Author: Fauzan Siddiqui

In a 2022 Ontario Superior Court of Justice decision Ahluwalia v. Ahluwalia,[1] Justice Mandhane created a new tort of family violence.

Facts

The parties married in November 1999 and separated in July 2016. This marriage was anything but typical. Rather, it was characterized by abuse and sixteen years of coercion and control from the father. During the course of their marriage the parties had two children together. However, since separation, the children refused to see their father aside from a few visits.

Trial Decision

Justice Mandhane awarded the mother damages in the amount of $150,000 for compensatory, aggregated, and punitive damages as a result of emotional, physical and financial control.

The trial judge also recognized a new tort of family violence. Justice Mandhane believes that this new tort would effectively address the reality of prolonged family violence which is not captured from existing torts.

Further, this new tort remedy would provide survivors of domestic abuse an avenue to pursue accountability and provide financial independence by attending a single proceeding rather than multiple, which is often required with other tort actions. This could potentially make it more realistic for women to leave violent relationships. [2]

Justice Mandhane set out a three part test to establish the defendant’s liability where their conduct is:

• is violent or threatening, or
• constitutes a pattern of coercive and controlling behaviour, or
• causes the plaintiff to fear for their own safety or that of another person.[3]

The trial judge acknowledges that these three steps overlap with existing torts, however, notes that the existing torts “do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases”.[4] The tort of family violence would allow consideration of, and compensation for, the pattern of violence,[5] not just the individual incidents as seen with alternate tort actions.

Ontario Court of Appeal

Shortly after, the Ontario Superior Court of Justice’s decision was appealed to the Ontario Court of Appeal.[6]  Here, Justice Benotto rejected the creation of the new tort of family violence on multiple grounds.

First, Justice Benotto notes that common law change is slow and incremental rather than quick and dramatic.[7] Thus, suggesting that this change would be significant and best left to the legislature as opposed to the court system.

Second, Justice Benotto suggests that existing tort remedies effectively address family violence and the creation of a new tort is therefore unnecessary. In the present case, Justice Benotto notes that the father’s abusive conduct satisfies the requirements for the tort of battery, assault, and intentional infliction of emotional distress.[8] Justice Benotto states that these tort actions adequately address the potential issues that would arise under the novel tort remedy.

National Importance

The Court of Appeal’s decision has now been appealed to the Supreme Court of Canada. This decision has yet to be heard.

The rejection of the tort of family violence from the Ontario Court of Appeal can be disappointing to survivors of family violence, but a positive decision may come about from the Supreme Court of Canada.

Multiple not for profit foundations such as Barbra Schlifer Commemorative Clinic and Luke’s Place have intervened to provide a more nuanced and intersectional perspective to the court about the prevalence and nature of family violence and the experience of survivors of patterns of abuse. These foundations argue that the tort of family violence is an important and necessary step for the evolution of common law. They note that existing torts do not properly capture and compensate the true nature of family violence that is a pattern of coercive and controlling behaviour.

Statistics Canada further exemplifies the magnitude of domestic violence in Canada and illustrate the need for the new tort of family violence. In 2022 alone, there were 129,876 victims of police-reported family violence and 117,093 victims of intimate partner violence.

Domestic Abuse Services Oxford demonstrates that family violence can lead to extreme circumstances, such as homicides. They note that spousal homicides account for 15% of all homicides in Canada. Women are at greatest risk and are nine times more likely to be murdered by an intimate partner than by a stranger.

Given the magnitude of the issue at hand, it is hoped that the Supreme Court of Canada decision will provide clarity on this legal issue, and also adequately compensate and support victims of family violence.

This blog was co-authored by Summer Law Student, Adriana Piccolo

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

[1]  2022 ONSC 1303 [Ahluwalia].

[2] Ahluwalia v. Ahluwalia, 2023 ONCA 476.

[3] Ahluwalia, supra note 1 at para 52.

[4] Ibid at para 54.

[5] Ibid at para 23.

[6] Ahluwalia, supra note 2.

[7] Ibid at para 50.

[8] Ibid at para 52.

In Canada, individuals married in India can apply for a divorce if one spouse has resided in a Canadian province for over a year. This process is recognized by both Canada and India, though the legalities and implications differ significantly between the two countries. Understanding these differences is crucial for couples going through the process of international divorce.

