DIVORCE LAW IN CANADA
Law and Government Division
Revised 27 March 2001
A. History of Divorce Law in Canada
B. Divorce Act, 1985
1. Corollary Relief Applications
Child Support Orders
b. Spousal Support Orders
c. Custody and Access Orders
2. Enforcement of Support,
Custody and Access Orders
A. Recent Legislative Developments
B. Other Potential Areas for Reform
DIVORCE LAW IN CANADA*
In recent decades, family
law in Canada has been the subject of frequent and important reform.
Amendments to provincial and federal family law legislation, as well as
other legal changes made by the courts, have mirrored and in some cases
anticipated dramatic social changes, such as more couples separating or
living together outside of marriage, more women working outside the home
as well as in it, and large numbers of children living with single parents
or step-parents. Divorce law is one of the key components of family
law in Canada. This paper reviews the current state of Canadas
divorce law, and also touches upon future potential areas of law reform
action within federal jurisdiction.
As more people every year
experience divorce or separation, whether their own or that of someone
close to them, family law continues to have a tremendous impact on growing
numbers of Canadians. In Canada, almost 40% of marriages now end
in divorce. The social science literature is full of evidence of
the negative impact that divorce can have on the emotional well-being
of children and other members of the family, while the financial damage
caused by divorce and separation is well known. Since 1968, when
the first federal Divorce Act was passed, society has become more
tolerant of separation and remarriage, which have been made easier through
major reforms to the divorce law effected by the Divorce Act, 1985.
A. History of Divorce Law in Canada
Prior to 1968 there was
no federal divorce law in Canada. In Newfoundland and Quebec, where
there was no provincial divorce legislation either, persons had to seek
the passage of a private Act of Parliament in order to end their marriages.
In most other jurisdictions in Canada, provincial law incorporated by
reference the English Matrimonial Causes Act of 1857; this permitted
a husband to obtain a divorce on the grounds of his wifes adultery,
and a wife to do so provided she could establish that her husband had
committed incestuous adultery, rape, sodomy, bestiality, bigamy, or adultery
coupled with cruelty or desertion. Wives proven to have committed
adultery were not entitled to spousal support, and husbands had no right
to apply for support in any circumstances. Some provinces enacted
legislation allowing either spouse to seek a divorce on the basis of adultery.
The provincial divorce acts continued in effect until 1968, when Parliament
enacted the Divorce Act.
The Divorce Act of
1968 introduced the concept of permanent marriage breakdown as a ground
for divorce, while also retaining fault-based grounds for divorce, the
most important of which were adultery, cruelty and desertion. The
move away from purely fault-based grounds for divorce was controversial,
and the compromise whereby fault and no-fault grounds were combined was
continued in the Divorce Act, 1985. The change recognized
that marriages often end without a matrimonial offence being the cause
of the breakdown and that the reliance on fault allegations in divorce
proceedings can exacerbate and prolong what is already an unpleasant,
expensive, and potentially harmful process. Grounds for divorce
were broadened to include one no-fault ground, in order to spare at least
some couples this often painful process.
The grounds for divorce
set out in the 1968 Divorce Act were equally available to husbands
and wives, thus removing the double standard that had existed under the
U.K. Matrimonial Causes Act. Sections 3 and 4 listed the
various grounds under which divorce could be sought. The grounds
set out in section 3 of the Act included adultery, rape or another sexual
offence such as a homosexual act, bigamy, or physical or mental cruelty.
Additional grounds set out in section 4 of the Act applied if the parties
had been living separate and apart and there was a permanent breakdown
of the marriage based on specified factors, such as the respondent spouses
having been imprisoned for more than two years, being addicted to alcohol
or drugs, having disappeared or deserted the petitioner, or having failed
to consummate the marriage.
Decrees of divorce under
the 1968 legislation could not be granted unless a trial was held before
a judge who was satisfied on all of the following: that there were
grounds other than that the parties consented to a divorce; that the parties
had not colluded with each other (i.e., conspired to mislead the
court); that there had been no condonation or forgiveness and approval
of the offence subsequently complained of by the petitioner; that there
had been no connivance at the offence by the petitioner (i.e., no goading
of the spouse into a marital offence); that there was no reasonable prospect
of reconciliation; and that proper arrangements for the care of the children
or the maintenance of a dependent spouse had been made, which would not
be jeopardized by the granting of a divorce. Divorce judgements
were made in two stages: the first was a decree nisi; unless
the period was shortened by a judge, the petitioner could apply for the
decree to be made absolute three months after the decree nisi had
been granted. The parties were not free to remarry until the decree
absolute was granted.
Family law is an area of
divided legislative responsibility in Canada. While the Constitution
Act, 1867 reserves the area of divorce to the federal Parliament,
it grants jurisdiction with respect to property and civil rights to the
provincial legislatures. Parliament has exclusive jurisdiction to
legislate in the area of substantive divorce law, which includes corollary
matters such as support and custody. Provincial legislation in the
family law area covers matters related to the separation of married or
unmarried couples, including support and custody in cases where no divorce
is sought, property division, enforcement of support and other obligations,
adoption, child protection, change of name, and matters related to the
administration of the courts. Because of the overlapping nature
of family law jurisdiction, most reform initiatives are developed through
coordinated federal-provincial-territorial efforts. Nonetheless,
provincial family law statutes across the country differ significantly.
In 1976 the Law Reform Commission
of Canada, in its influential Report on Family Law, recommended
that, in order to reduce the hostility of the traditional adversarial
approach to divorce and to promote more constructive resolutions of family
disputes on separation, the only ground for divorce in Canada should be
breakdown of the marriage. It also recommended the establishment
across the country of Unified Family Courts, to whom exclusive jurisdiction
over family law issues would be granted. The latter recommendation
has been only partially followed, with the creation of Unified Family
Courts for some cities in Canada. Also, the 1985 Divorce Act
only partially removed the fault component from divorce actions, creating
a single ground for divorce called marriage breakdown, which could be
established by proving either separation for at least one year, or one
of three fault-based criteria: adultery, physical cruelty, or mental
B. Divorce Act, 1985
The 1985 Divorce Act
changed the rules by which a court could assume jurisdiction to deal with
a petition for divorce. Sections 3 to 6 of the Act define the circumstances
in which the court of a province will have jurisdiction to hear a petition
for divorce. In general, the court will have jurisdiction if one
or both spouses are ordinarily resident in the province where the proceedings
are commenced. Any subsequent variation applications are not necessarily
heard by the same court that granted an original divorce judgement, but
may be made to a court of a province in which one or both spouses is ordinarily
resident, or where the spouses accept the courts jurisdiction.
