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Family - Parent - Meaning. Le v. Norris
In Le v. Norris (Ont CA, 2024) the Ontario Court of Appeal considered an appeal from a partial summary judgment family matters, here involving spousal support, and "claims for damages related to the purchase of a property".
Here the court reviews the motion court judge's treatment of the relationships between the meanings of 'spouse', 'parent' and 'child' (in the context of awarding spousal support), and then states it's own conclusions:[8] The motion judge allowed the respondent’s summary judgment motion on the spousal support issue. She found that the combined effect of ss. 29 and 30 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), and s. 4 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) is that the respondent did not qualify as a “spouse” within the meaning of the FLA and therefore cannot be liable for spousal support.
[9] Section 29 of the FLA defines “spouse” as follows:“spouse” means a spouse as defined in subsection 1 (1) [married], and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act. [10] At para. 38, the motion judge stated:Mr. Norris and Ms. Le never married. They did not, at any point, cohabit continuously for a period of three years. I find they did have a relationship of some permanence over the period from when they met in 2014 to their final separation in September 2019, even if it was “on and off’. However, for the reasons set out below, I find Mr. Norris is not the [sic] parent of the child as set out in section 4 of the Children’s Law Reform Act. [11] However, as the motion judge noted, the definition of spouse for the purpose of spousal support also requires a consideration of s. 4 of the CLRA:4 (1) A person is the child of his or her parents.
(2) A parent of a child is,
(a) a person who is a parent of the child under sections 6 to 13, except in the case of an adopted child ... [12] The motion judge maintained that ss. 6 to 13 were not applicable in this case because they address various ways in which a person may become a parent of a child, including assisted reproduction and surrogacy. She found that none of those provisions applied to these circumstances. Rather, the only section under which the respondent could be found to be the parent of the child is s. 7 of the CLRA:7 (1) The person whose sperm resulted in the conception of a child conceived through sexual intercourse is, and shall be recognized in law to be, a parent of the child.
(2) Unless the contrary is proven on a balance of probabilities, there is a presumption in respect of a child conceived through sexual intercourse that a person is, and shall be recognized in law to be, the parent referred to in subsection (1) if any of the following circumstances applies:
...
3. The person was living in a conjugal relationship with the child’s birth parent before the child’s birth and the child is born within 300 days after they cease to live in a conjugal relationship.
4. The person has certified the child’s birth, as a parent of the child, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.
...
(3) If circumstances exist that give rise to a presumption by more than one person under subsection (2), no presumption shall be made under that subsection. [13] The motion judge also found that none of the circumstances set out in s. 7 applies in the present case. Section 7(1) is inapplicable as the DNA tests establish that the respondent was not the contributor of the sperm that resulted in the child’s conception. While the presumptions set out in ss. 7(2)3 and 7(2)4 would apply, these are presumptions that the respondent was the contributor of the sperm resulting in the child’s birth. The uncontested DNA evidence proved otherwise.
[14] Accordingly, the motion judge concluded that the appellant was not a “spouse” as defined by the FLA and has no entitlement to spousal support. She granted the respondent’s motion for summary judgment in respect of spousal support and dismissed the appellant’s claim for spousal support and arrears.
....
(2) The definitions of “spouse” and “parent” are distinct
[28] As the terms themselves indicate, the legal definition of a spouse is quite distinct from that of a parent. A parent may or may not be a spouse and a spouse may or may not be a parent. The status may, and frequently does, overlap as the traditional nuclear family model illustrates. But the rationale for the legal status as well as the rights, interests, and obligations that flow from each are distinct.
[29] In her consideration of the statutory framework, the motion judge set out the distinct nature of the legal frameworks underlying the obligations for spousal support and child support, finding that the definition of spouse as set out in the FLA (including the limited extent to which it refers to the CLRA) is exhaustively defined by the statute, and the appellant had not referred the court to any authority to the contrary. In fact, there appears to be no caselaw in which the FLA definition of spouse has been interpreted to include someone who simply does not meet the statutory criteria.
[30] In addition, the appellant’s submissions do not reflect the differing rationale between spousal support and child support. The definition of parent for the latter purpose is child centred; the fundamental concern of the law relating to children is the best interests of the child.
