Equality Rights in Family Law:

Spousal and Child Support

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 Equality Rights in Family Law: Spousal and Child Support
What is LEAF? © 2008 Women’s Legal Education and Action Fund Inc.
The Women’s Legal Education and Action Fund (LEAF) is a
Individuals and organizations are encouraged to reproduce this
federally registered charity, founded in 1985 to advance the
document for educational purposes. However, this document
equality of women in Canada through litigation, law reform and
may not be reproduced for sale without the express permission
public education. LEAF participates in court cases dealing with
of Women’s Legal Education and Action Fund.
the equality provisions of the Charter. LEAF’s work ensures that
women and historically disadvantaged groups have their rights
protected, respected and advanced through the law.
For additional copies of this guide, please contact:

LEAF works to: LEAF National Office

60 St. Clair Avenue East, Suite 703
• ensure the rights of women and girls in Canada, as guaran- Toronto, Ontario M4T 1N5. Email: [email protected].
teed in the Canadian Charter of Rights and Freedoms, are Tel: (416) 595-7170
upheld in our courts, human rights commissions and
government agencies; and Written By: Pia Hundal
• reveal how factors such as race, class, Aboriginal status,
sexual orientation, ability, and religion compound discrimi- Design and Production: Ursula Gallagher, Litmus Design
nation against women.
Edited By: Jennifer Curran, Audrey M. Johnson, Carissima
Since its inception in 1985, LEAF has been involved in over 150 Mathen, Llana Nakonechny, Joanna Radbord,
cases and has helped establish landmark victories for women on
a wide range of issues from violence against women, workplace Special Thanks to: Marian Ali, Kim Brooks, Nicole Curling,
inequities, socio-economic rights, reproductive freedom and Anita Hannam, Angela Regnier, and LEAF’s Education Program
more. For more information on LEAF or the cases mentioned in Committee.
this booklet, please visit www.leaf.ca.

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Equality Rights in Family Law: Spousal and Child Support
INTRODUCTION... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Equality Rights: an intRoduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
shaRing thE cost of MaRRiagE and divoRcE – Moge v. Moge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
EnfoRcing suppoRt payMEnts – Dickie v. Dickie. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
changEs in incoME: REtRoactivE child suppoRt – D.B.S. v. S.R.g.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 9
othER advancEs to Equality in faMily law: ExaMplEs fRoM lEaf’s lEgal woRk. . . . . . . . . . . . . . . . . . . . . . ...... . . . .... . . . . 11
Social Assistance.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................... . . 11
Social Assistance and the “Spouse in the House” Rule - Falkiner v. Ontario.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Legal Aid in Child Wardship Cases – J.G v. Minister of Health and Community Services of New Brunswick.....11
Benefits............... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . ...... . . 12
Spousal Support after Retirement - Albrecht v. Albrecht. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... . . .. . . . . . . . . . . . 12
Child Support....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 12
Income Tax on Child Support - Thibaudeau v. Canada. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 12
Custody and Relocation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... . . . 12
Ability to Relocate in Split Custody Cases – Gordon v. Goertz. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... .. . . . 12
Same-sex Families... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 13
The Definition of “Spouse” – M. v. H. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . ....... 1 3
Names................ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . ......... . . . 13
Betrand, Suzanne and the Yukon Change of Name Act, 1985.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Children’s names – Vital Statistics Act Challenges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3
CONCLUSION....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Spousal Support and Child Support: Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . ....... . . 14
Resources .................. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Legal Resources. ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 1 5
Online Resources. .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 1 5
References . ............... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . ......... . . . . . . 16
Cases Cited.... ............ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 17

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Introduction
The Canadian Charter of Rights and Freedoms guarantees equality rights in Canada. Organizations, such as LEAF,
work to ensure the equality rights in the Charter are meaningful for all Canadians.

