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Canadian Family Law Audrius A. Stonkus Department of Law Holy Trinity Jurisdiction In Canada, family law is primarily statute-based. The exclusive jurisdiction of the federal government handles marriage and divorce under section 91(26) of the Constitution Act, 1867 and is legislated under the Divorce Act. Pursuant to the Divorce Act and relevant case law, the federal government has jurisdiction over custodial and access matters and spousal and child support during or after divorce. The provinces have exclusive jurisdiction over the ceremony of marriage and 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 of the BNA Act, 1867 Marriage Since 2005, a marriage may be formed between two individuals of different or same sex. 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 or is already married to someone else. A valid marriage must be properly solemnized within the rules of the province. Annulments A marriage may be nullified as void or voidable much in the same manner as a contract. A marriage is void when the parties do not have the capacity to marry . Thus, marriages between blood relations, or parties already married, underage, or otherwise unable to consent would all be invalid for lack of essential validity. A marriage is voidable and can be annulled by a court if the spouses are incapable of consummating the marriage. The formal prerequisites of a valid marriage are set out in provincial Marriage Acts. The parties must have a marriage license be of proper age, or have parental consent Separation and contracts The legal implications of a marital separation may be regulated by a contract. A separation agreement is typically negotiated and drafted. It agrees to the division of property as well as child support, custody, and access. Parties can also enter into pre-nuptial contracts to regulate the economic consequences of a future marriage breakdown. If it is shown that one party had unfairly negotiated the agreement ( such as by not disclosing debts or assets) it can be invalidated 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 cruelty. Division of property Family property can be divided any time during or after the separation, divorce, or death. All family property is presumed to be split evenly between spouses. The scope of divisible matrimonial assets varies between provinces. Most provinces include all assets acquired during the marriage and any other assets pooled together. The most significant divisible assets include matrimonial home and pensions. Assets excluded typically include inheritances and monetary damages for personal injuries. Business assets may also be excluded in some provinces, but not Ontario, where they are part of family property. Business assets are typically limited to assets that produce an immediate gain in some entrepreneurial capacity. Child support and access Child support is determined by the federal or provincial Child Support Guidelines. Special and extraordinary expenses that are daycare, medical insurance coverage, health, education, and extracurricular expenses, may be ordered by the court to be shared by the parents. The expenses must be necessary with respect to the best interests of the child and must be reasonable having regard to the means and needs of the parents and children. Typically, access dates are decided by the parents of the child, with generosity to the amount of time in mind. Supervised access and specified access are also enforced 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 (i.e. needs-based), and contractual. Moge v. Moge first addressed compensatory basis. The court found 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. The agreement between the two parties is contract- based support based upon their marriage or separation contract. The non-compensatory basis focuses on the mutual obligation of support created by the marriage. Thus, in circumstances where one party is disabled the other party will be under an obligation to continue their support of the other as part of the initial obligation in marriage.
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