FAMILY LAW

Family Life in Canada Professor Hovius Youtube: Modern Family vs. 1950s Leave it to Beaver y Captures the diversity of family today Focus on trends that have occurred

1/10/2012 3:20:00 PM

Census Families Changes over the years

1981: first inclusion of common law couples 2001: same sex couples included 2006: Concept of Census Family 3 main groups y Married Couple o With or without children y Common Law Couple o Same or opposite sex o No minimum period of cohabitation o With or without children y Single Parent (with children under 18) y Census Families in Canada 2006 o Married couples = 68.6% o CL couples = 15.5% o Lone parent = 15.9%

Themes/Trends (10) 1. More Cohabitation outside of Marriage y % Of census families = common-law couples

o o o o o o o

6 in 1981 10 in 1991 14 in 2001 15.5 in 2006 Increasing, leveling off Increase in 50s, 60s couples Past: Not socially acceptable to live together before marriage

2. Quebec: A Distinct Society y 28.8% of families = CL couples o 10.3% in Ontario o 3 times as many CL in Quebec o as a result, more children born to unmarried couples y Over 80% of first unions are CL o About 57% for Canada y About 60% of children born in Quebec are born to non-married mothers 3. Delayed Family Formation y First-time brides average age o 2008 = 29.1 o 22 in 1960s y Average age of first-time grooms o 2008 =31.1 o 24 in 1960s y 20-24 year olds who live as couples o 17.9% in 2006 o 28.6% in 1986 y 25-29 year olds who live as couples o 48.5% in 2006 o 62.3% in 1986 y Economic reasons

4. Children Leave Home Later y 20-24 year olds in parental home o 60.3% in 2006 o 49.6% in 1986 y 25-29 year olds in parental home o 26% in 2006 o 15.6% in 1986 5. Family Breakdown is Common Divorce y 1965 10,000 divorces in Canada y 1987 96,000 divorces peak y 2005 71,241 divorces leveled off y 40.7% of marriages will not reach 30th anniversary (47.4% in Quebec; 25% in NL) o Result of death is included, but usually due to separation o Higher in Quebec o Lower in Newfoundland o 40% includes second and third marriages (inflated percentage) 6. Common Law Relationships y Common law couples are much more likely to split up than married couples o Perhaps as many as 50% of CL relationships end before 5th anniversary o Depends on the definition of CL relationships  When does the CL relationship start?  Requirement of 1 year of cohabitation y y 25% of children experience parental separation by age 10 NWS, most children grow up with both parents

7. Arrangements post breakdown: Joint Custody is More Common

y y y

Custody Arrangements on Divorce (2002) o 49.5% = sole custody to mother o 41.5% = joint (legal) custody o 8.5% = sole custody to father In the past, 88% of sole custody went to mothers NWS, vast majority of children live primarily with mother after parental separation or divorce Legal custody: refers to decision making o E.g. school, doctor, etc. o Parents can have joint custody even if the child lives with one parent only

7. Blended Families are Common y blended: step parent families y Over million blended families y 10% of children under 12 live primarily in a family with a stepparent 8. Families Are Smaller y Average family size o 2006 = 3 o 1971 = 3.7 y Total fertility rate = 1.68 (2008) o For every adult female in Canada there are 1.68 children y Highest since 1990 o 3.9 in 1959 o 2.2 in 1971 y Replacement rate is 2.1 o A countrys population will drop unless there is a high immigration o Without immigration, population would shrink y 1959: 500 000 births y 2007: Canadas pop doubled, but number of births is down by 100 000

9. Canadas Population is Aging y 17.7% of Canadians < 14 (2006) o 19.1% in 2001 o 34% in 1961 y 13.7% of Canadians > 64 (2006) o 13% in 2001 y Influences: o Shifting demand for goods and services o Politics catering to this population o Job markets  100 000 less students in primary and secondary education  Compared to 11 years ago  Recreational services, medical services 10. Both Parents Work outside the Home More Often y About 70% of mothers with children 0-5 are in labour force o Only about 25% in 1970

