Family law, includes marriage and cohabitation agreements; separation agreements; separation and divorce; custody and access; adoptions; child and spousal support; division of property, including pension division; income tax advice; mediation and dispute resolution.
The Government of Canada's
Divorce Act applies in all parts of Canada.
.
Grounds
for a Divorce
There is one ground for divorce
in Canada: "breakdown of marriage." This ground is established
if:
The spouses have lived
apart for at least one year immediately preceding the divorce judgment;
The defendant spouse has
committed adultery; or
The defendant spouse has
treated the plaintiff spouse with physical or mental cruelty of such
a kind as to render continuation of the marriage intolerable.
The first criterion is a non-fault
one and may be invoked by either or both spouses. A divorce action may
be commenced before the one year period has run, but the divorce judgment
cannot be granted until it has elapsed.
The second and third criteria,
allow a quicker divorce without having to wait out the one-year waiting
period. These are fault-based criteria and are available only to the "innocent" spouse.
.
Reconciliation
is Encouraged
Canadian divorce law encourages
reconciliation. Divorce lawyers are required to discuss the possibility
of reconciliation and to inform clients of available counseling or guidance
facilities. The law also requires lawyers to promote negotiated settlements
and mediation of support and custody disputes.
The court, before considering
the evidence in a divorce case, must be satisfied that there is no possibility
of reconciliation between the spouses. If the court sees a possibility
of reconciliation the court must adjourn the proceedings to give the parties
the opportunity to attempt to reconcile.
.
Division of Property
Division of property is governed
by provincial and territorial law.
The laws of the provinces differ
but generally In dividing property on divorce, the assumption is that
people should have an equal share of property gained by the efforts of
each partner. In most cases, contributions of a homemaker and an income-earner
are treated the same. Some property is not equally divided. Exempt property
may include property owned before marriage, gifts from someone other than
your spouse, inherited property, and property which is the subject of
a written agreement. The amount, by which any exempt property has increased
in value since it was acquired, may be shared equally between married
spouses. Pensions are often a significant asset.
The laws on division of property
in your province should be consulted for an exact allocation.
.
Custody & Access
Best Interest of the Child Custody or access must be based on the best interests of the child.
The court has broad discretion to grant custody or access for a definite
or indefinite period and subject to whatever terms, conditions or restrictions
it thinks are appropriate given this standard.
Involvement of Both Parents
is Encouraged
"In making an order
under this section, the court shall give effect to the principle that
a child of the marriage should have as much contact with each spouse
as is consistent with the best interests of the child and, for that
purpose, shall take into consideration the willingness of the person
for whom custody is sought to facilitate such contact." (Section
16 (10) of the Divorce Act)
The Act entitles a spouse who
is granted access to a child to make inquires and to be given information
concerning the health, education and welfare of the child, unless the
court orders otherwise. The purpose of this is to facilitate the non-custodial
parent's meaningful involvement in the making of decisions concerning
the child.
.
Child
Maintenance
Child support may be ordered
in a lump sum or in periodic payments, for a definite or indefinite period
or until the occurrence of a particular event.
.
Federal
Child Support Guidelines
The
guidelines are set for each province and are a guide to the amount of
Child Support payments that should be made. Please refer to: Federal
Child Support Guidelines
Spousal
Support, Alimony
Spousal support payments can
be established either under Federal law: the Divorce Act or under
provincial or territorial acts.
Spousal support, or alimony
involves transferring a portion of one spouse’s income to the other
spouse after separation through monthly payments by the higher-income
spouse. It is designed to recognize that since the spouses were sharing
their incomes during the marriage, it may be appropriate that the higher-income
spouse subsidize the lower-income spouse’s income in order to share
the economic consequences of the marriage breakdown. Such subsidies, however,
do not necessarily continue forever.
The law continues to evolve,
reflecting social changes and a desire to find a fair way to apportion
the economic consequences of divorce. There are no concrete standards
to determine whether spousal support should be paid, how much or for how
long. There are some general guidelines found in the legislation, and
the Supreme Court of Canada has handed down some fundamental principles.
Rewriting
Divorce Contracts
Separation and divorce agreements
can be reopened by the courts only in very exceptional circumstances.
The April, 2003 Supreme Court of Canada decision in re:
Miglin established a two-part test:
There must be evidence that
one party was particularly vulnerable and unable to negotiate a fair
deal.
There must be a "significant
departure" from the circumstances under which the agreement was
signed.
The decision went on to say
in paragraph 83:
" ........ It will be
unconvincing, for example, to tell a judge that an agreement never contemplated
that the job market might change, or that parenting responsibilities
under an agreement might be somewhat more onerous than imagined, or
that a transition into the workforce might be challenging. Negotiating
parties should know that each person's health cannot be guaranteed as
a constant. An agreement must also contemplate, for example, that the
relative values of assets in a property division will not necessarily
remain the same. Housing prices may rise or fall. A business may take
a downturn or become more profitable. Moreover, some changes may be
caused or provoked by the parties themselves. A party may remarry or
decide not to work. Where the parties have demonstrated their intention
to release one another from all claims to spousal support, changes of
this nature are unlikely to be considered sufficient to justify dispensing
with that declared intention.........."
