Family Law - mod 13

Question 1

family life in Canada

Answer 1

• both continuity and change within families

- changes in: social, cultural, economic, and technological environment

Question 2

How do we understand the continuing importance and centrality of family in a constantly changing world?

Answer 2

• 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

Question 3

Factors relating to the change in Canadian families:

Answer 3

• 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

Question 4

Definition of a census family

Answer 4

• 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

Question 5

Marriage and divorce - general

Answer 5

• 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)

Question 6

Formal requirements for marriage in Ontario (learning outcome 2)

Answer 6

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

Question 7

“Curing” some procedural defects of a marriage

Answer 7

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

Question 8

Same sex marriage in Ontario

Answer 8

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

Question 9

Prohibited degrees of consanguinity and affinity

Answer 9

• 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)

Question 10

No prior existing marriage

Answer 10

• 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

Question 11

Divorce (learning outcome 3)

Answer 11

Two grounds set out in the federal divorce act:

1. Lived separate and apart for at least one year
2. 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

Question 12

Family property - two sets of rules:

Answer 12

• law governing married couples

- law governing unmarried couples

Question 13

Law governing married couples (NFP)

Answer 13

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

Question 14

Special rules governing matrimonial homes (1)

Answer 14

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

Question 15

Special rules governing matrimonial homes (2)

Answer 15

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

Question 16

Special rules governing matrimonial homes (3)

Answer 16

Order for possession of the matrimonial home

- court can grant an order for possession of a matrimonial home, for a variety of reasons

Question 17

Order for exclusive possession: criteria

Answer 17

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

Question 18

Best interests of the child

Answer 18

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

Question 19

Law governing unmarried couples

Answer 19

• 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

Question 20

Spousal support guidelines (not legally binding)

Answer 20

• 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

Question 21

Without child support formula

Answer 21

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

Question 22

With child support formula

Answer 22

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

Question 23

Fisher v fisher (without child formula) summary of case

Answer 23

• 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…

Question 24

Fisher v fisher (without child formula) facts

Answer 24

• 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

Question 25

Children - custody and access 1 (learning outcome 6)

Answer 25

• a person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of a child and must exercise those rights and responsibilities in the best interests of the child
• in cohabitating, both entitled to custody (assumes that parents will act with the necessary cooperation and trust)
• if disputes about custody or access, can apply for a court order under children’s law reform act section 21

Question 26

Children - custody and access 2 (learning outcome 6)

Answer 26

Part three of the children’s law reform act governs custody and access applications in Ontario
- One purpose of part three is to ensure the applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children
“best interests” test has legal meaning (can become an exercise in discretion)
- The love, affection and emotional ties between the child and, the child’s views and preferences, if they can be reasonably ascertained, the length of time the child has lived in a stable home environment, the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the plan proposed by each person applying for custody or access to the child for the child’s care and upbringing, the permanence and stability of the family unit with which it is proposed that the child will live, the ability of each person applying for custody of or access to the child to act as a parent, any familial relationship between a child and each person who is party to the application

Question 27

The court can make custody and access orders:

Answer 27

• under the divorce act in divorce proceedings or

- in corollary relief proceedings after the divorce

Question 28

Traditional custody and access order

Answer 28

• One parent has sole custody after separation, while the other has access
• The access parent has less of a voice in operating of the child (with some expectations, as set out in chauvin v chauvin)
• also cases in which parents awarded joint custody (both parents active and meaningfully involved in the upbringing of the child or children)

Question 29

Changes to the divorce act

Answer 29

• traditional language of custody and access suggests a winner and loser, as a result courts moving away from this
  upcoming changes to divorce act
• “parenting time” replaces “custody order”
• “contact order” used for order that sets out time with people not in parenting role
• “parenting”, “parenting time” and “contact” replace the word “access”
• concept of “decision making authority” introduced

Question 30

Bill 207 - moving Ontario family law forward act, 2020

Answer 30

• this provincial Bill also aims to change the language in Ontario’s principle statutes
  For example, proposed changes to the children’s law reform act include:
• “custody” will become “decision-making responsibility”
• “access” by parent will become “parenting time”
• “access” by non-parenting will become “contact” with respect to a child
• received Royal assent on November 20, 2020

Question 31

Child support (learning outcome 7)

Answer 31

Under family Law act, parents have obligation to support their children
- determined by mandatory child support guidelines
- generally determined strictly by income of the payor spouse
Also covered under divorce act
- if launch divorce application, then divorce act applies

Question 32

Domestic contracts 1 (learning outcome 8) List the three main types of domestic contracts

Answer 32

A couple may choose to govern their relationship through a domestic contract.
Three main kinds:
- cohabitation agreements (common law couples)
- marriage contracts (married couples)
- separation agreements (for separated couples, whether married or not)

Question 33

Domestic contracts 2

Answer 33

• couples can contract, through marriage contract, but in the event of separation, neither will seek spousal support or equalization of net family property under part one of the family Law act
• section 52(2) of the family Law act stipulates that couples cannot agree to a term in a marriage contract limiting a spouses rights under part two

Question 34

Domestic contracts 3 (learning outcome 8) some of the reasons why a court may not except a domestic contract

Answer 34

Pursuant to section 56(4) of the family Law act, a court can set aside a domestic contract under certain circumstances:

• failure to disclose significant assets, or other liabilities when the domestic contract was made
• A party did not understand the nature or consequences of the domestic contract
• otherwise in accordance with contract law (contract not valid, ex. Made under duress)