chapter 13: marriage, divorce, and the family

• family law

  • deals with the various relationships between family members, including husband and wife, parents and children, and same-sex partners
  • the need for family law usually begins with the 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 (the procedures required for a legal marriage)
• changing times

  • for many years, the traditional "nuclear family" was the dominant model for most homes
  • a nuclear family consists of a mother, father, and their children
  • over the years, this model has become less dominant and several newer models have emerged to create a diversity among families that is unprecedented
• marriage

  • involves a legally binding contract between two people
  • a divorce terminates the contract
  • similar to other contract, each spouse has rights and obligations
  • 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 gain rights to the estate if the other spouse dies
  • if there are children, the parents must determine care, custody, and support in the event of a divorce
• requirements of marriage

  • most of the essential requirements of marriage are recognized through common law, and each province has its Marriage Act:

  1. mental capacity
  2. genuine consent
  3. minimum age
  4. close relationship
  5. unmarried status
• capacity & consent

  • mental capacity
  • for a marriage to be legal, each person must have the mental capacity to understand the nature of the marriage
  • someone who lacks mental capacity because of illness, drugs, or alcohol cannot legally marry
  • genuine consent
  • a marriage is not valid if either person did not freely consent or agree to being married
  • if either person is under duress (forced to marry) or if there is a mistake (marrying the wrong twin, communication problems), the marriage is not legal
• minimum age

  • in Canada, the English common law has 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)
  • however, each province has its own version of the minimum age, all of which are higher than the common law age, except for Quebec
  • very young people who wish to be married require their parent's permission by law
• close relationships

  • in Canada, a person cannot marry someone who is closely related to them (consanguinity)
  • 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
  • close relationships include adoptions
• status

  • both persons must be unmarried at the time of their ceremony
  • in Canada, monogamy (being married to one person) is the only legal form of marriage
  • bigamy (being married to two person at the same time) is illegal
  • polygamy (being married to two or more person at the same time) is illegal
  • if a person wants to remarry, that person must prove that their previous marriage has officially ended
• solemnization

  • refers to the requirements of marriage; it includes:
  • issuing a marriage licence or banns (banns of marriage refers to an announcement of an intended marriage read in a couple's church)
  • performing the marriage ceremony (civil/religious)
  • establishing age requirements
  • registering the marriage officially
• same-sex marriages

  • in 2005, the federal government passed the Civil Marriage Act which changed the previous definition of marriage to include same-sex couples
  • the definition now speaks of "lawful union of two person" instead of "one man and one woman"
  • gay men and lesbian women successfully used their section 15: equality rights in the Charter of Rights and Freedoms to have the definition changed
• spouse's name

  • one of the spouses, usually the wife, may choose to change their surname
  • the options are:
  • assuming the spouse's surname
  • assuming a combination of one's own surname and the spouses surname (with a hyphen in between)
  • keeping own's surname and not changing it
  • each province has a Change of Name Act
• annulment

  • a court's order to set a marriage aside by arguing the marriage was not legal in the first place
  • the grounds for an annulment are very specific and may involve the following:
  • a missing requirement of marriage such as genuine consent or mental capacity
  • legal defect in the ceremony
  • non-consummation of the marriage (no sex)
  • marriage of convenience, such as marrying someone for immigration purpose may be allowed to stand even if there's no consummation
• separation

  • occurs when a married couple decides not to live together anymore with the intention of formally ending the marriage
  • this itself does not end a marriage; only divorce does
  • a couple can reconcile (get back together) if they can live together again for up to 90 days
• divorce

  • process that legally ends a marriage
  • the applicant is the source that initiates the divorce action in court
  • the respondent is the spouse being sued for divorce
  • the application has to contain grounds (reasons) for the divorce
  • a valid ground for divorce is adultery - voluntary sexual intercourse with someone other than a spouse; a co-respondent is the third party that participated in the adultery
• divorce applications

  • 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 to any children
  • financial support for the applicant; if necessary
  • division of property and assets
• children & divorce

  • a sensitive aspect of parent seeking a divorce is the effect that terminating their marriage will have on their children
  • the following things must be determined:

  1. custody: the care and control of the child(ren) awarded to one or both parents
  2. access: how much visitation the non-custodial parent is entitled to, and how much financial support they must provide
  3. best interests of the child: the guiding principle that a judge uses to make decisions regarding child custody and access
• child's best interest

  • when determining custody and access, a judge considers these factors in determining the best 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 (joint custody)

  • refers to an arrangement between the divorcing parents to have equal or similar rights to the child's care and custody
  • a positive aspect of this is that the relationship between the parents is often less bitter and focuses on the children
  • in recent years, Canadian courts have moved in a new direction: if parents involved in a bitter divorce cannot compromise or resolve their differences, neither may receive custody of their children
• access

  • when one parent is granted sole custody of a child, the non-custodial parent is usually granted a degree of access or validation to the child:
  • reasonable access: entitles the non-custodial parent to regularly visits with their children
  • defined access: entitles the non-custodial parent to a series of scheduled visits
  • supervised access: the most strict type; visitation by the non-custodial parent must be supervised by a third party
• mobility rights

  • a custodial parents may be allowed to move, over the objectives of the non-custodial parent if the move is thought to be good for the children:
  • they plan to marry someone who lives somewhere
  • they want to be closer to family and friends
  • their job is relocated or they get a new job
  • they experience serious problems with the non-custodial parent and wish to move further away
• family mediation

  • mediators are used frequently when a marriage breaks down
  • family mediation attempts to resolve family disputes, such as custody or the division of assets, while avoiding a court battle
  • mediators in family law are usually social workers, psychologists, or lawyers
  • the main point of family mediation is to provide a safe and supportive setting for the spouses to resolve their issues, especially regarding any children they may have; it encourages cooperation and compromise
• child abuse

  • all parents have the right to raise their children according to their own beliefs and values without government involvement
  • however, in recent years, Canadian courts and other public officials have increasingly intervened in cases that they believe involve child abuse
  • child abuse is behaviour that endangers a child's physical or emotional well-being
  • none of the various types of child abuse are acceptable in Canada; parents may lose custody of their children is they are found abusive to them
• types of child abuse:

  • physical: using deliberate force against a child; includes hitting, biting, choking, shaking, poisoning, and burning a child
  • sexual: sexual activity with a child; incest or any type of sexual exploitation of the child
  • emotional: attacking a child's self esteem; includes terrorizing or humiliating a child
  • neglect: failing to look after a child's basic needs
• wardships

  • if a child is being abused by their parents, authorities may remove their child from the parent's custody, and the court can issue a temporary or permanent wardship order:
  • temporary wardship (society 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 (crown wardship): provides permanent legal custody of a child to the crown who is repesented by a child protection agency