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Family Law

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Family Law

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  1. Family Law

  2. Deals with • Family Law deals with the relationship among family members – • husband & wife • same-sex partners • parents & children • Any other parties ie. Grandparents & step-parents

  3. 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

  4. What is a marriage?

  5. 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

  6. 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

  7. 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)

  8. Absence of a prohibited relationship • Cannot be too closely related to each other by blood

  9. 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

  10. 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

  11. 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

  12. Custody & Access When 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.

  13. Sole Custody: the children live with one parent and that parent makes the major decisions involving the children Kramer v. Kramer Court 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.

  14. 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.

  15. 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 1988to 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.

  16. 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

  17. Read Van De perre v. Edwards page 457 • Answer questions #1, 3 & 4 • Why do you think the trial judge and the Supreme Court awarded custody to Elijah’s mother? • 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 • Do you agree with the Supreme Court’s decision? Why or why not?

  18. 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

  19. The appropriate level of child support is based upon two key factors: • The non-custodial parent’s total income • The number of children to be supported Child Support Broken down

  20. Interesting family law case • Chinese Man Sues Wife for Ugly Baby and Wins