Family Law Notes Flashcards
Who does the divorce/marital property act apply to?
Only legally married people
Definition of spouse under divorce act
Either of two persons who are married to each other
Definition of spouse under marital property act
Married person
Definition of cohabit under marital property act
Live together in a conjugal relationship
Marriage must be
Voluntary and lawful union of two persons to the exclusion of all others
Polygamous Marriage
- Indictable offence in the Criminal Code
- Still part of family law because Canada is so immigration heavy
What are the states a marriage can be?
Valid, void, voidable
NB Marriage Act on validity of marriage
Marriage only valid if parties were legally competent
Moss v Moss
Need voluntary consent of both parties and absence of legal incapacity to marry
Void
- Null and void from inception (as if it never took place)
- Parties in the marriage can have it void as well as third parties who have an interest
- Can be brought after death
Voidable
- Treated as valid unless and until it is annulled (not void on its face)
- Third party cannot get an order for this
- Cannot be brought after one party has died
Unsoundness of mind
- Alcohol/drug intoxication
- Voidable when to the point the person cannot understand what they are doing at the time of marriage
- Person who can do it: drunk one
Duress
- Fear for some other person
- Voidable
- Person who can do it: coerced person
Fraud
- Voidable if it is a misrepresentation as to what the ceremony is
- Not if you are misrepresented to as to character
- Person who can do it: person misrepresented to
Mistake
- Voidable
- 2 Kinds: 1) Mistake as to identity (who they are) 2) Mistake as to the ceremony
- If mistake about attributes not voidable
- Person who can do it: whoever was mistaken
Intention/Motives
- Marriage of convenience (ex: arranged marriage)
- Valid
- If have capacity to consent to marriage the courts will consider it valid
Age
- Depends on the age
- 7=void
- 7-12= voidable at option of underage party
- 12+ is okay depending on province and requires parental consent
Prohibited degrees
- Marrying close relative
- Void if linear relation
- Other lines are okay
Non-consummation of marriage
- Voidable if not able to consummate
- If you just don’t want to not voidable
- Person who can do it: either
What are the sources of family law?
1) Provincial (only applies to its specific province)
2) Federal (applies to marriages in any province)
3) Judge made law (case law)
Provincial Legislation
- Family Services Act
- Marital Property Act
Federal Legislation
- Divorce Act
- Federal Child support guidelines
Under Family Services Act what is a parent?
Mother and father and includes: a guardian and a person who the child ordinarily resides with who has demonstrated a settled intention to treat the child as family
Under Family Services Act Parent does not include
1) Foster parent
2) Prospective adopting parent
3) Natural parent/ adoptive parent whose rights to guardianship have been terminated
4) *natural father of child who is not married to the mother unless he signed birth registration or there has been statutory declaration or parent under ordinarily reside provision
Definition of Spouse under Family Services Act
A person who is married to another by virtue of a legally constituted marriage, except where otherwise defined (broadened for Support/custody/access)
Family Services Act definition of spouse under support/custody/access section
Either of 2 people who:
a) Are married
b) Marriage is voidable but has not been avoided
c) Have gone through a form of marriage in good faith that is void and are cohabitation/have cohabited within the preceding year
Support obligations of spouse, father, and persons who have lived together under the Family Services Act
1) Spouse obliged to support themselves/ other spouse in accordance with need to the extent capable
2) Father obliged to support mother of child in relation to the child in accordance with need to the extent capable
3) Unmarried persons who have lived together have the same obligation under (1) if they: a) continuously live together for no less than 3 years in which one person is substantially dependent; or b) lived with some permanence where there is a child born of whom they are natural parents
Which act deals with Domestic Contracts?
Marital property act
What are the types of domestic contract?
1) Marriage Contract
2) Domestic Contract
3) Separation agreement
Marriage Contract
Contract two people enter before or during marriage while cohabitation in which they agree to their rights and obligations under marriage or on separation including property rights and support
**cannot agree on custody/ access of children
Domestic Contract
- Contract entered into by two people cohabitating that are not married in which they agree to rights/obligations during cohabitation, its end, or death including property rights and support.