Legal Jurisdiction and Criteria for Filing for Divorce in Canada

The Divorce Act governs divorce proceedings across Canada, although provincial regulations may also apply. To initiate a divorce, one spouse must reside in the province where the application is filed. Couples must meet certain conditions to file for divorce in Canada. The most common ground is a one-year separation, during which the couple has lived apart (whether in the same home or separately) and ceased acting as a married couple. Exceptions to the one-year separation include cases of adultery or cruelty, which require substantial proof. There are three types of divorces in Canada: joint, uncontested, and contested, each with its own procedural nuances. Consulting a family lawyer is advisable to navigate the specific legal requirements and ensure a smooth process.

Impact of International Marriages on Divorce Proceedings

Indian couples in Canada face unique challenges when seeking a divorce due to differences in legal frameworks. In India, divorces can be either mutual or contested. A mutual divorce involves a six-month waiting period, while contested divorces require prolonged court proceedings. In Canada, joint divorces allow couples to file a notice of family claim together, potentially avoiding court if uncontested. Contested divorces, however, can be lengthy and complex, necessitating court involvement. For a marriage from India to be recognized in Canada, it must comply with Canadian legal standards. This often involves validating the marriage through documentation and ensuring it adheres to both Indian and Canadian laws.

Divorce can also affect immigration status. Permanent residents generally remain unaffected unless the marriage is proven fraudulent. Divorce might impact citizenship applications, potentially delaying or affecting the outcome. Engaging a family lawyer and immigration lawyer knowledgeable in international marriages is beneficial to avoid legal complications during divorce proceedings.

Recognizing Foreign Marriages under Canadian Law

Marriages conducted legally in another country are typically recognized in Canada. This means that for couples married in India, their marriage is considered valid, allowing them to seek a divorce in Canada without first divorcing in India. One spouse must have lived in a Canadian province for at least a year to apply for divorce under Canadian jurisdiction.

Procedure to File for Divorce in Canada

Initiating a divorce in Canada involves several steps including filing a divorce application, serving the application to the other spouse, waiting for their response, attending court hearings if necessary, and obtaining the divorce order. Proper documentation is essential, including the divorce application, a Notice of Family Claim, and potentially financial statements or affidavits. Consulting a family lawyer ensures all necessary documents are correctly prepared and submitted.

Comparing Divorce Laws: Canada vs. India

Key differences between divorce laws in Canada and India include types of divorce, waiting periods, and duration. Canada offers joint, uncontested, and contested divorces, while India provides mutual and contested divorces. India requires a six-month waiting period for mutual divorces, whereas Canada generally mandates a one-year separation. Contested divorces in India can take years, whereas in Canada, contested cases might be resolved more quickly, sometimes through desk order divorces. Canadian law permits divorce primarily due to marriage breakdown, evidenced by a one-year separation, adultery, or cruelty. In India, divorce grounds include adultery, cruelty, desertion, religious conversion, and mental instability. The Hindu Marriage Act and the Special Marriage Act govern these proceedings, with mutual petitions simplifying the process compared to contested cases.

Conclusion

Proceeding with a divorce across international boundaries requires a comprehensive understanding of applicable laws and meticulous preparation. Engaging experienced family lawyers helps both parties adhere to procedures and protect the individual rights of those involved, making the process more manageable. Whether the marriage took place in India or another country, consulting a lawyer and ensuring all documentation is in order before initiating divorce proceedings is crucial. Each situation is unique, so obtaining tailored legal advice is the best way to safeguard one’s interests during this challenging time.

When two parties have dependant children, they may be required to pay special or extraordinary expenses alongside their basic monthly child support obligations. The definition of these expenses are outlined in Section 7 of the Child Support Guidelines.

Section 7 reads that in an order for the support of a child, the court may, on request of either parent or spouse provide for an amount to cover all or any portion of applicable expenses. What is qualified as a “section 7 expense” is determined based on various considerations. The court will take into account the necessity of the expense in relation to the child’s best interests,  the reasonableness of the expense in relation to the means of the parents or spouses, and those of the child with respect to the family’s spending pattern before separation. Applicable expenses may include child care expenses, health-related expenses such as braces, expenses for post-secondary education (tuition, meal plans, textbooks) and extraordinary expenses for primary or secondary school education or extracurricular activities.

The Guidelines lay out what falls under applicable extraordinary expenses. Extraordinary expenses are expenses that exceed the amount that the requesting parent or spouse could reasonably cover, while taking into account the parent or spouse’s income and the amount that would be received for child support. The court also considers expenses to be extraordinary by considering various other factors including but not limited to: the nature and number of the educational programs and extracurricular activities, and any special needs and talents of the child.

