Canadian Family Law by Fk4EQc0


									Canadian Family Law

  Audrius A. Stonkus
  Department of Law
  Holy Trinity
 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

 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.

 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
 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
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
  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
 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
 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

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