- If parties marry becomes a marriage contract
**cannot agree on custody/ access
Separation agreement
Two persons who cohabitated and are or have agreed to living separate and apart enter into this contract for rights and obligations including: property rights, support obligations, custody/access, and other matter
Execution of Domestic Contract
Domestic Contract or any agreement to amend/rescind one must be:
1) In writing
2) Signed by the parties bound to it
3) Be Witnessed
Capacity to enter a domestic contract
- A minor who has capacity to marry has capacity to contract
- Someone (who is not the spouse) can enter into a contract on behalf of mentally incompetent person
- For both of these though, a court must approve
What is paramount in domestic contracts?
Best interest of the child: court may disregard provisions about custody, access, or support if they are of the opinion it is in the best interest of the child to do so
Paramountcy of domestic contract provision
If conflict between the Marital property act and domestic contract, the domestic contract prevails (if not an exception)
When may the court disregard a provision of a domestic contract?
- Best interest of child
- If it is of the opinion that applying the provision would be inequitable because it was made before 1981 OR the spouse challenging the provision DID NOT RECIEVE INDEPENDENT LEGAL ADVICE
What is restricted for being contracted for? (what isn’t binding)
- Custody/access/support
- CPP/Child Tax Benefits (if they say they won’t touch, government not bound by this)
Where does the law for setting aside a domestic contract come from?
Case law… NB doesn’t have specific legislation for it
Hartshorne v Hartshorne
Setting aside is a high threshold– almost impossible to set aside if you got independent legal advice
Rick v Brandsema
Even though the wife had independent legal advice her mental state gave them reason to set it aside
Miglin v Miglin
2 stage test for whether to uphold separation agreement:
1) Formation of agreement: Was the agreement “unimpeachably negotiated”? (did one party take advantage)
2) Correspondence with parties original intentions: Were the current circumstances anticipated when the agreement was drafted?
*must look at agreement in totality
Levan v Levan
- Husband didn’t disclose assets
- Difference between disclosing the value of assets and disclosing that they exist
- Easy for parties to determine the value BUT if one deliberately withholds info about them then agreement set aside
Arsenault v Arsenault
- Common law setting aside (not based on legislative provisions- set aside even though ILA)
- Contract set aside at common law using Miglin test
- If not successful setting aside through legislation may be able to at common law
- Exception to being hard to set aside in NB with ILA
What is the definition of child of the marriage under the Divorce Act?
Child of two spouses or former spouses who, at the material time:
a) Is under the age of majority and has not withdrawn from their care
b) Is the age a majority or over and under their charge but unable because of illness, disability, or other cause, to withdraw from their charge/obtain necessaries of life
No fault divorce under the Divorce Act
Don’t lose access/ property because of the reason the marriage ended
Divorce Act coming into play changed grounds of divorce from ___ to ___
Just adultery to:
1) Separation for 12+ months
2) Adultery
3) Abuse
What did the implementation of divorce act do?
- No fault divorce
- Expanded grounds
- Legal equality
- Sex no longer governing consideration for spousal support (needs and means of spouses now)
- Economic self-sufficiency expected now
What are the objectives of the federal child support guidelines?
1) Establish a fair standard of support to ensure kids continue to benefit from financial means of both spouses
2) Make calculations more objective (reduces conflict/tension)
3) Improve efficiency (provides guidance on levels of support and encourages settlement)
4) Ensure consistent treatment in similar circumstances
Murdoch v Murdoch
- Pre marital property act
- Laskin’s dissent is what the law became: use constructive trust to prevent unjust enrichment
- Wives money went into property even though it was in husbands name
Which law governs property division?
