Proposed Amendments to the 34 year-old Federal Divorce Act Receive Stamp of Approval in the House of Commons 

On February 6, 2019, the House of Commons completed its third reading of and passed Bill C-78. The focus of the Bill is to protect families and children from negative outcomes resulting from divorce and separation. Bill C-78 proposes amendments to four acts, but perhaps the most talked about are the much-needed updates and reforms to the now 34-year-old federal Divorce Act. Importantly, the Bill codifies existing case law and best practices already implemented by Canadian family law lawyers, as well as provides clear guidance on existing grey areas, such as the relocation rights of parents. If the Bill is implemented in its current form, we can expect the following five changes to the Divorce Act:

  1. Updated Terminology

The Bill will update the language used throughout the Act, introducing child-focused terminology and removing terms thought to be outdated and polarizing, like “custody” and “access.” A parent’s right to “maximum contact” often led to misunderstanding, and the new term will be “maximum parenting time.”

  • Emphasis on Methods of Alternative Dispute Resolution

The amendments promote more cost-effective and lasting solutions for family law disputes by encouraging the use of alternative dispute resolution processes over the court system.

  • Strengthened Importance of the Child’s Best Interests

The proposed amendments also strengthen the importance of considering the child’s best interests. If the Bill becomes law, courts will be required to determine time spent with each parent in a way consistent with the best interests of the child. Courts will also be required to weigh a child’s views and preferences in its determination of that child’s best interests.

  • Assistance Provided to the Courts in Navigating Family Violence

The Bill will introduce measures to assist courts in navigating issues of family violence. These measures include requiring courts to consider both the impact of family violence in determinations of the best interests of the child, and the possible imposition of civil or child protection orders when the circumstances give rise to such consideration.

  • Restricted Relocation Rights of Parents

Finally, the amendments propose restricting the relocation rights of parents where the relocation is opposed by the other parent. Depending on the allocation of parenting time under the current parenting arrangement, the onus of demonstrating whether the relocation would or would not be in the best interests of the child would shift to a parent as determined on a case-by-case basis.

The Bill is currently before the Senate in its Second Reading. So far the Bill has not been subject to amendments by the Senate. If the Senate and the House of Commons agree on the same form of the Bill, then we can expect Royal Assent to occur shortly following the Senate’s Third Reading, bringing Bill C-78 officially into force.

You can access the most recent version of the Bill C-78 and follow its status here: http://www.parl.ca/LegisInfo/BillDetails.aspx?billId=9868788&Language=E

The Legislative Summary published by the Library of Parliament in October, 2018 provides a useful overview and can be accessed here: https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/LegislativeSummaries/PDF/42-1/c78-e.pdf

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Polyamorous Relationships: Judicial Recognition of More Than Two Parents

In a recent Newfoundland and Labrador Supreme Court case known as CC (Re)[1], two male partners applied for a declaratory order of parentage of the newborn child of their female partner. The three adults were all in a polyamorous relationship together, and the two men requested that they both be declared parents (along with the mother herself) of the child.

In his written decision released on April 4, 2018, Justice Robert Fowler granted the men’s request. He did so despite agreeing with the Attorney General’s argument that that province’s Children’s Law Act (CLA)[2] does not contemplate the possibility of a child having more than two legal parents. In particular, section 26(3) of the CLA provides that “where more than 1 person is entitled to custody of a child, 1 of them may exercise the rights and accept the responsibilities of a parent on behalf of both in respect of the child,” while section 28(2)(a) provides that “a child is habitually resident in the place where he or she lived with both parents.”[3] Justice Fowler acknowledged that this use of the word “both” means that the House of Assembly did not contemplate the possibility of a child having more than two legal parents; therefore, the CLA could not be used as authority for the declaration the applicants were seeking.[4]

However, statutory interpretation did not end the matter. Justice Fowler invoked the court’s parens patriae jurisdiction to grant the declaration sought by the two men. Parens patriae is a Latin term meaning “parent of the nation,” and this broad jurisdiction allows a Canadian superior court to step in and act as a parent to a child in need of its assistance. Parens patriae is an inherent jurisdiction of the superior courts which exists independent of legislation.