1/10/2012 3:20:00 PM Marriage & Divorce Professor B. Hovius Valid Marriage y No defects in formalities o E.g. ceremony of some kind o OR defect is cured by legislative provision  Example: s. 31 of Ontarios Marriage Act (p. F-5) y No problems with partners capacity to marry one another o Examples: Not too closely related by blood / of sufficient age y Ends on death or divorce Distinction between formal requirements and a persons capacity to marry (i.e. essential validity)

Essential & Formal Validity y Formal validity y o Ceremonial formalities needed for valid marriage Essential validity o Capacity of partners to marry one another Importance of Distinction Division of Powers between Parliament of Canada and provincial Legislative Assemblies o Provinces: ceremony o Parliament: essential Validity of marriages with foreign elements o Example: Canadians who reside in Ontario marry in Mexico Destination weddings with foreign elements Division of Powers o Essential validity  Federal  S. 91(26) of Constitution Act, 1867 o Formal Validity

y y

y y y

  y

Provincial S. 91(12) of Constitution Act, 1867

E.g. same sex marriage is an issue dealt with by Parliament

Determining Validity of Marriage with Foreign Element o Capacity to marry is determined by law of pre-marriage domicile of each person  Domicile: in essence, the place where you are residing and intent to reside E.g. immigrate to Canada, domicile becomes Canada o Formal requirements are determined by place of marriage

Example of Marriage with Foreign Element o Two persons who are domiciled in Canada marry one another in Costa Rica o Capacity to marry one another governed by Canadian law o Formal requirements governed by law of Costa Rica Example o Married in Punta Cana o The ceremony is initiated by someone unqualified, found later o Is the marriage valid?  Depends on the law of Punta Cana o To avoid this, most couples will marry legally in Canada, and hold a ceremony abroad

Formal Validity y Ontarios Marriage Act (p. F-4) o License or banns of marriage o Who can officiate  Judge, etc. o Ceremony  Two witnesses, registry, etc.

Failure to comply with Ontarios Marriage Act may have no legal effect o H & W discover Rev. Bob who officiated at their wedding was excommunicated by his denomination three weeks before the ceremony and was not authorized to conduct weddings.  S. 31 of Ontarios Marriage Act cures this formal defect IF H & W acted in good faith and cohabited as a married couple

Essential Validity y Major Development: Civil Marriage Act (Canada) (2005) (p. F-5) o S. 2 Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. o S. 4 For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex. y Kissing Cousins o Cousins can marry one another because relationship is outside prohibited degrees of consanguinity (blood) and affinity (marriage, family relationship) o Marriage (Prohibited Degrees) Act (Canada) (p. F-5)  Very few limitations in Canada

Divorce
y y y y Federal legislation 1986 current Divorce Act (Canada) came into effect An administrative process Unusual for lawyers to be present, for a court proceding to take place o Usually in the judges chambers Liberalized grounds o Streamlined procedure Grounds for Divorce o Single Ground

y y

 Marriage breakdown (MBD)  S. 8(1) (Divorce Act) (DA) (p. F-6) o Three ways to establish MBD (S. 8(2) DA)  Living separate & apart  Adultery by respondent  Cruelty by respondent y y The result is the same, usually the ground is living separate & apart Takes a year to process

y y

To encourage rehabilitation Living separate and apart (S. 8(2)(a) DA) o Can apply upon separation o Divorce granted one year after separation  Resumed cohabitation for period or periods totaling 90 days or less does not interrupt period of living separate & apart  s. 8(3)(b)(ii) DA Living separate and apart: Example o H & W separate on January 3, 2012 o W applies for divorce on January 5, 2012 o H & W resume cohabitation (May 2 to June 10) o Court can grant divorce on January 3, 2013 o Divorce is then effective on February 3, 2013 (after 31 days) (s. 12)