As mentioned above, the
1985 Act brought significant changes to the available grounds for divorce.
Section 8 of the Act provides that a divorce may be granted on the ground
that there is a breakdown of the marriage; this is established by showing
that the spouses have lived separate and apart for at least one year,
or that the respondent spouse has committed adultery, or physical or mental
cruelty of such a kind as to render continued cohabitation impossible.
Where the ground is marriage breakdown based on one year of separation,
the time is calculated from the date the spouses began living separate
and apart. Application for the divorce can be made within the one-year
period, but it will not be granted until the year has run out. In
their attempts to reconcile, couples often resume cohabitation; a period
of cohabitation of more than 90 days interrupts the period of separation,
so that the calculation of the one-year period will have to be re-commenced
following the latest date of separation.
Section 11 of the Act sets
out the bars to divorce, which are similar to some that existed under
the 1968 legislation: no divorce will be granted if the parties
have colluded with each other; divorce will not be granted until reasonable
arrangements have been made for the support of any children of the marriage;
a divorce sought on the basis of cruelty will not be granted if there
has been condonation or connivance on the part of the petitioner.
One of the innovations introduced
in 1985 was the provision in section 8 that allows parties to file for
divorce jointly. Such a joint petition, based on the breakdown of
the marriage and where the parties have been living separate and apart
for at least one year, may include claims for support, and custody of
or access to children. Although the substantive law of divorce falls
within federal jurisdiction, court practices and procedures are governed
by the provinces. The provision of section 8 clearly contemplating
joint applications has made possible the use of Joint Petition for Divorce
forms, which can be filed by the spouses together. More often, if
the parties have resolved all outstanding issues between them, or if no
relief other than a divorce is sought, they will agree that if one files
for divorce the other will not respond to it, thereby allowing it to proceed
as an uncontested divorce. An appearance in court is generally not
required in uncontested or settled cases.
Section 9 of the Act imposes
a duty on lawyers to discuss with their clients the possibilities of reconciliation,
as well as the options of negotiating or mediating the corollary issues
in the divorce proceeding, such as support or custody. Section 9(1)
restates the duty that was imposed on lawyers by section 7 of the 1968
Divorce Act to discuss the possibility of reconciliation, and subsection
(2) adds the requirement for discussion of negotiation and mediation.
This subsection promotes negotiated settlements and mediation, which is
a process by which parties resolve the issues outstanding between them
with the assistance of a neutral third party. Section 10 requires
judges to satisfy themselves that there is no realistic possibility of
reconciliation of the parties, and to adjourn proceedings and encourage
the parties to see a counsellor should it become appropriate.
It is not clear whether
the section 9 duties of lawyers have any significant impact on the likelihood
that parties will either reconcile, negotiate or mediate. Certainly,
many couples manage to reach negotiated outcomes, given that, according
to Professor Julien Payne, 86% of divorces are uncontested from the start,
and only 4% of divorces go to trial. Often family law disputes
are settled by negotiation between the parties, both represented by lawyers,
before a Petition for Divorce is issued. Although various different
types of relief may be covered in the terms of the settlement, these divorces
are considered uncontested in terms of the litigation aspect of their
Another mechanism for the
resolution of family disputes without resort to litigation, or as a part
of the litigation process, is mediation. Mediation is sometimes
court-affiliated, but more often it is private. Parties involved
in mediation are often represented by private counsel throughout the process.
The professional qualifications of mediators vary widely, although
efforts are being made to organize an accreditation system, so that certain
minimum requirements will have been met by all those holding themselves
out as mediators. Mediation advocates claim that it allows people
to settle their matrimonial affairs more quickly than does litigation,
and that individuals who have decided for themselves how their dispute
will be resolved will be more committed to the terms of the resulting
agreement, and will therefore find it easier to deal with each other in
an amicable way as time goes on. The impact of mediation has not
yet been clearly demonstrated, but there is growing interest in it as
a desirable alternative to the court process.
As this field grows, more
and more family lawyers are engaging in family mediation, and their participation
has been endorsed by lawyers governing bodies in most provinces.
Mediation of custody and access disputes is thought to be the area most
appropriately undertaken by mediators from other disciplines, such as
social work and psychology. Once a settlement has been reached,
matters that have been settled either by negotiation with the help of
lawyers, or with a mediator, will often be expressed in writing in a separation
agreement, or in the settlement documents in a divorce action. The
terms of the Minutes of Settlement or agreement may then be incorporated
into a divorce judgement, in order to make them more readily enforceable.
A divorce judgement granted
pursuant to the Divorce Act, 1985, becomes effective 31 days after
it is granted, as is set out in section 12. This change removed
the two-stage procedure (decrees nisi and absolute) required under
the 1968 Act. The court may abridge the 31-day period in special
circumstances, if the parties agree and undertake not to appeal the judgement.
Certificates of divorce proving that a judgement has taken effect, such
as must be shown in order to remarry, are generally not made available
until the 31-day period has expired.
1. Corollary Relief Applications
The powers of a court hearing
a divorce action to grant corollary relief are governed by sections 15
to 19 of the Divorce Act. Corollary relief may be sought
by the petitioner in the application for a divorce, or by the responding
spouse in a counter-petition. Corollary relief claims may be joined
with claims for a division of property or other relief under provincial
family law legislation. Orders may be made on an interim or final
basis, and even orders for interim interim custody and support
are made in some jurisdictions in order to provide for the needs of the
dependent members of the family while interim corollary relief applications
are being resolved. It is also possible, in jurisdictions where
it is permitted by the provincial rules governing court procedures, to
sever the divorce from the corollary relief sought, in order that a summary
judgement of divorce may be granted to the parties even before corollary
matters have been dealt with by the court.
A court that, pursuant to
sections 3 to 7 of the Divorce Act has jurisdiction to hear a divorce
application, may make orders for child or spousal support, or custody
of or access to a child or children of the marriage, or to vary a custody
or support order. Sections 15 to 15.3 of the Act provide that the
court may order a spouse to secure or pay (or secure and pay) lump sum
or periodic payments of support for the other spouse or the children of
the marriage, or both. Interim orders for support may be made as
well, to maintain the dependent members of the family until a final disposition
can be made, or to pay the cost of retaining experts to value property
that is subject to division under provincial matrimonial property law.
Section 15.2(5) specifically
excludes spousal misconduct or fault from the considerations to be included
in determining a spousal support application. Subsection (4) sets
out the factors on such an application, including the condition, means,
needs and other circumstances of each spouse and any child of the marriage;
the length of time the spouses lived together; the spouses roles
or functions during their cohabitation; and any order, agreement or arrangement
relating to the support of the spouse or child.