Justice Fowler cited two cases in support of this use of parens patriae jurisdiction. In both cases, the courts intervened after finding a “gap” in the relevant legislation. First, in Beson v Newfoundland (Director of Child Welfare),[5] the Supreme Court of Canada held that because the relevant legislation offered no appeal from a government decision to remove a child from the home of prospective adoptive parents, the court had an obligation to intervene. On this case, Justice Fowler commented: “It would seem from Wilson, J.’s comments that the crucial factor in using the Courts parens patriae power was to protect the best interests of the child in that case.”[6]

Second, in A(A) v B(B)[7], two women had applied to both be legally recognized as parents of a child. The Ontario Court of Appeal found a gap in Ontario legislation which contemplated that a child could only have one mother and one father. Justice Fowler found persuasive that Court’s reasoning that in determining whether a legislative gap exists, “the realities of a changing society must not be ignored to the detriment of children who no longer fit the traditional family model.”[8]

Thus, two principles from these cases were found by Justice Fowler to be relevant: the best interests of the child should be the primary factor in determining whether it is appropriate to use the parens patriae jurisdiction to fill a legislative gap; and when determining whether there is a gap, it is appropriate to consider relevant social changes since the drafting of the legislation. He wrote: “I am of the opinion that when the CLA was enacted in this Province it was never the intention of the legislature to discriminate against any child but clearly to bring about equal status for all children notwithstanding their parentage.”[9] Therefore, the effect on the child in this case of a technical interpretation of the CLA would be contrary to the very purpose of that statute. In determining whether the declaration sought would be in the child’s best interests, Justice Fowler examined what appeared to be “a stable and loving family relationship” and concluded, “I can find nothing to disparage that relationship from the best interests of the child’s point of view.”[10] He also reasoned that “to deny the recognition of fatherhood (parentage) by the Applicants would deprive the child of having a legal paternal heritage with all the rights and privileges associated with that designation.”[11]

This written decision is the first of any Canadian court declaring all members of a polyamorous relationship to be legal parents of a child. It is therefore significant to all Canadians, because courts in other provinces may consider it highly persuasive. Although this case is novel on its particular facts, it follows previous jurisprudence which used parens patriae jurisdiction in different situations to remedy unintentional legislative gaps. CC (Re) therefore illustrates the broad and discretionary nature of parens patriae jurisdiction, and how it can be used to protect a child’s best interests in various contexts.

This judicial approach does have its limitations, however: the decision hinges on the finding that the legislative gap was unintentional, based on a contextual analysis of the purpose of the entire statute. If a gap were found to be intentional, parens patriae jurisdiction could not be used to remedy it. Instead, such legislation could be subject to a constitutional challenge under section 15 (the “equality provision”) of the Canadian Charter of Rights and Freedoms. Section 15 has been used to extend support rights and obligations to same-sex couples where legislation failed to do so.[12] In Alberta, section 9(7)(b) of the Family Law Act[13] explicitly provides that a declaration of parentage “may not be made” if it “would result in the child having more than 2 parents.” Unless the Legislative Assembly amends this legislation, a constitutional challenge may be required in Alberta to achieve the type of declaration sought in CC (Re).

Our legal system is designed to be able to respond to social change in order to provide equal protection to all individuals. Re CC exemplifies the system’s flexibility, but also raises further questions. For example, if this family relationship breaks down and the child lives with one parent full-time, would the other two parents each be liable for Guideline child support payments as if the other non-custodial parent didn’t exist? Also, if one partner is found to be entitled to a quantum of partner support that both other partners can pay, could one of those payors be liable for the full amount and then be left to seek an accounting from the other “payor” partner? The courts may be forced to answer these and other potential questions as individuals from non-traditional families increasingly seek “traditional” legal remedies.


