Family Law

Marriage

Marriage A Federal jurisdiction – Civil Marriage Act Federal government creates, amends, repeals all legislation and essential requirements for a valid marriage for all Canadian citizens Provincial government have formal requirements, or additional rules Essential Requirements: Mental capacity Valid consent Minimum age or parental consent Absence of a prohibited relationship termination of prior marriages Sexual capacity If a marriage does not meet the essential requirements, it is declared void ab inito – never existed

Essential Requirements Mental capacity – both parties must have the ability to understand, the nature of the marriage contract and the responsibilities and duties involved If incapable because of illness, alcohol, or drugs, cannot legally marry Freedom to consent – free will – cannot be forced through fear Age of consent – must be 18 in Ontario. If younger, must have consent of parent(s) or guardian(s). If parent refuses, the minor can apply to courts for approval Absence of prohibited relationship – blood relationships (2nd cousins or further removed) Sexual capacity – must be able to consummate the marriage Prior marriage – can only be married to one person at a time in Canada. Bigamy (married to 2+ people at the same time is illegal – 2nd marriage void) Annulment – legal declaration by courts that marriage never existed. Courts grant annulments if one of the essential requirements was missing

Formal Requirements Marriage license or Publication of banns - need to apply and purchase marriage license which authorizes the marriage. Some provinces don’t require license but banns of marriage proclaimed at a religious ceremony – announcement of intention 5 days before Marriage ceremony – witnessed (2 people 18+ old) and conducted by an authorized person Must be aware of anything which would prevent them from marrying Must take each other as “lawfully wedded” husband/wife” Must be proclaimed as husband/wife

Same Sex Marriage July 2005 Canada became the fourth country in the world (after Netherlands, Belgium, and Spain) to legalize same sex marriage Same-sex marriages were not traditionally recognized under Canadian law. The definition of marriage, based on the British common law definition, was “the lawful union of one man and one woman to the exclusion of all others.” In other words, only two people of different sexes could legally marry.  Judicial rulings on same-sex marriage have focused on equality rights under Section 15 of the Canadian Charter of Rights and Freedoms.  Supporters of the legalization of same-sex marriage argued that the traditional definition of marriage, as the “union of one man and one woman,” violates equality rights under Section 15 of the Charter because it excludes gay and lesbian couples from the same protection and benefits under the law as heterosexual couples are afforded. Halpern v. Canada

Halpern v. Canada In Halpern v. Canada, two same-sex couples decided to be married in a religious ceremony at the Metropolitan Community Church of Toronto (MCCT), a Christian Church that conducts marriages for its homosexual members. The Ontario government, however, refused to register the marriages, arguing that the federal definition of marriage excluded same-sex marriages. The couples took the issue to court; the case was ultimately heard by the Ontario Court of Appeal (the highest provincial court in Ontario). Ontario Court of Appeal ruled that the traditional definition of marriage unconstitutionally violated persons' Charter right to equality. The Court declared the traditional definition of marriage to be invalid and reformulated the definition as “the voluntary union for life of two persons to the exclusion of all others.”

Halpern v. Canada The “one man and one woman” requirement in the definition of marriage creates a distinction between opposite-sex and same-sex couples on the basis of sexual orientation. Exclusion from the institution of marriage spreads the idea that same-sex couples are not capable of forming loving and lasting relations, and that same-sex relationships are not worthy of the same respect and recognition as opposite-sex relationships. It offends the dignity of persons in same-sex relationships. The federal government argued the exclusion of same-sex couples from marriage was necessary to encourage procreation and child-rearing. The Court disagreed, concluding that heterosexual couples would not stop having or raising children because same-sex couples were permitted to marry. Moreover, the Court noted that many heterosexual couples often do not procreate or rear children, while many same- sex couples have and raise children.

Supreme Court of Canada: Reference Re. Same-Sex Marriage The Chrétien government did not appeal the decision of the Ontario Court of Appeal, instead deciding to draft a bill that would change the definition of marriage in Canada to include same-sex couples. In 2003, the federal government referred the proposed bill to the Supreme Court of Canada for constitutional review.  Three questions: Was the definition of marriage within the authority of the federal government? Could they change the definition without permission from the provinces? Was the inclusion of same-sex couples within the definition of marriage consistent with the Charter? Did the freedom of religion guaranteed by the Charter protect religious officials from being forced to perform a same-sex marriage against their beliefs? Added by Paul Martin Is the traditional definition of marriage (between one man and one woman) consistent with the charter?

