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Family - Spouse - Meaning. Enns v. Canada
In Enns v. Canada (Fed CA, 2025) the Federal Court of Appeal allowed an appeal from the Tax Court, here from a decision "that dismissed Marlene Enns’ appeal from the assessment issued under section 160 of the Income Tax Act" involving a taxpayer's transfer of "property to their spouse or common-law partner for consideration that is less than the fair market value of the property transferred" (improvident transfer) [ITA s.160].
Here the court engages in a prolonged statutory interpretation analysis of "spouse" in this tax context:III. Issue and Standard of Review
[18] The relevant statutory provision in this appeal is paragraph 160(1)(a) of the Act, which refers to a transfer to a "“spouse”":"(1) Where a person has, on or after May 1, 1951, transferred property, either directly or indirectly, by means of a trust or by any other means whatever, to "
"(1) Lorsqu’une personne a, depuis le 1er mai 1951, transféré des biens, directement ou indirectement, au moyen d’une fiducie ou de toute autre façon à l’une des personnes suivantes : "
"(a) the person’s spouse or common-law partner or a person who has since become the person’s spouse or common-law partner, "
"a"") son époux ou conjoint de fait ou une personne devenue depuis son époux ou conjoint de fait; "
"… "
"[…] " [19] The sole issue in this appeal is whether, for the purposes of paragraph 160(1)(a) of the Act, a person continues to be the "“spouse”" of their deceased partner following the death of the person to whom the survivor was married immediately before their death.
....
IV. Analysis
[21] Section 160 of the Act imposes a liability on the transferee of property in certain situations for the unpaid tax liability of the transferor. This Court, in Canada v. Livingston, 2008 FCA 89, leave to appeal to SCC refused, 32630 (25 September 2008), set out the criteria to apply when considering subsection 160(1) of the Act. ....
....
[24] .... The sole question for determination in this appeal is: was Marlene Enns still the "“spouse”" of Peter Enns when the RRSP passed to her?
[25] "“Spouse”" is not defined in the Act.
[26] A textual, contextual and purposive analysis is required to determine the interpretation of "“spouse”" in paragraph 160(1)(a) of the Act (Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, at para. 10).
A. Textual Analysis
[27] In both The New Shorter Oxford English Dictionary on Historical Principles (1993 Edition) [New York: Oxford University Press Inc.] and B. Garner, Black’s Law Dictionary, (St. Paul, MN: Thomson Reuters, 2024), a "“spouse”" is defined as a "“married person”". This would mean that a person is only a "“spouse”" for the period during which that person was married and, therefore, when a marriage ends, a person ceases to be a "“spouse”".
[28] In Rahimi v. Canada (Citizenship and Immigration), 2017 FC 758, the Federal Court considered the meaning of "“related by … marriage”" as it appears in paragraph 83(5)(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227. The Court found that a marriage ends when one of the two individuals, who were married, dies:[75] …I take it to be beyond debate that in order to be married, to have a marriage, both parties must be alive. Similarly in my view, unless the contrary is stated in the legislation, there can be no debate that a marriage ends on death. Marriage vows traditionally are made “until death us do part”. On the death of a spouse, no divorce is required in order to remarry. Legislatively, Parliament has the exclusive jurisdiction to regulate the legal capacity to enter into marriage. In that capacity Parliament has expressed its view of whether a marriage ends on death. Section 2.3 of the Civil Marriage Act, SC 2005, c 33, contains the declaratory statement that:"2.3 No person may contract a new marriage until every previous marriage has been dissolved by death or by divorce or declared null by a court order. "
"2.3 Nul ne peut contracter un nouveau mariage avant que tout mariage antérieur ait été dissous par le décès ou le divorce ou frappé de nullité par ordonnance d'un tribunal. "
"[emphasis added] "
"[non souligné dans l’original]" [29] The Tax Court Judge in Kuchta also acknowledged that a marriage ends on death:[19] ... There is no question that, in legal terms, marriage ends on death. Both parties agree that this is the case, the law is clear on this point and it is acknowledged in subsection 248(23). Immediately following Mr. Juba’s death, Ms. Kuchta was no longer married to him. [30] Since the ordinary meaning of "“spouse”" is a person who is married to another individual and since marriage ends on death, this would lead to the conclusion that when a marriage ends as a result of the death of one of the individuals, the survivor ceases to be the "“spouse”" of the deceased.
[31] In his textual analysis, the Tax Court Judge in Kuchta, however, considered the ordinary use of the word "“spouse”" in conversations, obituaries and newspaper articles. In my view, it is not necessary to consider the relevance of the colloquial meaning of "“spouse”" in interpreting "“spouse”" for the purposes of paragraph 160(1)(a) of the Act in light of my findings concerning the relevant context — in particular, the statutory definition of "“common-law partner”" in subsection 248(1) of the Act.