Section 15.2(6) sets out
a list of objectives for spousal support orders. Spousal support
orders should recognize any economic advantages or disadvantages to the
spouses from the marriage or its breakdown, apportion the financial consequences
of caring for a child, relieve economic hardship, and as far as possible,
promote the economic self-sufficiency of each spouse within a reasonable
period of time. Since 1997, applications for child support have
been made under section 15.1 of the Divorce Act, which refers to
the applicable child support guidelines, including the federal Child
Support Guidelines set out in the Regulations under the Act.
Until 1997, child support levels were set according to the results of
a legislative test aimed at sharing the responsibility for maintaining
children between their parents in proportion to the latters relative
abilities to pay. Since the passage of Bill C-41, which came into
force on 1 May 1997, the quantum of child support has been governed
by the applicable guidelines, defined in the Act to mean either
a provincial set of guidelines where they have been designated as applicable
by the federal Cabinet, or the Federal Child Support Guidelines in all
other cases. Child support orders must be made in accordance with
the applicable child support guidelines, or in a different amount as permitted
under section 15.1(5), where the application of the guidelines would have
an inequitable result.
Applications for custody
of or access to a child are made under section 16 of the Divorce Act,
and may be made by either or both spouses, or by any other person with
leave of the court (section 16(3)). These orders may also be made
on an interim basis pending a final resolution. In some cases, an
order for joint custody may be made rather than granting custody to only
one spouse. Subsection (5) provides that a spouse who is granted
access to a child is entitled to make inquiries of the custodial parent
and be given information about the health, education and welfare of the
child. The factors to be considered in making a custody and access
determination, as provided in subsections (8) and (9), include the best
interests of the child of the marriage as determined by reference to the
condition, means, needs and other circumstances of the child, and must
not include the past conduct of any person unless that conduct is relevant
to the ability of that person to parent the child.
Section 16(10) requires
the court, in making a custody and access order, to give effect to the
principle that a child of the marriage should have as much contact with
each parent as is consistent with that childs best interests, and
that therefore each parents willingness to facilitate the exercise
of access by the other must be considered. This provision is often
referred to as the friendly parent rule. It is based
on the premise that maintaining close contact with both parents is in
the childs best interests, and that any conduct on the part of a
parent that interferes with the others relationship with the child
is to be discouraged.
Section 17 of the Act sets
out the requirements to be met in an application to vary a support or
custody order. The same objectives for such orders as for original
spousal or child support orders are set out in subsections (7) and (8)
of section 17. The maximum contact or friendly parent
rule is also reiterated in section 17(9) for consideration in the context
of applications to vary custody orders. The test to be applied on
a variation application, as set out in subsections (4) and (5), is that
there must have been a change in the condition, means, needs or other
circumstances of the spouse or the child since the making of the order
that is to be varied. In the context of a support order that was
to last for a definite period, where support was to be terminated at a
certain date or when a certain event took place, variations may not be
made after the time has expired, unless the court is satisfied that the
variation is needed to relieve economic hardship arising from a change
in circumstances that is related to the marriage, and that the original
order would have been different had the change of circumstances been known
at the time it was made.
a. Child Support Orders
The Divorce Act provides
that support may be sought for any or all children of the marriage,
defined to include one or more children of the two parties to a divorce
who is either under the age of majority, or 16 or older and unable to
withdraw from the charge of one or both parents, or to meet his or her
own needs, because of illness, disability or other cause. Child
support is not generally terminated when a child reaches 16 or even 18,
however; the stage at which it is terminated depends on the childs
own means of support and other circumstances. Attendance at a post-secondary
educational institution will often justify the granting of support to
a child past the age of majority, depending on the parents means
and the likelihood that they would have supported such an endeavour if
they had not separated.
In order to be entitled
to child support, a child does not have to be the biological offspring
of either or both parents. The Act provides in section 2(2) that
the definition of child of the marriage includes a child for
whom one or both of the parties stand in place of a parent. The
test for determining whether someone does so includes such considerations
as the degree to which that person has contributed to the childs
financial support; the intention of the person to perform the role of
a parent to that child in an emotional, practical and legal sense; and
the length of time the person has performed this role with respect to
the child. In some cases (but not all), the relative obligations
of a biological parent and a step-parent or settled intention
parent are weighed with respect to the same child, and depending on all
the factors, the support obligation of the natural parent may be held
to be more important.
Until 1997, the factors
to be considered by the court in making a child support order were set
out in section 15(5) of the Divorce Act and the objectives for
such an order were listed in section 15(8). Similar criteria were
set out in section 17 to be considered in the context of an application
to vary a child support order. The objectives, which included the
recognition and apportionment of the joint financial obligation of the
parties, reflected the ruling in the leading Ontario Court of Appeal case
of Paras v. Paras, which established a formula for the calculation
of child support based on the apportionment of the childs costs
between the parents, according to their ability to pay. In setting
the quantum of support to be paid, the courts attempted to ensure that
all the reasonable costs of raising the child are borne proportionally
by the parents, and the childs standard of living is affected as
little as possible by the parents separation and divorce.
One aspect of the calculation
of quantum of child support was the establishment of the ability of the
paying parent (payor) to pay. This was a factual determination
based on the financial information that this parent provides to the court;
however, the court could impute income to a party who had artificially
lowered his or her income, for example by quitting a job or refusing available
overtime work. Another aspect of the calculation was the determination
of the costs of raising each child. This was done on the basis
of the custodial parents evidence about the actual and projected
costs associated with each child, such as day care expenses, food, clothing,
shelter, extra-curricular activities such as lessons, medical or dental
expenses, and even camps and sports equipment.
Bill C-41, An Act to amend
the Divorce Act, the Family Orders and Agreements Enforcement Assistance
Act, the Garnishment, Attachment and Pension Diversion Act and the Canada
Shipping Act, was passed in the spring of 1997 and came into force on
1 May 1997. This bill removed the previous test for quantum of child
support, as outlined above, which had been widely criticized as leading
to inadequate, inconsistent and arbitrary awards. The principle
behind the test, that of joint apportionment of child-rearing costs, remains
in the Act, having been reinserted as section 26.1(2) by the Senate Social
Affairs Committee during their study of the bill. Courts are, however,
now required to award child support in accordance with tables set out
in the Federal Child Support Guidelines, which are promulgated as Regulations
made under section 26.1 of the Act, unless the spouses reside in a province
whose guidelines have been designated as applicable.