Supreme Court of Canada upholds Pre-Nuptial Agreements
Divorcing couples can't get out of their pre-nuptial agreements unless the contracts are blatantly unfair, says the Supreme Court of Canada, in a ruling handed down on March 26, 2004. (Robert Kenneth Hartshorne v. Kathleen Mary Mildred Hartshorne)
In a 6 - 3 ruling the court had its first look at the validity of a marriage contract when it conflicted with provincial laws requiring an equal division of assets when a relationship ends.
The decision reinforces the courts refusal in recent years to tamper with couples' private contracts.
Justice Michel Bastarache stated "Individuals may choose to structure their affairs in a number of different ways and courts should be reluctant to second-guess the arrangement on which they reasonably expect to rely."
Enforcement
of Child and Spousal Support Payments
The enforcement of a child
support order or spousal support order is governed by provincial and territorial
legislation.
Federal Laws
The latest amendments to the Divorce Act that came into effect on May
1, 1997 greatly strengthened the powers available to enforce child and
spousal payment:
New child support guidelines;
Amendments to the Family
Orders and Agreements Enforcement Assistance (FOAEA) so that searches
of Revenue Canada data bases will be allowed in order to locate anyone
who has breached a family support order;
New provisions establish
a federal licence denial scheme under which the federal government is
empowered to suspend passports, and some federal transport licences
where a payer of child support has persistently breached support obligations;
Amendments to the Garnishment,
Attachment and Pension Diversion Act to expand access to federal public
service employee pension benefits to satisfy support arrears; and
Amendments to the Canada
Shipping Act to allow the wages of those working at sea to be garnished
to enforce a family support obligation;
Provincial Enforcement Programs
The provinces have set up family maintenance enforcement programs:
NB Enforcement Program
Saint John Regional Office
Family Support Services
110 Charlotte Street,
P.O. Box 5001
Saint John, N.B. E2L 4Y9
Tel.: (506) 658-2400
Fax: (506) 658-3762
Newfoundland Support Enforcement Program (SEP)
Nova Scotia - An InfoLine has been introduced to provide general information about the Program. This service is available twenty-four hours a day by calling:
424-0050 (Metro Halifax residents) 1-800-357-9248 (toll-free for residents outside Metro)
Ontario Family Responsibility Office
P. O. Box 220
Downsview, Ontario M3M 3A3
(8:00 a.m. to 8:30 p.m. Mon. to Fri.)
Tel.: 1-800-267-7263 (automated service)
(416) 326-1818
(8:00 a.m. to 7:00 p.m. Mon. to Thur. and
8:00 a.m. to 5:00 p.m. Fri.)
Tel.: 1-800-267-4330 (live agent)
(416) 326-1817
Fax: (416) 240-2401
Ministère du Revenu/Gouvernement du Québec
3800, rue de Marly
Sainte-Foy, Quebec G1X 4A5
Tél.: 1-800-488-2323/(418) 652-4413
Fax: (418) 646-8270
Organization: Saskatchewan Justice
Address: 100 - 3085 Albert Street City/Town: Regina, Saskatchewan Postal Code: S4S 0B1
Requiring anyone who owes
the payor money to pay it directly to the FMEP. This is called "attaching" income, and may be applied to virtually any income, including wages,
pensions, income tax refunds or GST credits, workers' compensation benefits
or rental income.
The FMEP may also attach
bank accounts or other assets.
Registering a lien against
any land or personal property a payor may own (including a car, boat,
trailer or manufactured home).
Obtaining a court order
to seize the payor's personal property and arranging for the sale of
that property if the payor does not pay the arrears.
Bringing the case to court,
for a judge to decide on any additional enforcement action.
If the payor owes more than
$2,000.00 in maintenance, reporting the payor to a credit bureau. This
may affect the payor's ability to qualify for a credit card or take
out a loan.
If the payor owes more than
$3,000.00 in maintenance:
instructing ICBC to
refuse to issue or renew the payor's driver's licence
requesting the federal
government to suspend, refuse to issue or renew the payor's passport
and/or federal aviation or marine licence.
If the payor owns all or
a major part of a corporation, making the payor's corporation liable
for the payor's maintenance payments.
If the payor misses or is
late on two payments within the same calendar year, the FMEP will automatically
charge the payor a Default Fee. The Default Fee is equal to one month's
maintenance, up to a maximum of $400.00. The fee goes to the BC government,
not to the recipient, to help the government cover the costs of operating
this program.
The FMEP also charges payors
daily interest on the current balance of unpaid maintenance and adds
the interest to its records at the end of each month. All interest goes
to recipients.
Ontario
Court of Appeal Rules Gays can Marry, Effective Immediately.
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Court
OKs gay marriage
Feds scramble to decide whether to appeal ruling
Janice
Tibbetts
CanWest News Service, June 11, 2003
OTTAWA -- Gay and lesbian couples raced to obtain marriage licences
Tuesday in a bid to pre-empt any attempt by the federal government
to continue its flagging legal fight against same-sex marriage.
