Canadian family law
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Family law in Canada concerns the body of
.Sources of family law
In Canada, family law is primarily
Marriage
Since 2005, a marriage may be formed between two individuals of different or same sex.[3] 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.[4] The minimum age to marry is 16 years. A valid marriage must be properly solemnized within the rules of the province.[5]
Annulments
A marriage may be nullified as
The formal prerequisites of a valid marriage are set out marriage laws of each Canadian province and territory.
Separation and contracts
The legal implications of a marital separation may be governed by a contract. A separation agreement is typically negotiated and drafted with or without the assistance of lawyers. It is best negotiated when both parties are represented by their own legal counsel. It can set out the parties' agreement with respect to the division of property as well as child support, spousal support, custody, and access. Full financial disclosure and supporting documentation such as appraisals and income tax information is strongly recommended before parties enter into an agreement regarding support and property matters. Many jurisdictions offer mediation services to help parties resolve or narrow their issues, either with or without lawyers. 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 can be invalidated.[8][9] It is important that full and accurate financial disclosure is produced prior to entering into a marriage or cohabitation agreement, or there is a risk that the agreement could later be set aside by a court. Custody, access and child support cannot be agreed upon in a marriage or cohabitation agreement.
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 cruelty. Practically, almost all divorces are processed under an application based on being separate and apart for at least one year. It is possible for spouses to live separate and apart while sharing the same residence. A central registry of divorce proceedings has been kept in Canada since July 2, 1968. If there is another divorce application involving the same two spouses, the Registry lets the courts know. Courts must complete an application form and send it to the Registry for each divorce application received. The Registry was created and is governed by Regulations made under the Divorce Act.[10]
Division of property
Matrimonial property can be divided any time during or after the separation, divorce, or death. All matrimonial
Custody and access
Custody and access are the terms used to describe the involvement of each parent in the lives of their children after separation. "Custody" is a term used to identify the decision making responsibility of each parent, with parents who have "sole custody" making significant decisions in their children's lives such as education, health, and religious upbringing. Parents who have "joint custody" make these decisions jointly. Joint custody can be difficult in situations where parties have poor communication following separation and/or where there has been violence in the relationship. "Access" describes the amount of time spent with children, including a regular parenting schedule and time spent over holidays, pursuant to a schedule set out in a separation agreement or imposed by a court if the parties have been unable to agree. In exceptional circumstances, grandparents or other relatives may be granted rights to exercise access. A new federal bill was introduced on May 22, 2018. Bill C-78 proposes to repeal the terms "custody" and "access" from the Divorce Act in favour of the terms such as "decision making responsibility" and "parenting time" which could be set out in a "parenting order" (if the matter is before the courts).[13] In determining questions of custody / access and parenting arrangements, the main consideration is to look at what is in the best interests of the child or children. This is found in the legislation and as well the Supreme Court of Canada[14] has referred to the best interests of the child as a child’s “positive right to the best possible arrangements in the circumstances.” There are numerous factors to be considered in examining what is in the best interest of the child or children. Bill C-78, which contains proposed amendments to the Divorce Act and other federal family law legislation, sets out a list of criteria to be considered in determining the best interest of the child or children.[15] A few examples of these criteria include: the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life and each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse.[16]
Child support
Child support is determined by the federal or provincial Child Support Guidelines. The basic ("table") amount of support is determined by the payer's income and the number of children in need of support. In a situation where each parent has custody of one or more child, the amount of child support payable is the difference between the amount each parent would pay the other for the table amount. In split custody, where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.
Special and extraordinary expenses that are specifically listed in §7 of the Child Support Guidelines, such as
Spousal support
The entitlement and value of spousal support is determined on a
The three grounds of entitlement are compensatory, non-compensatory (i.e. needs-based), and contractual.
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.[17]
In 2008, the federal government released the final version of the Spousal Support Advisory Guidelines[18] 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.
The formula for spouses without children provides a range of between 1.5 and two percent of the difference in gross incomes for each year of cohabitation. The duration of the payment would be one half of a year to one year for every year of the marriage. If it is over 20 years this 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 payer is equal to the spouse's income subtracted by child support, taxes, and other deductions. Net disposable income for the payee is equal to the spouse's income minus child support, taxes, deductions plus government benefits and credits.
See also
Notes
- ^ [1973] S.C.R. 891
- ^ Ont: Family Law Act, NS:Matrimonial Property Act
- Reference re Same-sex Marriage
- ^ see The Marriages (Prohibited Degrees) Act SC 1990 c. 4
- ^ Ontario: Marriage Act, NS:Solemnization Act, RSNS 1989, c.436
- ^ See for example, Marriage Act (Ontario) R.S.O, c. M.3.
- ^ "Family law in Canada: Ontario: overview | Practical Law". ca.practicallaw.thomsonreuters.com. Retrieved 2023-11-10.
- ^ Hartshorne v. Hartshorne [2004] 1 S.C.R. 550, 2004 SCC 22
- ^ Miglin v. Miglin, [2003] 1 S.C.R. 303
- ^ "Consolidated federal laws of canada, Central Registry of Divorce Proceedings Regulations". March 2021.
- ^ Provinces such as Nova Scotia include all assets possessed before marriage as well.
- ^ Pensions were found to be matrimonial property in Clarke v. Clarke, [1990] 2 S.C.R. 795
- ^ "Archived copy". Archived from the original on 2018-09-11. Retrieved 2018-09-11.
{{cite web}}
: CS1 maint: archived copy as title (link) - ^ Young v Young, [1993] 4 SCR 3 at 10
- ^ "Charter Statement - Bill C-76: An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments". 2 May 2018.
- ^ "Government Bill (House of Commons) C-78 (42-1) - First Reading - an Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act - Parliament of Canada".
- ^ See Bracklow v. Bracklow, [1999] 1 S.C.R. 420
- ^ Spousal Support Advisory Guidelines
Further reading
- Kronby, Malcolm C (2010). Canadian Family Law (10th ed.). J. Wiley. ISBN 978-0-470-73682-1.
- Silver, Cindy (1995?). Family Autonomy and the Charter of Rights: Protecting Parental Liberty in a Child-Centred Legal System, in series, Discussion Paper [of] the Centre for Renewal in Public Policy, 3. Gloucester, Ont.: Centre for Renewal in Public Policy.
- Boyd, John-Paul (2013). JP Boyd on Family Law. Clicklaw Wikibooks. ISBN 978-0-921864-44-8.