The guidelines include not
only the tables establishing the amounts of child support to be paid for
each child (based on the income of the payor spouse), but also set out
a series of provisions governing other aspects of the determination, such
as the calculation of the payors income, the circumstances where
amounts may be varied up or down from the table amounts, and the test
to be applied following a divorce in cases where parenting is shared (meaning
the payor spouse has physical custody of the child at least 40% of the
Most provinces and territories
including Saskatchewan, Ontario, Prince Edward Island, Newfoundland,
British Columbia, New Brunswick, Manitoba, Nova Scotia, the Northwest
Territories and Yukon have adopted or slightly modified the
Federal Child Support Guidelines for application in provincial family
law matters. Quebec adopted its own guidelines in May 1997.
Manitoba, Prince Edward Island and New Brunswick, as well as Quebec, have
had their guidelines designated by the federal government so that they
will apply in cases decided under the Divorce Act as well as those
under provincial jurisdiction. Alberta has not yet adopted guidelines,
having decided to consider its options after a period of monitoring the
effects of the Federal Guidelines. Enabling legislation has been
passed but it has not been proclaimed in force in Alberta.
The Alberta Justice Department provides information to the public about
the federal Child Support Guidelines through public information offices
located in the courthouses in Edmonton and Calgary.
In most cases where a province
has adopted guidelines that depart from the federal model, the changes
are minor, and are intended to bring the guidelines into harmony with
provincial legislation and procedures. For example, in Ontario the
Family Law Act has been amended to adopt guidelines that use the
term parent instead of spouse, because that Act
applies to the children of unmarried and married parents. More significant
innovations have been adopted in provinces such as Newfoundland, where
both parents are required to file financial information, and Nova Scotia,
where there is no reference to a provincial child support service, as
none exists in that province. More extensive changes have been made
in the provinces where designations have been received, including Manitoba,
Prince Edward Island and New Brunswick.
b. Spousal Support Orders
One of the most complex
and rapidly changing aspects of divorce law is the area of spousal support.
The 1985 Divorce Act severed the relationship that had previously
existed between the parties conduct and a spouses entitlement
to support. Section 15.2(6) sets out the objectives of an order
for spousal support: the order should recognize economic advantages
or disadvantages; apportion economic consequences; relieve economic hardship;
and promote self-sufficiency. These objectives have been the subject
of much judicial consideration since the 1985 Act was passed.
Of several key developments
in the evolution of the law of spousal support under the Divorce Act,
one of the most important was the release of the Supreme Court of Canadas
1987 trilogy of spousal support cases: Pelech, Caron
and Richardson. These cases involved impecunious former wives
who were seeking spousal support in spite of the existence of separation
agreements barring or terminating their entitlements to support.
The trilogy was widely regarded as having established both a clean
break theory of spousal support and a causal connection test.
The former emphasized the desirability of having spouses being able make
a clean break from each other by settling their own affairs in a permanent
way; the latter required that a causal connection between the spouses
economic dependence and the marriage be shown in order to be successful
in an application to overturn a separation agreement.
The application of the trilogy
reasoning, particularly in originating spousal support applications, resulted
in some very harsh decisions. The over-emphasis on the self-sufficiency
component of the section 15.2(6) objectives for a spousal support order
had been based on an unrealistic view of the position of women in Canadian
society. The legislation was based on the premise that men and women
should be equally able to provide for themselves financially, but the
reality was (and is) that womens wages were lower than mens,
and that women, by removing themselves from the work force to raise children,
compounded their financial disadvantages.
The self-sufficiency test
was gradually weakened by courts across Canada, and finally abolished
by the Supreme Court of Canada in Moge v. Moge. The
Court rejected the self-sufficiency model for spousal support, and developed
a series of policy considerations, based on an equitable sharing of economic
consequences, to be applied by the courts in future cases. The objectives
set out in section 15.2(6) represent a legislative intention to recognize
the economic value of the contributions made both by a wage-earning spouse
and a spouse who assumes child-care and household management responsibilities.
In the Moge decision, Madam Justice LHeureux-Dubé cited statistics
drawn from the Department of Justice Evaluation of the Divorce Act:
Phase II to support her finding that the disproportionately high number
of women in poverty in Canada is partially due to divorce and its economic
Self-sufficiency is no longer
the objective that is most often discussed by judges for spousal support
awards, as it was before the Moge case. Since the Moge
decision, Professor Carol Rogerson has noted that there has been more
recognition of the concept of compensatory support, and spousal support
has been revived as a serious legal obligation. Currently, time-limited
spousal support is seldom awarded by the courts; particularly for medium-
and long-term marriages, support is almost always open-ended and reviewable.
Given the range of considerations encompassed by the objectives
set out in the Act, however, and the infinite numbers of factual scenarios
presented by divorcing couples in Canada, it is not surprising that there
is very little predictability and consistency in spousal support awards.
One of the most difficult areas for a family lawyer is how to advise
clients on what to offer or accept as an appropriate level of spousal
Late in 1999, in the Bracklow
decision, the Supreme Court of Canada confirmed that Moge continues
to be the governing authority in the area of spousal support. Courts
must follow the method set out in Moge, considering the factors
in section 15.2(4) against the objectives set out in section 15.2(6),
and weighing the various considerations raised in a particular case in
a manner that equitably alleviates the adverse consequences of marriage
breakdown. The decision confirms the existence of three distinct
conceptual grounds for spousal support: compensatory, contractual,
and non-compensatory. Depending on the nature of the marital relationship
of the parties, a spouse may be entitled to support on one or more of
these bases. Once entitlement has been established, the quantum
of spousal support is set on the basis of a discretionary weighing of
a number of factors, such as the length of cohabitation, need, and ability
Since the Supreme Court
of Canadas Moge and Hickey decisions in 1997, legal
experts have observed that both the quantum and time limits of spousal
support awards continue to be difficult to predict. These orders
are made at the discretion of the judges, based on a variety of factors.
The only general rule seems to be that any spouse who is unable to maintain
their accustomed standard of living on marriage breakdown will be found
to be entitled to spousal support in some quantum, for some length of
c. Custody and Access Orders
Custody of children is a
broad concept encompassing the rights and obligations related to a child
or the children of a marriage. In cases of divorce, custodial rights
and obligations, which during the marriage have been equally vested in
both parents, are usually divided; thus, one parent has custody, and provides
the main residence for the child, while the other parent is granted access,
or visitation and information rights, to the child. This area of
divorce law is perhaps the most difficult, given the emotional issues
involved, and the seriousness of the consequences of a determination that
may be seen as taking the child away from a parent who loses
custody to a former spouse. On the other hand, litigation of custody
and access issues is relatively rare. Most couples are able to decide
for themselves how they will share their custodial obligations toward
Where the parents are not
able to settle the custody and access issues themselves, the determination
will be made by the court. The Divorce Act, section 16(8)
requires the court to take into account the best interests of the child
of the marriage. The best interests test is the one
that generally applies to these determinations across Canada, whether
under provincial family law legislation or the Divorce Act.