[31] Accordingly, the notion of parent has been expanded both in the case law and most recently in statutory reforms which have recognized the changing nature of both the way in which families are created and those who are recognized as parents: A.A. v. B.B., 2007 ONCA 2, 83 O.R. (3d) 56, at para. 38; All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, S.O. 2016, c. 23; Julien D. Payne and Marilyn A. Payne, Canadian Family Law, 9th ed. (Toronto: Irwin Law, 2022), at p. 2. When introducing the All Families Are Equal Act in Ontario’s Legislative Assembly, the Honourable Yasir Naqvi stated that “[i]mportantly … this bill recognizes that in the year 2016, family structures are diverse and that there is no one way to start a family”: Legislative Assembly of Ontario, Official Report of Debates (Hansard), No. 10, 2nd Sess., 41st Parl., September 29, 2016, at p. 468 (Hon. Yasir Naqvi).
[32] These changes reflect the significant evolution in the nature of family over the last few decades. They recognize that there may be one or more parents of a child, that there are various forms of assisted reproduction, and that a gamete donor may or may not be legally defined as a “parent” of a child. A child may have one or more than two parents, and whether or not those people have or had relationships with one another has become an increasingly separate consideration from whether those persons are parents for the purpose of child support. As L’Heureux-Dubé J.A. (dissenting) recognized in February 1993 in Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554, at p. 634, “[t]he traditional family is not the only family form, and non-traditional family forms may equally advance true family values.”
[33] The appellant’s submission implies that any time there is a potential claim for child support such that there is a genuine issue for trial, there must also be a genuine issue for trial with respect to spousal support. The appellant cites no authority in support of that proposition, and it is not consistent with the different (though frequently overlapping) foci of the respective legislative frameworks.
[34] The foundational principle of child support is that it is the right of the child, and the obligation is owed to the child, not to the parents: Richardson v. Richardson, 1987 CanLII 58 (SCC), [1987] 1 S.C.R. 857, at p. 869; D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 28. As Bastarache J. found at para. 38 in D.B.S.:[T]he right to support survives the breakdown of a child’s parents’ marriage; child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together ... The starting point is the child, not the relationship between the parents and whether or not they are spouses. As Wilson J. explained in Richardson, at p. 870, “the fact that child support will indirectly benefit the spouse cannot decrease the quantum awarded to the child.”
[35] Given the broad policy considerations placed on children’s right to support, it should not be surprising that the definition of child and parent has been interpreted expansively or inclusively over time to give effect to the child’s right to be supported by their parent or parents, and of course to recognize these relationships for purposes of inheritance, insurance, etc.: A.W.M. v. T.N.S., 2014 ONSC 5420, 54 R.F.L. (7th) 155. As Julien D. Payne and Marilyn A. Payne, the authors of Canadian Family Law, note at p. 2, “[t]raditional notions of the family must clearly be re-examined in the search for rational and equitable social and legal policies. In the final analysis, it may be impractical for the law to endorse a monolithic definition of “family” that applies for all legal purposes.” For example, in 2020, Canada amended the definition of parent in the Citizenship Act, R.S.C. 1985, c. C-29, to include legal parent-child relationships without a biological link for the purpose of citizenship.
[36] The same social (and technological) developments that have led to the increasingly inclusive or expansive definition of parent have had a different effect with respect to the notion of “spouse”. Formal marriage is no longer necessary. Over time, the notion of dependency has increased in significance while marriage as a triggering factor has become less important. Thus, the motion judge held that the only way that the respondent may be a parent does not arise from the statutory framework but from the case law developed by Chartier and the cases which followed it. These cases do not expand the definition of “spouse” as set out in the FLA.
[37] I do not see where the risk of inconsistency in the final analysis lies. If the child support claim is dismissed at trial, there could be no inconsistency. If it is upheld, there is similarly no inconsistency because the notion of settled intention does not depend on the status of another parent as a spouse. The facts that are in dispute in this case relate to the appellant’s underlying claim that the respondent showed a settled intention, despite his claims that he did not show such an intention, that he did not want to be a parent to begin with, and that any such settled intention after the birth of the child was vitiated by the allegedly deceptive conduct of the appellant in leading him to believe that he was the biological father. As the motion judge correctly observed, the question of whether the respondent demonstrated a settled intention is highly fact specific. For example, a trial judge will consider all the evidence that may go to settled intention, including the respondent’s application for parenting time with the child after the parties’ separation, and potentially including the fact that he signed the certificate of live birth.
[38] In short, the appellant has not shown any error on the part of the motion judge’s finding that she was not a spouse within the meaning of the FLA in the circumstances of this case. This conclusion is drawn from undisputed facts. The parties’ relationship, though it was a relationship of some permanence, was tumultuous and they only lived together for six months, a finding of fact that is not challenged on appeal. Moreover, while a child was born, she was not born or conceived during that period of cohabitation. The appellant does not fall under the definition of spouse for the purpose of spousal support.
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