B. Contextual Analysis
[32] The error committed by the Tax Court Judge in this appeal is reflected in paragraph 41 of his reasons when, in adopting the analysis and the decision in Kuchta, he stated that:[41] … the Kuchta analysis does not, “[fail] to consider legislation or binding authorities which would [produce] a different result.” [33] The contextual analysis in Kuchta failed to take into account the definition of "“common-law partner”" in subsection 248(1) of the Act. The Tax Court Judge in Kuchta implicitly acknowledged that "“spouses”" and "“common-law partners”" should be treated in the same way, but he does not refer to the statutory definition of "“common-law partner”":
[34] The use of the term ‘common-law partner’ in subsection 160(1) does not provide any clarity either. In the same way that marriage ends on death, common-law partnership ends on death. In the same way that people use the words “wife” and “husband” to refer to surviving spouses, people use “common-law partner” to refer to surviving partners. In fact, it is even more difficult to describe a surviving partner because there are no equivalent words to “widow” and “widower” for common-law partners in either English or French. The context of subsection 160(1) supports both the legal or colloquial meanings of “common-law partner” and thus is not helpful in determining which meaning Parliament used.
[Emphasis added.]
[34] The Tax Court Judge’s reference to the context of subsection 160(1) of the Act supporting "“both the legal or colloquial meaning of ‘common-law partner’”" is an error of law. Since "“common-law partner”" is defined in subsection 248(1) of the Act and since subsection 248(1) of the Act stipulates that the definitions in that subsection apply to the Act, it was an error to not consider the statutory definition of "“common-law partner”":"common-law partner, with respect to a taxpayer at any time, means a person who cohabits at that time in a conjugal relationship with the taxpayer and "
"conjoint de fait"" En ce qui concerne un contribuable à un moment donné, personne qui, à ce moment, vit dans une relation conjugale avec le contribuable et qui, selon le cas : "
"(a) has so cohabited throughout the 12-month period that ends at that time, or "
"a"") a vécu ainsi tout au long de la période de douze mois se terminant à ce moment; "
"(b) would be the parent of a child of whom the taxpayer is a parent, if this Act were read without reference to paragraphs 252(1)(c) and (e) and subparagraph 252(2)(a)(iii), "
"b"") est le père ou la mère d’un enfant dont le contribuable est le père ou la mère, compte non tenu des alinéas 252(1)c) et e) ni du sous-alinéa 252(2)a)(iii). "
"and, for the purpose of this definition, where at any time the taxpayer and the person cohabit in a conjugal relationship, they are, at any particular time after that time, deemed to be cohabiting in a conjugal relationship unless they were living separate and apart at the particular time for a period of at least 90 days that includes the particular time because of a breakdown of their conjugal relationship;"
"Pour l’application de la présente définition, les personnes qui, à un moment quelconque, vivent ensemble dans une relation conjugale sont réputées, à un moment donné après ce moment, vivre ainsi sauf si, au moment donné, elles vivaient séparées, pour cause d’échec de leur relation, pendant une période d’au moins 90 jours qui comprend le moment donné." [35] It is this definition of "“common-law partner”" as set out in subsection 248(1) of the Act that is relevant for the purposes of subsection 160(1) of the Act.
[36] The opening part of the definition contemplates two individuals who are cohabiting in a conjugal relationship. Two individuals would not be cohabiting in a conjugal relationship following the death of one of them.
[37] The definition of "“common-law partner”" includes the following:... where at any time the taxpayer and the person cohabit in a conjugal relationship, they are, at any particular time after that time, deemed to be cohabiting in a conjugal relationship ... [38] A literal reading of this deeming rule would lead to the conclusion that where two individuals cohabit in a conjugal relationship on the day before one of them dies, at any particular time after that time (which would include any particular time after the death of one of the partners) they would be deemed to be cohabiting in a conjugal relationship. As well, if both partners die, a literal reading would mean that they would continue to cohabit in a conjugal relationship, assuming that they were cohabiting in a conjugal relationship the day before they died.
[39] The question is whether Parliament intended this deeming rule to be applicable in the event of the death of one of the individuals. The consequence of the application of the deeming rule is clear. However, does the deeming rule apply in the event of the death of one of the individuals? Would Parliament have intended to deem the surviving partner to continue to cohabit in a conjugal relationship with their deceased partner? In my view, this is not the result that Parliament intended.