The test has been criticized as being too ambiguous, but it is also defended
on the basis that it provides the only criteria flexible enough to enable
the courts to reach the right result for each childs particular
The best interests test
requires that any consideration relevant to the childs interests
be taken into account; some of the most important considerations have
been held to include the childs relationship with each parent; the
childs moral and emotional welfare; the wishes of the child, if
he or she is old enough to express them; the desire to avoid separating
siblings; and the willingness of each parent to facilitate the other parents
access to the child. The preservation of the status quo, so that
the childs living arrangements are disrupted as little as possible,
is often a factor with overriding influence, particularly in interim custody
and access determinations. In some jurisdictions, legislators have
spelled out in family law statutes a list of criteria to be considered
by the courts in determining the childs best interests; this has
been seen as an effective method of incorporating and giving formal support
for some previously unregulated aspects of custody and access law, such
as the desirability of maintaining contact between children and their
One useful criterion for
determining the arrangement that will be in a childs best interests,
the primary caregiver or caretaker rule, has been relied upon
by many judges and by lawyers assisting their clients in custody negotiations.
The primary caregiver rule is based on the premise that it will be in
the childs best interests to continue to be in the care and custody
of the parent who has been his or her primary caregiver throughout the
marriage. In many families, one parent (generally the mother) has
provided most of the child care throughout the lives of the children.
Clearly there is a basis for maintaining that parents role of primary
caregiver in order to limit the upheaval experienced by the children,
particularly young children, after their parents separation.
Section 16(9) of the Divorce
Act specifically precludes the consideration of the past conduct of
a parent in making a custody or access order, unless that conduct is relevant
to the persons ability to act as a parent to the child. This
provision was intended to prevent evidence about marital misconduct from
entering into the courts consideration of custody and access matters.
Its impact has become more controversial, however, now that many divorces
proceed on a no-fault basis; it has had the effect of excluding certain
types of information about the familys history from being considered
in the custody and access context. For example, it was often claimed
that one spouses violence against the other did not indicate anything
inappropriate or negative about the formers parenting, and that
only violence directed toward the child was relevant. It is being
argued (and demonstrated) more and more, however, that any family violence
or other form of abuse witnessed by a child does have an impact on his
or her well-being, and should be considered relevant to parenting abilities.
Although they are commonly
used, the terms custody and access are frequently misunderstood.
Custody of a child includes the power to make decisions with respect to
the child in areas such as schooling, medical care, religious upbringing,
and other important aspects of the childs life. Traditionally,
the decision-making power always went along with the day-to-day care and
control of the child and the provision of the childs home.
The non-custodial parent is generally granted access to the child, which
comprises both visitation privileges and a right to certain information
about the decisions being made by the custodial parent. Custodial
and access rights and obligations can now be found at various points along
a spectrum between the traditional arrangement of custody to one parent
(usually the mother) with access to the other (generally the father) on
Wednesday evenings and every other weekend; and the type of joint custody
arrangement where the child spends alternative weeks or months in each
parents home, with decision-making power being shared by both parents.
Rarely are joint custody
orders imposed by the courts in the absence of the consent of the parties.
It is thought that, unless the parents can work together amicably and
constructively enough to set up their own custody and access arrangement,
joint custody would not be in the childs best interests. Joint
custody implies sustained and frequent contact between the parents as
they resolve all of the parenting issues that arise in relation to the
child over time. They need to be able to communicate frequently
and share authority to decide schooling, religious, medical and other
questions as they come up. The courts have generally held that such
an arrangement should not be imposed on unwilling parents. Joint
custody also has important repercussions for the future mobility of the
parents; in a number of cases a joint custodial parent has been denied
approval for a move outside the jurisdiction in which both parents were
residing after separation or divorce.
Joint custody does not always
mean that the child spends an equal amount of time with each parent, although
this is often the objective that motivates a parent who seeks joint custody.
When a court orders joint custody, the parents will have equal decision-making
authority with respect to the child, and the details of where the child
will reside are also spelled out. These, however, may look like
a traditional custody and access order, with the child having a regular
residence with one parent, and spending alternate weekends with the other.
Many families find that the children are more comfortable staying with
one parent most of the time, especially during the school year, and visiting
the other frequently. At certain stages of a childs development,
it can be disruptive to be moving back and forth between parents on a
regular basis. Parents can make these moves easier by providing
homes in the same neighbourhood, so that children will at all times be
close to friends and school.
Whenever one parent is awarded
custody of a child, the other will generally be awarded access to the
child. Again the test applied is the best interests of the child.
The access provisions usually spell out the schedule of visits year-round,
specifying how holidays such as birthdays and summer vacations will be
divided. In cases where there is a high degree of parental cooperation,
there may be a very flexible award of generous or reasonable
access. However, this type of order is more difficult to enforce
should a dispute arise between the parents, so that a specific access
schedule is necessary where cooperation is not maintained. Even
where a specific schedule has been set out in a court order, as children
get older parents may have to be more flexible to accommodate childrens
wishes and extra-curricular activities. Restrictions on access,
such as one preventing a parent from removing the child from the jurisdiction,
or one requiring that access privileges be exercised under the supervision
of a third party or that the access parent refrain from consuming alcohol
or drugs, may be ordered where appropriate.
Two Supreme Court of Canada
decisions on the rights of access parents were released in 1994:
Young v. Young, and its companion case from Quebec, Droit
de la famille-1150 D.P. v. C.S. These decisions dealt
with the rights of access parents, in these cases both fathers, to involve
their children in religious activities and discussions. Although
the results in the two cases differed, many common threads ran through
the decisions. Access determinations are made on the basis of the
best interests test, which the judges all agreed is fact-based and child-focused.
The interests or desires of the custodial parent are not relevant unless
they coincide with the childs best interests.
Facilitating the exercise
of access is an important priority in family law, as is suggested by the
Divorce Act friendly parent rule. Maintaining
close ties with both parents is taken to be a very important means of
reducing the negative impact of divorce on children, and access is rarely
denied altogether. The social science literature has shown that
continued contact with both parents, in which the child feels no friction
or conflict, can enable the child to recover more quickly from the parents
divorce and to avoid negative repercussions for his or her own development.
Applications for custody
or access may be made by persons other than the parents of a child, if
they are granted leave of the court. Such leave will usually be
granted unless the third party application is being made for frivolous
or vexatious reasons. Even if a leave application is successful,
custody or access will be granted to a third party only in accordance
with the childs best interests. Usually this type of order
will be made in the type of situation where there is a close family member
who has played a particularly important role in a childs life, such
as a grandparent, whose regular and close contact with a child might be
interrupted to the childs detriment by the parents divorce.
