Chapter 6: Legal Fundamentals Flashcards
Which system of law are the provinces and territories (except Quebec) governed by?
Common law
Which system of law is Quebec governed by?
Civil law
How did the common law system come to be?
Judges in the early part of the last millennium would travel the countryside meting out judgements. It became common practice for these judges to rule based on a principle commonly held in many jurisdictions. This then became the common law system.
What types of law are enforced other than common law?
Administrative/regulatory law
Statutory law
What is another term for common law?
Case law or precedent law
How is administrative or regulatory law created?
Created by appointed officials who have had authority delegated to them by the elected government. Entities such as provincial insurance councils, privacy commissioners, and provincial securities commissions typically have some authority to create and enforce regulatory law.
What is statutory law and how is it created?
Created to address some specific issue. These laws are drafted and passed by elected officials.
What are the challenges with statutory law?
Legislators have to strike a balance between coming up with laws that are easily read and understood, but specific enough to be enforced.
What happens in situations where an event does not fit clearly within the (statutory) law as it is written?
It is left to the courts to determine how the law will be enforced. If there are gaps in the legislation, the courts are left to refer to the common law.
How does a civil law system differ from a common law system?
The facts of each case are reviewed on their own merits. Precedent is less of a concern, although the courts typically do refer to prior cases when making decisions.
Which act provided the basis for determining jurisdiction when discussing the law?
The Constitution Act of 1867. Sections 91 and 92 delineate responsibility for various matters to either the federal govt (section 91) or provincial govts (section 92).
What are the different courts in Canada (7)?
- Superior court
- Probate court
- Family law court
- Provincial appeals court
- Tax court
- Federal court of appeal
- Supreme court
What is the Superior Court?
Provincial superior courts deal with most civil issues. These courts also handle serious criminal matters. If a lawsuit is for an amount lower than a certain threshold, it will be dealt with at small claims court.
What is another commonly used term for superior court?
Court of queen’s bench
What is the jurisdiction of the tax court of Canada (TCC) and why?
Federal court (because most tax disputes are federal). Even when tax disputes are provincial, they are normally held at the federal TCC.
Which types of cases does the Supreme Court of Canada hear?
Appeals of cases of their choosing and cases concerning the Constitution.
What are the (3) parties involved in a case before the courts?
Plaintiff - brings a case before the courts
Defendant - the party from whom the plaintiff is seeking damages or restitution
Appellant - either the plaintiff or defendant might become an appellant by appealing to the Court of Appeal or Supreme Court of Canada (when unhappy with a decision).
What is a tort?
A tort arises when one person sues another for a loss to that person’s wealth, property, person, privacy, or dignity.
How can you differentiate a tort from a criminal act?
A criminal act is a crime against society while a tort is an act which causes harm to another person.
What three things must the plaintiff demonstrate in order to establish negligence (and therefore liability)?
The defendant owed the plaintiff a duty of care.
The defendant breached that duty of care.
The defendant’s conduct caused injury to the plaintiff.
What are the two more stringent standards for duty of care?
Professional duty or suitability standard - in cases where a person seeks advice from a professional, that person expects service in excess of a traditional duty of care.
Fiduciary duty or Best Interests standard - highest standard to which a person can be held in the eyes of the law.
Which standard of care are financial planners generally held to?
Professional Duty or Suitability Standard.
What is one of the biggest challenges with a fiduciary relationship?
The test for a fiduciary is often performed in hindsight.
When does a fiduciary duty arise?
The fiduciary has scope for the exercise of some discretion or power, the fiduciary can unilaterally exercise that power so as to affect the beneficiary’s legal or practical interests, the beneficiary is particularly vulnerable or at the mercy to the fiduciary.
Which duty does the FP Canada’s Standards of Professional Responsibility impose on FPs?
Duty of Loyalty, middle ground between suitability standard and fiduciary standard.
Which criteria must be met in order for a contract to be considered valid?
There must be an offer, acceptance, and consideration. There must be intention to enter the contract and the parties involved in the contract must have had the capacity to do so. The contract must also be legal.
What is it called when one party offers to do something for another party for no consideration? Is this enforceable as a contract?
Gratuitous promise. Not enforceable as a contract.
How can a contract be created with no consideration?
A seal must be used to bind the contract. This is held to be something only done after serious thought, which is why no consideration is required.
Does a bankrupt person have the capacity to enter contracts?
There is diminished capacity, but there may be some allowance to continue to enter into contracts. Generally, a trustee in bankruptcy will oversee the bankrupt’s situation, including contractual responsibilities.
When do Indigenous Persons not have the capacity to enter a contract?
Certain dispositions of property (when the property is on a reserve) must be first approved by the Minister of Indigenous and Northern Affairs, therefore their capacity to enter such a contract is limited.
What is a frequent reason for contracts to be declared illegal?
Contracts that restrict trade.
How is impeaching a contract different than voiding a contract?
Impeaching a contract does not necessarily mean that the whole contract will be voided. In many cases, impeachment leads the courts and the parties involved to find some other way to allow the contract to be carried out.
What happens if the parties entering a contract later discover that it is voidable?