Determining a Section 7 Expense

A common question is what exactly may be considered an extraordinary section 7 expense. As discussed above, the court will consider many factors and it is not just the expense alone that is considered. For example, in the case of Craig v. Niro, 2022 ONSC 5178, the question of whether the daughter’s hockey equipment and the son’s moving expenses were an extraordinary expense were considered.

The court considered the factors outlined in the Guidelines and determined that the daughter’s hockey equipment was not an extraordinary expense but the son’s moving expenses were considered to be an expense under section 7. The parents in this case had an order in place that the mother pay 36% and the father pay 64% of section 7 expenses. The mother and daughter contributed to the daughter’s hockey equipment. Considering these contributions and the father’s income, the remaining hockey expenses were considered modest and within the amount of child support set off against the amount that the father would otherwise pay. He was not required to make additional contributions towards hockey. The son’s moving expense; however, was determined to be a post-secondary education expense and therefore a section 7. To qualify as a post-secondary education expense, the expense must be sufficiently connected to the program of study. In this case it was concluded that the expenses associated with the purchase of furniture, appliances, food, toiletries and even “shower flip flops” are properly characterized as post-secondary education expenses for a temporary residence being shared while at university. Even the hotel room and restaurant meals while a student’s belongings are being moved into a temporary residence was deemed to be covered as a section 7 expense.

In certain circumstances, an adult child will be responsible for contributing toward section 7 expenses, which is discussed further below. However, in Craig v. Niro, many of the expenses were incurred because the mother refused to assist with the physical move of the son’s items that did not fit in the father’s vehicle. As a result, it was found to be unfair that the son be required to contribute to these moving expenses. Whether or not an expense is found to be extraordinary and how section 7 is inferred is discretionary to the courts. It is helpful to consult with a family law lawyer about any questions related to section 7 expenses as every situation varies.

Children’s Contributions to Section 7 Expenses

The case of Lewi v. Lewi, 2006 CanLII 15446 (ON CA) raised the issue of children’s contributions to post-secondary education expenses, specifically, adult children who attend post-secondary studies. Whether the parents should be solely responsible for their children’s post-secondary education when the child has a job or in the case of Lewi, had significant capital assets as a result of gifts from their grandfather, was discussed extensively.  The Court of Appeal in Lewi considered that as a general rule, adult children should be required to make reasonable and meaningful contributions toward post-secondary education expenses. The amount they should contribute is dependent on the circumstances and will consider the means of both the parents and the children. In this specific case, one of the sons attended post-secondary studies out of town and at a much greater cost than his brother, which therefore required a greater contribution from him.

Ultimately, the determination of section 7 contributions and extraordinary expenses are extremely fact-dependent. Should you require more information regarding section 7 expenses and/or family law-related topics, please contact our family law department.

This blog was co-authored by Articling Student, Samantha Lawr

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

In a decision highly anticipated by family law litigants and practitioners across the Province, the Ontario Court of Appeal has rejected the newly created tort of family violence.

This novel tort was created last year in the precedent setting decision of Ahluwalia v Ahluwalia,[1] decided by Brampton judge, Justice Renu Mandhane. Justice Mandhane ordered that a man pay his former wife $150,000 in damages for years of physical, financial, and verbal abuse. The decision was appealed shortly thereafter. In her reasons released in July 2023, Justice M. L. Benotto of the Court of Appeal began her judgment by acknowledging the problem of intimate partner violence in Canadian society:

Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise.[1] What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.[2]

Statistics support this conclusion: in 2021, there were 127,082 victims of family violence who reported the crime to the police. However, as many incidents of such violence go unreported, the true number is likely much higher. Nevertheless, Justice Benotto concluded that the creation of a novel tort was unnecessary, as existing torts and remedies are sufficient to address the harms caused by intimate partner violence.

Facts

The parties married in India in 1999 and their first child was born 18 months later. In September 2001, the husband, immigrated to Canada. The wife and child arrived in Canada soon after in March 2002. The parties had their second child in 2004 and bought a home in Brampton in 2005.

In July 2016, the couple separated. The parties’ children largely refused to see their father following the separation.

The trial judge accepted the wife’s evidence that her husband was extremely abusive during their marriage. She recounted instances of physical violence, verbal abuse, financial threats and controlling behaviour. The husband was criminally charged in September 2021 with assault and uttering death threats against his former partner.

The wife brought an action for statutory relief under the Divorce Act for divorce, child support, spousal support, and equalization of property, as well as a claim in tort for $100,000 in damages for the husband’s abusive conduct during their marriage.  