This booklet provides an overview of some of the changes to spousal and child support laws since the Charter.
As a result of the Charter’s equality rights, courts now consider and recognize the varying needs of men and
women after a divorce or separation. This booklet addresses three important changes to family law:

• Equal sharing of the economic consequences of marriage

• Enforcing court orders for support
• Retroactive child support payments

These three areas reflect significant developments in family law that positively impact many women across
Canada. This booklet examines specific cases where equality rights led to greater fairness for women in spousal
and child support matters. LEAF intervened in many of the cases discussed below. As an intervenor, LEAF
made arguments regarding the equality rights issues raised in each case. In the third case, LEAF’s application
to intervene was rejected by the court. For more information on LEAF’s work, please visit www.leaf.ca.

Please note that this booklet is intended for information and general reference only and does not provide legal
advice. This booklet addresses some specific aspects of family law and does not provide a comprehensive over-
view of this subject. If you have a legal matter for which you need legal advice, contact a lawyer or legal clinic
in your region. For more information, please refer to the resources listed at the back of this booklet.

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Equality Rights: An Introduction
The Canadian Charter of Rights and Freedoms includes two equality rights clauses. Section 28 guarantees that the
rights and freedoms in the Charter apply to men and women equally.

Section 15(1) of the Charter grants all Canadians equality before and under the law, as well as equal protection
and benefit of the law.

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.

Before the Charter was introduced, the Canadian Bill of Rights stated that women and men were equal “before
the law”, but not “under the law”. This meant that laws that treated men and women differently were not
found to be contrary to the Bill of Rights. Laws were often justified bacause they treated all women in the same
unfair manner. Some laws that gave obvious advantages to men were not considered discriminatory as a result
of this notion of equality “before the law”.

Many women were affected by the inequality that resulted from unfair laws. The following pre-Charter case
provides an excellent example:

Jeannette Corbière Lavell and Yvonne Bédard challenged a law under which an Aboriginal woman lost Indian
Status if she married a non-Aboriginal man. The law did not apply to Aboriginal men, who could marry
outside of the community and retain their Aboriginal status. The Supreme Court of Canada decided that this
law did not discriminate against women because it applied to all Aboriginal women equally. Many Aboriginal
women lost their status as a result of the law, until it was finally repealed twelve years later.

The term “under the law” was added to s. 15 of the Charter to ensure that equality is guaranteed both within
groups and between individuals and groups. In order to remove barriers and accommodate differences, courts
must consider the context of the particular experience of discrimination and the effect that a law has on an

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 The parent-child rela- individual or a group. As a result, laws must be applied equally. Laws cannot not perpetuate or promote pre-
tionship engages not existing disadvantage and laws must ensure the equal dignity and worth of all people in Canada. In short,
only moral obligations, equality “under the law” ensures equality in the outcomes, and equality “before the law” ensures fairness in
but legal ones as well. the application of laws.

D.B.S. v. S.R.G. The approach to equality prior to the Charter led to many instances of discrimination for women involved in
family law matters. Rules that put women at a disadvantage were not considered discriminatory. As well, it
was not until 1992 that the Supreme Court of Canada finally recognized the critical impact of gender roles both
during and after marriage.

During marriage, spouses often have different roles and responsibilities in their families. These differences
create economic consequences after the marriage ends. As a result of numerous factors, women generally face
greater financial hardship after a divorce than men. The following facts illustrate some of the issues facing
women in Canada:

• 70% of part-time workers in Canada are women1. Many women cannot work full-time because of
household chores and caring for children.
• Canadian women make less money than men. In 1997, women working full-time earned $14, 602 less per
year than the average man2. For many women, it is difficult to support a family on a single income.
• 90% of lone parent families were headed by lone mothers in 20043.
• In 2002, 35% of all female lone-parent families lived in poverty4.
• Families headed by singles mothers are more likely to have lower incomes. In 2003, 43% of all children
in low income families were living with a lone female parent5.
• In 2005, 92% of Canadians paying child support were fathers; mothers had sole custody over 78% of
the time6.

