgly common trend, the Court endorsed the findings of terms of priorities at that time, we would have said - supported a hundred times over "let's place the child with its cultural background." ... But if that is not done and time goes by, that priority drops down. 169 [d., at 188. See C.(J.M.N) v. Winnipeg Child and Family Services (1997), 30 The priority is no longer there, the priority of ethnic and cultural RF.L. (4th) 133 (Man. CAl, for an example of a recent case that relied on this background ... It has nothing to do with race, absolutely nothing to do passage, as well as the views of the expert Dr. McRae, in support of a ruling that an Aboriginal child remain in the custody of non-Aboriginal foster parents. See also Children's Aid Society of the City of London and County of Middlesex v. O.(M.) (1), [l99~~O.J. No.1261 (QL). ,.. [d., at 766. Supra, note 156, at 188. 16. [198312 S.C.R 173, also indexed as R.(A.N.) and R.(S.C.) v. W.(L.J.). ,., See, e.g., Kline "Child Welfare Law, 'Best Interests of the Child' Ideology and 161 In the case, the mother had placed her six-week-old child in foster care. The First Nations" (1992),30 Osgoode Hall L.J. 375; and Monture"A Vicious Circle: Child child was returned for a briefperiod to the mother, who then returned the child to the Welf~.r,e Law & First Nations" 3 Cdn. J. ofWomen and the Law 1. care of the foster's parents. After four years, during which time the mother had left an See Carasco "Race and Child Custody in Canada: Its Relevance and Role" abusive relationship, recovered from alcohol abuse, went back to school, and then ~1999), 16 Cdn. ~. of Family Law 11, at 46-47; Monture id.; and McGillvray returned to live on her reserve, she made an application to have the child returned to Transraclal AdoptlOn and the Status Indian Child" (1985), 4 Cdn. J. of Family Law her. T~e foster parents applied for an order ofde focto adoption. 437. Supra, note 156, at 187. 16.3 For a similar criticism, see Carasco, id. 478 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) (2000), 11 S.C.L.R. (2d) Family Law 479 the trial court, and again sent the message that the trial courts have Court's rulings. In Bracklow, the Court refused to rule on the facts, considerable discretion in the resolution of such family law disputes. sending the case back to the trial judge for a dete~ination of the quantum of support. In Chartier, the Court sent the case hack to the trial court for a determination of the quantum of child support. In VI. CONCLUSION L.(M.), the Court reinstated the ruling ofthe trial court, stating that Two trends are apparent in the family law decisions issued by the he had made no manifest error in considering the evidence before Court in the 1998-99 Term. The first is the broadening of family him. In H.(D.), the Court endorsed the trial judge ruling, emphasiz­ support obligations. In Chartier, the Court held that step-parents ing that their rulings should not be lightly overturned, and declined could not unilaterally withdraw from their parental relationship, to comment on the law at all. and could therefore be indefinitely responsible for a child support The deference to trial courtjudges seems to be based on the idea of obligation. In Bracklow, the Court expanded spousal support to family law disputes as highly specialized, fact-driven area of law, include non-compensatory support, imposing a potentially lifelong best left to those judges with direct contact with the parties, and obligation to support an ex-spouse who is unable to become self with the expertise to balance the factors and circumstances. It is an sufficient. In M. v. H., the Court expanded the definition of spouse idea that fits with a more general trend of deformalization and for the purposes of spousal support to include same-sex couples. The decentralization within family law, in which separating and decisions can be seen to reflect the increasingly popular idea that divorcing couples are increasingly encouraged to resolve their. families, not the state, must be responsible for supporting dependent disputes with the assistance of counselors, mediators and other persons; and that family responsibility now extends well into the divorce experts. Divorce experts speak of finding a solution to meet new post-divorce family. In each of these cases, the Court appeared the unique needs of individual families, of facilitating creative to be moved by the idea that it would be unfair to leave the children solutions that will help restructure a separating or divorcing family. and/or the ex-spouses without any entitlement to support; the While there is considerable merit in an attempt to reduce conflict decisions are, in other words, motivated by considerations of fairness and facilitate a lasting solution for the post-divorce family, the risk rather than fiscal conservatism. But, this expansion of family in this deformalization of separation and divorce is the extent to support obligations nevertheless must be seen within the context ?f which the role of law is receding. The deformalization appears to he the new social and political landscape of the post-welfare state, III accompanied by a delegalization, in which a range of social workers, which families, not governments, must take care of their own. The psychologists and counsellors are becoming the central agents. point is not that the Court is a driving force in the increasing The emphasis on judicial discretion is nothing new. Many deci­ privatization ofthe costs ofraising and supporting families but, more sions of the Court in the last decade have placed considerable modestly, that it is coming to reflect this new reality in its rulings. emphasis on the discretion of trial courts, and on the need to decide A second, and somewhat more subtle, trend that runs through the family law matters based on the very particular facts of very Supreme Court rulings in the 1998-99 Term is one of appellate co~rt particular cases. But this continuing emphasis on appellate court deference to lower court rulings. The decisions emphasize that famIly deference to the trial court rulings in family law, and on the idea law cases - be they spousal support, child support, child protection that family law disputes are best left to trial judges who can best or child custody - involve the balancing of many factors best left to balance the factors, objectives and facts of the case, can be seen the discretion of the trial court. When legal issues arise in the within these general trends towards deformalization, decentraliza­ interpretation of family law statutes, the Court will address the tion and delegalization of family law. For example, the determina­ issue, but only in the narrowest way possible. The Court directly tion of the amount and duration of support has effectively become an addressed this issue of appellate court deference in Hickey, issue of fact, rather than law. The balancing ofthe relevant statutory emphasizing the extent to which family law rulings require a factors and objectives falls within the discretion of the trial court. balancing of factors, objectives and facts best left to the trial courts. The decision is only reviewable by an appellate court for an error of But, this theme can he seen to run through virtually all of the law - but the balancing of factors and objectives does not appear to /.