The Trial Decision

Justice Mandhane agreed with the wife’s position that the Divorce Act did not go far enough in addressing the issue of family violence. In fact, the Act specifically prohibits courts from considering spousal misconduct in spousal support orders.[3] She maintained that “[t]he no fault nature of family law must give way where there are serious allegations of family violence that create independent, and actionable harms that cannot be compensated through an award of spousal support.”[4]

The Creation of the Tort of Family Violence

As a result, Justice Mandhane recognized a new tort of family violence. To establish liability under this new tort, the plaintiff must prove the existence of conduct by a family member, within the context of a family relationship, that:

1. is intentionally violent or threatening; or
2. constitutes a pattern of coercive and controlling behaviour; or
3. causes the plaintiff to fear for their own safety or the safety of another.[5]

Justice Mandhane emphasized that damages would be based on patterns of violence, not individual incidents, and that mere unhappy or dysfunctional relationships are insufficient.

Damages

Having accepted the wife’s evidence of her husband’s abusive conduct during their marriage, Justice Mandhane turned to damages. She awarded $150,000 to the wife in total, with $50,000 each for compensatory, aggravated, and punitive damages.

Issues on Appeal

The husband appealed Justice Mandhane’s decision. There were three main issues on appeal:

• Did the trial judge err in creating a new tort of family violence?
• Should the court recognize the narrower tort of coercive control?
• Did the trial judge err in assessing damages?

The appellant objected to the recognition of the novel tort. He argued that it was poorly constructed, too easy to prove, would open the floodgates for claims, and would constitute a substantial change to the law that is best left to the legislature.

In contrast, the respondent maintained that the creation of the novel tort was necessary to address the harm caused by family violence. In the alternative, if the new tort is too broad, she proposed a narrower tort of coercive control.

(1) Did the Trial Judge Err in Creating the Tort of Family Violence?

Justice Benotto concluded that Justice Mandhane did err in creating the tort of family violence.

The common law changes slowly and incrementally, not quick and dramatically, and significant change is best left to the legislature to implement.[6] Moreover, novel torts will not be recognized in any of the following circumstances:

• where there are adequate alternative remedies;
• where the tort does not reflect and address a wrong visited on one person by another; or
• where the change to the legal system from the new tort would be indeterminate or substantial.[7]

The first scenario posed the most problems for the tort of family violence. In the trial decision, Justice Mandhane argued that while some existing torts overlapped with the tort of family violence, they did not fully capture the cumulative harm of family violence:

…existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness. These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse. These uniquely harmful aspects of family violence are not adequately captured in the existing torts. In general, the existing torts are focused on specific, harmful incidents, while the proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize… In the context of damage assessment for family violence, it is the pattern of violence that must be compensated, not the individual incidents.[8]

Justice Benotto disagreed. The appellant’s abusive conduct satisfied the requirements for the torts of battery, assault, and intentional infliction of emotional distress. Moreover, in determining the quantum of costs for such tortious conduct, courts have taken into account patterns of abusive behaviour. As such, there was no need to create a tort of family violence.

(2) Should the Courts Recognize a Tort of Coercive Control?

If the court would not recognize the tort of family violence, the respondent suggested a narrower tort of coercive control. Coercive control would include “emotional and psychological harm, financial abuse, social isolation, intentional damage to property, deprivation of necessities of life, or micro-regulation of daily activities.”[9] The respondent proposed that the tort of coercive control would not require proof of harm, but would be established if a person: (a) in an intimate relationship, (b) inflicted a pattern of coercive and controlling behaviour, and (c) which, cumulatively, was calculated to induce compliance, create fear and helplessness, or cause harm to the victim.[10]

Justice Benotto rejected this submission. The tort of coercive control is highly similar to the existing tort of intentional infliction of emotion distress. Moreover, elimination of the requirement that the plaintiff show harm would constitute a substantial change to the law that would require legislative intervention. As such, the Court of Appeal declined to recognize a tort of coercive control.

(3) Did the Trial Judge Err in Assessing Damages?

While this case had major implications for the practice of family law in Ontario, it was much less impactful for the parties involved in terms of the damages. Justice Benotto upheld trial judge’s award of compensatory and aggravated damages in the amount of $100,000, due to the high degree of deference given to trial judges in awarding costs. However, she allowed the appeal in regards to the additional $50,000 for punitive damages.