Adultery y S. 8(2)(b)(i) DA y Theoretically: Immediate entitlement y Practically: takes time for the courts to process y Other spouses adultery only y Sex after separation = adultery

y y

y Cruelty y y y y y

o Different moral connotation Until recently, adultery was defined very narrowly Recent cases hold that intimate same-sex acts with third party constitute adultery o Extended, but not clear what acts, not clear if this extends to heterosexual acts No incentive for people to argue, will use the separation as grounds

S. 8(2)(b)(ii) DA Immediate entitlement Other spouses cruelty only Can be physical or mental o No definition, must refer to past cases Test o Subjective element  Applicant must find continued cohabitation intolerable o Objective element  Conduct must be grave and weighty  Requires more than personality clash or irreconcilable differences Courts are reluctant to label someone as cruel

Only One Bar to Divorce Still Has Practical Significance y Reasonable Arrangements for Child Support y S. 11(1)(b) DA y Applicable to all divorce applications y Proceedings stayed until. o Courts insist on financial information  How much each parent earns, how much they are contributing o Courts insist on explanation for discrepancy between arrangements for child support and Child Support Guidelines  There is a formula

Unlikely to grant a divorce if the amount is less than the guidelines o If the judge isnt satisfied, the judge has the power to deny granting the divorce 

Effective Date of Divorce y General Rule y Thirty-first day after the day on which the judgment granting the divorce is rendered y s. 12(1) DA y for the possibility of an appeal

1/10/2012 3:20:00 PM Family Property Married couples in Ontario y Covered by statutory rules y Part 1 of Family Law Act (FLA) imposes deferred, equal sharing of economic gain during marriage o Applies only to married couples o Deferred o Equal o Sharing of economic gain o The basis is NFP o What each of them have after the end of the marriage o Need to find net assets before and after the marriage o The gain is shared equally o Special rules y Part 2 of FLA imposes special rules for matrimonial homes (MH) o Spouses have equal right to possession unless separation agreement or court order specifies otherwise o Restrictions on dealings with MH

Equal Sharing y Marriage = economic partnership o Recognize past contributions o Past contributions considered equal, regardless of their nature (s. 5 (7) FLA)  Limited judicial discretion to deviate from equal sharing of financial product of marriage (s. 5(6) FLA) o Theory: share the financial product Sharing is Deferred y Sharing is deferred until end of relationship (usually separation or death) o Separate property during relationship  BUT MH (Pt II FLA)  Only asset for this is different

Equal Sharing of Economic Gain y Gain attributed to partnership is shared equally o BUT limited discretion to deviate o S. 5(6) FLA Sharing of Economic Gain y No automatic sharing of assets or division of property o Rather, entitlement to equalization of gain (money)  But parties may agree on property transfer to satisfy debt (court may so order) Economic Gain attributed to Partnership y Gain attributed to partnership = Net Family Property (NFP) (s. 4(1) FLA) o Some deductions and some exclusions from value of property owned by spouse on valuation date  Deduction of net value at marriage  Exclusion of value of property inherited or received as gift from third party during marriage Gifts & inheritances can be traced into other property y Steps to determine each spouses NFP on pages F-8 & F-9

Special Rules Relating to Deductions & Exclusions y No negative NFP o If negative, NFP = $0 (s. 4(5)) y Special rules relating to MH o No deduction of value of MH at marriage o No exclusion of value of MH even if attributable to inheritance or gift o E.g. parents offer $50 000 for a down payment for their daughter

The only way for the husband to not share in the $50 000 after marriage is with a marriage contract o Marriage contract before or after  Contracting out of Rules in Pt I of FLA y Contracting out is possible o Marriage Contract  Example: pre-nuptial agreement  Contract governed by Part IV FLA

Calculating Equalization Sum Example 1 (p. F-12) Possible legal dispute in each of the steps y Step 1 o Valuation date = Sept 1, 2011  Partnership came to an end  Discrepancies in valuation date: Other spouse wins the lottery on Sept 5th  Rapidly decreasing value of property  Cohabitation can confuse this o Assumes that there was no reasonable prospect of resumed cohabitation y Step 2 o Hs NFP  joint bank account = $2000  + Corvette = $30000  + furniture = 5000  Total = 37 000 o Valuation of businesses, assets y Step 3-5 o No exclusions o No deductions  No debts at separation  No property at marriage

