Significant Canadian Family Law Cases 🇨🇦

Introduction

Canadian family law has been shaped by a number of significant cases, many of which have been decided by the Supreme Court of Canada.¹ These decisions have addressed key issues such as child custody and the best interests of the child, spousal and child support, and the division of property. Here are some of the most famous and influential Canadian family law cases.

Child Custody and the Best Interests of the Child

• Gordon v.² Goertz, [1996] 2 S.C.R. 27: This is one of the most foundational cases in Canadian family law regarding child relocation (often called "mobility rights"). The Supreme Court of Canada established a framework for judges to follow when a parent seeks to move with a child.³ The court emphasized that there is no presumption in favor of the primary caregiver, and the sole criterion is the "best interests of the child." This decision requires judges to consider a variety of factors, including the reasons for the move, the child's relationship with both parents, and the impact of the move on the child.⁴
• Young v. Young, [1993] 4 S.C.R. 3:⁵ This case dealt with the intersection of a parent's freedom of religion and the best interests of the child. The Supreme Court ruled that a parent's religious beliefs can only be restricted if there is a demonstrated risk of harm to the child. The court held that the best interests of the child must take priority over a parent's desires and interests, even when those interests are based on religious beliefs.⁶

Spousal and Child Support

• Moge v. Moge, [1992] 3 S.C.R. 813: This landmark decision revolutionized spousal support law in Canada. The Supreme Court of Canada moved away from the "self-sufficiency" model of spousal support, which assumed that a spouse should become financially independent after a divorce. Instead, the court recognized that marriage can result in economic disadvantage for one spouse and a corresponding economic advantage for the other. The court affirmed the "compensatory" principle of spousal support, which aims to compensate a spouse for the economic consequences of the marriage or its breakdown.
• D.B.S. v. S.R.G., [2006] 2 S.C.R. 231: This case, along with three other companion cases, established the framework for retroactive child support. The Supreme Court provided a four-factor test to determine whether retroactive support should be awarded:
  1. The reason for the delay in seeking support.
  2. The conduct of the payor parent.
  3. The hardship to the child.
  4. The hardship to the payor parent.This decision created a clear set of principles for courts to follow when addressing a payor parent's failure to disclose their income and pay the correct amount of child support.

Common-Law Relationships and Property Division

• M. v. H., [1999] 2 S.C.R. 3: This pivotal case challenged the constitutionality of Ontario's Family Law Act, which did not provide the same rights and obligations to same-sex common-law couples as it did to opposite-sex common-law couples.⁷ The Supreme Court of Canada declared the law unconstitutional, finding that it violated the equality rights of same-sex partners under the Canadian Charter of Rights and Freedoms. The decision had a significant impact across Canada, leading to legislative changes that extended the rights and responsibilities of married spouses to common-law partners, including same-sex partners.⁸
• Walsh v. Bona, [2002] 4 S.C.R. 325: This case dealt with the division of property for common-law couples.⁹ The Supreme Court of Canada ruled that provincial legislation that does not provide property rights to common-law couples does not violate the Charter. The court stated that common-law couples must rely on the equitable remedy of "unjust enrichment" to claim a share of their partner's property, rather than the more straightforward statutory property division available to married couples.¹⁰

Recent and Emerging Issues

• Ahluwalia v. Ahluwalia, 2023 ONCA 476: This case addressed the question of whether a new "tort of family violence" should be created.¹¹ The Ontario Court of Appeal ultimately rejected the creation of a new tort, but clarified that existing torts, such as battery, assault, and intentional infliction of emotional distress, are flexible enough to address the harm caused by family violence.¹² The court's decision, while not creating a new cause of action, highlighted the importance of addressing family violence in civil claims and the need for legal remedies.
• Anderson v. Anderson, 2023 SCC 13: The Supreme Court of Canada clarified the approach to non-presumptively enforceable domestic contracts, particularly for property division.¹³ The court ruled that the principles from the spousal support case of Miglin v. Miglin can be used but must be adapted to the specific property statute at play.¹⁴ This provides important guidance on how courts should handle informal agreements between parties.