Provincial- Marital property act
Application for division of property
Spouses entitled to equal division on marital property if:
a) Divorce is granted
b) Marriage annulled
c) Spouses live separate and apart and no reasonable prospect of resuming cohabitation
d) Marriage break down with no reasonable prospect of reconciliation (whether or not living separately)
Time limit to apply for property division
No later than 60 days after divorce granted/ declaration of nullity
Length of period in which they were spouses when annulled?
From solemnization to declaration of nullity
When would the court extend the limitation period for applying for property division?
If person was prevented from applying by:
1) Lack of knowledge that divorce/annulment granted/the date of it
2) Circumstances beyond their control
*increase by the amount of time and terms the court sees fit
Exclusion of specified family assets from division
May exclude family asset acquired before marriage or as a gift if it would be unfair/unreasonable to include it considering:
a) No substantial contribution by other spouse to the acquisition, management, maintenance, operation or improvement of the asset
b) Cohabitation was short duration
c) Agreement other spouse/ kids using it would not effect owners rights
Unequal division of marital property
Court may divide unequally if equal shares would be inequitable considering:
a) Any agreement other than a domestic contract
b) Duration of cohabitation under marriage
c) Duration spouses have lived separate and apart
d) Date property acquired
e) If acquired by inheritance/gift
f) Other circumstances relating to acquisition, disposition, maintenance, improvement or use of property
Division of non-marital property
Court may make division of non-marital property if:
a) The spouse unreasonably impoverished the marital property through transfer, indebtedness, mismanagement or other means
b) Division of marital property would be inequitable having regard to i) unequal division of marital property and ii) one spouse assumes joint responsibilities which enables the other spouse to improve non-marital property
Joint responsibilities of spouses
- Child care
- Household management
- Financial provision
*all equally important contributions to marital property- spouses contributing to these entitles them to equal share of marital property/debt
Division of marital debts and consideration of tax consequences
- Fair and equitable division of marital debts
- Take into account any tax consequences arising from division of property
Financial statements
- Required for application for property division
- Must file and serve other spouse with statement
- Verified by oath
- Discloses particulars of all property and debts
Grover v Ecerova
Ring is available for marital property division and divided value equally
Marital home
- Spouse may get exclusive possession of marital home or part for such a period as the court directs
- That spouse who has equal possession give periodic payments payments to other spouse for use
Sources of law for cohabitation
- Case heavy, not much legislation
- Can’t make a claim under MPA
- Can enter into cohabitation agreements now
M v H
Same sex unmarried cohabitants have the same rights and obligations as those of opposite sex because of this case
Basic definition of cohabitation
Two people who share their lives together but are not married
Factors to consider when determining what constitutes cohabitation (not exhaustive)
- Shelter
- Sexual and personal behavior
- Services
- Conduct and habits of parties
- Social
- Societal
- Support
- Children
Property division options for unmarried cohabitants
- Constructive trust
- Joint Family Venture
- Unjust enrichment
Kerr v Baranov and Vanasse v Sequin
- Authority for unjust enrichment
- Judge made doctrine of unjust enrichment where 3 conditions must be satisfied:
1) Benefit or enrichment of one party
2) Corresponding deprivation of the other party; and
3) Absence of any juristic reason or legal justification for enrichment (ex: contract or gift)
Joint Family Venture
- Symons v Symons
- A relationship where the contributions of both parties resulted in accumulation of wealth
- Not legally married have purchased items together and acting as a family together
- Efforts together as if they were married—they built this life together so entitled to rights
- Married people don’t have to prove this
Litigation
- Should be last resort, takes a long time
- Bound by legislation
Settlement conferences
- Judge who will not be in trial sits in a room trying to get you to agree
- “If you don’t agree this is what I would order” then try again
Types of negotiation
1) Hard bargaining
2) Soft bargaining
3) Principled negotiation
Hard bargaining
Competitive and adversarial approach
Soft bargaining
Excessive degree of co-operation and avoidance of confrontation
Principled negotiation
- Strives to avoid positional bargaining
- Focus on interest (why the person wants it), not position (what the person wants)
- Generate options that will be advantageous to both parties
- Result based on objective standards
ADR Options
- Mediation
- Collaborative law
- Arbitration
- Med-arb
Mediation
- Neutral third party makes a decision that you are not bound by
- Objective is final written agreement
- Parties must get ILA following mediation process
When is mediation not appropriate?
