Canadian family law

Family law in Canada concerns the body of Canadian law dealing with the family relationship, its formation, and its dissolution.

Sources of family law

Family law is primarily statute-based. Matters of marriage and divorce are within the exclusive jurisdiction of the federal government under section 91(26) of the "Constitution Act, 1867" and is legislated under the "Divorce Act"'. Case law has also granted the federal government concurrent jurisdiction with the provinces over matters of spousal and child support when it is incidental to Divorce. ["Papp v. Papp" (1976), Ont. C.A.] The provinces have exclusive jurisdiction over the solemnization of marriage under section 92(12) of the "Constitution Act, 1867", as well as jurisdiction over spousal and child support, property division, custody and access, adoption, and child protection as part of the provincial government's jurisdiction over property and civil rights under section 92(13) of the "Constitution Act, 1867" and jurisdiction over matters of a private nature under section 92(16) of the Act. Each province has an Act that addresses the rules of property division [Ont: "Family Law Act", NS:"Matrimonial Property Act" ]

Marriage

Since 2005, a marriage may be formed between two individuals of different or same sex. [see the "Civil Marriage Act", SC 2005, c. 33. This Act was found to be constitutional by the Supreme Court of Canada in the decision of "Reference re Same-sex Marriage"] Marriages are prohibited where an individual does not have the capacity or where there is a direct familial relationship such as parent/child or brother/sister relationship. [ see "The Marriages (Prohibited Degrees) Act" SC 1990 c. 4]

A valid marriage must be properly solemnized within the rules of the province. [Ontario: "Marriage Act", NS:"Solemnization Act", RSNS 1989, c.436]

Annulments

A marriage may be nullified as void or voidable much in the same way as a contract.

A marriage can annulled where the parties do not have the capacity to marry (known as the essential validity of the marriage). So, a marriage between blood relations, parties who cannot consummate the marriage, or parties already married, underage or otherwise unable to consent would all be invalid for lack of essential validity.

A marriage can be annulled where the ceremony was to properly performed (known as the formal validity of the marriage). The marriage ceremony must be valid based on the law of the province. The parties must have a license, be of proper age, or have parental consent. A marriage performed outside of the province will be valid if it is valid where the marriage is celebrated ("lex loci celebrationis").

Separation and contracts

The legal implications of a separation arise from contracts. A separation agreement is typically negotiated and drafted. It agrees to the division of property, assets, as well as support.

An agreement can be invalidated where it can be shown that one party had unfairly negotiated ["Hartshorne v. Hartshorne" [2004] 1 S.C.R. 550, 2004 SCC 22]

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DIVORCE

Under the "Divorce Act", a spouse may only apply for a divorce when the spouses have been separate and apart for at least one year, when there has been adultery or where there has been abuse. Divorce lawyers in Ontario vary greatly in both their rates and skills. A term unique to Ontario divorce cases is to be "Killoraned". This expression describes an unprepared lawyer being bested by another lawyer who has a better command of the facts. The expression originated with Daniel James Killoran, an Ottawa lawyer known for being extremely well-prepared for his court appearances and who can quote laws and articles from memory.

Child custody

Child custody can be applied for either under a provincial Act or under the Divorce Act, where appropriate. The best interests of the child is the key determiner.

Division of property

Matrimonial property can be divided any time during or after the separation, divorce or death. All matrimonial assets and property is presumed to be split evenly between spouses. The scope of matrimonial assets varies between provinces. Most provinces include all assets acquired during the marriage and any other assets pooled together. [Provinces such as Nova Scotia include all assets possessed before marriage as well.] The most significant divisible assets include matrimonial home and pensions. [Pensions were found to be matrimonial property in "Clarke v. Clarke", [1990] 2 S.C.R. 795] Excluded assets include inheritances, personal affects, and business assets. Business assets are typically limited to assets that produce an immediate gain in some entrepreneurial capacity.

Child support

Child support is determined by the federal "Child Support Guidelines". The amount of support is a function of the payor's income and the number of children in need of support.

Special and extraordinary expenses enumerated in section 7 of the "Child Support Guidelines", such as certain medical, employment, health, education, and extracurriculars expenses, may be ordered by the court. The requirement of such expenses are that they must be extraordinary when considering the combined income of the parties and nature of the cost. The expenses must also be necessary with respect to the best interests of the child and must be reasonable means and needs of the parent and child.

Spousal support

The entitlement and value of spousal support is determined on a holistic basis that varies greatly depending on the circumstances. There is no single basis of entitlement and there is no single philosophy behind the reasons for support.

The three grounds of entitlement are compensatory, non-compensatory, and contractual. Compensatory basis was first addressed "Moge v. Moge". The Court found that in most marriages one party tends to suffer economic disadvantage from the marriage. The disadvantaged party may be compensated to the point of returning both parties to the point they were before the marriage breakdown. Compensation is measured on the degree of contribution to the marriage, sacrifice, and hardship.

Contract-based support is based on what is agreed between the parties in their separation agreement or marriage contract.

The non-comensatory basis focuses on the mutual obligation of support created by the marriage. So, in circumstances where one party is disabled the other party will be under an obglitaion to continue their support of the other as part of the initial obligation in marriage. [See "Bracklow v. Bracklow", [1999] 1 S.C.R. 420]

In 2005, the federal government released the "Spousal Support Advisory Guidelines" [ [http://www.justice.gc.ca/en/dept/pub/spousal/project/index.html Spousal Support Advisory Guidelines: A Draft Proposal (January 2005) ] ] which were meant as a means of estimating support based on income. It has no binding effect in law, but rather is used as a tool for negotiations and settlement. The guidelines distinguish between spouses with children and without children.

Spouses without children would expect a range of between 1.5 to 2 percent per year co-habitating of the difference in gross incomes. The duration of the payment would be .5 to 1 year for every year of the marriage. If it is over 20 years it is of indefinite duration.

Spouses with children would expect a range between 40 and 46 percent of the sum of each spouse's "net disposable income". Net disposable income for the payor is equal to the spouse's income minus Child Support minus Taxes and Deductions. Net disposable income for the payee is equal to the spouse's income minus Child Support minus Taxes and Deductions plus Government Benefits and Credits.

Notes

References

* J. Payne, "Canadian Family Law" (Toronto: Irwin Law, 2001).