[1] 2018 NLSC 71.

[2] RSNL 1990, c C-13.

[3] Emphasis added. See para 21.

[4] See paras 23-24.

[5] [1982] 2 SCR 716.

[6] Para 26.

[7] 2007 ONCA 2.

[8] Para 28.

[9] Para 33.

[10] Para 34.

[11] Para 35.

[12] See M v H, [1992] 2 SCR 3.

[13] SA 2003, c F-4.5.

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Legal Aid: A View from Ontario

In this blogpost, I will outline the key features of the legal aid system in Ontario. I will also talk about how the network of legal clinics operates and what aspects are relevant for the delivery of legal aid in Alberta

With an annual budget of $487,655,000 for 2017-18, Legal Aid Ontario (“LAO”) is the largest legal aid service in Canada.[1] In comparison, Legal Aid Alberta’s budget for 2017-18 was only $95,645,000.[2] Per capita (based on most recent population estimates), Ontario spends $33.84 per person on legal aid annually,[3] while Alberta spends $22.09.[4]

Created in 1967, LAO provides legal aid services to low-income individuals through duty counsel, community legal clinics, public legal education, summary legal advice, alternative dispute resolution, self-help materials, and legal representation.

Delivery Model

Ontario, Alberta, and New Brunswick are the only provinces predominantly using the judicare model of service delivery, where lawyers from private practice represent clients. By way of a certificate, the legal aid programs agree in advance to pay those lawyers for a certain number of hours of work (at an agreed-upon hourly rate that is below what lawyers would charge privately). In provinces where the staff model is predominant (e.g. Quebec, B.C.), it has been argued that the staff model is “less costly than its judicare counterpart because of economies of scale and specialization, particularly in processing high-volume, more routine cases; [i]s likely to yield more consistent quality of service; and could be made more accessible to clients through location of Staff Offices in client communities.”[5]

Nonetheless, Legal Aid Ontario provides judicare, or certificate, representation in matters pertaining to domestic violence, family law, immigration and refugee law, and criminal law.[6] The services provided by Legal Aid Alberta through the certificate system are almost identical.[7]

Legal Aid: More Accessible in Alberta

It is more difficult for Ontarians to qualify for legal aid than for Albertans. In fact, in some cases the income difference is as high as 35%. As the table below shows, except for a family of two, Ontarians have a higher threshold of access than Albertans.

However, Ontarians whose income is over the amount in column A but below that in column B might still be eligible for legal aid if they agree in writing to repay some or all of their legal fees. It is important to note that the income criteria are also different when there is domestic violence. Finally, LAO has made services for vulnerable groups such as individuals experiencing domestic violence, mental health or addiction issues; or who identify as First Nation, Métis or Inuit a priority.

Income to Qualify for Legal Aid – A Comparison Between Ontario[8] and Alberta[9]

Family size Income (A) Income (B) Domestic violence  (gross family income) Alberta Difference
1 $14,453 $16,728 $22,720 $19,653 35%
2 $25,003 $30,110 $32,131 $24,333 – 2%
3 $28,503 $35,088 $39,352 $34,627 21%
4 $32,207 $40,307 $45,440 $37,434 16%
5 $35,749 $45,446 $50,803 $40,242 12%
6+ $35,749 $45,446 $50,803 $43,050 20%
Single boarders $9,501 $10,973 N/A $19,653 106%

Network of Legal Clinics – A Model for Alberta?

One of the key characteristics of the Ontario delivery model is the large network of legal clinics providing access to legal aid. The legal services provided by clinics to low income individuals and disadvantaged communities in Ontario include referrals, advice, brief services, casework, law reform, public legal education and community development.