- Abuse
- Imbalance of power
- Addiction issues
- High emotion divorce
Collaborative law
- Similar to mediation with collaboratively trained lawyers and experts in the room
- Parties sign contract not to go to court and if they do they have to get new lawyers
Arbitration
Independent 3rd party makes decision if no agreement is reached, and parties are bound by it
-More flexible, control of formality, private, better use of time/money
Med-Arb
Typically fixed time for mediation with the understanding if they don’t agree then mediator becomes arbitrator and a final and binding decision given
Why do you need a divorce?
To terminate marriage and render parties free to remarry
Corollary Relief Proceeding
Proceeding in which either or both former spouse seeks a spousal/ child support order or a custody order.
Jurisdiction for Divorce orders
Court has jurisdiction if either spouse has been ordinarily resident in their province for at least 1 year immediately before commencement of proceeding
Jurisdiction where two proceedings commenced on different days
If neither proceeding discontinued within 30 days then its the proceeding that commenced first and the second is discontinued
Jurisdiction where two commenced on the same day
If neither discontinued in 30 days, the Federal court takes exclusive jurisdiction
Jurisdiction for corollary relief proceedings
Court has jurisdiction if:
A) Either former spouse is ordinarily resident in province at time of commencement; or
B) both former spouses accept jurisdiction of the court
Ordinarily resident
Takes residence there with intention of remaining indefinitely (customary residence)
When can a court grant a divorce?
On the grounds that there has been a breakdown of the marriage
Breakdown of marriage established if
A) Spouses living separate/apart for 1 year immediately preceding and at commencement of divorce proceeding
B) Spouse against whom the divorce proceeding is brought committed adultery or abuse during the marriage
How do you calculate period of separation?
A) If they lived apart and either had intention to be living separate/ apart; and
B) A period they lived separate/ apart not interupted/ terminated if:
1) Spouse becomes incapable of intending to/voluntarily live separate/apart- if court thinks it would have continued if they still were capable
2) Spouses resumed cohabitation for periods totalling no more than 90 days for purpose of reconciliation
Which act regulates divorce?
Divorce act
Divorce is effective
Generally: on the 31st day after judgment granting divorce rendered
When may the courts find special circumstances for when the divorce is effective
Court will order divorce to take effect earlier time as where on or after granting divorce:
1) Court of the opinion that by reason of special circumstances it should take effect earlier, and
2) Spouses agree and undertake that no appeal will be taken and abandon appeals already taken
Cooper v Cooper
Factors to determine if spouses living separate and apart under same roof:
- Separate rooms
- Absence of sexual relations
- Little, if any, communication
- Wife not providing domestic services
- Meals eaten separately
- No social activities together
Bars to Divorce
1) Collusion (agreement to meddle with evidence)
2) Connivance (encouraging offences complained of)
3) Condonation (forgiving and resuming cohabitation with offending spouse)
4) Absence of reasonable arrangements for child support
Which act deals with children?
Focus is on the Divorce Act and Family Services Act
In litigation for children go to court for two main orders
1) Interim order
2) Final order
Interim Order
- Temporary order until determination respecting custody/access (Band-aid)
- Based on affidavit evidence
- Best interest of the child is the sole consideration (status quo will be preserved)
Final order
- Had opportunity to test evidence
- No order is final (if material change can re-visit)
What is the driving rule when dealing with children?
Best interest of the child (Family Services Act)
Can you use ADR when dealing with kids?
