Monthly Archives: September 2012

In 2011, in the case of Kerr v. Baranow,* the Supreme Court of Canada provided us with much-needed guidance on how to resolve financial disputes between unmarried domestic partners when the relationship breaks down. In essence, the court determined that domestic partners who have arranged their affairs as a partnership should be seen as “co-venturers” and not as an arrangement of employer and “hired help.”

In Ontario, unmarried spouses living together don’t enjoy the same benefits as their married counterparts when it comes to the rights of property division upon the breakdown of their relationship. When one spouse’s contribution cannot be linked to a specific property, the courts are faced with the challenge of coming up with a monetary amount to justly compensate the claimant spouse.

In law, neither a spouse nor a domestic partner is generally under any obligation to perform work or services for the other.+ It turns out that the popular mechanism in resolving contemporary financial disputes between spouses is based on the principles of unjust enrichment and constructive trust. While the details are quite complicated, it’s sufficient to say, for our purposes, that the legal doctrines mirror the adage “He (or she) who gives shall receive.” For recovery, something must be given by the plaintiff and received by the defendant without juristic reasons.

In the past, once the court had found that a claimant was entitled to relief, to calculate the appropriate compensation, the Canadian courts usually took one of two routes: “value received” or “value survived.”

In the first instance, the claimant spouse was treated as hired help in the joint family venture. Compensation was typically calculated on a fee-for-service basis, such as X dollars for every hour of services rendered.

By the second route, “value survived,” the courts have calculated the money remedy based on each spouse’s contribution and awarded portions of the accumulated assets to the spouses.

In Kerr the Supreme Court suggested that calculations based on “value received” or fee-for-service are inappropriate when the couple have arranged their affairs as a partnership because, among other reasons, this type of calculation fails to reflect the reality of many domestic partnerships.

The court recognized that for many domestic relationships the couple’s venture could sensibly be viewed only as a joint one, making it extremely difficult in practice to do a detailed accounting of the contributions made and benefits received on a fee-for-service basis. Although this is often a case-specific issue, the court noted, the legal consequences of the breakdown of a domestic relationship should reflect realistically the way people live their lives.

In conclusion, the court found that common law should recognize and respond to the reality that there are unmarried domestic arrangements that are partnerships; the reality in such cases should address the appropriate sharing of assets acquired through joint efforts with another person when wealth is accumulated as a result of the joint efforts of the spouses.

*2011 S.C.C. 10, [2011] 1 S.C.R. 269

+Peter v. Beblow, [1993] 1 S.C.R. 980, 1993 CanLII 126 (S.C.C.)

This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.

While pregnant, the mother left Ontario for California. After giving birth in California, she decided to become a permanent resident there. What can the father do to secure his parental rights? More specifically, where should his suit be filed?

In Dovgi v. Razi, the Ontario Court of Appeal provided guidance on whether an Ontario court may take jurisdiction under such circumstances.*

Shortly after learning the mother’s intention to remain in California, the father brought an application for parental rights in Ontario. Upon realizing that a lawsuit had been started in Ontario, the mother filed another lawsuit for her parenting rights in California.

The Ontario court was left with a conundrum on whether it should take jurisdiction and make a ruling over the parental rights.

Under the Children’s Law Reform Act, an Ontario court may only take jurisdiction under the following circumstances:+

1. An Ontario court may make an order for custody of a child where the child is habitually resident in Ontario.
2. Where the child is not habitually resident in Ontario, the court may exercise jurisdiction if the child is physically present in Ontario and other requirements are met.
3. An Ontario court has jurisdiction to make an order for custody where the child is physically present in Ontario and the court is satisfied that the child would, on the balance of probabilities, suffer serious harm under specified circumstances set out in the Act.
4. Finally, an Ontario court may exercise its parens patriae jurisdiction.

In the present case, it’s undisputed that the child isn’t physically present in Ontario. The remaining two grounds on which the court might take jurisdiction would be either that the child is habitually resident in Ontario or that the court chooses to exercise parens patriae jurisdiction.

As the law limits when the court has jurisdiction to make an order for custody or access to a child, the focus becomes the child’s place of habitual residence. The child’s habitual residence may only be found if (a) the child is living with both parents in Ontario; (b) the child is living with one parent under a separation agreement, consent, or a court order; or (c) the child is living with neither parent on a permanent basis.

The Court of Appeal found that the motion judge was correct in finding that the child is not habitually resident in Ontario. However, the Court of Appeal concluded that the motion judge erred in finding that there is a gap in the legislation and invoking the court’s parens patriae jurisdiction.

As I have indicated in my previous blog posts, Ontario courts are reluctant to invoke the parens patriae jurisdiction. Generally, the parens patriae jurisdiction is seen as the last resort, only founded “on necessity, namely the need to act for the protection of those who cannot care for themselves.”%

The Court of Appeal was of the opinion that there was no evidence that the Ontario court should act for the protection of the child. As such, concluded the Court of Appeal, the motion judge did not have a proper basis for taking jurisdiction.

In the end, the order for the father’s access was stayed and the mother’s appeal was allowed. The father will need to attend the proceedings in California.

*2012 ONCA 361

+R.S.O. 1990, c. C.12, s.22(2), 23, 69

% E.(Mrs.) v. Eve, [1986] 2 S.C.R. 388 S.C.J. No. 60

This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.