2. Enforcement of Support,
Custody and Access Orders
Although the area of enforcement
falls primarily within provincial legislative competence (under the provinces
authority with respect to property and civil rights in the province),
several federal statutes form an important component of the system whereby
support and custody orders are enforced. Traditionally the enforcement
of a support obligation, like any other obligation in a civil court order,
fell to the individual support creditor. Creditors could enforce
family law orders and agreements in a number of ways, such as summoning
the payor to a judgment-debtor examination, garnisheeing wages or other
money due to the payor, seizing property, registering writs against the
debtors name or real estate, or committal for contempt.
Since the mid-1980s, most
Canadian provinces have established state-run agencies that are responsible
for the enforcement of spousal and child support obligations at no cost
to the creditor. Unacceptably high levels of non-compliance with
support orders and agreements had been demonstrated for many years, with
terrible economic consequences for both the children who were the intended
beneficiaries of these orders and agreements, and their custodial parents
(usually mothers). Many of these custodial parents turned to public
assistance for financial relief, to the extent that eventually the enforcement
of support obligations could no longer be treated as a private matter.
Under the provincial enforcement
schemes, court orders were automatically filed with a central agency,
which would receive support payments and forward them to support creditors.
The systems varied widely from province to province and levels of effectiveness
have not been clearly documented. Ontario, which had been one of
the most aggressive provinces in support enforcement, is currently reducing
the administrative support for its enforcement legislation and has closed
all its Family Support Plan offices except in Toronto. Support recipients
have expressed their concern that less effective enforcement is the result;
serious delays in the forwarding of support payments to them have already
been reported, bringing the effectiveness of Ontarios enforcement
system into question.
Federal enforcement legislation
has been designed to support and facilitate the efforts of the new provincial
enforcement agencies. The Family Orders and Agreements Enforcement
Assistance Act (R.S.C. 1985 (2nd Suppl.) c. 4 gives provincial enforcement
agencies access to federal information sources, including Revenue Canada
data banks, to help locate spouses in breach of support, custody or access
orders or agreements. It also allows the garnishment of garnishable
moneys, which since 1988 have been defined in the Regulations under
the Act as including income tax refunds, unemployment insurance benefits,
old age security payments and training allowances, GST credits and Canada
Pension Plan payments, in order to satisfy support orders or agreements
that are in default. A new Licence Denial Scheme was added
by Bill C-41, permitting the denial of certain federal licence applications
in cases of persistent support default. The definition of licence
would include a passport, as well as a number of professional licences
listed in a schedule to the bill, such as shipping, pilot and air traffic
controller certificates and licences.
The Garnishment, Attachment
and Pension Diversion Act (R.S.C. 1985, c. G-2) permits the garnishment
of federal employees salaries and federal pension benefits to satisfy
Since 1968, Parliament has
considered a number of proposed amendments to the Divorce Act,
aside from the two versions of the Act passed in 1968 and 1985 and various
amendments made from time to time. According to Professor Julien
Payne, to whom the drafting of the 1985 Act is commonly attributed, the
primary objectives of a sound divorce law are:
(i) to facilitate the
legal termination of marriages that have irretrievably broken down with
a minimum of hurt, humiliation and hardship;
(ii) to promote an equitable
disposition of the economic consequences of the marriage breakdown;
(iii) to ensure that reasonable
arrangements are made for the upbringing of the children of divorcing
In recent years, both legislators
and policy-makers across Canada have paid significant attention to the
financial repercussions of divorce and separation on children. The
Federal/Provincial/Territorial Family Law Committee has done a great deal
of work on the question of how to improve the financial lot of these children.
Responses to this work have included the provinces efforts in creating
new and expensive enforcement mechanisms, and the adoption of child support
guidelines. Other observers have focused on the tax treatment of
child support as a potential area for reform, resulting in a reversal
of the inclusion/deduction system of taxing child support payments as
of 1 May 1997. For some years, advocacy had taken place on
behalf of support recipients who objected to the tax treatment of child
support payments on the basis that it unfairly reduced the amount of money
custodial parents had available to spend on their children. Members
of Parliament such as Dawn Black and Beryl Gaffney made a series of motions
in the House of Commons on the issue, culminating in the passage on 30 May
1994 of Ms. Gaffneys motion for the elimination of the requirement
that child support be included in the income of the recipient for tax
purposes. Several provisions of the Income Tax Act that required
that such payments be included in the recipients income were tested
and upheld by the Supreme Court of Canada in the 1995 decision in Thibaudeau
v. R. These provisions were repealed, however, by amendments
to the Income Tax Act that took effect on 1 May 1997. Child
support payments under separation agreements or court orders made or varied
on or after that date are tax neutral; the recipient does
not report moneys received as income, and the payor does not get a tax
Attention has also been
focused on custody and access issues, which became the most visible controversy
arising from the study of Bill C-41 by Committees of the House of Commons
and the Senate. In March 1993, the federal Department of
Justice released a Discussion Paper on these, calling for comments in
a number of areas for potential reform. In 1994 and 1995, the House
of Commons Standing Committee on Justice and Legal Affairs considered
and heard evidence about a Private Members bill (C-232) introduced
by Reform M.P. Daphne Jennings on the issue of grandparents standing
to make applications for custody and access under the Act. The bill
was twice rejected by the Committee, but drew a great deal of interest
from both parliamentarians and advocates for grandparents rights.
Following the Senate Social Affairs Committees study of Bill C-41,
the Minister of Justice and the Leader of the Government in the Senate
agreed to the formation of a joint parliamentary committee to deal with
the issues of custody of and access to children.
In November 1997, the Senate
Standing Committee on Social Affairs, Science and Technology received
an Order of Reference from the Senate to undertake a study monitoring
the implementation and application of Bill C-41 and the Federal Child
Support Guidelines. That Committee issued an interim report in June
1998, making a series of recommendations dealing with consultation and
modification of the guidelines, special or extraordinary expenses
(known as add-ons), support for adult children in post-secondary
education, shared parenting, undue hardship, enforcement, and the access
expenses of parents living at a distance from their children.
The Special Joint Committee
on Child Custody and Access was formed in November 1997, and commenced
hearings early in 1998 in its study of parenting arrangements after divorce.
The Committees Terms of Reference comprise the following objectives:
That a Special Joint Committee
of the Senate and the House of Commons be appointed to examine and analyze
issues relating to custody and access arrangements after separation
and divorce, and in particular, to assess the need for a more child-centred
approach to family law policies and practices that would emphasize joint
parental responsibilities and child-focused parenting arrangements based
on childrens needs and best interests.