Justice Benotto pointed to the principles for awarding punitive damages established in Whiten v Pilot Insurance. In this case, the Supreme Court held that punitive damages were highly exceptional remedies and should only be awarded where compensatory damages are insufficient.[11] Here, the compensatory and aggravated damages, in the amount originally sought by the applicant, were sufficient to demonstrate the court’s disapproval of the appellant’s conduct.

Conclusions

While this decision eliminated one avenue of recourse for survivors of family violence in Ontario, it should not be viewed as a loss. The Court recognized the harm of family violence, the need for judicial condemnation of the offenders, and the need for compensation for the survivors. In dismissing the need for novel torts, the Court also affirmed the efficacy of existing torts like battery, assault, and intentional infliction of emotional distress in addressing family violence and highlighted to survivors the legal options available to them.

If you have questions about your family law matter, please visit our website or contact Jillian C. Bowman from Devry Smith Frank LLP at 249-888-4639 or Jillian.Bowman@devrylaw.ca.

This blog was co-authored by law student, Leslie Haddock.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

[1] 2022 ONSC 1303 [Ahluwalia, ONSC].

[2] 2023 ONCA 476 at para 1 [Ahluwalia, ONCA].

[3] Divorce Act, RSC 1985, c 3, s 15.2(5).

[4] Ahluwalia, ONSC, supra note 1 at para 46.

[5] Ibid at para 52.

[6] Merrifield v Canada (Attorney General), 2019 ONCA 205 at paras 20-21.

[7] Neysun Resources Ltd v Araya, 2020 SCC 5 at para 237.

[8] Ahluwalia, ONSC, supra note 1 at para 54.

[9] Ahluwalia, ONCA, supra note 2 at para 103.

[10] Ibid at para 104.

[11] Whiten v Pilot Insurance, 2002 SCC 18 at para 94.

According to the Canadian Fertility and Andrology Society, approximately one in six Canadians experience infertility. As a result, more and more Canadians have turned to various forms of assisted reproduction, such as in vitro fertilization (IVF). This is an increasingly important means of building a family especially for same-sex couples.

With advancements in reproductive technology, the availability of government funding, and the increased visibility of fertility treatments, in popular culture, assisted reproduction has become more than an option for the wealthy; it is now a realistic avenue for the average couple. Over 7,000 children are born through IVF in Canada every year. As of 2014, one to two percent of live births in Ontario are from infertility treatments.

However, as the accessibility of assisted reproduction increases, so do disputes over what happens to the leftover reproductive material following the end of a relationship. Is reproductive material treated as property or something more?

Reproductive Material as Property

Traditionally, Canadian courts considered reproductive material to be property. In JCM v ANA, a British Columbia court was asked to determine the ownership of “sperm straws” following the divorce of a lesbian couple.[1] During their relationship, each partner gave birth to a child using the sperm from the same anonymous donor. After separating, one of the women wanted to use the remaining sperm to impregnate her new partner, while the other wanted the sperm destroyed. The court found that the parties were the joint owners of the sperm and that they should be divided along with the rest of their matrimonial property. After the straws were divided, each couple could choose to use them or destroy them.[2] Likewise, Lam v University of British Columbia decided that sperm was property for the purposes of provincial legislation governing the storage of goods.[3] KLW v Genesis Fertility Centre also found that the reproductive material of the applicant’s deceased husband was property under provincial legislation governing personal property passed through intestacy.[4]

Under this approach, if you could obtain the reproductive material used by you and your partner after your relationship ended, you were free to do whatever you want with it. This simplistic approach raised several policy concerns given evidence that people are confused about their options in regards to reproductive material, often change their minds over time, and rarely consider what should happen to reproductive material after separation, or their partner’s death or loss of capacity.

Transition to a Consent-Based Regime

The traditional contract-based approach changed dramatically with the landmark decision SH v DH and the rise of the consent-based regime.[5]  The case arose out of the following dispute: a couple purchased donated eggs and sperm from a company in Georgia, which they used to create two viable embryos. An Ontario fertility clinic implanted one of the embryos into the respondent and she gave birth to the parties’ son. After the parties separated, the respondent wanted to use the remaining embryo to have another child, while the applicant wanted to have it donated.

The trial judge held that the dispute should be governed by the law of contracts.[6] The contract with the Ontario clinic stated that the patient (the respondent, in this case) could decide what happened to the embryo in the event of the couple’s separation. As such, the respondent was free to use the embryo however she wanted.

The decision was overturned on appeal. The Ontario Court of Appeal relied on the consent-based regime set out under the Assisted Human Reproduction Act (AHRA) and the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations (Regulations). This regime included terms which the parties could not contract out of; as such, it prevailed over the Ontario clinic’s contractual terms.