The above statistics show many of the economic hardships faced by women in Canada. Women are more likely
to take on the responsibility for child care and to earn less money as a result. Laws that do not account for the
difficulty many women experience after the end of marriage can lead to discrimination. It is therefore essential
that the courts recognize the different needs and interests of women and men.

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Sharing the Cost of Marriage and Divorce – Moge v. Moge The financial consequences of
the end of a marriage extend
In the case of Moge v. Moge the Supreme Court of Canada fundamentally changed its approach to issues following beyond the simple loss of future
the breakdown of marriage. Specifically, the Court recognized the economic consequences and hardships that earning power or losses directly
some women experience after divorce. related to the care of children.
They will often encompass loss
While married, Mrs. Moge looked after the couple’s three children and took care of the household chores during of seniority, missed promotions
the day, while her husband worked full-time as a welder. At night, Mrs. Moge cleaned homes part-time to sup- and lack of access to fringe
plement her husband’s income. After their divorce, Mrs. Moge worked for a number of years at a hotel, receiving benefits such as pension plans,
some child and spousal support from her ex-husband. However, Mrs. Moge was eventually laid-off and could life, disability, dental and
only find unsteady, part-time work. Despite her financial need, Mrs. Moge stopped receiving support payments. health insurance.
The lower court decided that she was no longer entitled to the support payments because the marriage had
ended many years before. The lower court reasoned that Mrs. Moge had been given enough time to become self- Moge v. Moge
sufficient, even though she faced difficulty in finding full-time work. The court chose to focus on the importance
of giving Mr. Moge a “clean-break”, ignoring the economic disadvantage Mrs. Moge experienced as a result of
the marriage. Mrs. Moge lost full-time work opportunities in order care for her family. Mrs. Moge challenged
the ruling and appealed to the Supreme Court of Canada, which acknowledged that the lost opportunities that
result from marriage cause lasting economic hardship for women.

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 The doctrine of equitable Under the federal Divorce Act, when deciding on spousal support orders, judges must consider four factors :
sharing of the economic 1. Any financial advantage or disadvantage for either spouse that results from the marriage or divorce
consequences of marriage… 2. Ensure that costs of child care are fairly divided between spouses
seeks to recognize and 3. Relieve any financial hardship that results from the divorce
account for both the 4. Where possible, promote financial independence and self-sufficiency
economic disadvantages
incurred by the spouse who Until 1992, courts mainly focused on the financial independence of ex-spouses more than the other three factors.
makes such sacrifices and Spousal support was considered a temporary tool to help ex-spouses become “self-sufficient”. In the Moge v.
the economic advantages Moge decision, the Supreme Court of Canada recognized that women face particular and lasting financial
conferred upon the hardship after divorce. This case led to a more balanced consideration of the four factors and an acknowledgment
other spouse. of the basic differences in the needs and experiences between men and women. Spousal support is no longer
considered a temporary solution for support-receiving spouses.
Moge v. Moge
In this case, the Court acknowledged that divorced women are more likely to face financial barriers, such as a
limited ability to work because of responsibilities in the home7. With an increased focus on fairness, courts will
often look at the standard of living during the marriage and the spouse’s financial need in determining the
amount of support8. One important goal of spousal support is to compensate lost opportunities and financial
hardship. Since women are more likely than men to be financially disadvantaged after a divorce, this case led
to greater fairness for women seeking support.

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Enforcing Support Payments – Dickie v. Dickie
When a court orders one spouse to pay child and/or spousal support, he or she has a legal obligation to
make those payments. When the spouse refuses to pay, it is often difficult for the receiving spouse to enforce
the support order. The federal government does not directly enforce support orders. Instead, provinces and
territories do this through publicly funded “maintenance enforcement programs”. These programs enable
the provincial governments to take money from one spouse and send it to the other. However if the support-
paying spouse leaves Canada, the receiving spouse’s province/territory must have an agreement with the
other country in order to get the support payment. If there is no arrangement between the country and the
Canadian province/territory, it is extremely difficult to access the support payments.