[40] The deeming rule, if applicable, results in two persons being deemed to continue to cohabit in a conjugal relationship "“unless they were living separate and apart at the particular time for a period of at least 90 days that includes the particular time because of a breakdown of their conjugal relationship”". If one of the two partners is deceased, this condition for the termination of the period of deemed cohabitation would never be satisfied as only one of the two individuals would still be living. Therefore, in the event of the death of one of the partners, the two partners would continue to be deemed to be cohabiting in a conjugal relationship (and hence to be "“common-law partners”") forever. This could not have been the intended result.
[41] When Parliament added the definition of "“common-law partner”" to the Act in 2000 (Modernization of Benefits and Obligations Act, S.C. 2000, c. 12), Parliament also changed all of the references to "“spouse”" to "“spouse or common-law partner”". It is self-evident that Parliament intended the Act to apply equally to couples, whether they were married or in a common-law partnership.
[42] Given this equal treatment, the rules in section 251 of the Act assist in determining whether Parliament intended the deeming rule in the definition of "“common-law partner”" to apply in the event of the death of one of the partners.
[43] Subsection 251(2) of the Act provides that related persons are individuals connected by marriage or common-law partnership. Subsection 251(6) of the Act expands "“connected by marriage or common-law partnership”" by providing that:"(6) For the purposes of this Act, persons are connected by "
"(6) Pour l’application de la présente loi : "
"… "
"[…] "
"(b) marriage if one is married to the other or to a person who is so connected by blood relationship to the other; "
"b"") des personnes sont unies par les liens du mariage si l’une est mariée à l’autre ou à une personne qui est ainsi unie à l’autre par les liens du sang; "
"(b.1) common-law partnership if one is in a common-law partnership with the other or with a person who is connected by blood relationship to the other; … "
"b.1"") des personnes sont unies par les liens d’une union de fait si l’une vit en union de fait avec l’autre ou avec une personne qui est unie à l’autre par les liens du sang; … " [44] Since a marriage ends on the death of one of the individuals who were married to each other, when a person who was married dies, the survivor would no longer be connected by marriage to the persons with whom their deceased partner was connected by blood relationship. To have the same rules apply to individuals in a common-law partnership, that relationship would also have to cease upon the death of one of the partners. Otherwise, the surviving partner would continue to be connected by common-law partnership to the parents and siblings of their deceased partner forever, while a person who was married would cease to be connected by marriage to the parents and siblings of their deceased partner upon the death of the deceased partner.
[45] In order to treat couples the same for the purposes of section 251, regardless of whether they are married or they are common-law partners, since a marriage ends on death, a common-law partnership will also end on death. A common-law partnership is defined in subsection 248(1) of the Act as the relationship between individuals who are "“common-law partners”":"common-law partnership means the relationship between two persons who are common-law partners of each other; "
"union de fait"" Relation qui existe entre deux conjoints de fait." [46] Since a common-law partnership is the relationship between common-law partners, Parliament must have intended that the deeming rule in the definition of "“common-law partner”" would only apply while both partners are still living, i.e., an individual ceases to be the "“common-law partner”" of their deceased partner on that partner’s death.
[47] A person will therefore no longer be a "“common-law partner”" following the death of their partner. When an RRSP is transferred to the surviving partner as the designated beneficiary of the RRSP, it would not be a transfer of property to a "“common-law partner”". To treat "“common-law partners”" and married couples equally, the transfer of a deceased individual’s RRSP to their designated beneficiary (who was their spouse immediately before their death) would not be a transfer of property to a "“spouse”".
[48] As part of the contextual analysis, the Tax Court Judge in Kuchta noted that subsections 146(8.91), 70(6), 72(2) and 148(8.2) of the Act all apply to transfers of property on death and refer to the "“spouse”" of the person who died, as if the "“spouse”" continued to be a "“spouse”" following the death of the person to whom they were married.
[49] Subsection 146(8.91) of the Act refers to "“the spouse or common-law partner of the deceased”". It is therefore clear from the language used in that subsection that Parliament intended that a person who was the "“spouse or common-law partner”" of the deceased immediately before their death would still be treated as such following their death. There is no similar language in section 160 of the Act.