The rush to legal
matrimony followed a ruling by the Ontario Court of Appeal,
which on Tuesday went further than any court in Canada by changing
the definition of who can marry, effective immediately.
Previous court decisions
in Ontario and British Columbia had given Ottawa until July
2004 to change its law.
The first gay couple
to legally become newlyweds were Crown prosecutor Michael Leshner
and his partner Michael Stark, in a civil ceremony before a
judge at a downtown Toronto courthouse.
"Today is the
death of homophobia in the courtroom as we know it," declared
Leshner, as he embraced and kissed his legal spouse.
As Leshner and Stark
exchanged rings and sipped champagne, several other couples
picked up marriage licences, after the court ordered Toronto
city hall to issue them.
In Ottawa, longtime
partners Lisa Lachance and Heather Gass said that were hoping
to obtain a licence this morning and possibly "do the deed" tonight.
The federal government,
which until Tuesday had had more than a year's grace period
to recraft its law, scrambled to decide what to do next.
Justice Minister
Martin Cauchon met with senior cabinet ministers to discuss
his plans, which he will announce today after presenting them
to the Liberal caucus.
Cauchon, however,
hinted that the government's fight is not over yet.
"We really need
a national solution," he said, stressing that Parliament
should also have a role to play instead of leaving the "important
social issue" entirely up to the courts.
"Having said
that, we see the direction that the courts are taking now," Cauchon said.
The government could
move as early as today to seek a stay of the court decision,
pending a Supreme Court decision.
An appeal would buy
time for the Justice Department, but even the Liberals' own
research bureau has warned that the government will ultimately
lose the fight.
If the High Court
agrees to hear the case, it could take another two years before
making a decision. The case could become moot in the meantime,
considering Paul Martin, the front-runner to replace retiring
Prime Minister Jean Chretien, has said it's time for the government
to stop appealing.
The court, instead
of telling the federal government to change its law, struck
down the existing definition of marriage in Canada -- "the
voluntary union for life of one man and one woman to the exclusion
of all others."
The new definition
is "the voluntary union for life of two persons to the
exclusion of all others," the court said.
"Exclusion perpetuates
the view that same-sex relationships are less worthy of recognition
than opposite sex relationships," wrote for the unanimous
three-judge panel.
"In doing so,
it offends the dignity of persons in same-sex relationships."
The federal government
is responsible for the definition of marriage and the provinces
oversee the solemnization, including the marriage registration.
The decision, which dealt with seven Ontario couples, ordered
the provincial government to register marriages.
Ontario Attorney
General Norm Sterling said he would not stand in the way of
the court's ruling.
"If the decision
today says that two people of the same sex can get married,
that is the law of the land, then we will register," he
said.
But, Alberta Premier
Ralph Klein promised to do everything in his power to block
the decision and his officials urged the federal government
to ask the Supreme Court of Canada to be the final arbiter in
the case.
Gay and lesbians
activists, along with several MPs, urged Ottawa to stop the
failed legal fight.
"I am calling
on Jean Chretien, the prime minister, as part of his legacy,
to leave a legacy of respect," said Svend Robinson, a gay
New Democrat MP.
"Stop the appeals,
stop the obstruction, stop the waste of taxpayers' money."
The court decision
dismisses every argument from the federal Justice Department,
including its contention that the purpose of marriage is procreation.
The court also rejects
the fear of churches that gay marriage infringes on religious
freedom because it would force them to conduct ceremonies against
their will.
Common
Law Relationships
The increasing
popularity of common-law unions is transforming family life in Canada,
according to new data from the 2001 General Social Survey. Over the past
30 years, common-law unions have become more and more popular, especially
in Quebec and among younger women in other provinces.
Statistics Canada reported
that between 1995 and 2001, the number of couples living common-law rose
by 20% to nearly 1.2 million couples. In contrast, the number of married
couples increased by just 3%, growing to 6.4 million.
Common-law
Relationships - Comparison with a traditional marriage
While
the common-law relationship continues there is little difference between
a marriage and a common law relationship.
The Income Tax Act Canada has
for almost a decade recognized, for income tax purposes, common-law relationships,
if the parties have a child together or have lived together for a least
one year.
There are substantial differences
should the relationship end upon the death of one partner or one partner
leaves the relationship:
The Family Law Act of Ontario
currently treats common-law relationships as trial marriages(Section
29) unless there are children. You can live together for up to three
years without having to worry about court ordered support obligations
should you separate during that period.
The Family Law Act of Ontario,
after a common-law relationship has passed the three year mark, treats
both parties as if they were married when determining support obligations.
Support is based upon the need of one party and ability to pay by the
other.
Should two people living
common-law have a child together, the Family Law Act of Ontario states
that support obligations, should the couple separate, take effect immediately
in spite of the length of the relationship.
There is no sharing of
property when a common-law relationship ends except jointly owned property.
Should one of the common-law
partners die, unless there is a will, there is no right to claim against
the deceased partner's estate. However, you can share in your deceased
partner's Canada Pension Plan if you have lived together for at least
one year.