Represented by the Association of Community Legal Clinics of Ontario (ACLCO), there are 73 community legal clinics in Ontario. Of these, 60 serve specific geographic communities across Ontario. Another 13 are “specialty clinics” which do not serve a specific geographic community, but instead offer legal services to specific groups.[10] Some of these specialty clinics include:
Advocacy Centre for Elderly

  • Advocacy Centre for Tenants Ontario
  • Income Security Advocacy Centre
  • Justice for Children and Youth
  • Services d’aide juridique du Centre francophone de Toronto[11]

The Governance Model

The legal clinics, which are independent and governed by their respective community-elected boards of directors, receive their core funding from LAO. A funding agreement that includes a Memorandum of Understanding (“MOU”),[12] a Consultation Policy[13] and a Dispute Resolution Policy[14] governs their relationship with LAO. The Legal Aid Services Act[15] established this relationship between LAO and the legal clinics in the province.

The Ontario model empowers communities and grass-roots organizations to deliver legal aid. Located where their clientele lives and led by boards of directors representative of their communities, the legal clinics are best-placed to offer legal services adapted to the needs of their clients.

That said, LAO provides extensive administrative and legal support services to the clinics to help them fulfill their mandate, including such services to caseworkers delivering legal services as legal research, a clinic law database, publications, litigation support and continuing legal education materials. In fact, Article 9 of the MOU stipulates that “the responsibility for the success of the […] the clinic system in delivering high-quality clinic law services to low income individuals and disadvantaged communities in Ontario is shared by LAO and [the clinics] and is enhanced by LAO leadership and support.”[16]

The decentralized and hybrid model used in Ontario where nimble, local legal clinics have access to the resources and support of LAO to offer services to their communities has been very successful in Ontario. It might be worth exploring whether a similar model could be adapted in Alberta to reach out and provide legal services to smaller communities or groups such as indigenous Albertans, Francophones, immigrants, youth or persons with disabilities who might benefit from specific legal, cultural or linguistic skills.

More Money, Please: The Need for a Business Case

The model discussed above could help improve access to the legal system in Alberta by leveraging limited resources. In Alberta, the lack of funding for legal aid has often been met with resourceful community solutions, including the creation of not-for-profit organizations which help low income people in a less systematic way. Unfortunately, many of those organizations lack access to the long term, predictable funding that would enable them to expand their services in a cohesive, well-planned way.

Systematic lack of funding for legal aid programs across the country means that a large number of citizens are denied the help they need because income qualification levels for legal aid are set too low. People who earn too much to qualify for legal aid, but not enough to hire lawyers too often end up unable to resolve legal matters affecting such fundamental aspects of their lives as their employment, housing, family structure and immigration status.

Properly funding legal aid would have real and long-lasting societal benefit. Some have called for cost-benefit analysis studies in order to make a business case and build political support for better funding.[17] Unless and until our public officials and the Canadians who elect them are shown the benefits, legal aid will probably remain the poor cousin of our social safety net.

[1] Legal Aid Ontario, 2017-2018 Annual Report, at 47, online: <http://www.legalaid.on.ca/en/publications/downloads/LAO-annual-report-2017-18-EN.pdf>.

[2] Legal Aid Alberta, Annual Report 2017/18, at 31, online: <http://www.legalaid.ab.ca/about/Documents/Annual%20Report/LAA%20Annual%20Report%202018.pdf>.

[3] Ontario, Ministry of Finance, “Ontario Fact Sheet February 2019”, online: <http://www.fin.gov.on.ca/en/economy/ecupdates/factsheet.html>.

[4] Alberta, “Quarterly Population Report: Third Quarter 2018”, at 1, online: <www.alberta.ca/population-statistics.aspx>.

[5] Ontario, Ministry of the Attorney General, Report of the Ontario Legal Aid Review, A Blueprint for Publicly Funded Legal Services, (1996) Introduction to Chapter 7: The Choice of Delivery Models, online:<https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/olar/ch7.php>.