Yes, opportunity to settle outside court throughout process
Best interest of the child as they get older
- Views/preferences more persuasive (around 10-13)
- At certain age kids rule with their feet
- Considerations are a hierarchy that shift
Best Interest of the Child Considerations
(Family Services Act) Circumstances considered:
a) Mental, emotional, and physical health + need for care/treatment
b) Views/preferences of child
c) Effect on child of disruption of child’s sense of continuity
d) Love, affection, and ties between child and people with custody/access and in come cases siblings/grandparents
e) Merits of any plan proposed by the minister to care for the child in comparison with remaining with parents
f) Need to provide a secure environment so child can be useful member of society by reaching full potential
g) Childs cultural/ religious heritage
Order for custody
Under the Divorce Act a court on application by a spouse or other person respecting custody/access of child of the marriage can make an order
What do you want when ordering custody?
Want what is least disruptive for the child- look at the status quo
Custody
Have care and control of child + ability to make major decisions
Types of custody
- Joint
- Sole
- Split
- Shared
Joint Custody
Parents make decisions about the upbringing together (may or may not mean they live with them)- must agree or court will
Shared custody
Parents share decision making like joint custody AND kids are with each parent at least 40% of the time over the courts of the year
Split custody
Each parent has custody of one or more child
Access
- Not defined under divorce act
- The right of a child and a parent without custody to spend time together.
- Deals with actual physical custody
Restrictions on Custodial Parent
- Mobility
- Parental alienation
- Domestic abuse
Why would one parent not be custodial?
If parents not able to communicate and make decisions together– courts will seek out positive communication, does not presume difficulty communicating means they can’t
Nesting arrangements
Kid stays at the house and parents move in and out
Issues to consider in ordering custody
- Communication
- High conflict situations
- Sufficient safeguards to insulate kid from parental conflict
- One parent creating problem for tactical advantage
- One parent marginalizing other parents role
Parallel parenting
One spouse is the decision maker for one aspect of the child’s life and one for another
VK v TS
What is relevant when determining parallel parenting?
- Strength of parents ties with child
- Relative parenting abilities
- Evidence of alienation
- Ability to foster relationship with other parent
- Ability to place child’s needs above own
- Existence of abuse
When will access be supervised?
- Only if necessary
- Person with violent passed not necessarily barred from access but may be supervised
Who supervises?
Custodial parent or third party- often list of supervisors that the person supervised picks from
Provisions controlling access
Can have provisions saying no alcohol/ drugs when with kids but don’t want to micromanage too much telling people how to have access
Terms of access vary depending on child, types could be
- Midweek visitation
- Days/overnights
- Weekends
- Supervised
- Holidays
*can have one access schedule for school year and one for summer
What if weekend/holiday conflict
Holiday wins
Who makes the schedule?
Can work these out yourself but when you go for divorce court can assess if in best interest of the child
Status quo
Situation while parents lived together (not following separation)
Terms and Conditions
- Court can impose terms, conditions, or restrictions that it thinks are fit and just
- Broad discretion of court for orders respecting custody/access
What does a court consider when making a custody order?
Best interest of the child by reference to the condition, means, needs, and other circumstances of the child
Maximum contact principle
- Child should have as much contact with each spouse as consistent with their best interests
- Court will take into consideration the willingness from the person seeking custody to facilitate such contact
Gordon v Goertz
- Leading case on mobility
- Says why court will consider relief for mobility + how to determine best interest of the child
Law on Mobility (Gordon v Goertz)
- Parent applying for change in custody/access must meet the threshold requirement of demonstrating material change to circumstances affecting the child
- If threshold met, judge embarks on fresh inquiry of best interest of the child regarding needs and parents ability to satisfy them
What should judge consider for mobility? (Gordon v Goertz)
- Existing custody arrangement/ relationship with child
- Existing access arrangement/ relationship with child
- Desirability to maximize contact between both parents
- Views of child
- Custodial parents reason for moving only where relevant to ability to meet Childs needs
- Disruption to child of change in custody
- Disruption to child on moving
Plumely v Plumely
-Leading case on interim mobility
Factors to consider:
- Court reluctant to disrupt status quo if there is a genuine issue for trial
- Compelling circumstances to allow move (ex: financial benefit that would be loss without move OR new school in best interest)
- Even if genuine issue for trial, move may be permitted if strong possibility the custodial parent’s position will prevail at trial
What wins out of child and spousal support
If more child support needed spousal support goes down
What is the distinction between child support and spousal support?
