Introduction to Family Law

• Author: Tina Kamakaris/Jane Kamakaris/Louis Kamakaris
• Pages: 319-336

319

Chapter 20 Introduction to Family Law

CHAPTER 20

e road to family equity is paved with inequity. is chapter covers the major inuences

on family law reform, including an introduction to the Family Law Act and the Children’s

Law Reform Act where today we nd most of Ontario’s family law.

MAJOR INFLUENCES ON FAMILY LAW REFORM

One case that is considered to have largely contributed to family law reform is the l973

divorce case of Irene Murdoch, a Saskatchewan ranch wife whose marriage broke down after

twenty-ve years, and who claimed part ownership in the ranch that her husband owned.

e Murdochs ranched together, and Mrs.Murdoch did all of the work on the ranch that

her husband did. Mr. Murdoch never paid Mrs. Murdoch wages for her work contribution,

and the Income Tax Act did not then recognize interspousal work as work that should be

salaried. Mr. Murdoch did not dispute Mrs. Murdoch’s testimony about the work she had

put into the ranch over their twenty-ve years of marriage. e divorce court, however,

awarded her maintenance (support) only, and denied her claim to part ownership in the

ranch, mainly because the ranch was registered on title in Mr. Murdoch’s name only.

e case went to the Supreme Court of Canada, and that court also concluded that Mrs.

Murdoch had no legal claim to the ranch. Under the laws of the day, Mrs. Murdoch could

make no legal claim to the ranch unless she could prove that Mr. Murdoch was holding

part of the land in trust for her; Mr. Murdoch, on the other hand, among other things,

could only hold such land in trust for Mrs. Murdoch if Mrs. Murdoch had made some

nancial contribution to Mr. Murdoch for the purchase of the land.

Had Mrs. Murdoch contributed money toward the purchase of the farm, the court would

have given her part ownership on the basis of the then legal remedy known as constructive

trust. Basically, constructive trust meant that when a non-owner spouse made a nancial

contribution toward property that the other spouse owned, the non-owner spouse could

rely on the doctrine of trust to be considered part owner of the property. Mr. Justice Bora

Laskin, the only dissenter in the Murdoch decision, thought Mrs.Murdoch should have

been entitled to the constructive trust remedy because of her contribution of physical

labour as mother and farm wife over the twenty-ve years of the marriage.

In 1980, the Supreme Court of Canada, this time in majority with Mr. Justice Bora Laskin,

applied the constructive trust remedy in the Ontario case of Pettkus v Becker. Rosa Becker and

Lothar Pettkus lived together for 19 years in common law. Ms. Becker paid all the bills for

INTRODUCTION

TO FAMILY LAW

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320 Legal Office Procedures

rent, food, clothing, and other living expenses from her salary, and Mr. Pettkus saved his salary

and bought, in his name alone, a bee-keeping farm which they both operated.

Ms. Becker moved out permanently, claiming Mr. Pettkus was mistreating her. She claimed

one-half the value of the $300,000 bee-keeping operation and other businesses Mr. Pettkus

bought while the couple lived together. Instead, the judge awarded Ms. Becker forty beehives,

without the bees, and $l,500 in cash. e judge determined that Ms. Becker’s nancial and

labour contributions to the business were an investment in the “hope of seducing a young

man into marriage.” (She was 29 when they met; he, 24). Ms. Becker appealed to the

Ontario Court of Appeal and won $150,000, half of the value of the businesses. Mr. Pettkus

appealed to the Supreme Court of Canada, and that court upheld Ms. Becker’s award of

$150,000. Six years after her Supreme Court of Canada victory, however, Ms.Becker

committed suicide in protest of the legal system because she never received a penny of her

$150,000 award. e court had ordered two pieces of land sold in 1984 to enable her to

collect on the judgment; however, Ms. Becker’s lawyer, Mr. Gerald E. Langlois, took the

entire amount of $68,000 from the sale of the land for his legal fees.

In another landmark decision, the 1986 case of Sorochan v Sorochan, the Supreme Court of

Canada again applied the constructive trust remedy, this time with property Mr. Sorochan

owned before Mrs. Sorochan moved in with him. Mr. and Mrs. Sorochan lived together for

forty-two years on a farm and had six children, but never married. e court awarded Mrs.

Mary Sorochan one-third of her husband’s farm property, ruling that Mrs. Sorochan’s forty-

two years of domestic labour, farm chores, and caring for the children contributed toward the

preserving and maintaining of the property, thus preventing its loss or deterioration.

HISTORICAL BACKGROUND OF FAMILY LAW

Much of the inequity in Irene Murdoch’s divorce decision was the result of a combination

of inadequate provincial laws and other inherited doctrines. For example, in the past,

interspousal rights in family property were determined on the doctrine of unity of legal

personality. is was much a doctrine of “What’s mine is mine and what’s yours is also

mine.” e husband and wife were treated as one legal entity upon marriage, with the

husband becoming the absolute owner of all personal and real property the wife owned

before marriage. e wife lost all autonomy and could not legally hold or manage property.

Next, family law saw a completely opposite doctrine, that of separate property. is was

a law of “What’s mine is mine, what’s yours is yours, and what’s ours is also mine, unless

you prove nancial contribution.” Each spouse owned the property each brought into the

marriage or bought with his or her own money during the marriage. Both owned the

property they bought together during marriage, but only according to how much money

each contributed toward the purchase. As a result, the courts regularly found the homemaker

to have contributed none or the spouse with the lower salary to have contributed less. is

was the law under which Irene Murdoch sought justice and lost. Her case did, however,

pave the way to family law changes. In Ontario, it gave way to the Family Law Act, l986.

ONTARIO FAMILY LAW ACT

Ontario’s Family Law Act (FLA) aims to bring equality between the spouses in person and

in property. e FLA recognizes marriage as an equal partnership in that it gives a 50/50

split of the property the spouses acquire during marriage, no matter which spouse owns it.

Note, however, that this law of a 50/50 split does not extend to common-law spouses; it

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