[50] With respect to subsection 70(6) of the Act, the Tax Court Judge in Kuchta found that applying the ordinary and legal meaning of "“spouse”" would render this subsection meaningless:[42] Subsection 70(6) describes an acquisition being made as a consequence of a taxpayer's death by “the taxpayer's spouse” or a trust under which “the taxpayer's spouse” is entitled to receive all of the income during his or her life. Thus, subsection 70(6) not only contemplates that a taxpayer may have a spouse after death, but also that that person's status as a spouse would continue for the rest of his or her life. This entire subsection would be rendered meaningless if one did not accept that the word “spouse” could include a widow or widower. The entire purpose of the subsection is to allow a rollover of capital property to a widow or widower or a trust for the benefit of that person. If the word “spouse” did not include a widow or widower, there would be no one to whom capital property could be rolled. Again, since I must assume that Parliament intended subsection 70(6) to have meaning, I must therefore conclude that Parliament intended the word “spouse” to include “widows” and “widowers” in that subsection. [Emphasis added.]
[51] The Tax Court Judge in Kuchta, at paragraphs 47 and 48, only briefly refers to subsections 72(2) and 148(8.2) of the Act. The references to "“spouse or common-law partner”" in each of these provisions would also render them meaningless unless a survivor, following the death of the person who was their "“spouse”" or "“common-law partner”" immediately before their death, continued to be the "“spouse”" or "“common-law partner”" of that person.
[52] However, finding that the ordinary and legal meaning of "“spouse”" applies to subsection 160(1) of the Act does not render this subsection meaningless. The provision will still apply to transfers between "“spouses”" during their lifetimes.
C. Purposive Analysis
[53] With respect to the purpose of subsection 160(1) of the Act, the Tax Court Judge in Kuchta noted:[67] The most common example given of the type of situation that subsection 160(1) is designed to prevent is a husband who has an outstanding tax debt, transferring his assets to his wife. Any transfer of property from Mr. Juba to Ms. Kuchta during his lifetime would have been caught by subsection 160(1). Why would Parliament have not intended to catch a transfer of Mr. Juba’s RRSPs on his death? Was the purpose to exempt transfers of property on death from subsection 160(1)? Was the purpose to exempt transfers of property to widows or widowers? Was it to exempt transfers of property to people who were financially dependent or co-dependent on the tax debtor? Was it to exempt transfers of RRSPs on death? Was the purpose to exempt transfers of RRSPs on death to people who were financially dependent or co-dependent on the tax debtor? As set out below, I find that there is no evidence to support any of these purposes in subsection 160(1). [54] It should first be noted that an individual cannot transfer their RRSP during their lifetime to their spouse, except in accordance with subsection 147.3(5) of the Act in settlement of rights arising out of or on a breakdown of the marriage.
[55] As noted above, if the applicable provincial law so provides, when an individual is designated as a beneficiary of an RRSP, that RRSP passes directly to the designated beneficiary and the RRSP is not part of the deceased’s estate. Sections 60 and 146 of the Act set out the rules concerning the tax implications arising as a result of the death of an annuitant of an RRSP. In general, when an individual designates their spouse as the beneficiary of their RRSP, no tax will be payable by that individual on their death. That designated beneficiary, if they transfer the amount in the RRSP to their own RRSP (or to acquire a qualifying annuity) (paragraph 60(l) of the Act), will defer the tax liability related to the amount in the RRSP until they eventually withdraw the amount from their RRSP (or qualifying annuity).
[56] In this case, as set out in the Agreed Statement of Facts submitted at the Tax Court hearing, Marlene Enns transferred the amount she received from Peter Enns’ RRSP into her locked-in retirement account with the Royal Bank. If she is still the "“spouse”" of Peter Enns and if the funds in the locked-in retirement account are required to pay Peter Enns’ tax debt, Marlene Enns would have to withdraw the funds from the locked-in retirement account (if she is able to do so). She would then be liable to pay the tax incurred on this withdrawal of funds.
[57] An assessment under section 160 of the Act is based on the fair market value of the property transferred and not on the net amount after taxes (Canada v. Gilbert, 2007 FCA 136, leave to appeal to SCC refused, 32066 (20 September 2007); Kufsky v. Canada, 2022 FCA 66, at para. 75).
[58] The section 160 assessment against Marlene Enns is for the full amount of the RRSP - $102,789.52. If she withdraws this amount as a lump sum to pay the section 160 assessment, she will incur a significant tax liability in the year in which the funds are withdrawn, as the full amount of $102,789.52 will be included in computing her income for the purposes of the Act. Not only will she have to pay the $102,789.52 to satisfy the section 160 assessment, but she will also have to pay the taxes based on adding $102,789.52 to her income. It is far from clear that Parliament would have intended this result following the death of a person’s partner.
[59] The tax consequences, as set out above, when an RRSP is transferred to a designated beneficiary who was the spouse of the deceased immediately before their death, could also explain why the legal and ordinary meaning of "“spouse”" is the correct interpretation of this word for the purposes of paragraph 160(1)(a) of the Act. . 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.
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(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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