[6] Legal Aid Ontario website accessed February 15, 2019, online: <http://legalaid.on.ca/en/getting/eligibility.asp>.

[7] Legal Aid Alberta website accessed February 15, 2019, online: <http://www.legalaid.ab.ca/help/Pages/default.aspx>.

[8] Legal Aid Ontario website accessed February 12, 2019, online: <http://legalaid.on.ca/en/getting/eligibility.asp>.

[9] Legal Aid Alberta website accessed February 12, 2019, online: <http://www.legalaid.ab.ca/help/eligibility/Pages/default.aspx>.

[10] Legal Aid Ontario website accessed February 12, 2019, online: <http://www.legalaid.on.ca/en/contact/contact.asp?type=cl>.

[11] Ibid.

[12] Association of Community Legal Clinics of Ontario website accessed February 15, 2019, online: <http://www.aclco.org/LAO-Clinic_MOU.html.>

[13] Association of Community Legal Clinics of Ontario website accessed February 15, 2019, online: <http://www.aclco.org/LAO-Clinic_Consultation_Policy.html>.

[14] Association of Community Legal Clinics of Ontario accessed February 15, 2019, online: <http://www.aclco.org/LAO-Clinic_Dispute_Resolution_Policy.html>.

[15] Legal Aid Services Act, SO 1998, c 26.

[16] Association of Community Legal Clinics of Ontario website accessed February 15, 2019, online: <http://www.aclco.org/LAO-Clinic_MOU.html>.

[17] Slaw website accessed February 20, 2019, online: <http://www.slaw.ca/2019/02/12/we-should-start-making-a-business-case-for-legal-aid-in-canada/>.

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Alberta Expands Child Support Rules for Children Who Have Reached the Age of Majority

On December 11, 2018, the Family Statutes Amendment Act came into force in Alberta, amending several pieces of legislation. This post focuses on one important change arising from the Family Statutes Amendment Act: it amends the Family Law Act to close a legislative gap respecting the child support obligations of never-married parents after their child reaches the age of majority.

Previously, adult child support was restricted to children who were under the age of 22, and engaged as full–time students. This left disabled adult children dependent on their caregiving parent without the legal right to child support. Just prior to these legislative changes, the Honourable Madam Justice C.S. Phillips delivered an oral judgment declaring that this gap in the right to support was unconstitutional.

In her subsequent written reasons,[1] Justice Phillips held that the distinction was discriminatory for the purposes ofsection 15 Charter[2] analysisin two ways:

  1. The “definition of child in the Act created a distinction between adult children whose dependency arose from continuing full-time education and adult children whose dependency arose from disability,” thereby restricting a lawful benefit on the enumerated ground of disability.
  • Considering the availability of this disabled adult child support in the provisions of the Divorce Act, available only to previously-married parents, then the “Act created a further distinction between disabled adult children of never-married parents and disabled adult children of previously-married parents; a distinction based on the analogous ground of marital status of the parents.”[3]

The Family Law Act now provides for support to children over the age of majority who are unable to withdraw from their parent’s charge or obtain the necessaries of life due to illness, disability, being a full-time student, or other causes.[4] Alberta’s law regarding child support for adult children now aligns with the federal Divorce Act and the legislation in all other provinces.

What we must not miss in this conversation is that if Assured Income for the Severely Handicapped (“AISH”) benefits were more comprehensive, there would be no need to require parents to financially support their adult children with disabilities. The fact that the financial burden of disabled adult children is now lifted from the shoulders of never-married sole caregiving parents and shared with non-caregiving parents does not remove the risk of low-income families falling into poverty because they must care for their disabled children.


[1] Ryan v Pitchers, 2019 ABQB 19.

[2] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 15. Section 15 ensures that all individuals are equal before and under the law, which includes the right to equal benefit from the law without discrimination.

[3] Ryan v Pitchers at paras 18-19.