The Special Joint Committees
report, For the Sake of the Children, was tabled in December 1998.
The Report, which reflected a one-year series of 39 public meetings spread
over all the provinces, contained 48 recommendations covering many aspects
of the contentious area of custody and access law and practice.
Having heard from more than 500 witnesses, members of the Committee were
convinced that the problems they had raised called for legal and other
The Committees recommendations
addressed legal issues at the international, federal and provincial levels,
as well as other questions, such as funding, social policy and education.
With respect to the Divorce Act, the Committee recommended that
the terminology of custody and access be replaced
with a new concept of shared parenting. This concept,
the Report makes clear, was not intended to create a presumption in favour
of joint custody, but rather to enhance the roles of both parents in their
childrens lives, regardless of the residential arrangements that
might be made. The Committee also recommended that decisions about
post-separation parenting arrangements should be made on the basis of
the best interests of the child, and that the Divorce Act
should be amended to include a list of statutory criteria to be used in
determining a particular childs best interests.
Through this Report, the
Committee also informed the government of concerns about the Child Support
Guidelines that had been raised in the course of their hearings.
Although the Committee had not been charged with the study of these questions,
nor had it actively solicited submissions on them, members concluded that
the messages of so many witnesses should be brought to the Ministers
The governments response
to For the Sake of the Children, entitled Strategy for Reform,
was released in May 1999. That document referred to the statutory
obligation of the Department of Justice to provide Parliament by 1 May
2002 with the results of a comprehensive review of the provisions and
operations of the Child Support Guidelines and the determination of child
support. The Departments strategy is to incorporate the development
of reforms to custody and access issues into that review process.
Further research is also to be carried out jointly with the provinces
and will include public consultations on specific reform proposals in
Given the contentious and
polarized nature of custody and access, it is not surprising that reaction
to the governments Strategy for Reform has been mixed.
Those groups who advocated joint custody have applauded the documents
endorsement of the principle that both parents should have equal statutory
responsibilities for guiding, nurturing and financially supporting each
of their children. Others have emphasized that both the Committee
and the Justice Department refused to endorse any presumption in favour
of a particular type of custodial arrangement. Many commentators
have objected to the length of time for consultations that the government
paper suggests will be necessary before any legislative reform can take
A. Recent Legislative Developments
The governments most
recent proposals to amend the Divorce Act were those announced
in the March 1996 federal budget. They resulted in the 1997 amendments
to the Divorce Act as well as the Income Tax Act and several
pieces of federal enforcement legislation, as discussed below.
Bill C-41, An Act to amend
the Divorce Act, the Family Orders and Agreements Enforcement Assistance
Act, the Garnishment, Attachment and Pension Diversion Act and the Canada
Shipping Act, received First Reading on 30 May 1996. It received
Royal Assent 19 February 1997, and came into force 1 May 1997.
The bill implemented part of the new child support package announced in
the March 1996 federal budget. It made a number of changes to federal
legislation dealing with child support and related issues, including the
Divorce Act, in order to improve the adequacy and enforceability
of child support payments under federal law. The other two of the four
prongs of the new strategy were carried out through budget implementation
legislation amending the Income Tax Act, and also in force since
1 May 1997.These latter amendments accomplished both the reversal
of the current tax treatment of child support payments and the doubling
of the maximum level of the Working Income Supplement of the Child Tax
With the passage of Bill
C-41, the Divorce Act was amended to establish a framework for
using guidelines in the determination of quantum of child support.
The guidelines, which will replace judicial discretion, have been established
through the regulatory process. The second component of the March
1996 child support package, a variety of enforcement measures, was also
accomplished through this bill. Amendments were made to the Family
Orders and Agreements Enforcement Assistance Act (FOAEAA) to add Revenue
Canada (now Canada Customs and Revenue Agency) to the list of federal
departments whose data banks can be searched in order to locate those
defaulting on child or spousal support, and to establish a new federal
scheme whereby licences would be denied to those who persistently breached
their child support obligations. In order to satisfy support arrears,
the bill also expanded access to federal public service employee pension
benefits and the wages of persons working at sea.
The objective underlying
the adoption of child support guidelines is to achieve fairer and more
consistent levels of child support. This mechanism has been implemented
across the United States, with mixed results so far. It is also
hoped that the removal of child support negotiations at the time of separation
will make divorce less traumatic for families and reduce legal costs,
both for individuals and for the state, through savings in legal aid and
court administration costs. In Canada, since the March 1996 budget
announcements, lawyers, advocates for support recipients and payers of
support have expressed varying views about the model that has now been
adopted here. Family lawyers differ on the appropriateness of the
amounts set out in the guidelines, with most concluding that their application
will produce unfair results at the low and high income extremes.
Over the past decade or so, the education of the judiciary about the costs
of raising children had begun a trend toward increasing awards in many
cases; some fear that, by eliminating judicial discretion, this benefit
may be lost.
In the course of hearings
on Bill C-41, both the House of Commons Standing Committee on Justice
and Legal Affairs and the Standing Senate Committee on Social Affairs,
Science and Technology heard from a number of witnesses who expressed
dissatisfaction with the governments order of priorities.
They felt that child support should not have been dealt with before an
attempt had been made to consider legislative reforms in the important
areas of access to and custody of children. Members of the Senate
Committee, in particular, were unhappy with the speed with which the bill
was being studied and passed, and felt that they had not had an adequate
opportunity to examine the custody and access issues raised by witnesses.
The Senators were also very interested in testimony about the impact of
the current language of divorce on divorcing parents and their
children. Witnesses argued that the words custody and
non-custodial parent have an undesirable alienating and diminishing
impact on families, and particularly on the parent who does not provide
the childs primary residence after divorce, most often the father.
The Senate Committee members
sought an ongoing examination of the issues they saw as having been overlooked
in the development of Bill C-41, and wanted a governmental commitment
to a continued consideration of the issues that had been raised by the
witnesses. One component of the arrangement that led to the passage
of the bill by the Senate Committee was the agreement between the Minister
of Justice and the Leader of the Government in the Senate for the formation
of a joint parliamentary committee to deal with the issues of access to
and custody of children. The Senators had also expressed concerns
that the Guidelines, as regulations under the Divorce Act, would
not be subject to the same form of parliamentary review as is applied
to the development of legislation. In response to this concern,
it was agreed that the Senate Committee would have an ongoing role in
scrutiny of the Guidelines in the future. Both of these Committees
are discussed above in the section entitled Parliamentary Action.