Hs NFP = $37 000

Same process for the wife y Ws NFP = $27 000 Hs NFP Ws NFP / 2 = $5000 y y y H owes W $5000 H keeps corvette and W keeps Escape Need to split the furniture and the $4000 in join bank account 50/50 o H may offer his share of the furniture instead of $5000 (equalization sum)

Example 2 y Step o y Step o

y y

Step o Step o o Step o o

1 Valuation date = 2011 2 Hs NFP  RRSP $50 000  + Shares in gold mine $500 000  + Home $200 000 (in his name, joint ownership is not imposed, only special rules)  Total = $750 000 3 Exclusions none 4 Debts 750 000- mortgage 50 000 = $700 000 5 Marital Property Deduction $700 000 $10 000 = $690 000

y y y

Marital Property Deduction - $7500 (car) + $10 000 (shares) - $7500 (student loan) = $10 000 Hs NFP = $690 000  Ws NFP Step 3 o Exclusions? Value of a car can be traced to inheritance after marriage exclude $25 000 o Ws NFP = $25 000 - $25 000 = 0

690 000 0 /2 = $345 000

Example 3 y Step 1 Valuation date = Dec 31 2010 y Step 2 o Hs Assets  $350 000 (MH)  + 50 000 (other assets)  Total = $400 000 y Step 3 o No exclusions y Step 4 o No debts y Step 5 o Hs marital property deduction = $50 000  H does not get credit for value of matrimonial home at marriage y Hs NFP = $400 000 - $50 000 = $350 000 o Even though his gain during marriage = $100 000 y y y y Ws Assets = $400000 No exclusions No debts Ws marital property deduction = $300 000

o W gets credit for value of her house at marriage because it is not a MH Ws NFP = $100 000 o This is her gain during marriage

Under this legislation 350 000 100 000/2 = 125 000 H owes W $125 000 even though each had a similar gain during the marriage W will have a house ($350 000) + other assets ($50 000) + equalization payment ($125 000) = $525 000 H will have house ($350 00) + other assets ($50 000) equalization payment ($125 000) = $275 000

If the MH ceases to be MH before the date, then you get the deduction

Possible for this 50/50 sharing rule can be changed Court has authority Unequal sharing of NFPs S. 5 (6) FLA y Courts have limited discretion to deviate from equal sharing of gain attributed to partnership o Rarely done high threshold equal sharing must be unconscionable o Convince them it is grossly unfair, shocking to the conscience of the court o No unequal sharing just because one spouse earned more and paid for most or all of the marriage y Short marriage (less than five years) and spouse brought MH into marriage (s. 5(6)(e) FLA) o Value of MH shouldnt be shared equally o No guarantee for this to occur, only a possibility

y y y

Spouse has significant gambling or similar debts on valuation date o Debt incurred recklessly Spouse made significant gifts or other dispositions of property just before valuation date (s. 5(6)(d) FLA) Deliberate actions to reduce NFP, can be caught by Fraud act, a statute, allows the court to pull the assets back to give to the other spouse

Matrimonial Homes Part 2 FLA, only covers married couples have MH y Each spouse has equal right to possession regardless of ownership o Unless separation agreement or court order specifies otherwise o Court can grant exclusive possession to one spouse y Owning spouse cannot sell, rent out, or mortgage MH without other spouses consent

Unmarried Couples and Property y Situation varies across Canada o Covered by same rules as married people in Manitoba (3 years) and Saskatchewan (2 years)  Purposes of spousal support and property o Not covered by statutory property rules in the other provinces y y In Ontario, not covered by rules in Part 1 or 2 of FLA Separate property regime applies o Ownership (generally) governs  Registration (paper title) important  Who paid for property important

Where only one CL partner owns family home or only one CL partner is tenant, other CL partner may be asked to leave o No special rights to possession