Child support is not taxable (person who pays gets a deduction)
Which act covers spousal support?
Divorce Act
Courts power for spousal support
Court can make an order requiring one spouse to secure/ pay a lump and/or periodic sum that the court thinks is reasonable for the support of the other spouse
Interim order for spousal support
Court may order interim secure/payment of lump/periodic sum pending the determination of application
What will the content of spousal support order be?
May be for definite or indefinite period or until a specified even occurs, and may impose terms, conditions, or restrictions with the order as it thinks fit and just
Statute of limitations for spousal support claim?
- No statute of limitations
- Potential for lifelong right/obligation
Who can make the spousal support claim?
Only the two spouses (estate cannot go after it)
What will the court consider when making final or interim order for spousal support?
The condition, means, needs, and other circumstances of each spouse including:
A) Length of cohabitation
B) Functions spouse performed during cohabitation
C) Any order or agreement relating to support
What will the court not consider for spousal support order?
Any misconduct of a spouse in relation to the marriage
Leskun v Leskun
- Distinction between misconduct and impact of misconduct on a spouses economic status (relevant consideration if financial loss caused)
- Judges have jurisdiction to grant a review order pursuant to the divorce act
What are the objectives of spousal support?
A) Recognize economic advantages/disadvantages coming from the marriage/its breakdown
B) Apportion financial consequences of child care over + above child support
C) Relieve economic hardship of spouse arising from breakdown of marriage
D) As much as practicable, promote economic self-sufficiency of each spouse within a reasonable period of time
What makes a spouse entitled to support under law?
1) Compensatory claims
2) Non-compensatory claims
3) Bracklow v Bracklow (The Contractual Basis)
Compensatory claims for spousal support
Based either on recipient’s economic loss/disadvantage as a result of roles adopted during the marriage OR on the recipient’s giving an economic benefit to the payor without adequate compensation
Non-compensatory claims
- Claims based on need
- “Need”= inability to meet basic needs, as well as covering significant decline in standard of living from marital standard
Bracklow v Bracklow
- Contractual basis
- Covers formal domestic contracts and implied/informal agreements
Spousal support advisory guidelines
Court not bound by it, but it assists mediators, lawyers, and the courts
Advantages to using the spousal support advisory guidelines
- Starting point for negotiations/ discussions
- Reduce conflicts and encourage settlement
- Reduce costs and increase efficiency
- Avoid complicated budgets/ simplify the process
- Basic structure for judicial elaboration
- Consistency and legitimacy
Disadvantages to using the spousal support advisory guidelines
- Rigid
- Spousal support is too complicated
- Discretion allows for intuitive reasoning
- Regional variations are too great
- Litigation will be foreclosed
What do you need for Interim orders for spousal support + how will you determine amount?
- Need prima facie case for entitlement
- Order will generally fall within SSAG
- “rough justice” court does not embark on an in-depth analysis, leaves it for trial
Final order for spousal support
- Court not bound by interim orders
- Complete analysis of issues at trial
- Can include a review provision, fixed duration, or be indefinite
What does the court need to make a variation on a spousal support order?
