Developments in Family Law: The 2008-2009 Term - Just Divisions?

Abstract:     
In 2008-2009, the Supreme Court of Canada issued judgments in three appeals squarely within family law and a fourth that bridges family law and constitutional law. The former all address the economic consequences of the dissolution of an opposite-sex marriage. In Stein v. Stein, the majority uphold an order, made under the Family Relations Act of British Columbia, that spouses share a future tax liability that could not be valued at trial. M.T. v. J.-Y.T. concerned the interpretation of the exceptional rule permitting an unequal partition of the family patrimony under the Civil Code of Québec. The Court overturned an order that had excluded the husband’s pension credits from the family patrimony, emphasizing the exceptional character of uneven partition and the legislature’s vision of marriage as an economic partnership. Together these two appeals indicate that judges should use caution in deploying the rules permitting a departure from presumptively equal sharing on marriage breakdown. In Rick v. Brandsema, the Court set aside a separation agreement on the basis that it was unconscionable. The Court emphasized the duty of full, honest disclosure during spousal negotiations as well as the importance of a court’s verifying whether professional assistance has, in fact, compensated for vulnerability. The parties had wished to divide their property equally and their agreement failed to carry out that wish. The judgment raises questions about the intended reach of the Court’s precedent in Miglin v. Miglin, as well as the relationship between common law doctrines and statutory regimes.

Number of Pages in PDF File: 40

Keywords: family law, Supreme Court of Canada, matrimonial property, Stein, Rick, family patrimony

JEL Classification: K19, K39

Accepted Paper Series