FAMILY LAW

DEALS WITH Family Law deals with the relationship

among family members – husband & wife same-sex partners parents & childrenAny other parties ie. Grandparents & step-

parents

REQUIREMENTS: Register births, marriages, and deaths Pay taxes Feed and clothe their children (if they

have any) Educate their children and protect them

from harm By law-abiding citizens

WHAT IS A MARRIAGE?

ESSENTIAL REQUIREMENTS OF MARRIAGE Both parties must have the ability to

understand the nature of the marriage contract and the responsibilities and duties involved in marriage

A person cannot marry if not mentally capable due to illness, alcohol or drugs

VALID CONSENT Consent cannot be given under duress

Example: Hirani v Hirani (1982) 4 FLR 232, CAA Hindu woman W, living with her parents, went through a marriage arranged by her parents, but the marriage was never consummated and she left her husband after six weeks. W sought a decree of nullity on the grounds of her parents' duress, but initially failed because there was no evidence of any threat to her life, limb or liberty. The Court of Appeal granted the decree: W's parents had threatened to throw her out of the house if she refused to marry the man they had chosen, and this threat (coupled with other pressure) was enough to destroy the reality of W's consent.

There cannot be a mistake of the identity that person is going to marry

MINIMUM AGE OR PARENTAL CONSENT The minimum age for marriage with

parental consent is 16 in all provinces (except Quebec 14 male, 12 females), 15 in the territories

The minimum age without parental consent varies, in Ontario it is 18 (refer to page 445 for a full chart)

ABSENCE OF A PROHIBITED RELATIONSHIP Cannot be too closely related to each

other by blood

A man may not marry his…

A woman may not marry her …

Mother FatherDaughter SonSister or half-sister Brother or half-

brotherGrandmother GrandfatherGranddaughter Grandson

TERMINATION OF PRIOR MARRIAGES In Canada, a person can be legally married to

only one spouse at a time, a practice called monogamy

Polygamy is illegal in Canada (violates sec 293 of CC), however, in BC there are communities that practice this as a religion: related case.

Being married to two spouses at a time is called bigamy, which is a criminal offence in Canada and punished by up to five years in prison

An annulment is granted when one of the essential requirements for a marriage was missing at the time of the marriage took place

SEXUAL CAPACITY Traditionally, the purpose of marriage

was to have children, so consummation is legally validating the marriage through sexual intercourse between a husband and a wife

THE SOLEMNIZATION OF THE MARRIAGE (WEDDING CEREMONY) A couple must have a marriage license Must be witnessed by at least two

people 18 years of age or older The ceremony must be conducted by

someone who is authorized to do so (officiant, priest, minister, etc.)

Getting Hitched in Donut Shop

CUSTODY & ACCESSWhen a couple separates or divorces, and children are involved, decisions have to be made about custody and access.

Custody: which parent the children of the marriage will live with

Access: Parental visitation rights. Sometimes the parents cannot agree upon

custody and access issues and the courts become involved.

In determining custody and access, the courts will always look at what is in the best interest of the child.

Sole Custody: the children live with one parent and that parent makes the major decisions involving the children

Kramer v. KramerCourt Scene Joint Custody: a custody plan in which

both parents have a shared responsibility for the children. Joint custody is awarded in about 25% of couples. If the parents cannot co-operate as

parents, joint custody may not be in the child’s best interest.

Joint Physical Custody: the children spend an equal (or nearly equal) amount of time living with each parent, and both parents make the major decisions involving the children

Joint Legal Custody: the children live with one of the parents while the other parent has generous access rights; both parents have an equal say in major decisions involving the children; this is still the more common form of joint custody.

STATS  Based on 2004 data, of the 31,800 custody

decisions that year, custody was jointly granted to the husband and wife in almost half of all proceedings (47%), continuing the upward trend of the last two decades.

Cases where custody of dependents is awarded to the wife only have been decreasing from 76% in 1988 to 45% in 2004.

Custody cases granted to the husband only represented 8.1% in 2004, compared with a high of 15% in 1986. 

One possible explanation for the more rapid gain of male lone-parent families is the growing share of joint custody arrangements following a union dissolution and fewer mothers being granted sole custody following a divorce.

When one parent has been granted custody of the children, the other parent will almost always be granted some form of access. This access can range from being very flexible and regular in nature, to occurring only at specified times, to being supervised and very restricted.

In theory, doing what is in the best interests of the child makes sense. However, this is an extremely difficult decision to make in certain situations. The courts will look at a number of factors when trying to determine what is best for the child. Top ten custody mistakes (start at 1:20) Usher almost loses custody of children

READ VAN DE PERRE V. EDWARDS PAGE 457 Answer questions #1, 3 & 41. Why do you think the trial judge and the

Supreme Court awarded custody to Elijah’s mother?

3. In its decision, the Supreme Court of Canada stated: “Race is connected to the culture, identity and well-being of the child… Bi-racial children should be encouraged to positively identify with both racial heritages,” discuss with a partner

4. Do you agree with the Supreme Court’s decision? Why or why not?

CHILD SUPPORT Both parents (whether they are married or

not) have a legal obligation to contribute to their children's needs

Federal child support guidelines are built on the principle that both parents should share the same portion of their income with their child as they would if they had continued to live together. In other words, the child should not suffer economically from a separation or divorce.

In joint custody situations, support payments may be altered if the paying parent cares for the child at least 40% of the time

The appropriate level of child support is based upon two key factors: The non-custodial parent’s total incomeThe number of children to be supported

Child Support Broken down

INTERESTING FAMILY LAW CASE Chinese Man Sues Wife for Ugly Baby an

d Wins