Must be satisfied that there is a change in condition, means, needs, or other circumstances of either former spouse that has occurred since the order was made/last varied
VK v TS (2)
A spousal support review provision is only appropriate if evidence that uncertainties about circumstances will become identifiable in an identifiable time frame
VK v TS (common examples of times a spousal support review provision is appropriate)
- Need to establish new residence
- Start a program/ education
- Train/ upgrade skills
- Obtain employment
Imputing income
- You have an obligation to support yourself, if you are not doing what you are capable of earning but you are choosing not to
- Compensate for it by imputing income
How do courts assess a spouses capacity to earn income?
Factors:
- Employment (unemployed/underemployed)
- Age
- Education
- Skills
- Health
- Available employment opportunities
- Standard of living during the relationship
Long term marriages- impute or time-limited order?
Better to impute income rather than time limited order
Time limited order
- Spousal support may only be an order for 10 years
- Normally for short marriages (less likely to happen in long one)
Periodic Sum
- Based on the spouses annual income, the one making more (payor) pays X to recipient per month
- Tax deductible
- More common
Lump sum
- Based on spouses annual income payor pays lump sum payment of X to recipient
- Not tax-deductible
- Can be in lieu of or in addition to periodic payments
What are reasons lump sum would be ordered?
- Relationship has few lasting effects: childless, brief, or spouses established in careers
- Obliger unpredictable/ unreliable
Securing spousal support payments
- Security for support is a trust imposed on the obligor’s property entitlement
- Courts cannot order the property transferred to the other spouse
Milton v Milton
Caution to trial judges against making arbitrary orders securing support payments in absence of some evidence that it is necessary
Case law has established that the court should consider what in making security orders?
- Whether payor has history of dissipating assets
- Whether payor is likely to leave the jurisdiction
- Whether payor previously refused to discharge a support obligation
- Whether the payor has a poor employment history or has indicated that they will leave their employment
- The extent to which an order to secure interferes with the payor’s ability to manage their business affairs
- The availability of other substantial resources to enforce the support order
“Means” to pay for spousal support
- A substantial property division with an income-generating potential almost always affect analysis
- A substantial matrimonial property entitlement on breakdown does not imply spousal support is inappropriate
- Must strive for self-sufficiency- cannot tie up money in non-income producing assets so they don’t have to pay
Are home/automobile income generating assets
No
Strang v Strang
Means to pay spousal support includes all:
- pecuniary (monetary) assets
- Capital assets
- Income from employment/ earning capacity
- Any other source a person receives gains/benefits from
- IN CERTAIN CIRCUMSTANCES money they do not have in their possession but that is available to them
“Needs” for spousal support
- Pre-separation lifestyle relevant
- Recognize interdependency and allow for transitional assistance (allows to get set up in life to no longer be dependent)
- Should not be large discrepancies in the spouses standard of life
- Benefits/detriments that were shared during marriage continue to be shared
- Disparity in income not enough
What will courts consider when assessing economic self sufficiency?
Disparity in income not enough need to look at economic self sufficiency as well through:
- Age and gender
- Skills and education (or lack thereof)
- Opportunities for retraining
- Realistic prospect of employment
What is courts discretion for child support
- Far less discretion than spousal support
- No flexibility
- Uses table
- Court can’t arbitrarily award it (but for exceptions)
What is child support governed by?
