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78 Cards in this Set
- Front
- Back
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what is unit of (legal) personality? |
doctrine where husband and wife considered to be one person under law (husband) |
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family law act - what does it cover? |
"provide in law for the orderly and equitable settlement of affairs of spouses upon breakdown of partnership and to provide for other mutual obligations including sharing responsibility for children" (property & support & children) |
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divorce a mensa et thoro |
ecclesiastical court order by which the parties to a valid marriage were relived of obligation to cohabit, but were still legally married |
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divorce a vinculo matrimonii |
ecclesiastical court order following declaration that a marriage was not valid, and parties released from bonds of marriage |
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annulment |
legal declaration that marriage was never valid, by Canadian court |
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valid Canadian reasons for annulment |
1. bigamy 2. shotgun wedding 3. lack mental capacity 4. consanguinity 5. under 18 possible 6. physical inability to consummate & unknown before marriage (must be other spouse) 7. did not know that was valid ceremony |
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Civil Marriage Act |
federal jurisdiction An Act respecting certain aspects of legal capacity for marriage for civil purposes On July 20, 2005, Canada became the fourth country in the world, and the first country outside Europe, to legalize same-sex marriage nationwide with the enactment of the Civil Marriage Act which provided a gender-neutral marriage definition |
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Halpern v Canada (AG) - what was it and how did it affect laws in Ontario? |
Ratio: The common law definition of marriage infringed the claimants’ rights under s.15(1) of the Charter and that right was not saved by s.1 of the Charter. On July 20, 2005, Canada became the fourth country in the world, and the first country outside Europe, to legalize same-sex marriage nationwide with the enactment of the Civil Marriage Act which provided a gender-neutral marriage definition |
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do common law partners have any statutory right to each others property? |
no |
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domicile |
permanent residence. important when determining ability to divorce |
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legal jurisdiction over marriage |
federal - jurisdiction over marriage and divorce (including capacity) provincial - formal requirements of licensing & ceremony |
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legal capacity to marry (federal) |
1. gender 2. age 3. capacity 4. consent 5. consanguinity 6. marital status |
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who may solemnize marriage? |
civil - judge, JP, or anyone registered under sec 24 of Ontario Marriage Act under authority of a licence. religious - ordained and recognized by a permanent Ontario parish |
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form of ceremony |
must contain: 1. i declare no lawful impediment 2. i call upon witnesses that i take you to be my husband/wife 3. by powers vested in me by the marriage act i do pronounce you to be married |
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solemnized in good faith |
sec 31 - if parties intended to be married in good faith and in compliance with the marriage act, but person performing marriage was not authorized, if parties co-habitated the marriage is valid. |
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recovery of gifts made in contemplation of marriage |
where gifts are made and the marriage abandoned, the donor has the right to recovery |
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consent |
not required for a minor who has been previously married |
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support claims in void and voidable marriages |
sec 1 (1) Family Law Act states that a person who entered into a void or voidable marriage in good faith can assert the same property and support claims as person in a valid marriage. |
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legislation over divorce |
the divorce act is federal and covers all aspects of divorce except division of property |
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what issues must a separating couple resolve?
