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Law 2101 - 2nd Term > Family Law > Flashcards

Family Law Flashcards

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1
Q

Factors relating to changes in Canadian families (7)

A

Aging population (decrease in fertility, increase in life expectancy)
Changing family structure (less married couples)
Decreasing fertility rate
Conjugal status over life course (increase in cohabitation)
Declining marriage rate
Increase in common law unions
Increase in divorce

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2
Q

Formal Ontario marriage requirements

s31

A

Set out in Marriage Act
Couples must get marriage license, must have 2 witnesses, and must have authorized person to marry them
Must be 18, or 16 with parental consent

As long as couple acted in good faith and lived together after ceremony, marriage is still valid even if officiator wasn’t authorized or they didn’t properly get license

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3
Q

Essential conditions for valid marriage (3)

A

No longer have to be of the opposite sex, same sex marriage confirmed in Ontario in 2005
Marriage is void if persons are related lineally, are siblings, or half siblings (also includes adoption)
Marriage is void if one of the parties is already married (polygamy is a crime)

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4
Q

Divorce

A

Divorce Act
Defined by spouses living apart for at least 1 year before divorce, or if a spouse has committed adulty/treated the other spouse with such cruelty that cohabitation is intolerable

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5
Q

Sharing of financial gain between married couples

NFP

A

Married persons are entitled to equal share of total financial product of marriage, determined as net family family property
Spouse whose NFP is lesser is entitled to 50% of the difference between them
NFP = value of all property except section 2 that spouse owns on valuation date after deducting debts and property aside from matrimonial home
Court can award different amount if they believe that equalizing NFP would be unjust
Spouses can opt out of family property provisions under Family Act through marriage contract

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6
Q

Subsection 2 in NFP (5)

A

Property other than matrimonial home acquired by gift or inheritance, as well as income from such property if donor stated it to be excluded from NFP
Damages/settlement from personal injury
Life insurance
Property that spouses have agreed to exclude from NFP
Pensionable earnings under CPP

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7
Q

How to calculate NFP (6)

A
  1. Determine valuation date (of separation or day before spousal death)
  2. Find total value of property interests owned by spouse
  3. Deduct value of excluded property
  4. Deduct value of debts
  5. Deduct value of all marital properties and subtract debts
  6. If result is negative, it is deemed to be 0
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8
Q

Matrimonial homes s18 (definition)

A

Matrimonial home is every property the person has an interest in and at time of separation occupied with their spouse

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9
Q

Matrimonial homes s19 (rights)

A

Both spouses have equal possession
When only one spouse has an interest in home, other spouse’s right of possession is personal as against the first spouse’s, ends when they cease to be spouses

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10
Q

Matrimonial homes s21 (disposal) (4 conditions)

A

No spouse shall dispose of the home or their interest in it unless

  • the other spouse consents
  • the other spouse has released all rights
  • a court order authorizes the disposal
  • the property isn’t a matrimonial home
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11
Q

Matrimonial homes s24 (court orders) (6)

A

Regardless of home ownership, court may

  • provide for caretaking of home
  • given exclusive possession to one spouse
  • order that spouse to pay other spouse
  • control house contents
  • order spouse to pay for house liabilities
  • authorize disposal of spouse’s interest
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12
Q

Criteria for gaining exclusive possession of matrimonial home (6)

A

Best interests of children
Existing orders from Part 1 of Family Act
Financial position of spouses
Written agreement between parties
Availability of other accommodation
Violence committed by one spouse against family

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13
Q

Law governing common law partners

A

Almost all federal statutes treat common law couples the same as married couples
While federal government can legislate wrt spousal obligations upon divorce, they can’t deal with divorce in common law partners because that is provincial civil right jurisdiction

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14
Q

Nova Scota v Susan Walsh & Wayne Bona

A

About: law governing common law partners
SCC held that while NS Matrimonial Property Act distinguished between people based on marital status, it wasn’t discrimination because it didn’t infringe on dignity
Some people choose not to marry because they don’t want to be in economic partnership, giving common law couples spousal status would remove this freedom

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15
Q

Eric v Lola

A

About: economic aspects of common law couple vs marriage
Majority initially held that exclusion of common law partners in Quebec legislation was discrimination because it disadvantaged the economically dependent partner if relationship ended, but one of the justices switched sides after reasoning Quebec’s choice to promote relationship autonomy wrt property was justifiable infringement on right to equality

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16
Q 
Spousal support (without child formula)
Variables (8)
Amount ranges
A 
Applies when there are no dependent children, based on 'merger over time' idea that the longer the marriage lasts the more integrated the partners' lives are which justifies support for longer amount of time
Will consider
- difference in spouses' incomes
- length of marriage
- strength of compensatory claims
- recipient's needs
- property division
- payor's needs
- payor's ability to pay
- self sufficiency incentives

For marriages <25 years, amount can be 1-50% of income difference for each year of marriage, is 37-50% if marriage is >25 years
Indefinite support if marriage is >20 years, or if years of marriage + age of support recipient > 25 when marriage is only >5 years

17
Q

Spousal support (with child formula)

A

Applies when there are dependent children
Rationale is that spousal support not only compensates for the past, but ensures that the economic burdens of child care are shared
Lower income spouse should have 40-45% of combined disposable income, support should continue for 1 year or until youngest child finishes high school

18
Q

Fisher v Fisher

A

About: spousal support
Court endorsed use of spousal support advisory guidelines, used decreasing payment amounts to help wife work towards self sufficiency

19
Q

Ontario Children’s Law Reform Act s20 (custody obligations)

A

Person entitled to custody of child has rights and responsibilities to the child and must exercise those rights in the child’s best interests
When both parents are cohabiting, both have custody and can exercise custody with or without other’s consent

20
Q

Ontario Children’s Law Reform Act s24 (determining custody) (7)

A

Custody application is determined by child’s best interests, includes

  • emotional ties between child and each adult/other family
  • child’s preferences
  • length of time child has lived in stable home
  • ability and willingness of each applicant to care for child
  • plan proposed by each applicant for child’s upbringing
  • permanence and stability of family unit of each applicant
  • ability of applicant to act as parent
21
Q

Considering past conduct when determining child custody

A

Court will consider applicant’s past conduct if it involved violence/abuse or if it is relevant to their parenting ability
Anything done in self defense won’t be considered

22
Q

Custody arrangements

A

Traditional custody order gives sole custody to one parent and allows visitation for the other (traditionally considered to have no voice in child’s upbringing)
Both Children’s Law Reform Act and Divorce Act provide that in absence of contrary court order, access parent has right to make inquiries and be given info about their child
Join custody/parallel parenting is possibly, child usually has to live with each parent for a significant amount of time

23
Q

Domestic contracts

A

Couples can govern their relationship with cohabitation agreement (common law), marriage contract, and separation agreements
Family Law Act allows courts to override domestic contracts in some situations

24
Q

Ontario Children’s Law Reform Act s21 (non custodial parent)

A

parent of a child may apply to a court for a parenting order respecting decision making responsibility and parenting time regarding the child

Law 2101 - 2nd Term (7 decks)

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