- The Federal Child Support Guidelines
- Divorce Act
Federal Child Support Guidelines Rule
Requires courts to order the designated monthly amount for child support
Exceptions to Federal Child Support Guidelines Rule
1) Not biological parent
2) Child over age of majority
3) Payor earns income over $150,000 (in practice more)
4) Split custody/shared custody
5) Undue hardship
6) Consensual agreements
Not biological parent
Psychological parent just pays top up
Child over age of majority
Look at circumstances
Split custody exception to child support guidelines
Difference between the amount each would otherwise pay if support were sought against each other (no judicial discretion)
Shared custody exception to child support guidelines
Courts permitted to deviate from guidelines to determine payment (judicial discretion)
Undue hardship exception to child support guidelines
- Must prove would make standard of living in your house lower than that of the other parent
- Extremely rare to meet this: hardship must be extreme, improper, unreasonable, or unjustified
Consensual agreements exception to child support guidelines
-Can’t contract out of paying but can agree on amount
-Court may award amount different from guidelines if satisfied:
A) That special provisions in agreement regarding financial obligations of spouse/division of property directly or indirectly benefits the child; and
B) That the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions
S.2(2) of Divorce Act expands child of the marriage to include
A child of two spouses/former spouses including:
A) Any child for whom they both stand in the place of parents; and
B) Any child of whom one is the parent and for whom one stands in the place of a parent
Chartier v Chartier
-Standing in place of a parent is an objective determination, look at big picture how you treat the kid
FACTORS:
- Intention
- Whether child participates in extended family same as biological child
- Whether child provided for financially
- Whether child disciplined
- Whether representing to the work that there is a responsibility as a parent
Techniques courts use for payment for step parents
- Apportionment (ordered for only a certain period of time)
- Percentages
- Top-ups
- Time-limited support
Abandonment/severing relationships effect on child support
Unilateral abandonment does not allow parent to escape statutory child support obligations
Ollinger v Ollinger
- What happens to child support if child severs the relationship?
- For step-parent, rights and obligations can cease when a step-child of sufficient maturity unilaterally withdraws
Child support owed to child over age of majority?
Mere fact child over majority cannot withdraw from parental charge is not determinative of eligibility for support, Divorce act requires:
- Illness
- Disability
- Other cause
Rebenchuk v Rebenchuk
Just because adult child severs doesn’t mean off the hook for support if they are still a child of the marriage (ex: in school)
Illness/disability
Child must be incapable of economic self sufficiency because of illness/disability
Child with addiction
Serious addictions count as illness/disability if they are treatable only if they are making reasonable efforts to get better and be economically independent
Is an unemployed child because of lack of job availability enough to be an “other cause”
No, outside the
Pension
- If married any pension earned by spouse during marriage you are entitled to a share of it even if you have your own
- Usually 50/50 under MPA
Post Secondary Education
- Constitutes “other cause”
- Includes vocational training
- Includes pursuit of sports/ entertainment career if realistic for the child
- No arbitrary cut off point based on age/academic achievement
- Not necessarily extended to post-grad but maybe
What will the court look at in determining right of child to support based on “other cause” of education
- Age of child
- Academic achievements
- Ability to profit from further education
- Possibility to get employment with regard to education they have and the labour market
- Capacity of parents to pay
- Full/part time
- Loan/ financial assistance
- Whether kid can contribute
Two alternatives to following child support guidelines when you pass $150,000
1) Additional amount prescribed by guidelines, if this is inappropriate then:
2) Different amount based on child’s condition, means, needs and other circumstances and financial ability of each parent to contribute
Francis v Baker
Inappropriate in the context of upwards of 150k test for child support= unsuitable or inadvisable (does not mean inadequate)
Off-set amount
- Look at what you pay each other for child support
- You pay extra if you make more
Special or Extraordinary Expenses- S.7 of Federal Child support Guidelines
Must take into account necessity of expense in relation to child’s best interests and reasonableness of expense in relation to means of spouses/child and family’s spending pattern prior to separation
What are the s.7 special or extraordinary expenses?
A) Expenses incurred as a result of custodial parent’s employment, illness, disability, or education/training for employment
B) Portion of medical/dental insurance premiums attributable to the child
C) Health expenses that exceed insurance by at least $100 annually
D) Extraordinary expenses for primary/ secondary school or other education programs that meet the Childs particular needs
E) Post-secondary education
F) Extra curricular
Common mistakes with Spousal support advisory guidelines
A) Know your input data and assumptions (don’t get someone else to do your work)
B) Social assistance is NOT income for spousal support
C) Length of marriage used to determine amount/duration not length of marriage
D) S.7 expenses need to be taken into account with child support formula otherwise payor paying too much
E) Don’t state ranges, suggest location on amount/duration