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custody
child support spousal support division of property will they divorce? |
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what the court can do |
the court can decide support, custody and property with a divorce. the court can decide support, custody and property without a divorce |
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federal and provincial areas |
federal(divorce act) provincial(fla, clra) divorce---------------------- x property-------------------------------------------------x custody ---------------------x---------------------------x child sppt -------------------x--------------------------x spousal sppt---------------x---------------------------x |
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the 3 sources of family law in ON
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Family Court of the Superior Court of Justice
Superior Court of Justice Ontario Court of Justice (the party who starts proceeding must know which court to use) |
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Unified Family Court |
now exists in 18 of 49 counties has jurisdiction over all family matters. |
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where no family court exists |
divorce & property claims - Superior Court of Justice (federal) custody &/or support only - Superior court of Justice(federal) OR the Ontario Court of Justice(provincial) |
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Federal Family Law Statute |
The Divorce Act divorce & property |
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Provincial Family Law Statutes |
Family Law Act - Children's Law Reform Act - |
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Custody and Access dealt with by: |
Children's Law Reform Act (if no divorce proceedings commenced, this act determines custody and access) Divorce Act (if either spouse has commenced divorce proceedings this act determines custody and access) |
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criminal conversation |
if a wife committed adultery, the husband had right to sue the other guy for criminal conversation
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physical chastisement |
right to use physical force to discipline his wife |
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a wife could be awarded alimony only if she could prove: |
a) parties living separate and apart AND b) husband committed adultery c) guilty of cruelty d) deserted her for 2+ years AND the wife had not committed matrimonial offense (adultery or desertion) note: wife not entitled to alimony unless she was willing to take husband back to life with her. But if she actually took him back she was considered to have condoned the misconduct and be disentitled to alimony. |
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Historical Divorce |
divorce used to not exist. marriage ended with death or annulment by ecclesiastical courts - divorce a vinculo matrimonii (from bonds of marriage) MARRIAGE WAS INVALID Parties could apply for a mensa et thoro (from bed and board) for adulterty, cruelty or desertion. not a divorce - duty to support wife if husband at fault. MARRIAGE WAS VALID |
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Henry VIII |
made divorce possible through ecclesiastical courts and private members bill in parliament. |
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Old Fashioned Divorce Henry VIII style |
husband could obtain a divorce based on wifes adultery by: a) first he had to sue other guy for damages for criminal conversation b) then he applied to ecclesiastical courts for divorce a mensa et thoro, judicial order permitting him to live separately from wife c) get a MP to put through a private member's bill that passed a law that divorced him from his wife |
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Married Women's Property Act |
1882 in England. Allowed married women to own and control own property. Put an end to resulting trust/presumption of advancement |
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Presumption of Advancement |
contract/family law that property transferred from a parent to child or spouse to spouse is a gift and would defeat any presumption of a resulting trust. historically if a husband gave a wife property, it was considered resulting trust until Married Women's Property Act |
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Presumption of Resulting Trust |
the transferor still retains equitable title unless transferee can prove on balance of probabilities that it was a gift. if not, it is a resulting trust. |
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constructive desertion |
spouse leaves marriage in spirit by refusal to have sexual relations. grounds for divorce, cruel and inhumane treatment. |
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First Canada-wide divorce legislation passed |
1968 Divorce Act |
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types of custody - sole: |
SOLE
one person has the responsibility and authority to make major decisions about a child's care and how they will be raised. Usually the child lives primarily with the person with sole custody |
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types of custody - joint: |
JOINT two people, usually the parents, share the responsibility for making decisions for a child. It does not necessarily mean that a child will spend "equal" time with both parents |
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types of custody - shared: |
SHARED both parents share responsibility for making decisions and caring for the child. Under the child support guidelines, shared custody is where a child lives at least 40% of the time with each parent. |
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types of custody - split: |
SPLIT parents have more than one child together and each parent has one or more child(ren) living primarily with him or her. |
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what is access? |
-if the child lives with one parent, the other parent usually has a right to have contact with the child. the parent who doesn't have custody has "access" or visitation with the child. -the right to visit with the child and obtain information regarding child's health, education, welfare |
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how is a custody case started? |
either under the child law reform act or the divorce act - in the municipality where the child ordinarily resides except for child protection and adoption, or where mutually agree to be elsewhere with leave of court. Family Law R 5 |
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how is a divorce case started and where? |
If claims will be made for custody of, or access to children, you should start the case in the municipality where the children ordinarily live. Otherwise, it can be started in the municipality where either party lives. If there is both an Ontario Court of Justice and Superior Court of Justice in the municipality, you must start your case in the court that can decide your issues. Many family law cases can be started in the Ontario Court of Justice. However, if claims are being made about property (including a matrimonial home) or divorce, the case must be started in the Superior Court of Justice. |
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what provisions for the enforcement of custody orders and agreements are contained in the CLRA? |
Part III secs 34-39 |
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what documents will the court require in order to grant an undefended divorce? |