Unjust enrichment claims are possible y Judge make law allows compensation (money or property) for contributions by non-owning partner in some circumstances o E.g. long term relationship, and one ends up with all the property at the end, the other may have claims y Much flexibility and uncertainty y CASE: Where CL couple has a joint family venture and one partner owns most assets, court may award other partner money or share of property o Vanasse v. Seguin (SCC, 2011) o Sacrificing financially, common goals, the longer the relationship the more likely y Unpredictable and expensive to implicate

Unmarried Couples and Property (Ontario) y Cohabitation agreements between two persons who cohabit outside of marriage can cover property o Recognized in Part 4 of FLA o Can eliminate uncertainty to specifying what each owns during relationship and what will happen in event of separation or death of one partner

1/10/2012 3:20:00 PM Spousal Support Professor B. Hovius Who? y

Part III, Ontarios Family Law Act (FLA) o Spouses include  Married persons  Two persons who have cohabited continuously for at least 3 years  Two persons who have cohabited in a relationship of some permanence & have or adopt child together Federal Divorce Act (DA) o spouse or former spouse  spouse = married person o Applies on or after divorce  FLA applies in other situations such as 1) separated married couples do not initiate divorce proceedings and 2) CL partners separate

Relationship B/T Spousal & Child Support y Child support has priority y Lawyers & courts deal with child support first y If there is not enough income for both, court awards only child support o Spousal support may come in after child becomes independent Determining Spousal Support y Issues o Entitlement o Quantum  Type of order (lump sum or periodic payments)  Amount and, if periodic, duration of payments y Effect of Conduct preliminary matter o DA  Cannot consider matrimonial misconduct

 Explicitly stated o FLA  Can consider conduct in extreme circumstances only  Very few cases where it made a difference In practice, not considered

CASE: Moge v. Moge (SCC) (1992) y Spousal support appeared to die out in the 1980s o Spouse was expected to become independent quickly y SCC: different interpretation of the same laws o Awards must be more generous o Amounts have been too low o Time limits have been artificial y Spousal support awards should fairly compensate for impact of relationship on spouses earning capacity o compensatory support model o Support is earned during relationship Difference in living standards = good indicator of economic gains & losses o presumptive claim to equal standards of living grows with length of relationship Post-separation child care responsibilities should be considered o Affect earning capacity o If one spouse becomes the primary caregiver after the marriage

Bracklow v. Bracklow (SCC) (1999) Non-Compensatory Support mutual obligation model Need alone may be enough

Marriage = serious commitment not to be undertaken lightly Quantum & duration may be limited where support is needs-based Moge & Bracklow Entitlement Multiple bases for spousal support Entitlement (relatively) easy to establish where significant income disparity Quantum Little guidance regarding amount & duration Much flexibility (judicial discretion) Spousal Support Guidelines General Concept Provide guidance for lawyers & courts regarding amount & duration Promote consistency, certainty & predictability Rogerson & Thompson, Spousal Support Advisory Guidelines (Draft, 2005; Final, 2008) Available on Justice Canadas web site No legal status Advisory only Nevertheless, quite influential Computer software developed for calculations Spousal Support Advisory Guidelines (SSAG) Deal only with amount & duration Entitlement should be determined first BUT entitlement is usually assumed if significant difference in spouses incomes Provide ranges, not precise results Still need to select appropriate amount and duration within range Basis for entitlement may affect selection of specific amount and exact duration Example of Without Child Formula Marriage of 22 years & one adult child H, aged 45, earns $100,000

W, aged 41, earns $50,000 Formulas range of amount = 1.5 to 2% X difference between gross incomes ($50,000) X years of cohabitation (22) = 33% to 44% of $50,000 = $16,500 to $22,000 per year ($1375 to $1833 per month) Formulas range for duration = indefinite (cohabitation greater than 20 years) Second Example of Without Child Formula Marriage of 5 years & no children H, aged 35, earns $100,000 W, aged 31, earns $50,000 Formulas range of amount = 1.5 to 2% X difference between gross incomes ($50,000) X years of cohabitation (5) = $750 - $1000 X 5 = $3,750 to $5,000 per year ($312.50 to $416.66 per month) Formulas range of duration = 0.5 to 1 year for each year of cohabitation = 2.5 to 5 years Summary: SSAGs suggest support of $312.50 to $416.66 per month for 2.5 to 5 years Restructure? Perhaps, $20,000 lump sum or $1000 per month for 2 years SSAG With Child Formula Collection of formulas based upon custodial arrangements Range based on individual net disposable income Need computer software to determine range Influence of SSAG Shape clients expectations Especially payors