In many non-family law cases where a payment of money is ordered by the court, a person who refuses to pay can
be found “in contempt of court”. A judge can punish someone for contempt of court with jail terms and fines.
Dr. Dickie’s refusal to pay the
In Dickie v. Dickie an ex-husband refused to pay support to his family, despite many court orders. The court court-ordered support has had
repeatedly acknowledged that Dr. Dickie owed his family money, but Mrs. Dickie had no legal way to make disastrous consequences for his
her ex-husband pay the support he owed. children and for his former wife.

The Dickies lived together for fifteen years and had three children. Dr. Dickie was a plastic surgeon and Mrs. Dickie v. Dickie,
Dickie was a registered nurse who gave up full-time work when her first child was born. While they were Ontario Court of Appeal
married, she worked part-time in her husband’s office. The couple separated and Dr. Dickie was ordered to
make spousal and child support payments, which he did for a number of years.

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“Issues involving parents In 2002, Dr. Dickie moved to the Bahamas without telling Mrs. Dickie or the court. Despite several court orders
who are poor necessarily he stopped making support payments before he left, disobeying several court orders. In fact, Dr. Dickie owed
disproportionately affect over $150 000 in unpaid spousal and child support. Not only did Dr. Dickie disobey the court and flee the
women and therefore raise country, he did not appeal any orders or try to change the monthly amounts. Mrs. Dickie did not make enough
equality concerns and the money to support her family on her own and she was forced to go into debt in order to make ends meet.
need to consider women’s
perspectives.” Mrs. Dickie took the case to the Supreme Court of Canada, which decided that should the support-paying
spouse disobey court orders he or she can be found in contempt of court and should not be allowed to take
New Brunswick further steps in the case. In making the contempt remedy available, the Supreme Court recognized the need
(Minister of Health and for serious legal consequences for people who do not obey court orders for support.
Community Services)
v. G. (J.)

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Changes in Income: Retroactive Child Support – D.B.S. v. S.R.G. Parents have an obligation
to support their children
Retroactive support payments refer to payments that were ordered at an earlier time but have not been made. in a manner commensu-
Until 2006 in D.B.S. v. S.R.G.9, retroactive child support payments were only available in exceptional circum- rate with their income,
stances, for example: situations of great financial need; if a parent paying support was hiding income; or if and this obligation and
the payments were frequently late. Until 2006, the law was unclear on when retroactive child support should the children’s concomitant
be ordered. right to support exist in-
dependently of any statute
D.B.S. and S.R.G. separated after a 10-year common law relationship. The couple shared custody of their or court order.
children and neither paid or received any support from the other. At the time of separation, both parents had
similar incomes and shared the costs of raising their children. However, when the father had a large income D.B.S. v. S.R.G.
increase seven years after the separation, the mother went to court to ask for retroactive and continued child
support payments.

The mother took the case to the Supreme Court of Canada, who confirmed a court’s power to order retroactive
support payments. The Court stated that the paying parent should increase the amount of child support when
his/her income increases significantly. By law, children are entitled to benefit from a significant increase in a
parent’s income. The Court then outlined the guidelines for retroactive child support:

When retroactive payments should be awarded

- The court stated that retroactive payments should no longer be considered rare or exceptional
- The support must be appropriate in the specific circumstances and it must provide a clear benefit to
the child or children. For example, if the parent were to increase support and the child’s quality of life
would remain the same, the amount of support would like stay the same

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 When are retroactive payments not appropriate?
- A retroactive payment might not be awarded if the recipient spouse delayed in seeking an increase.
Since parents receiving support have the right to request proof of the paying-parent’s income once a
year, including a tax return and pay stub, this information is available to support-seeking parent
- The courts may not award a retroactive payment if it would cause financial hardship for the paying
parent

What is the significance of “blameworthy conduct”?

