Family law : cases and materials

12 Pages·1993·0.47 MB·English

by  Rogerson, Carol, 1953-

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Cases and Materials
Volume II
Carol Rogerson and Martha Shaffer
Faculty of Law
University of Toronto
1993-1994
Prepared with the assistance of Ranald Sinclair and Ella Schwartz
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These materials are distributed solely for classroom use
by students in the Faculty of Law, University of Toronto
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FAMILY LAW
Cases and Materials
Volume II
Carol Rogerson and Martha Shaffer
Faculty of Law
University of Toronto
1993-1994
Prepared with the assistance of Ranald Sinclair and Ella Schwartz
5K *
These materials are distributed solely for classroom use
by students in the Faculty of Law, University of Toronto
C;RV\WORD\SHAFFER\CASEBOOK\family.93
Digitized by the Internet Archive
in 2018 with funding from
University of Toronto
https://archive.org/details/familylawcasesma02roge_6
FAMILY LAW
Table of Contents
Volume II
Page No,
V. MATRIMONIAL PROPERTY
A. Historical Overview
(a) Common Law
OLRC, Report on Family Law, Part IV: Family Property.457
(b) Trust Doctrine
LRCC, Family Property .460
Note: Murdoch v. Murdoch .462
Rathwell v. Rathwell .463
Pettkus V. Becker .473
Globe and Mail, "Woman’s Suicide Ends Fight for Rights" .485
Sorochan v. Sorochan.486
Note: Recent Decisions on Unjust Enrichment and
Constructive Trust . 493
Peter v. Beblow .495
(c) Statutory Reform
Holland, "Reform of Matrimonial Property Law
in Ontario".516
V^olfson, The New Family Law Act .518
B. The F.L.A.
(a) The Partnership Principle
Knetsch, "Some Economic Implications of Matrimonial
Property Rules".524
Prager, "Shifting Perspectives on Marital Property Law" .533
Eekelaar, Family Law and Social Policy, "Adjustment
on Divorce" .538
Fineman, "Implementing Equality".542
Mossman, Book Review of Weitzman’s Divorce Revolution .548
Note: Application of Matrimonial Property Law
to Indian Women.551
u
(b) Pre-Marital Contracts
New York Times, "Prenuptial Stress over the Contract" .552
Wolfson, "The Use and Abuse of Marriage Contracts"
from Money and Family Law.555
(c) Overview of Equalization of Net Family
Property Under the FLA
(i) Calculation of the Equalization Payment
Goodman, "Matrimonial Property", Family Law
Bar Admission Course Materials.558
Skrlj Skrlj.571
V.
Folga Folga .576
V.
Miller v. Miller.579
Black Black.580
V.
Fredricks, "The Onwership Conundrum" .584
Wolfson and Corbin, "Problems of Title and
and Constructive Trusts".586
Note: Proposed Amendments to the FLA587
(ii) Implementation of the Equalization Payment
Humphreys v. Humphreys.588
Goodman, "Matrimonial Property", Family Law
Bar Admission Course Materials.594
(d) Selected Problems in Determining NFP
(i) Valuation and Costs of Disposition
Goodman, "Matrimonial Property", Family Law
Bar Admission Course Materials.598
Starkman v. Starkman.603
Lawyer’s Weekly, "Ontario ‘debtor-creditor’
family law benefits property-owning spouse".608
(ii) Relevance of Constructive Trust
Kelly Kelly .610
V.
Rawluk Rawluk.612
V.
Note: Applications of Constructive Trust under the FLA (Cox,
Hapichuk, Mittler, Heon, McDonald and Arndt). 639
Ill
(iii) Pensions
Pask, "Pensions and the Elderly" .642
Note: Pensions and the FLA.644
Humphreys v. Humphreys.645
Note: Proposed Reforms Respecting Pension Division .647
Clarke v. Clarke .648
Veres v. Veres.662
Butt Butt.664
V.
Rogers v. Rogers {Lawyer’s Weekly) .666
(iv) Future Interests
Brinkos v. Brinkos .667
(v) Educational Degrees, Professional Licenses
and other forms of "Human Capital"
Weitzman, "The New Property" in The Divorce
Revolution.673
Trebilcock and Keshvani, "A Law and Economics
Perspective on the Role of Private