Starting point in negotiations Provide framework for discussion Litigation Endorsed by Ont CA, BCCA, & NBCA cross-check / litmus test / starting point / useful tool

1/10/2012 3:20:00 PM Spousal Support RECAP Compensatory Support Model Moge v. Moge (SCC) (1992) y Spousal support awards should fairly compensate for impact of relationship on spouses earning capacity y Spousal support awards should fairly compensate for impact of post-separation child care responsibilities on spouses earning capacity y Continuing impact of child care responsibilities o Can limit someones earning capacity

Bracklow v. Bracklow (SCC) (1999) y Non-compensatory support o Mutual obligation model  Need alone may be enough  Marriage = serious commitment not to be undertaken lightly  Amount a person gets and length of time may be limited where you have one of these needs  Received a modest amount for 5 years o Quantum y Suffered health complications y By the end of the marriage was unemployable y SCC says she is entitled to support under a non-compensatory support

Moge and Bracklow y Entitlement o Multiple bases for spousal support o Entitlement (relatively) easy to establish where significant income disparity y Quantum o Little guidance regarding amount and duration o Much flexibility (judicial discretion)

y y y

A lot of flexibility and judicial discretion Similar facts but different results People are uneasy, talk about spousal support guidelines

Spousal Support Guidelines y General concept o Provide guidance for lawyers and courts regarding amount and duration y y Rogerson and Thompson, Spousal Support Advisory Guidelines (Draft, 2005; Final, 2008) o Available on Justice Canadas web site o No legal status  Advisory only  Not based on any legal authority  As if the two profs had written an article  But became very influential, except Quebec Lawyers and judges were desperate for guidance Computers software was available immediately Very easy o Formulas o Will only deal with duration and quantum  Shouldnt use these guidelines until you decide a person is eligible, entitled to spousal supports Entitlement is usually assumed if there is a significant different between spouses incomes Provide ranges, not precise results o Still need to select appropriate amount and duration within range o Basis for entitlement may affect selection of specific amount and exact duration

y y

Some people argue that compensation shouldnt end until the effects of the breakdown of marriage no longer exist o Usually the amount decreases o Remarriage can have no effect

Two Formulas Example of without child formula y Marriage of 22 years and one adult child o H aged 45 earns $100 000 o W aged 41 earns $50 000 y No dependent child y Formulas range of amount = 1.5 to 2% x difference between gross incomes (50 000) x years of cohabitation (22) y = 33% to 44% of 50 000 = 16 500 to 22 000 per year o 1375 to 1833 per month y y Formulas range for duration = indefinite o Cohabitation greater than 20 years Unless the W starts to earn just as much as H o This order will continue

y y

y y

Marriage of 5 years and no children o H aged 35, earns $100 000 o W aged 31, earns $50 000 Entitled but a shorter period Formulas range of amount = 1.5% to 2% x difference between gross incomes ($50 000) x years of cohabitation (5) = 750 to 1000 x 5 = 3750 to 5000 per year Duration = 0.5 to 1 for each year of cohabitation = 2.5 to 5 years Summary: SSAGs suggest support of 312.50 to 416.66 for 2.5 to 5 years o Restructure? Perhaps, $20 000 lump sum or $1000 per month for 2 years

Tax implications y Periodic spousal support is deductible if it is periodic o The recipient must pay tax on the amount received y Lump sums are not deductible, and cant be taxed Child support is no longer deducted from the payers taxable income y Difference in tax treatment of child support vs. spousal support y Since 1996 y The recipient doesnt have to include