Supreme Court of Canada: Reference Re. Same-Sex Marriage federal government could change the legal definition of marriage without the permission of the provinces. the new definition of marriage, which included same-sex couples, did not violate the Charter. In legalizing same-sex marriage the government was not violating any constitutional rights under the Charter. religious institutions could not be forced to perform same-sex marriage ceremonies that went against the beliefs espoused by their religious faith. The Court exercised its discretion and chose not to answer the fourth question - this issue had already been addressed by provincial lower courts and accepted by the federal government.

Effects of ruling broadened equality rights in Canada to include the right to same-sex marriage. it eliminated the provinces from the picture. While many provinces were quick to adopt the new definition of marriage, some provinces had protested  The provinces have no constitutional jurisdiction over the definition of marriage and must abide by the decision of the federal government. New Civil Marriage Act – Expanded the definition of marriage Extended full legal benefits and obligations of marriage to same sex couples

Types of “Marriages” Common-law – not legally married but are in a legitimate relationship – Cohabitation In Ontario – must be living together in a conjugal relationship for three years or more, or one year with a child Still responsible for obligation to pay spousal support, even if not “married” Cohabitation agreements Domestic Contracts – legal contract created by two partners about certain aspects of their lives Prenuptial agreements

Ending a marriage Separation agreement signed by couples – division of property, assets, support payments, etc. Drawn up by lawyers and signed – using a mediator Courts only become involved when agreements cannot be reached Divorce - one spouse files a petition for divorce which includes the reasons for the divorce and requests for arrangements for support payments and custody Most cases settled outside of court, but if necessary cases appear before Superior Court, especially when children are involved

Custody When a couple with a child or children file for divorce, they must determine which parent the child will live with (custody). If the parents cannot agree, then the judge makes the decision - The parent who cares for the child is called the custodial parent The other parent is usually given access to the child – he or she can visit the child and has the right to spend time with them Judge determines custody based on the best interests of the child – judge tries to minimize any disruption in the child’s life – physical, emotional or social Was the child abused by one parent? Does the child prefer to live with one parent? Can one parent provide a more stable home? Would living with one parent interfere with the child’s schooling or social life? Tender years doctrine – the belief that young children should be in the custody of the mother. This has changed over the years because roles have changed. However, up to the age of 6, this can still be a determining factor

Types of Custody Four main types of custody arrangements: Sole custody – arrangement which gives the responsibility of childcare to one parent only. Custodial parent makes all decisions about the child’s well-being Joint Custody – involves both parents in decision making. The child lives primarily with one parent but spends a generous amount of time with the other parent as well Shared Custody – the child spends at least 40% of the time with each parent. Parents share the major decisions about the child’s upbringing Split custody – there is more than one child and custody of the children is divided between the parents (one lives with mom and the other lives with dad)

Access Non-custodial parent is granted access to the child – can spend a certain amount of time with them in order to maintain a relationship Three main forms of access: Reasonable access: allows the parent a flexible schedule and visiting times that are not fixed Defined access: court sets out times and days when the non-custodial parent has access to the child Supervised access: the parent can only visit the child in the presence of a third party, usually a social worker, a childcare worker or a responsible family member Grandparents can apply to the courts to have access to their grandchild if the custodial parent refuses

Child Support All parents have the legal obligation to support their unmarried children until they have reached the age of majority (18) Parents have a financial obligation to support their children over the age of majority who are enrolled in post-secondary school or who, because of a disability or illness, are unable to provide for themselves  Divorce Act sets out regulations on how to calculate support payments – The Federal Child Support Guidelines – provide specific tables and rules on calculating support payments based on the paying parent’s income, the number of children, and the income tax rates in each province. The guidelines apply to all parents, whether they were married at the time of the separation or common law All children are included in any additional financial benefits that the parents may enjoy after the separation  

Grounds for Divorce Under the Divorce Act the only grounds for divorce is marriage breakdown – established if spouses live apart for one year, if one spouse commits adultery, or if one spouse has been physically abusive or mentally cruel to the other In Canada the following are considered crimes: Physical abuse (punching, slapping, burning, cutting), psychological abuse (stalking, threatening, damaging property), financial abuse (taking pay cheque, withholding money for food or medical treatment) and sexual abuse (activity or touching)