LAW CH13

• Family Law


  Deals with the various relationships between family members, including husband and wife, parents and children, and more recently same-sex partners
• Marriage breakdown


  Grounds for divorce
• The Constitution Act, 1867 gives the federal government authority to define the essentials of marriage, and provincial governments the jurisdiction over the solemnization of marriage
• Nuclear family


  • Consists of a mother, father, and their children
  • Has become less dominant over the years
  • Several newer models have emerged to create a diversity among families that is unprecedented
• Newer family models


  • Same-sex couples with children
  • Single parents
  • Married couples without children
  • Unmarried couples in common law relationships
  • Three-parent families
• Marriage


  • A legally binding contract between two people
  • A divorce terminates the contract
• Rights and obligations of spouses

  • Each spouse has a right to live in the family home
  • Spouses have a mutual obligation of financial support and an individual obligation of self-support
  • Spouses have rights to share in an estate; one spouse gains rights to the estate if the other spouse dies
  • If there are children, the partners must determine care, custody, and support in the event of a divorce
• Essential requirements of marriage

  • Mental capacity
  • Genuine consent
  • Minimum age
  • Close relationships
  • Unmarried status
• Mental capacity


  For a marriage to be legal, each person must have the mental capacity to understand the nature of the marriage
• Genuine consent


  A marriage is not valid if either person did not freely consent, or agree to being married
• Minimum age


  In Canada, the English common law minimum ages for marriage have been adopted: 14 years old for males, and 12 years old for females (2 years younger because girls were thought to mature faster)
• Close relationships that cannot marry


  • A man cannot marry his mother, daughter, sister or half-sister, grandmother or granddaughter
  • A woman cannot marry her father, son, brother or half-brother, grandfather or grandson
• Status


  • Both persons must be unmarried at the time of their ceremony
  • Monogamy (being married to one person) is the only legal form of marriage
  • Bigamy and polygamy are illegal
• Formal requirements of marriage (solemnization)


  • Issuing a marriage licence or banns
  • Performing the marriage ceremony
  • Establishing age requirements
  • Registering the marriage officially
• Banns of marriage


  An announcement of an intended marriage read in a couple's church
• In 2005, the federal government passed the Civil Marriage Act, which changed the previous definition of marriage to include same-sex couples
• A spouse's name


  One of the spouses, usually the wife, may choose to assume the spouse's surname, assume a combination of one's own surname and the spouse's surname, or keep one's own surname
• Annulment


  A court order to set a marriage aside by arguing the marriage was not legal in the first place
• Grounds for annulment


  • A missing requirement of marriage such as genuine consent or mental capacity
  • A legal defect in the ceremony
  • Non-consummation of the marriage (no sex)
• Separation


  When a married couple decides not to live together anymore with the intention of formally ending the marriage
• Divorce


  The process that legally ends a marriage
• Information in a divorce application

  • Where and when the marriage occurred
  • The ground(s) for divorce
  • If there are any children, their names and ages
  • Custody of and access to any children
  • Financial support for any children
  • Financial support for the applicant, if necessary
  • Division of property and assets
• Things that must be determined regarding children and divorce

  • Custody: the care and control of the child(ren) awarded to one or both parents
  • Access: how much visitation the non-custodial parent is entitled to, and how much financial support he or she must provide
  • Best Interests of the Child: the guiding principle that a judge uses to make decisions regarding child custody and access
• Factors considered in determining the best interests of the child

  • The child's needs
  • The stability of the home environment
  • Keeping siblings together
  • Parent-child relationships
  • The child's culture and religion
  • The abilities and conduct of each parent
  • Support available from relatives and friends
  • The child's own wishes (depending on age and maturity)
• Shared parenting


  An arrangement between the divorcing parents to have equal or similar rights in their child's care and custody
• Types of access


  • Reasonable access: regular visits with the children
  • Defined access: a series of scheduled visits
  • Supervised access: visitation by the non-custodial parent must be supervised by a third party
• Mobility rights


  A custodial parent may be allowed to move, over the objections of the non-custodial parent, if the move is thought to be good for the children
• Family mediation


  Attempts to resolve family disputes, such as custody or the division of assets, while avoiding a court battle
• Types of child abuse

  • Physical: using deliberate force against a child
  • Sexual: sexual activity with a child
  • Emotional: attacking a child's self esteem
  • Neglect: failing to look after a child's basic needs
• Wardships


  • Temporary wardship: provides legal custody of a child to a child protection agency until it is deemed that the parents are fit to resume their responsibility
  • Permanent wardship: provides permanent legal custody of a child to the Crown, who is represented by a child protection agency