SSAG y With child formula o Collection of formulas based upon custodial arrangements  Range based on individual

Influence of SSAG y Shape clients expectations o Especially payers y People treat them as the definite entitlement o Wont settle for less o Payer will focus on the lower range o Recipient will focus on the higher range o Building of expectations y Starting point in negotiations o Provide framework for discussion y Litigation o Endorsed by Ont CA, BCCA, NBCA o Cross check, litmus test, starting point, useful tool

Custody and Access: Terminology y Custody o Complement of rights and obligations of parent in respect of child o Statute in Ontario  Physical care and control  Right to direct education  Right to choose religious upbringing  Right to determine medical care Divorce y y y Act (DA) No definition of access No description of role of access parent (AP) S. 16(5) o AP has right to make inquiries, and to be given information, as to the health, education and welfare of the child  Unless court orders otherwise  Doesnt state who must comply with this Some schools will ask for written consent from the guardian  The intent is that the parent has the same right to receive information from third parties

Joint Custody y Ambiguous term y Usage of term best limited to situations where more than one person has legal custody, regardless of living arrangements (residence of child) o Education, medical care y E.g. Parents who are living together with child y After they separate, can agree to have legal joint custody o Each continue to make decisions y Each can exercise rights and responsibilities of a parent o S. 20 (3) CLRA

o Need arrangement on major decisions or arrangement will break down

Shared Parenting/Co-parenting y Ambiguous terms y Not custody order o Nws used in media, literature etc.  Narrowest meaning Parents have joint custody and child resides with each parent for significant periods of time  Broadest meaning Each parent plays a meaningful role y When one parent doesnt want custody, may be imposed by the court o Controversial

2002 Divorce Cases y Custody to mother 49.7% y Custody to father 8.5% y Joint y y Children reside primarily with mother in 80% of the cases Only 6.2% of cases involved who lived approximately equal time with each parent

Institutional Framework y Over 80% of parenting arrangements are determined by parents (perhaps through lawyers) y Some C and A disputes resolved by negotiation after assessment by expert y Some C and A disputes resolved by mediation and arbitration o Third party to find a middle ground

About 3% resolved by judges in contested proceedings

Statutory Framework (DA & CLRA) y No statutory presumptions y Case by case determination of best interests of particular child in specific circumstances y Relevant factors listed y Considerable discretion and flexibility o No explicit judicially created presumptions either Separation/Divorce Impact on children, what children want Support obligation under Ontarios family law act (FLA) y Parent has obligation to support unmarried child who is a minor or is enrolled in a full time program of education (s.31 (1)) (p. F37) o Possible for the child to go to court o But obligation ends if child, 16 or over, withdraws from parental control  S. 31(2) o Definitions of child and parent  S. 1(1)  Step parents may have a support obligation to the child y Child of the marriage (s. 2(1)) (p. F-38) = y Child of two spouses or former spouses & o Under age of majority and has not withdrawn from their charge or o Age of majority or over and under their charge but unable by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life

y y

General Test: Did the adult and child interrelate as a parent and child would? Factors: o Interaction o Financial provision o Disciplinary action Representation to outside world Childs relationship with absent biological parent Length of relationship

Extent of Step-Parents obligation y Child support guidelines (guidelines) s. 5 o Creates discretion where payer = stepparent  such amount as the court considers appropriate having regard to these guidelines and any other parents legal duty to support the child Goals y y y y y Easy-to-apply formula Adequate amounts Consistency between cases Predictability and certainty Settlements, not litigation

Some exceptions Child support guidelines y Federal and provincial o Ontarios guidelines essentially identical to federal ones y Not guidelines o Legally binding rules y General formula with some exceptions (flexibility for specified circumstances) o Flexibility undercuts certainty etc. y Factors under general formula

o Number of children to whom the order relates o Payers income

Example: mother has primary care of three children. Father, ordinarily resident in Onario, has annual income of $100 000 o Ontario table

Expenses covered by s. 7