[4] Family Law Act, SA 2003, c F-4.5, s 46(b)(ii).

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Repost from ABlawg: “The Increase of Self-Represented and Vexatious Litigants”

This post is an introduction to Jonnette Watson Hamilton’s article “The Increase of Self-Represented and Vexatious Litigants” published on ABlawg:

http://ablawg.ca/wp-content/uploads/2018/09/Blog_JWH_ATB_v_Hawrysh_Sept_2018.pdf

Hamilton’s article describes the new approach Alberta courts have adopted in regards to court access restrictions. Courts no longer require a litigant to be persistently vexatious to justify a court access restriction order. Instead, a judge may give an Interim Court Access Restriction Order in as little as seven days from the first instance of the alleged vexatious conduct, which is what happened in the cases studied by Hamilton (Alberta Treasury Branches v Hawrysh, 2018 ABQB 475 and Alberta Treasury Branches v Hawrysh, 2018 ABQB 618). Hamilton also uses these cases to illustrate how the status of ‘self-represented litigant’ may itself be (wrongfully) considered indicative of abusive litigation conduct. The article highlights the need for protection of self-represented litigants and their right of access to the courts.

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Economic Evictions in a Residential Tenancy

Economic Evictions in a Residential Tenancy

Case commented on: Oneka Land Company Ltd v Mouyadine Nur, RTDRS Case No. E-18-61728, September 17, 2018, unreported (“Oneka”)

The 2014 Court of Queen’s Bench Master’s decision Milner’s Aloha Mobile Home Park (1998) Ltd v Jenkins2014 ABQB 229 (CanLII) (“Milner’s Aloha”) recognized that if a landlord in a mobile home site tenancy tries to use a rent increase to evict a tenant that they otherwise could not lawfully evict, the Court can step in and treat the rent increase as void.

Attempts to use rent increases to evict tenants are sometimes called economic or constructive evictions.

In a post on ABlawg [ https://ablawg.ca/2014/05/15/constraining-a-landlords-ability-to-terminate-a-residential-tenancy-by-raising-the-rent/ ], Jonnette Watson Hamilton discussed the Milner’s Aloha case and concluded that, given the similarities between the provisions of the Mobile Home Sites Tenancies Act (MHSTA) and the Residential Tenancies Act (RTA), a tenant in an RTA context should have the same remedy in an economic eviction situation. However, there has been no reported decision of which the author is aware where an RTA tenant has successfully used this argument in Alberta.

Recently, in the Oneka case referenced above, the ECLC represented a tenant at a hearing at the Residential Tenancy Dispute Resolution Service (RTDRS) where this defence was successfully raised in an eviction application. RTDRS decisions are granted orally and are not reported, and so their use as precedents is limited. It is hoped that this discussion of the case will provide a useful reference for advocates who practice in this area.

Continue reading

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Access to Justice Week Comes to Alberta

Planning is underway to hold Alberta’s first ever Access to Justice week from September 29 – October 5, 2019. Alberta will be joining OntarioSaskatchewan and British Columbia, who each have a week in October dedicated to Access to Justice. The Access to Justice Committee of the Canadian Bar Association (Alberta Branch) is hoping to partner with justice sector organizations to hold events during the week that raise awareness about access to justice. Events could include:

  • Report launches,
  • Keynote lectures,
  • Fundraisers,
  • Conferences or mini-conferences,
  • Continuing Professional Development offerings, and

The organizers would love for you to get involved! If you would like to volunteer or have an idea for an event or other initiative, please contact them at: communications@cba-alberta.org

This year, the Access to Justice Committee is taking a week to highlight some of the great initiatives already underway in Alberta. Every day this week they will be posting information about different justice sector organizations in Alberta and the important work they are doing to make access to justice a reality in this province. We would encourage you to check out their website:  https://www.cba-alberta.org/News-Media/News/Access-to-Justice-Blog/Access-to-Justice

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