Family Law - mod 13 Flashcards
family life in Canada
- both continuity and change within families
- changes in: social, cultural, economic, and technological environment
How do we understand the continuing importance and centrality of family in a constantly changing world?
- One of the most universal aspects of human experience
- One way of demonstrating how individuals accept responsibility for each other
- what families do for one another is important
Factors relating to the change in Canadian families:
- aging population
- changing family structure
- declining fertility rate
- conjugal status over life course
- declining rate of marriage
- increase in common law unions
- increased rate of divorce
Definition of a census family
- A married couple and the children, if any, of either and/or both spouses
- A couple living common-law and the children, if any, of either and/or both partners
- A lone parent of any marital status with at least one child living in the same dwelling
- all members of a particular census family live in the same dwelling
- A couple may be of opposite or same sex
- children may be children by birth, marriage, common law Union or adoption regardless of their age or marital status as long as they live in the dwelling, and do not have their own married spouse, common law partner or child living in the dwelling
- Grand children living with their grandparents but with no parents present also constitute a census family
Marriage and divorce - general
- differences and similarities between right and obligations of common law and married couples
examples of differences and similarities: - common law couples who cohabit continuously for three years or who have a child together have the same support obligations to one another as married persons under part three of Ontario’s family law act (sameness)
- part one of Ontario’s family Law act, dealing with family property, does not apply to common law couples (difference)
Formal requirements for marriage in Ontario (learning outcome 2)
Marriage act, R.S.O. 1990, c. M.3
- must have a marriage license or have a publication of bands during religious worship services
- not possible to marry by proxy
- must be two witnesses
- parties must be present
- must be over 18 (or over 16 with parental consent)
- some procedural defects can be “cured” by section 31 of a marriage act
- valid consent
“Curing” some procedural defects of a marriage
Section 31 of the marriage act specifies that, provided a couple acted in good faith and live together as a married couple after the ceremony, a marriage is deemed a valid marriage although:
1) The person who officiated was not authorized to solemnize marriage
2) The couple failed to get a license or to arrange for the publication of banns
3) there was a defect in the issuance of the license for the publication of banns
Same sex marriage in Ontario
Ontario court of appeal case in Halpern v Canada
- in this case the court held that the traditional definition of marriage discriminated on the basis of sexual orientation, and therefore violated section 15(1) of the Canadian charter of rights and freedoms
Declared the common law definition of marriage should be as follows:
- The voluntary union for life of two persons to the exclusion of all others
- this new definition was confirmed in the civil marriage act, 2005
Prohibited degrees of consanguinity and affinity
- consanguinity: relationship by blood
- affinity: family ties (includes adopted family members)
- set out in the marriage (prohibited degrees) act
- marriage is not valid if the persons are related lineally (Half brother or half sister)
No prior existing marriage
- A marriage is void (not valid) if one of the parties is, at the time of the marriage, already a party to an existing marriage
- under section 293 of the criminal code, polygamy is an offence
Divorce (learning outcome 3)
Two grounds set out in the federal divorce act:
- Lived separate and apart for at least one year
- Since the celebration of marriage, the person against whom the divorce proceeding has been brought: committed adultery or treated the other spouse with physical or mental cruelty such a kind as to render intolerable the continued cohabitation of the spouses
Family property - two sets of rules:
- law governing married couples
- law governing unmarried couples
Law governing married couples (NFP)
Family law act, part 1 Section 5(1) - When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospects that they will resume cohabitation, the spouse who’s net family property is the lesser of the two net family properties is entitled to 1/2 of the difference between them
Special rules governing matrimonial homes (1)
Set out in Ontario’s family Law act, part two
- 18(1) every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home
- 19(1) both spouses have equal right to possession of matrimonial home
- when only one of the spouses has an interest in the matrimonial home, the other spouse’s right of possession: is personal as against the first spouse and ends when they cease to be spouses, unless a separation agreement or court or provides otherwise
Special rules governing matrimonial homes (2)
Alienation of matrimonial home
- No spouse shall dispose or encumber an interest in the matrimonial home unless: The other spouse joins in the instrument or consents to the transaction, The other spouse has released all rights under this part by a separation agreement, a court order has authorized the transaction or has released the property from the application of this part, The property is not designated by both spouses as a matrimonial home and a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled
Special rules governing matrimonial homes (3)
Order for possession of the matrimonial home
- court can grant an order for possession of a matrimonial home, for a variety of reasons
Order for exclusive possession: criteria
in determining whether to make an order for exclusive possession, the courtshall consider:
- The best interests of the children affected
- Any existing orders under part one (family property) and any existing support orders or other enforceable support obligations
- The financial position of both spouses
- any written agreement between the parties
- The availability of other suitable and affordable accommodation
- any violence committed by a spouse against the other spouse or the children
Best interests of the child
In determining the best interest of the child, the court shall consider:
- The possible disruptive effects and the child of a move to other accommodation and
- The child’s views and preferences if they can reasonably be ascertained
Law governing unmarried couples
- increased rights and obligations of common law partners
- Federal legislation treats unmarried partners who have lived together for at least a year in the same way as a treat married partners
- because of the constitution act, 1867, it is provincial legislation that determines the rights and obligations that one has towards a common law partner in Ontario, as well as any rules relating to their property
Spousal support guidelines (not legally binding)
- guidelines for determining quantum and duration of spousal support
- intended to provide structure to law in this area, but not legally binding
- guidelines do not deal with the entitlement
Two basic formulas: - without child support formula
- with child support formula
Without child support formula
Merger over time
- longer marriage lasts, the greater level of economic and non-economic integration, greater jurisdiction for more support over a longer period of time
Two variables:
- gross income
- length of marriage
Basic range:
- 1.5 to 2% of gross income difference for each year of cohabitation, up to a maximum of 50%
- range fixed for marriage 25 years or longer at 37.5 to 50% of gross income difference
Length of support
- guidelines suggest .5 to one year of support for each year of marriage
- suggests indefinite support for marriages 20 years or longer, or if it is five years or longer and the years of the marriage and age of support recipient added together total 65 or more
With child support formula
Rationale for support - presence of child or children
- still in parental partnership, ongoing care responsibilities are shared
Different considerations, as priority must be given to child support, because:
- usually a reduced ability to pay, and
- tax implications and state benefits must be taken into account
Calculation
- more complicated, should normally leave a lower income spouse with between 40 to 46% of spouses combined net disposable income
Duration
- should continue until later on: One year of support for each year of marriage, or the time that the youngest child finishes secondary school
Fisher v fisher (without child formula) summary of case
- 94 The objective of the guidelines is to bring certainty and predictability to spousal support awards under the divorce act
- 97 nevertheless, the guidelines cannot be used as a software tool or a formula to calculate a specific amount of support for a set period of time. They must be considered in context and applied in their entirety, including the specified considerations of any applicable variables and, where necessary restructuring…
Fisher v fisher (without child formula) facts
- married in 1985, separated in 2004
- no children
- husband cheated on wife, she became clinically depressed and took a disability leave for a year, returning to work with a lower salary