(2000), 11 S.C.L.R. (2d) 480 Supreme Court Law Review (2000), 11 S.C.L.R. (2d) . Family Law 481

be a issue of law. Mter Bracklow and Hickey, it will be very difficult competing factors and objectives of the federal and provincial to find an error of law in the determination of spousal support statutes. Thus, even in these two broad reaching decisions, the Court orders. There are good reasons to want to encourage finality, and should not stand accused of overstepping the boundaries of judicial discourage appeals in family litigation, as L'Heureux-DuM J. reach. Ifanything, the Court in the 1998-99 Term could be criticized reviewed in Hickey. But, separation and divorce do raise a range .of for not deciding enough. often complicated legal issues. 164 Indeed, ifthe appropriate balancing of factors and objectives is left entirely within the discretion of the trial court, with only limited guidance by the Supreme Court, separating and divorcing couples may have less incentive to settle their disputes without the resort to litigation. This is not to suggest that the Supreme Court has not addressed or resolved any issues of law in the 1998-99 Term. In both Best and L.(M.), the Court ruled on narrow but important questions of statutory interpretation. In Bracklow, the Court significantly restated the law of spousal support. And in M. v. H., the Court struck down as unconstitutional the opposite-sex definition of spouse for the purposes of spousal support. But, the emphasis on appellate court deference to the discretion of the lower courts, suggests that the raging debate about judicial activism - that is, the idea promoted by the Reform Party, the National Post and the Alberta Report, amongst others, that the Supreme Court is writing social policy rather than deciding narrow points of law - is somewhat misplaced, at least in the context offamily law. Even in M. v. H., the ruling with the broadest reaching implica­ tions, the Court went to great lengths to emphasize the narrowness ofits ruling. lOS It emphasized that the ruling was not about marriage, nor about the myriad of statutes that define spouse, but rather, only about the definition of spouse in section 29 of the Ontario Family Law Act. The remedy was one that placed the issue firmly within the jurisdiction of the legislature. The decision was one cast in the language of judicial restraint and deference - not to lower courts, but to legislatures. Similarly, the ruling in Bracklow, although significantly expanding the potential reach of spousal support from its previous interpretation in Mage, is only doing what the legislation empowers the Court to do - balancing the extremely vague,

'64 See Cossman and Rogerson "Case Study in the Provision of Legal Aid: Family Law' Report ofthe Ontario Legal Aid Review, A Blueprint for Publicly Funded Legal Seruu:es (1997), at 816. •65 See Cossman and Ryder, "M. v. H.: Time to Clean Up Your Acts, Constitu­ tional Forum (forthcoming).