Chapter 5: Family Law and Financial Planning Flashcards
How does family law differ from contract law?
Contract law is considered private law, it governs the relationship between 2 or more parties for the sake of those parties. Parties are assumed to be on equal footing.
Family law also governs the relationship between 2 or more parties, but it is considered public law. More consideration is given to those who might not otherwise be able to care for themselves.
Which areas are dealt with under family law?
Marriage, common-law relationships, divorce, separation, child support, child access.
What are the two domestic arrangements in which a couple might enter?
Marriage
Common law partnership
Whose responsibility is marriage vs common law partnership?
Marriage is a federal responsibility under the federal Marriage Act, common law partnership is a provincial responsibility under various provincial legislations.
When are couples generally considered common law? Which province is different (aside from Quebec)?
When a couple has lived together in a conjugal relationship between 12 to 36 months or more, or live together and have a child together (depending on the province).
Alberta instead has the Adult Interdependent Relationships Act. Common law partners are instead known as adult interdependent partners. There is a possibility that roommates living together for 3+ years could be interdependent partners.
What are the two methods by which a relationship might end?
Separation and divorce
What is the difference between a formal and informal separation?
An informal separation means that a couple decides they are no longer in a relationship, they may even continue to live in the same household.
In a formal separation, there is a formal separation agreement that must generally ensure each party is reasonably well taken care of.
What happens if a formal separation agreement cannot be reached by a former couple?
They may petition the courts. However, the courts compel couples to use alternative dispute resolution processes such as mediation to resolve issues.
How does arbitration differ from mediation in terms of separation agreements?
Arbitration is far more costly and is a binding form of alternative dispute resolution. Once a decision is made, an appeal must be made in order to make any changes.
Mediation is less expensive and the decision reached with a mediator is not binding.
What are areas in which a legally married estranged spouse might have rights that supersede rights of a new common law partner?
Pension legislation and group insurance benefits.
In which situation may a challenge to an existing separation agreement be won?
If the plaintiff can prove undue influence or duress, which is extremely hard to prove. Or if the separation agreement does not follow the intent of the Divorce Act (such as an agreement which clearly leaves one party destitute).
What is the Divorce Act designed to do?
Ensure all parties to a divorce are reasonably well looked after.
What must there be in order to obtain a divorce?
Marital breakdown, which is evidenced by a one-year period of separation, or evidence of adultery or cruelty.
If a spouse is contesting a divorce, what are they attempting to prove?
That there was an absence of separation, adultery or cruelty.
What are corollary issues?
Issues that must be decided in the event of a relationship breakdown. Refer to the requirement for support, division of assets, and care, custody, and access to any children.
How does custody of children differ from access?
Custody refers to the place where children reside. Access typically refers to access by the non-custodial parent.
Which types of custody arrangements to do the courts generally favour?
Arrangements that involve both parents, unless one parent does not want to be involved or poses a threat to the child’s wellbeing.
What is considered “sole custody” of children?
The child will spend the majority of the time with one parent (60% or more for
calculating support payments).
What is “shared custody” and how is it different from “split custody” and “joint custody”?
Shared custody is the most common arrangement today. Children split time approximately evenly with both parents. The term joint custody is similar, but used to indicate that each parent has equal responsibility for raising the children. Split custody refers to an arrangement under which a household with more than 1 child sees one or more go with one parent and one or more with the other parent.
What are the guidelines for calculating child support?
A couple should allocate 20% of gross income to one child, 32% to two children (up to $150K, at which point the amounts change). This is only used for sole custody.
What happens in situations where the courts believe a support payor may be hiding income or deliberately reducing their income-earning potential?
Support payments may be based on economic potential, rather than actual income.
How is child support treated for tax purposes?
Not deductible, not taxable income.
How long does child support normally last?
This varies, can be anywhere from 16-19 depending on province of residence. Support payments generally continue as late as age 23 if a child continues post-secondary studies. Payments may never end for a child with a disability.
What may cause a spouse to apply for changes to an existing child support order? (3)
- Extraordinary expenses (reasonable and necessary)
- Undue hardship (for either spouse)
- Changes in income (no provisions for inflation, should periodically apply to change order based on changes in income. This also refers to job loss or other substantial changes in income)
Is spousal support more or less rigid than child support?
Less rigid.
When might there be no spousal support awarded at all?
Where both spouses earn low levels of income.
How is spousal support taxed?
Deductible for the payor, taxable for the recipient.
