Canadian family law
|This article needs additional citations for verification. (November 2008)|
Sources of family law
In Canada, family law is primarily statute-based. The exclusive jurisdiction of the federal government handles marriage and divorce under section 91(26) of the Constitution Act, 1867 and is legislated under the Divorce Act. Pursuant to the Divorce Act and relevant case law, the federal government has jurisdiction over custodial and access matters and spousal and child support during or after divorce. The provinces have exclusive jurisdiction over the solemnization of marriage under section 92(12) of the Constitution Act, 1867 and jurisdiction over spousal and child support, property division, custody and access, adoption, and child protection as part of the provincial government's jurisdiction over property and civil rights under section 92(13) of the Constitution Act, 1867 and jurisdiction over matters of a private nature under section 92(16) of the Act. Each province has an Act that addresses the rules of property division.
Since 2005, a marriage may be formed between two individuals of different or same sex. Marriages are prohibited where an individual does not have the capacity or where there is a direct familial relationship such as parent/child or brother/sister relationship. A valid marriage must be properly solemnized within the rules of the province.
A marriage may be nullified as void or voidable much in the same manner as a contract. A marriage is void when the parties do not have the capacity to marry (known as the essential validity of the marriage). Thus, marriages between blood relations, or parties already married, underage, or otherwise unable to consent would all be invalid for lack of essential validity. A marriage is voidable and can be annulled by a court if the spouses are incapable of consummating the marriage.
The formal prerequisites of a valid marriage are set out the Marriage Acts of Canadian provinces and territories. The parties must have a marriage license, be of proper age, or have parental consent. A marriage performed outside of the province will be valid if it is valid where the marriage is celebrated, that is lex loci celebrationis.
Separation and contracts
The legal implications of a marital separation may be regulated by a contract. A separation agreement is typically negotiated and drafted. It agrees to the division of property as well as child support, custody, and access. Parties can also enter into pre-nuptial contracts to regulate the economic consequences of a future marriage breakdown. If it is shown that one party had unfairly negotiated the agreement can be invalidated.
Under the Divorce Act, a spouse may only apply for a divorce when the spouses have been separate and apart for at least one year, when there has been adultery or where there has been cruelty.
Division of property
Matrimonial property can be divided any time during or after the separation, divorce, or death. All matrimonial assets and property is presumed to be split evenly between spouses. The scope of divisible matrimonial assets varies between provinces. Most provinces include all assets acquired during the marriage and any other assets pooled together. The most significant divisible assets include matrimonial home and pensions. Assets excluded typically include inheritances and monetary damages for personal injuries. Business assets may also be excluded in some provinces. Business assets are typically limited to assets that produce an immediate gain in some entrepreneurial capacity.
Child support and access
Child support is determined by the federal or provincial Child Support Guidelines. The basic ("table") amount of support is determined by the payer's income and the number of children in need of support.
Special and extraordinary expenses that are specifically listed in §7 of the Child Support Guidelines, such as daycare, medical insurance coverage, health, education, and extracurricular expenses, may be ordered by the court to be shared by the parents. The expenses must be necessary with respect to the best interests of the child and must be reasonable having regard to the means and needs of the parents and children. Private schools and tutoring expenses and also extracurricular expenses are only allowable if they are "extraordinary" Typically, in British Columbia, access dates are decided by the parents of the child, with generosity to the amount of time in mind. Supervised access and specified access are also enforced within British Columbia.
The entitlement and value of spousal support is determined on a holistic basis that varies greatly depending on the circumstances. There is no single basis of entitlement and there is no single philosophy behind the reasons for support.
The three grounds of entitlement are compensatory, non-compensatory (i.e. needs-based), and contractual. Moge v. Moge first addressed compensatory basis. The court found in most marriages one party tends to suffer economic disadvantage from the marriage. The disadvantaged party may be compensated to the point of returning both parties to the point they were before the marriage breakdown. Compensation is measured on the degree of contribution to the marriage, sacrifice, and hardship. The agreement between the two parties is contract-based support based upon their marriage or separation contract.
The non-compensatory basis focuses on the mutual obligation of support created by the marriage. Thus, in circumstances where one party is disabled the other party will be under an obligation to continue their support of the other as part of the initial obligation in marriage.
In 2008, the federal government released the final version of the Spousal Support Advisory Guidelines which were meant as a means of estimating support based on income. It has no binding effect in law, but rather is used as a tool for negotiations and settlement. The guidelines distinguish between spouses with children and without children.
The formula for spouses without children provides a range of between 1.5 to two percent of the difference in gross incomes for each year of cohabitation. The duration of the payment would be one half of a year to one year for every year of the marriage. If it is over 20 years this it is of indefinite duration.
Spouses with children would expect a range between 40 and 46 percent of the sum of each spouse's "net disposable income". Net disposable income for the payer is equal to the spouse's income subtracted by child support, taxes, and other deductions. Net disposable income for the payee is equal to the spouse's income minus child support, taxes, deductions plus government benefits and credits.
- Zacks v. Zacks,  S.C.R. 891
- Ont: Family Law Act, NS:Matrimonial Property Act
- see the Civil Marriage Act, SC 2005, c. 33. This Act was found to be constitutional by the Supreme Court of Canada in the decision of Reference re Same-sex Marriage
- see The Marriages (Prohibited Degrees) Act SC 1990 c. 4
- Ontario: Marriage Act, NS:Solemnization Act, RSNS 1989, c.436
- Hartshorne v. Hartshorne  1 S.C.R. 550, 2004 SCC 22
- Miglin v. Miglin,  1 S.C.R. 303
- Provinces such as Nova Scotia include all assets possessed before marriage as well.
- Pensions were found to be matrimonial property in Clarke v. Clarke,  2 S.C.R. 795
- "Access". Law Foundation of British Columbia. November 2006. Retrieved 2010-03-23.
- See Bracklow v. Bracklow,  1 S.C.R. 420
- Spousal Support Advisory Guidelines [dead link]
- Kronby, Malcolm C (2010). Canadian Family Law (10th ed.). J. Wiley. ISBN 978-0-470-73682-1.
- Silver, Cindy (1995?). Family Autonomy and the Charter of Rights: Protecting Parental Liberty in a Child-Centred Legal System, in series, Discussion Paper [of] the Centre for Renewal in Public Policy, 3. Gloucester, Ont.: Centre for Renewal in Public Policy.
- Boyd, John-Paul (2013). JP Boyd on Family Law. Clicklaw Wikibooks. ISBN 978-0-921864-44-8.