Ordering in Family Law" .680
Dulude, Love, Marriage and Money .687
Selick, "Pitfalls in Professional Degree
Valuation".691
Corless v. Corless .692
Caratun v. Caratun.698
Keast Keast.714
V.
New York Times, "Her Fame is Ruled His Too:
Soprano Must Share Income".718
Globe and Mail, "Gastineau a loser in Court" .719
Linton v. Linton.720
Chaulk Chaulk {Lawyer’s Weekly).729
V.
Note: Drummond v. Smith; Ormerod v. Omierod .730
(e) Departures from Equal Sharing
(i) Unequal Contributions
Farr v. Farr.731
LeBlanc v. LeBlanc.734
Toronto Star, "A New Day in a Hard Life".739
Waters v. Waters.740
iv
Sullivan v. Sullivan.744
Berdette v. Berdette .746
Note: Peake; Mclnnis.752
Wakelin v. Wakelin {Lawyer’s Weekly).753
(ii) Depletion of Assets: Conduct
Scott Scott 754
V. .
Note: Cowan.756
Merklinger v. Merklinger.757
Tamitegana v. Tamitegana {Lawyer’s Weekly) .759
(iii) Short Marriage: Pre-Marital Property
Murphy v. Murphy.761
Note: Jordan.763
Futia Futia {Lawyer’s Weekly) 764
V. .
(iv) Post-Separation Needs and Other Post-Separation Events
Davies v. Davies .765
Note: Skrlj; McCutcheon; Crane.766
(v) Lump Sum Support as Alternative
to Unequal Division of NFP
Magee v. Magee .767
MacBride v. MacBride {Lawyer’s Weekly).769
Hines v. Hines.770
VI. THE MATRIMONIAL HOME
A. Introduction
(a) The Matrimonial Home as a Special Asset
Hovius, "The Matrimonial Home".773
(b) History of Legal Rights in the Matrimonial Home
Hovius, "Possessory Rights in the Matrimonial Home" .774
V
B. The Matrimonial Home Under the Family Law Act, 1986
(a) Overview of Part II of the FLA
Wolfson and Corbin, "The Matrimonial Home Under the FLA".Ill
Nurmi v. Nurmi .782
(b) Orders for Exclusive Possession
Bissett-Johnson and Holland, Matrimonial Property
Law in Canada .786
(i) Exclusive Possession or Sale at Trial?
Weitzman, "Disposition of the Family Home" from
The Divorce Revolution.788
Rosenthal v. Rosenthal.793
Cicero v. Cicero .795
Note: Review of Case Law .796
Note: Exclusive Possession on the Basis of Emotional
Attachment to the Matrimonial Home.797
Note: Alternatives to Exclusive Possession.798
(ii) Interim or Temporary Exclusive Possession:
Excluding a Spouse from the Matrimonial Home
Pifer V. Pifer.799
Serruys v. Serruys .802
Hill V. Hill.805
(c) Groups Precluded from Protection
(i) Unmarried Cohabitants
Orlando, "Exclusive Possession of the Family Home:
The Plight of Battered Cohabitees".811
Note: Czora v. Lonergan.813
(ii) Native Women
Note: Derrickson v. Derrickson, Paul v. Paul,
and Wynn v. Wynn.813
VI
VII. SPOUSAL SUPPORT
A. Historical Origins of Spousal Support
Eekelaar and Maclean, Maintenance After Divorce .814
B. Law Reform: Modern Spousal Support Law
Eekelaar and Maclean, "The Evolution of Private Law
Maintenance Obligations" .816
LRCC, Maintenance on Divorce.819
Davies, "The Changing Face of Spousal Support Law
in Canada" .822
Smart, The Ties that Bind.827
Rogerson, "The Causal Connection Test" .829
C. Spousal Support Under the Divorce Act, 1985 and
the Family Law Act, 1986
(a) The Trilogy and the Causal Connection Test
Messier v. Delage.843
Note: The Supreme Court of Canada "Trilogy" .857
Pelech Pelech.858
V.
Richardson v. Richardson .876
Rogerson, "The Causal Connection Test in Spousal Support Law" .... 890
Note: The Causal Connection Test after the "Trilogy" .895
(b) The Self-Sufficiency Principle and Compensation for
the Economic Consequences of the Marriage
Dept, of Justice, Evaluation of the Divorce Act.896
Rogerson, "Judicial Interpretation of the Spousal and
Child Support Provisions of the Divorce Act, 1985" 898
Karlovec v. Karlovec.902
Seward v. Seward.905
Bast Bast 907
V. .
Note: The Demise of the Causal Connection Test.908
Heinemann v. Heinemann .910
Onnerod v. Onnerod.916
Elliot Elliot 925
V. .
Moge Moge 931
V. .