B. Other Potential Areas for Reform
A number of aspects of divorce
law have attracted the attention of commentators and family law practitioners
as needing improvement. For example, across North America there
has been vigorous debate for the past decade or more about the desirability
of legislating a presumption that joint custody would be in childrens
best interests, or a requirement that all divorcing couples attend at
least one meeting with a mediator before being allowed to litigate their
dispute. Both of these options have been exercised in a number of
U.S. jurisdictions, but continue to attract serious criticism. Mandatory
mediation is now in place for all family law matters in Quebec.
Other issues have come before Canadian courts that extend the application
of existing family law legislation, and raise the question of whether
they should be specifically provided for in divorce law or provincial
family law legislation. Examples include same-sex support and custody/access
rights and obligations, the mobility rights of divorced or separated spouses,
how to prevent or respond more effectively to child abduction, and the
relative financial obligations of spouses and the state in cases of illness
Two U.S. innovations that
have been implemented to varying degrees in Canada are designed to improve
the ability of the family law process to serve the needs of children whose
parents divorce. The first, divorce education, seeks to inform parents
about the effects of divorce on children, and provide parents with tools
whereby they protect their children from these effects. Divorce
education programs are affiliated with the courts in a number of U.S. states
and more than one Canadian province, where they form a mandatory part
of the divorce process. Their content and form vary widely, and
their success has been mixed, but research shows that they can help parents
in the post-separation period avoid some of the most harmful behaviours.
Another mechanism is the parenting plan, developed by the parents through
negotiation or mediation, which is now a necessary component of the resolution
of cases in some jurisdictions.
A number of these possibilities,
including mediation, divorce education, and parenting plans, were studied
by the Special Joint Committee on Child Custody and Access, and are canvassed
in its report. Some developments on issues such as mobility rights
of divorcing parents and child abduction are also mentioned in this report.
Since 1997, the $63.6 million Child Support Implementation and
Enforcement Fund has enabled the provinces and territories to test and
implement a variety of measures designed to improve the effectiveness
of the family law system, including information programs, parenting education,
new court rules and mediation.
In Alberta, one
of the first Canadian jurisdictions to implement parenting education,
a Parenting After Separation Program is delivered in all judicial districts.
The objective of the program is to provide information about childrens
reactions to their parents separation; the legal, emotional and
financial implications of separation; and the use of mediation to resolve
disputes. The program also covers options for custody and access,
the development of parenting plans, and methods of improving parent-child
relationships after separation.
1968 - First federal Divorce
Act passed, introducing the concept of permanent breakdown of marriage
as a ground for divorce.
1976 - Law Reform Commission
Report on Family Law recommended that marriage breakdown be made the sole
ground for divorce.
1985 - Divorce Act, 1985
passed, reducing the required period of separation to one year to meet
the marriage breakdown ground for divorce.
1990 - Justice Department
published Evaluation of the Divorce Act, Phase II: Monitoring and Evaluation,
concluding that the no-fault ground for divorce introduced in 1985 has
contributed to reducing the adversarial nature of divorce proceedings.
1993 - Custody and Access:
Public Discussion Paper released by the Department of Justice.
1994 - The Supreme Court
of Canada handed down the Young v. Young decision on the
rights of access parents.
1994 - Liberal M.P. Beryl
Gaffneys Private Members motion supporting the elimination
of the requirement that child support be included in the recipients
income was passed by the House of Commons.
1995 - Federal/Provincial/Territorial
Family Law Committees Report and Recommendations on Child Support
released; child support guidelines were recommended.
1995 - Bill C-232, a Private
Members bill introduced by Reform M.P. Daphne Jennings, which would
have amended the Divorce Act to facilitate custody and access applications
by grandparents, was studied and defeated by the House of Commons Standing
Committee on Justice and Legal Affairs.
1996 - Federal budget announcement
of new Child Support Package, including Federal Child Support Guidelines,
elimination of the inclusion/deduction mechanism for child support, new
enforcement measures and enhancement of the Working Income Supplement
of the Child Tax Benefit.
1997 - Bill C-41, An Act
to amend the Divorce Act, the Family Orders and Agreements Enforcement
Assistance Act, the Garnishment, Attachment and Pension Diversion Act
and the Canada Shipping Act, received Royal Assent on 19 February
1997, and came into force on 1 May 1997.
1998 - For the Sake of
the Children, the Report of the Special Joint Committee on Child Custody
and Access, was tabled in December.
1999 - Strategy for Reform,
the government response to the Report of the Special Joint Committee on
Child Custody and Access, was released in May.
Arbuthnot, Jack and Donald
Gordon. Divorce Education for Parents and Children.
Paper delivered at the National Family Law Program. Ottawa, July
Department of Justice.
Evaluation of the Divorce Act: Phase II. Ottawa, May
Bill C-41: An Act to Amend the Divorce Act, the Family Orders
and Agreements Enforcement Assistance Act, the Garnishment, Attachment
and Pension Diversion Act and the Canada Shipping Act. Legislative
Summary LS-258E, Parliamentary Research Branch, Library of Parliament,
Ottawa, 10 July 1996.
Government of Canada.
Budget 1996: The New Child Support Package. Ottawa,
Hovius, Berend. Family
Law: Cases, Notes & Materials. Fourth Edition. Carswell,
MacDonald, James and Ann
Wilton. The Annotated Divorce Act. Carswell, Toronto, 1991-1998.
McLeod, J.G. and A.A.
Mamo. Annual Review of Family Law 1999. Carswell, Toronto,
Payne, Julien. Payne
on Divorce. Fourth Edition. Carswell, Toronto, 1996.
Rogerson, Carol. Spousal
Support After Moge. (1996-97), 14 C.F.L.Q. 281.
Bracklow v. Bracklow,
 1 S.C.R. 420.
Caron v. Caron
(1987), 7 R.F.L. (3d) 274 (S.C.C.).
Droit de la famille -
1150; D.P. v. C.S. (1994), 49 R.F.L. (3d) 317 (S.C.C.).
Hickey v. Hickey
(1997) 46 R.F.L. (4th) 1 (S.C.C.).
Moge v. Moge,
 3 S.C.R. 813, 43 R.F.L. (3d) 345.
Paras v. Paras,
 1 O.R. 130 (C.A.).
Pelech v. Pelech
(1987), 7 R.F.L. (3d) 225 (S.C.C.).
Richardson v. Richardson
(1987), 7 R.F.L. (3d) 304 (S.C.C.).
Young v. Young
(1994), 49 R.F.L. (3d) 117 (S.C.C.).
original version of this Current Issue Review was published in October
1996; the paper has been regularly updated since that time.
(1) J.G. McLeod and A.A. Mamo, Annual Review
of Family Law 1999, Carswell, Toronto, 1999, p. 201.