Chapter 1

Question 1

Is family law governed by provincial or federal legislation?

Answer 1

Both. The authority for federal legislation is 91(26): “Marriage and divorce”. The authority for the rest falls within provincial legislation 92(13) as “property and civil rights in the province”.

Question 2

What are the sources of family law?

Answer 2

1) Parens patriae jurisdiction: judges have the power to fill in statutory gaps and act in the best interests of children and other vulnerable parties;
2) Unjust enrichment: handled by the MPA for married couples, handled by judges if unmarried common law.
3) Joint Family Venture: As seen in Kerr v. Baranow.

Question 3

What are six methods in the modern approach to family law?

Answer 3

1) Negotiation Between Parties: the more parties can work things out themselves the better.
2) Negotiation By Lawyers: Most settlements occur this way.
3) Mediation: CPR 59 makes this mandatory at the start of the litigation process.
4) Arbitration: Rare. Usually occurs with high-profile parties.
5) Collaborative Family Law: formalization of the four-way meeting
6) Court: Family division. Only goes here if there’s an unreasonable party, unreasonable lawyer, or unusual facts

Question 4

Is it possible to have a Divorce Act order conflict with a Matrimonial Property Act order?

Answer 4

Yes. Since the DA is federal legislation and is heard by the superior court, while the MPA is provincial legislation and heard by the provincial court. If there is a conflict then Federal Paramountcy applies and the Divorce Act judgement applies.