Canadian Family Law
Canadian family law includes the governance over family relationship, marriage and divorce. According to the section 91(26) of the Constitution Act, 1867, the federal government has the exclusive jurisdiction to handle marriage and divorce cases. It also states the power of the body of Canadian law concerning the issues or conflicts involving family matters such as custodial, spousal and child support during and after a divorce.
The federal government of provinces also has jurisdiction on the solemnization of marriage as well as spousal support, child support, custody and access, property division, adoption and child protection according to the section 92(13) of the Constitution Act, 1867.
Marriage
Canadian family law permits the marriage of two individuals of different or same sex since the year 2005. But it prohibits the marriage of individuals who do not have the capacity such as minors. It also prohibits the marriage of people who are family related.
For a marriage to be valid, it should be properly solemnized under the rules of the particular province where the ceremony took place. Though some marriages are still valid if the province where the celebration took place considers the marriage legitimate because it complied with the province’s prerequisites.
Annulments
Canadian family law states that a marriage is void if the individuals concerning the marriage are not capable of carrying out the marriage. Other lack of requirements also regards a marriage as void such as when one of the parties is underage, is already married or blood related. Aside from validity issues, individuals can also file for annulment in the event of marriage conflicts resulting to agreement of separation.
Marriages are void the same way as voiding a contract. It can also be nullified by a court if one or both parties don’t have the capacity to consummate the marriage.
Separation and Contracts
Both parties have the option of getting a pre-nuptial agreement to avoid property division conflict and other issues in the event of separation. But if both parties did not sign a pre-nuptial contract, rules regarding separation, which includes the division of property and child custody, access and support, should apply.
Contracts can also be drafted during and after divorce to deal with issues that are involved in the separation of both parties. There would be discussions on agreements before finalizing the separation contract to avoid further conflict. Both parties should provide full financial disclosure before their consent is considered fully informed and binding.
Divorce
In Canadian family law, under the Divorce Act, divorce can only be filed by a married individual if the couple has not been together for at least a year. Divorce can also be filed in cases of adultery, abuse or cruelty.
Division of Property
Division of conjugal property can be done during or after the divorce, separation or death. All the conjugal properties should be split equally between both parties. The properties often involved in the splitting up are the things acquired by both parties during the time of marriage. Their assets before marriage are often retained and they don’t need to share them. Also, monetary damages for personal injuries are not divided between the spouses upon division of property.
Property division can vary from province to province but the latter was the most common practice. Some provinces exclude inheritances from being split up to both parties and the spouse who truly owns the property acquired through inheritance can keep the money, real estate or other type or property. Business properties such as company shares are also retained by the true owner in some provinces.
Child Support and Access
Child Support Guidelines determines the child support of the child/children involved in a separation or divorce case. The amount that the court demands from the spouses for child support depends on the monthly salary of the parents and the number of the children that needs support.
Other necessities such as school tuition, medical expenses, insurance coverage and extracurricular expenses can be split up by both spouses depending on the decision of the court that handles the case. Such necessities should be evaluated and if found to be for the best interest of the child or children, it should be in the list of the expenses the spouses should provide on a regular basis. Meanwhile, in extracurricular expenses, the child or children should be considered as ‘special’ or ‘extraordinary’ to be able to get the support. These expenses are used mostly in paying private schools and tutorials.
When it comes to access, both spouses should have an agreement on the schedule and duration of the visits of the spouse to the child. The schedule and duration of the child access is determined mostly by the parent who has custody of the child. Supervised and specified access is also enforced within some parts of Canada such as British Columbia.
Spousal Support
In some separation cases, spousal support has always been one of the many issues involved. There are many factors to be considered before making a decision involving spousal support because both parties are already adult and many have the capacity to support themselves and don’t need help form the former partners. Though some might ask for spousal support even though they don’t require it – these circumstances make the separation or divorce process rough.
There are three types of spousal support.
Compensatory Support – If one spouse made sacrifices resulting in economic disadvantage, the court often decides to have the disadvantaged spouse gain compensation from the other party. Think of a spouse who raises kids or foregoes education to permit the other spouse to become qualified or pursue a career.
Non-Compensatory Support – Non-compensatory spousal support focuses on the reciprocal obligation and responsibility of both parties to one another. Think need and ability to pay. If the other party suffered from disability, the other party should continue to support the former as part of their original obligation in the marriage.
Contractual Support – Contractual support is based on the guidelines of the federal or provincial government regarding child and spousal support. Recently, in 2008, the Spousal Support Advisory Guidelines had been released by the federal government which helps determine the amount of support given to spouses depending on the income of the spouse who should support their former partner. The agreement between both parties regarding this type of spousal support is stated on the contract of separation or marriage contract.
These guidelines determine the amount of support given to a party depending on the circumstances of both parties. The number of children also affects the spousal support given to the disadvantaged party.