- “Blameworthy conduct” exists when a parent puts his/her own interests ahead of the child’s right to
an appropriate amount of support
“…parents are to be trusted - “Blameworthy conduct” on the part of the paying parent will be considered by the court as a reason
with the responsibility of to allow a retroactive payment
caring for their children, - Examples include hiding income and intimidating the recipient parent into not seeking support
but courts are not to be Retroactive payments are limited to a period of three-years before the court case, unless there was “blameworthy
discouraged from defending conduct”.
the rights of children when
they have the opportunity In D.B.S v. S.R.G., the mother was not awarded retroactive child support because both parents had a similar
to do so” salary before the father’s increase in income. The court determined that support was not required for that time
period. However, as the father’s income had increased significantly, the court ordered him to start making
D.B.S. v. S.R.G. regular child support payments.

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Other Advances to Equality in Family Law: Examples from LEAF’S “…women, and especially
single mothers, are
Legal Work disproportionately and
particularly affected
The following list provides some examples of LEAF cases in the family law area. These cases reveal some of by child protection
the advances for equality rights in family law. For more information on these and other LEAF cases please proceedings”
visit: www.leaf.ca.
New Brunswick (Minister
Social Assistance of Health and Community
Services) v. G. (J.)
Social Assistance and the “Spouse in the House” Rule – Falkiner v. Ontario
Under Ontario’s welfare system, two people living together for more than three months were presumed to be
spouses and have access to each other’s income. Many relationships that were not “spousal” – such as room-
mates – were captured by this definition. Approximately 90% of people cut-off from social assistance by this
rule were women. In 2004, the Ontario Court of Appeal found that the rule led to discrimination. While the
rule appeared neutral, the Court held it had a negative greater impact on women and on single mothers. As a
result the Ontario government changed the rule.

Legal Aid in Child Wardship Cases – J.G v. Minister of Health and Community Services of New Brunswick
In 1999, the Supreme Court of Canada ruled that New Brunswick’s failure to provide legal aid to poor parents,
facing state applications to remove their children, violated their right to security of the person under section
7 of the Charter. LEAF intervened in this case to also argue a violation of section 15 of the Charter; but the
Supreme Court did not find it necessary to decide that issue. Most legal aid challenges occur in the context of
criminal trials, where the vast majority of applicants are men. This case was a significant victory for women in
Canada, because the Court recognized that women, especially single mothers, are disproportionately affected
by lack of legal representation in other kinds of state proceedings and that effect can result in a violation of
their Charter rights.

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Benefits
Spousal Support after Retirement - Albrecht v. Albrecht
After a 35-year marriage ended in divorce, Mrs. Albrecht lost her rights to a division of Canada Pension Plan
credits. LEAF intervened at the Ontario Divisional Court and helped win a ruling that a woman is entitled to
share a couple’s Canada Pension Plan credits when there is a separation or divorce. This case was an important
step in addressing the circumstances of older women and to reduce their vulnerability to poverty.

Parental Benefits - Schachter v. Canada

In 1992, an Ontario court ruled that childcare benefits must be extended to all biological parents, allowing
fathers benefits for childcare. This was an important ruling for women as it recognized that both parents have
a role to play in the care of a new baby. As well, the court stated that maternity benefits must be available to
birth mothers exclusively, in recognition of women’s particular needs after pregnancy and labour.

Child Support
Income Tax on Child Support - Thibaudeau v. Canada
In 1995, Suzanne Thibaudeau went to the Supreme Court of Canada to fight a rule in the Income Tax Act
that required her to pay tax on the child support payments she received, while her ex-spouse could use the
payments as a deduction on his income tax. In a split decision, the Supreme Court did not find that the law
discriminated against single-parents the vast majority of whom are women. Nonetheless, the case received a
lot of public and media attention and in 1999, the federal government changed the law to better balanced the
rights of custodial and support-paying parents.

Custody and Relocation

Ability to Relocate in Split Custody Cases – Gordon v. Goertz
In this case, a mother had custody of her daughter, while the father had visitation rights. The mother wanted
to move to Australia for work and wanted to take her daughter with her. The father argued that this would

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limit his right to access. LEAF argued that the custodial mother should be able to relocated with their children
and not be restricted by a father’s right to convenient access. In 1996, the Supreme Court of Canada decided
that it was in the best interests of the child to stay with her mother.

