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Family Law

Family law governs:

marriage, divorce, and common law relationships;
Matrimonial property;
Maintenance and support of spouses and children;
Custody of and access to children;
Protection of children;
Jurisdiction: The Constitution divides family law between the federal and
provincial governments.
Takes precedence
The federal government legislates pursuant to its power over marriage (the
legal definition of marriage), divorce (s. 91(26)) and corollary relief (support)
Provincial governments have legislative jurisdiction over private matters,
including the solemnization of marriage, family issues and the division of
property (s.92(12)&(13).
Provinces may enact legislation for the best interests of children (declarations of
parentage, guardianship, custody, access, child support and child welfare). In
Alberta, the Family Law Act, SA 2003, c F-4.5.
Corollary release: when unmarried couple separates
Provinces may enact legislation for other persons in need of support or other
relief (common law spouses).
Had nothing to do with marriage
Provincial and Superior levels of court may have overlapping jurisdiction over
matters arising within a single family.
Only superior courts grant equitable relief (e.g. injunctions) and declarations of
personal status that arise in the family law (e.g. declarations of parentage or
It has to be at the Queens bench
Family law has moved from an adversarial model to one that is more
collaborative and flexible. More use of alternate dispute resolution processes
such as mediation and arbitration.
Mediator wont resolve anything; more on talking
Marriage and Divorce: Divorce Act, RSC 1985, c 3
Definition: voluntary union for life of one man and one woman, to the
exclusion of all others Hyde v Hyde and Woodmansee, [1861-73] All ER Rep
the lawful union of two persons to the exclusion of all others Civil
Marriage Act, SC 2005, c 33.
The Act also protects the right to refuse to marry any couple on the basis of
freedom of religion or conscience.
Marriage Act, RSA 2000, c M-5 sets out requirements for age, parental consent,
licences, witnesses, and marriage officers. The Vital Statistics Act, SA 2007, c V-
4.1 sets out the requirements for the registration of a marriage.
Nullity vs. Divorce: Divorce presupposes a valid marriage. Nullity results from
some defect or disability which exists at the time of the marriage ceremony and
prevents marriage from coming into existence.
Null and void: Marriage is void when something is missing ~ there is no
meeting of the minds (drunk and got married in Vegas)
Cant marry relatives, even if they are adopted or half-relative
A void marriage is a marriage that has not existed from its inception; a voidable
marriage stands as a valid marriage until it is annulled by a decree of nullity.
Divorce: the superior court in every province has jurisdiction to hear a divorce
proceeding if either spouse was ordinarily resident in that province for at least
one year immediately before proceedings are brought.
If the couple lives in separate province: Whoever starts the proceeding,
the province where he/she lives has the jurisdiction
If the proceedings were brought on the same day in different provinces, the Trial
Division of the Federal Court has exclusive jurisdiction.
Grounds for Divorce: marriage breakdown established by adducing evidence
The spouses have lived separate and apart for at least one year
immediately prior to the commencement and determination of the
The respondent spouse has committed adultery; or
The respondent spouse has engaged in physical or mental cruelty against
the applicant spouse.
Support (Divorce Act as corollary relief or Family Law Act): Child support is the
right of the child and the joint responsibility of parents from the time they are
born until they cease to be dependent.
Parents cannot contract out of this obligation (See Section 215 of the Criminal
The amount of support is determined by the applicable child support guidelines.
Divorce Act (the Federal Child Support Guidelines).
The provincial Family Law Act (the Alberta Child Support Guidelines
more restrictive and not imposed on children of married/divorced
Alberta Child Support Guidelines: Allows child support until 23
years old
A divorcing spouse who is not the biological parent of a child can be ordered to
pay child support if he or she stands in the place of a parent.
Loco parentis
The Family Law Act also defines parent for child support obligations, as
including a person who stands in the place of a parent.
Those standing in the place of a parent are: (a)the spouse of the mother or father
of the child, or is or was in a relationship of interdependence of some
permanence with the mother or father of the child, and (b) has demonstrated a
settled intention to treat the child as the persons own child.
You live in the same house, discipline and buy stuffs for the child
The Family Law Act outlines the factors to be considered by the court in
determining whether a settled intention exists (Chartier v Chartier, [1999], 1
SCR 242 at para 39; Doe v Alberta, 2007 ABCA 50)
The time frame for determining whether a person stands in place of a parent is
when the parties were cohabitating as a family unit. The person cannot
unilaterally sever the relationship with a child in an effort to avoid support
obligations (Vongrad v Vongrad, 2005 ABQB 52).
Spousal support issues: entitlement, amount and duration.
Court considers conditions, means, needs and other circumstances of each of
the spouses; the length of time cohabited; the functions performed by each
spouse during cohabitation; and any order or agreement, but not spousal
Misconduct: anything that cause the separation
Matrimonial Property: division of property on marriage breakdown varies from
province to province. Rights to matrimonial property can arise by agreement
(antenuptial agreements), statute or at common law (constructive or resulting
In Alberta, the Matrimonial Property Act RSA 2000, c M-8 applies only to married
Unmarried couples must rely on contract or equitable remedies (the principles
of constructive trust and unjust enrichment) for assistance in property division.
Under the Adult Interdependent Relationships Act, Adult Interdependent Partners
are anyone who has resided in a relationship of interdependence for at least
three years or resided in a relationship of some permanence where the parties
have a child, or having entered into an agreement in the prescribed form. The
partner is entitled to property relief on the death of the other partner.
The court can grant one spouse exclusive possession of a matrimonial home or
exclusive use of any or all of the household goods.
3 categories under the MPA (s7):
Exempt property- Gifts from a third party; Inheritance; Proceeds of a
tort award or non-property related insurance; Property owned prior to
Divisible property: divided by the courts on a just and equitable basis,
after taking into account the factors in s. 8 MPA.
Accumulated within marriage; divided in just & equitable bases
and not typically equal
Divisible property: the presumption of equal division applies;
Everything not falling under the above.
Presumes matrimonial property are divided equally
It is presumed that matrimonial property is to be divided equally when a
marriage ends, subject to exceptions contained in s 8.
Custody and Access:
Joint custody has typically been awarded to permit both parents to share in
parental responsibilities. Many negotiated settlements are based upon joint
Parenting and contact orders have replaced custody and access orders.
Access, like support, is the right of the child and cannot be retracted by the
mutual agreement of the parents. Children are entitled to have a full relationship
with both parents and extended families.
Access is not a parents inherent right; he/she must apply for access.
The custodial parent has a positive obligation to facilitate access. Repeated
denials of access could constitute a basis for contempt, or in extreme cases,
cause the court to change the custody arrangements.