The parties must decide if they’ll void the contract, or the contract will no longer be voidable.
What are grounds for impeachment of a contract?
- Mistake
- Misrepresentation
- Undue influence
- Duress
What is misrepresentation in a contract?
A party to a contract provides incorrect information about a material fact. Fraud or negligence may be the cause of misrepresentation, in which case, the courts may also punish the perpetrator.
What are the methods of discharging a contract?
- Performance - each party performs its obligations under the contract and the contract runs its course.
- Agreement - parties may discharge a contract by agreement if not able to carried out as originally intended.
- Frustration - a party is unable to fulfill its terms of the contract because of some outside force. In this case, the contract may be discharged and any losses shared by both parties.
- Operation of law - best example is with contracts being discharged due to bankruptcy.
How do new common law rules deal with frustrated contracts?
Under former common law rules, one party would be fully responsible for any losses. Under modern legislation, any losses would be shared between parties.
What is the most important distinction between contract law and family law?
Contract law is private, family law is public. As well, under family law, much consideration is given to those who might not otherwise be able to care for themselves. Under contract law, parties are generally perceived to be on equal footing.
Is marriage a provincial or federal responsibility?
Federal. Under the Federal Marriage Act.
What is the solemnization of marriage and whose responsibility is it?
Performance of a formal marriage ceremony before witnesses. Provincial responsibility.
How does Alberta’s common-law legislation differ from other provinces?
Alberta’s legislation is the Adult Interdependent Relationships Act. Couples are known as adult interdependent partners, rather than common law partners and there is even the possibility that roommates who have lived together for 3+ years could be considered adult interdependent partners.
What happens if a separated couple cannot come to an agreement on a separation agreement?
They may petition the courts, although the courts encourage the use of alternative dispute resolution processes such as mediation.
How does collaborative family law differ from mediation?
Much like mediation, separation agreements are handled out of court. The former couple sits with their lawyers and the four of them work to a solution. It is largely informal and all matters are laid out during meetings. The cost tend to be lower than using the courts.
What are 2 examples of situations where a legally married estranged spouse might have rights that supersede any rights of a new common law partner?
Pension legislation and group benefits insurance.
What does a couple need in order to obtain a divorce?
Marital breakdown, which must be evidenced by a one-year period of separation or evidence of adultery or cruelty.
What would prove a marital breakdown?
One-year separation period, or evidence of adultery or cruelty.
What are corollary issues?
Issues of support, division of assets, and care, custody, and access to any children.
What do custody and access refer to?
Custody refers to the place where any children reside. Access typically refers to access by the non-custodial parent.
What does sole custody refer to for the purpose of calculating support payments?
A child will be spending 60% or more of their time with one parent.
What is the most common type of custody arrangement?
Shared custody.
What is split custody and how is it different from shared custody?
Under a shared custody arrangement, children split their time with their parents approximately equally. Under a split custody arrangement, one or more children will live with one parent while the others live with the other parent.
When would a split custody arrangement occur?
If the children are older (teens), and their separated parents will be living in different cities.
What is the term “joint custody” used to refer to?
Used to indicate that each parent has equal responsibility for raising the children. Issues like schooling, religion, medical decisions etc., are joint responsibilities of each parent.
What did the 1997 child support legislation institute as a guideline for child support payments?
A couple should allocate approximately 20% of gross income to one child and 32% to two children.
What income level does the child support guidelines not cover?
Annual income greater than $150,000.
When would support payments be based on economic potential rather than actual income?
In situations where the courts believe that a support payor or recipient may be hiding income or deliberately reducing their income-earning potential.
How do you calculate child support payments in a split custody situation?
The situation of the higher-income parent is accounted for first. Then the lower-income parent’s situation is drawn from the guidelines. Based on those amounts, the higher income parent pays the difference to the lower income parent.
How are child support payments treated for tax purposes?
Not deductible for the payor and not reported as income for the recipients (as of 1997).
Which custody scenario is the most complex for calculating child support?
Shared custody.
How do you determine child support in a simple sole custody situation?
The Government of Canada guidelines are used to determine the flat benefit that is to be paid based on the non-custodial parent’s income, province of residence, and number of children.
To what age are child support payments made?
Age varies based on province of residence. Can be anywhere between 16 and 19, normally continuing to age 23 if a child continues into post-secondary studies.
What happens with child support payments for a child with a disability?
Payments may never end.
In what situations might a spouse apply for changes to an existing child support order?
- Extraordinary expenses such as unusual medical/dental, extracurricular activities, day care.
- Undue hardship. If a parent can show that the amount paid or received created undue hardship, an application can be made to change the agreement.
- Changes in income such as due to job loss or other substantial change in income.
In which way is spousal support less rigid than child support?
2008 federal spousal support guidelines are only intended to be used as a general set of guiding principles, unlike child support guidelines.
What are some of the most important factors that must be accounted for when calculating spousal support?
Length of the marriage, incomes of both partners, whether child support is being paid, any unusual expenses.
How is spousal support treated for tax purposes?
Taxable in the hands of the recipient and deductible for the payor.