Same-sex Families
The Definition of “Spouse” – M. v. H.
In 1999, the Supreme Court of Canada ruled that gays and lesbians must be included in the Ontario definition
of “spouse” for the purposes of spousal support. Many provincial governments, and the federal government,
responded by providing same-sex couples with legal recognition. In 2005, same-sex couples won the right
to marry.

Names
Betrand, Suzanne and the Yukon Change of Name Act, 1985
In the first case ever sponsored by LEAF, an archaic law that denied married women the right to the change
their surnames to their birth names was struck down.

Children’s names – Vital Statistics Act Challenges

In 1986, a law that required children to have their father’s surname was struck down, enabling mothers to give
their children the maternal surname.

Conclusion
Family law has seen tremendous development in the years following the Charter. Greater fairness in family law is
crucial to promoting women’s full equality in Canada. The courts, recognize women facezing that separation
causes greater financial hardship for dependent spouses after divorce and, have made it easier for women to
get the support they need. For more information on LEAF’s work, please visit www.leaf.ca.

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Spousal Support and Child Support: Definitions
The follow definitions are based on the federal laws surrounding Child of the marriage
marriage, divorce and child support. Please note that these • A minor child of two spouses or former spouses, or a child who is
definitions may be different in provincial statutes. For example, over 18 years old, but is a dependant because of illness, disability
the laws surrounding support for non-married spouses are or another reason
• Often a child does not need to be the biological child of both
dealt with at the provincial level. spouses, so long as there is a “settled intention” of one parent to
treat him/her as a child of the family
Divorce Act, 1985
• The federal legislation that covers divorce and separation for Child Support
married spouses; spousal and child support are found in section • Payments made to support a child/children after divorce or
15 of this statute separation
• Since 1997, courts must use Child Support Guidelines to determine
Spousal Support the amount and duration of child support orders
• Payments made to a spouse on separation or divorce • The Guidelines set out the amount of child support to be paid
• Under the Divorce Act a court must consider the following factors: to the parent with custody, based on the income of the support
• The circumstances, including the needs and means of each spouse paying spouse and number of children
• the length of time the couple lived together • There are separate charts for each province, in order to account
• the functions performed by each spouse when they lived for different provincial taxes
together • There is flexibility in the Guidelines for special expenses, if the
• any order, agreement or arrangement relating to support of either amount in the Guidelines would cause undue hardship for the
spouse, for example a pre-nuptial agreement or domestic contract paying parent or for situations of split or shared custody
• No mandatory guidelines exist, but there are Spousal Support
Advisory Guidelines which some courts may use a guide to deter- Retroactive child support
mine the amount and duration of spousal support • A payment can be ordered by a court when a parent has not
• Where partners are unmarried provincial and territorial laws received sufficient support in the past
govern support rules and obligations

14
Resources
Legal Resources Online Resources
To get a lawyer, contact your province’s Law Society’s Lawyer Referral Advisory Spousal Support Guidelines - www.justice.gc.ca/en/dept/pub/
Service. For a fee (usually $10), you will be given the name of a family spousal/project/spousal_support_advisory_guidelines_e.pdf
lawyer and/or ½ hour of legal advice.
Divorce Act, 1985 - http://laws.justice.gc.ca/en/D-3.4/index.html
If you cannot afford a lawyer, contact your regional legal aid office
for information about qualifying for a legal aid certificate. You can Family Court Services – by Province - http://canada.justice.gc.ca/en/
also contact community legal clinics in your region. For a public legal ps/pad/resources/fjis/search.asp?type=3
education organization in your province, please visit - http://canada.
justice.g c.ca/en/ps/pad/resources/plei.html. Family Law Assistance Services – Department of Justice -
http://canada.justice.gc.ca/en/ps/flas/index.html
Some useful resources include:
Family Service Canada - www.familyservicecanada.org
The Canadian Bar Association
Toll Free: 1-800-267-8860 Federal Child Support Guidelines -
Email: [email protected] www.justice.gc.ca/en/ps/sup/grl/ligfed.html
Visit www.cba.org for a list of regional branches
Support Enforcement Services – by Province - Advisory Spousal Support
YWCA Guidelines - www.justice.gc.ca/en/dept/pub/spousal/project/spou-
Phone: (416) 962-8881 sal_support_advisory_guidelines_e.pdf
Email: [email protected]
Visit: www.ywcacaanda.ca for a regional branch Women’s Legal Education and Action Fund (LEAF) – www.leaf.ca