8A application
6B affidavit of service registration of divorce proceeding 36 affidavit for divorce 25A divorce order marriage certificate |
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where must a property case be started? |
In either the Family Law court or the Ontario Court of Justice |
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who schedules case conferences and when? |
fast track divorce - after first court date
standard divorce - upon request of a party |
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steps in a case |
rule 8 - application rule 10 - answer rule 8.1 - mandatory information program rule 39(5) - first court date for fast track rule 17(4) - case conference rule 17(5) - settlement conference rule 17(6) - trial mgmt conference rule 23 - trial |
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primary factors for determining custody |
the well being of the child a) don't separate siblings b) wishes of children c) past conduct of parents not relevant d) status quo (top one) |
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under the Divorce Act, who may apply for custody, and under what restraints |
sec 16 (3) A person, other than a spouse, may not make an application under subsection (1) or (2) without leave of the court |
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void ab initio |
1. age (under 16 without consent)
2. capacity (mental defect, alcohol, drugs) 3. consent - mistake or fraud 4. consanguinity 5. bigamy |
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voidable |
-if either party is unable to physically/mentally consummate marriage - refusal not enough. must be non-incapable party to apply for this -duress or coercion |
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support under void ab initio marriages |
if a marriage is entered into in good faith then support is allowed to wronged party |
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collusion |
is an absolute bar to divorce under sec11(4). it is when partners lie about abuse, adultery, length of separation) |
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connivance |
not an absolute bar if it is in the best interest to grant divorce. if one partner tells another to commit adultery in order to get divorce |
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condonation |
applies only on to a divorce on fault grounds. if reconciliation is >90 days a party is assumed to have condoned a behavior and that behaviour cannot be used in the divorce action. |
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provision for children |
if you have not made provision for children, a basket motion divorce won't be granted unless you add a provision |
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reconciliation attempts |
Divorce Act secs 8, 9, 11 encourage reconciliation |
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divorce act sec 9 reconciliation |
directs lawyers to encourage reconciliation unless it is inappropriate to do so |
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effective date of divorce |
31 days after divorce decision so don't get married again before the 31 days are up |
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provincial v federal custody decisions |
if a custody decision is granted under CLRA, it is persuasive but Divorce Act trumps |
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custody other than parents |
Divorce Act - you need leave of court to apply for custody CLRA - anyone may apply for custody |
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Divorce Act deciding custody |
1. condition, means, needs and other circumstances of child 2. no alienation of children 3. court told to give direction that each spouse has maximum access in the best interest of children 4. children over 18 under disability dealt with in this act looks at in loco parentis need leave to apply for custody if not parents |
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CLRA deciding custody - some factors |
The Children’s Law Reform Act, (s.22(1)) states that Ontario courts may order custody and access only where:1) the child is habitually resident in Ontario or if not habitually resident, if the court is satisfied2) that the child is physically in Ontario, and that the case for the child’s best interest can be met in Ontario, that no other custody or access matters or orders in a foreign jurisdiction are pending, that the child has a “real and substantial” connection to Ontario, and that on the balance of evidence Ontario is the correct forum to hear the matter. |
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attornment |
consent, implicitly or explicitly, to a transfer of a right. |
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jurisdiction shopping |
practice of choosing a jurisdiction in which to start a proceeding based on a party's view of his chances of success in that jurisdiction rather than on the jurisidiction's connection with the subject matter of the proceeding |
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habitual residence |
defined as the place where the child resided with both parents. if separated, the child's habitual residence is where child lived under separation agreement, or, if no agreement, status quo |
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principles in determining custody |
same principles in Divorce Act as CLRA a) don't separate siblings b) consider wishes of child c) past parental conduct not relevant unless effect on parenting MOST IMPORTANT - STATUS QUO |
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de facto custody |
actual custody, custody in fact |
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enforcement of custody orders - CLRA secs 34-39 |
34) if child possibly harmed, supervision may be ordered
35) restraining orders 36) kidnapping/unlawful withholding 37) orders to prevent unlawfully leaving ontario 38) orders to punish wilfull contempt re: access 39) orders to provide particulars re: access or custody |
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enforcement of custody orders - Divorce Act s 20 |
pursuant to section 20 a custody or access order has legal effect through out Canada. It may be registered in any court in a province and enforced as order of the court |
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Variations of custody orders - CLRA |
a custody order under CLRA must be varied under that act, sec 29. A change only made it there has been a material change that affects the best interests of the child |
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Variations of custody orders - Divorce Act |
a custody order under Divorce Act must be varied under that act by Variation Proceeding, s 17. May be commenced by either or both former spouses (others require leave of court) |
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principles applied in varying custody order |
both statutes use same principles. the party who applies must show a material change in circumstances that affects the best interest of child. if applicant meets this threshold, court will consider it. A variation is not an appeal, the court assumes that the original order was correctly made. |
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right of custodial parent to relocate child |
3 options 1. parent wishing to move keeps custody and moves 2. parent wishing to move keeps custody but denied move 3. parent wishing to move is given option to stay and keep custody or move and lose custody |