Under the legislative regime, subsection 8(3) of the AHRA precludes the use of an embryo for any purpose unless the donor has given written consent. Part 3 of the Regulations provides further clarification on the necessity of “consent”, including:

• A “donor” refers to:
  • individual(s) for whose reproductive use an in vitro embryo is created; or
  • a married or common-law couple for whom the in vitro embryo is created, regardless of the source of the reproductive material used in its creation. If the donor is a couple, then the embryo can only be used for purposes that both parties consented to.
• Written consent is required from the donor before the embryo is used.
• Donors can consent for the embryos to be used for one or more of the following purposes:
  • the donor’s own reproductive use;
  • a third party’s reproductive use;
  • improving assisted reproduction procedures; and
  • providing instruction in assisted reproduction procedures, or a specific research project.
• If a donor wishes to withdraw their consent, it must be in writing and the person intending to use the embryos must be notified of the withdrawal of consent.
  • If the donor is a couple, then the consent can be withdrawn by either spouse or common-law partner at any time.

In this case, the respondent was not allowed to use the embryo to have another child without the express consent of her former partner, the applicant, even though the applicant’s reproductive material was not used.

It is critical to note that subsection 10(3) of the Regulations provides that, if only one of the individuals in the couple used the genetic material of only one of them when the embryo was created, that individual is considered to be the donor if the couple breaks up before the embryo is used. This would have led to a very different conclusion in SH v DH.

Implications

Subject to subsection 10(3) of the Regulations and following SH v DH, if a couple creates embryos throughout the course of their relationship, whether or not their own reproductive material is used, those embryos cannot be used by either party after the relationship ends without the other’s consent. Other courts have followed this decision for other kinds of reproductive material besides embryos. In LT v DT Estate, the British Columbia Court of Appeal denied an applicant’s request to harvest her late husband’s sperm.[7] Relying on subsection 8(2) of the AHRA, the court held that you cannot remove reproductive material from a donor’s body posthumously without their written consent, which the donor did not provide.

These cases and provisions have effectively ended the property-based approach to reproductive material in Canada. The courts in Canada have confirmed that it is a consent-based regime in regards to reproductive material – regardless of ownership, if your former partner does not consent, then the reproductive material cannot be used, subject to the exception in subsection 10(3) of the Regulations.

Interestingly, one area of fertility law which is gaining increased traction is the donation of embryos. In receiving embryos which are being gifted and drafting the agreements which secure that gift, couples should be cognizant of the need to obtain consent from both donors before the transfer is made.

What Couples Should Understand Before Creating Embryos

As in many cases of separation and divorce, couples, in love and anxious to have children, do not think through all of the implications of access to their embryos following the dissolution of the partnership. There is a natural tendency to want to create children who have a biological link to existing children. Not being able to use embryos you have created can lead to heart break or further animosity between partners now estranged.

Prior to creating any embryos, all persons engaged in the process of reproductive technology should make themselves aware that a consent-based system means that you generally cannot use embryos without the consent of the other. Where the embryos have been created with the genetic material of only one of the couple the other person should be aware that the “donor” in that situation will have access to the embryos, potentially freezing out the non-donor while creating siblings for their child(ren).

This is important for fertility clinics as well. Clinics must explain these implications to their clients and provide them with documentation to sign which sets out that consent may be withdrawn at any time and that, where this happens, the other partner is left with no recourse. Similarly clinics can provide an option for consent where the surviving partner after a spouse dies.

Finally, after separation all persons should immediately as possible follow up with the clinic to provide instructions regarding their consent. Clinics must be vigilant in ensuring that one party does not go around the other to obtain the remaining embryos. This author is aware of one situation where the mother falsified the father’s consent on clinic forms following their separation and became pregnant with a child the father did not want in order to provide a sibling for their child. The ex-partner in that situation is of course now liable for child support and faces a difficult ethical situation in deciding on whether he wants to have a relationship with the new child.

We would be pleased to answer any questions you may have about fertility law matters, please visit our website or contact Marc Kemerer from Devry Smith Frank LLP at 416-446-3329 or marc.kemerer@devrylaw.ca.

This blog was co-authored by Law Student, Leslie Haddock.

 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

[1] 2012 BCSC 584.

[2] Ibid at paras 75 and 96.

[3] 2015 BCCA 2.

[4] 2016 BCSC 1621 at paras 97-100.

[5] 2019 ONCA 454.

[6] 2018 ONSC 4506.

[7] 2020 BCCA 328.