Family Mediation Canada/Mediation Familiale Canada

Phone: 1-877-FMC-2005 / 519-585-3118
Email: [email protected]
Visit: www.fmc.ca

15
References
1
CRIAW Fact Sheet, 3rd ed., 2005, online: Canadian Research Institute for the Advancement of Women
< http://www.criaw-icref.ca/factSheets/Women%20and%20Poverty/Women%20&%20Poverty%202005.pdf> at 3.

2
Marie Drolet, The Persistent Gap: New Evidence on the Canadian Gender Wage Gap (Statistics Canada, 2001) online:
http://www.statcan.ca/english/research/11F0019MIE/11F0019MIE2001157.pdf.

3
René Morissette and Yuri Ostrovsky, Income Instability of Lone Parents, Singles and Two-parent Families in Canada, 1984 to 2004
(Statistics Canada, 2005) online: http://www.statcan.ca/english/research/11F0019MIE/11F0019MIE2007297.pdf.

4
Dr. Anne-Marie Ambert, Divorce: Facts, Causes and Consequences, (Vanier Institute of the Family, 2004) online:
http://www.vifamily.ca/library/cft/divorce_05.html#Poverty

5
Colin Lindsay and Marcia Almey, ed., Women in Canada: A Gender-based Statistical Report, 5th Ed., (Statistics Canada, 2006) online:
http://www.statcan.ca/english/freepub/89-503-XIE/0010589-503-XIE.pdf.

6
L.D. Bertrand, et al., Phase Two of the Survey of Child Support Awards: Final Report (Department of Justice Canada, 2005).

7
Carol Rogerson and Rollie Thomson, Spousal Support Advisory Guidelines (Department of Justice, 2005) online:
http://www.justice.gc.ca/en/dept/pub/spousal/project/spousal_support_advisory_guidelines_e.pdf

8
Carol Rogerson and Rollie Thomson, Spousal Support Advisory Guidelines (Department of Justice, 2005) online:
http://www.justice.gc.ca/en/dept/pub/spousal/project/spousal_support_advisory_guidelines_e.pdf.

9
D.B.S. v. S.R.G., [2005] A.J. No. 2 (C.A.)

16
Cases Cited
Albrecht v. Albrecht, (1989) 23 R.F.L. (3d) 8 (Ont. Dist. Ct.).

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231, 2006 SCC 37.

Moge v. Moge, [1992] 3 S.C.R. 813, 99 D.L.R. (4th) 456.

Dickie v. Dickie, [2007] 1 S.C.R. 346, 2007 SCC 8.

Falkiner v. Ontario (Minister of Community and Social Services), (2002), 59 O.R. (3d) 481, (2002), 212 D.L.R. (4th) 633.

Gordon v. Goertz, [1996] 2 S.C.R. 27 • (1996), 134 D.L.R. (4th) 321.

M. v. H., [1999] 2 S.C.R. 3 • (1999), 43 O.R. (3d) 254.

New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124.

Thibaudeau v. Canada, [1995] 2 S.C.R. 627, (1995), 124 D.L.R. (4th) 449.

3
 National Office
60 St. Clair Ave. E., Suite 703 • Toronto, ON M4T 1N5
Ph: (416) 595.7170 • Toll Free: 1(888)824.5323
Email: [email protected] • Website: www.leaf.ca