C17 - Family Matters

Issues in Ending a Marriage

• marriage dissolved through the Divorce Act, 1985
• Factors Judge consider when divorcing couple goes to court:
  • Is child or spousal support a factor in the divorce?
  • Is there a domestic contract concerning spousal support or the division of assets?
  • Is there a separation agreement on the custody and support of the children?
  • What are the family assets and where are they?

Child Custody

• custody: care of a child awarded to a parent by a court when the relationship ends
  • decided by parents or Judge
• custodial parent: parent w/ childcare responsibilities
• Judge’s concern in “the best interests of the child”
  • minimize physical, emotional, and social disruption for child
• Factors considered
  • Was the child abused by either parent?
  • Does the child prefer living with one parent?
  • Can one parent provide a more stable home environment?
  • Would living with one parent interfere with the child’s schooling or social life?
• tender years doctrine: belief that young children should be in the custody of their mothers
  • custody of young children historically always awarded to mothers
  • belief that women more nurturing and caring than men

Types of Custody

	Living Arrangements	Decision Making
Sole custody	One parent has responsibility for the child	The custodial parent makes all decisions about the child
Joint custody	The child lives primarily with one parent but spends a lot of time with the non-custodial parent	Parents cooperate to make decisions about the child’s welfare
Shared custody	The child spends at least 40% of the time w/ each parent	Parents share major decisions affecting the child’s upbringing
Split custody	When there is more than one child, siblings are separated and their care is divided between parents	The custodial parent makes all decisions about the child

Split custody (i.e. one child w/ mother, other w/ father) rarely done and only if it is in the “best interests of the children”

Access

• access: the non-custodial parent’s right to visit the child
• reasonable access: parents are left to agree about terms of non-custodial’s parents right to visit the child
  • allowed to arrange flexible visiting times
  • only works if parents not hostile towards each other and can make arrangements w/o judge
• defined access: visitation terms for non-custodial parent that are defined by the Court
  • when parents can’t agree
• supervised access: visits by the child by the non-custodial parent requiring the presence of a third party
  • usually social worker, childcare worker, or another responsible family members
• How Courts Deal with Refusal of Access
  • courts try to have parents meet w/ third-party mediator to help resolve differences
  • non-custodial parent can seek court order for access
  • enforcing court orders difficult
    • custodial parent can be charged w/ contempt (fine or jail)
    • courts reluctant to impose sentence
  • extreme measures: accusation of kidnapping the child
    • criminal offence worth up to 10 yrs. prison

Grandparents

• grandparents may also want access
• grandparent can apply to courts for refusal of access
• courts allow access if in the “best interests of the child”

Parental Mobility

• parents may move from o.g. location to remarry or start a new job
• move by custodial parent can severely disrupt social and emotional ties of child to community
  • i.e. Is it in the child’s best interests if the custodial parent moves across the country to work, being separated from their other parent?

Child Support

• all parents have legal obligation under Criminal Code to provide needs of their unmarried children until these children reach age of majority
• parents also have financial obligation to children in post-secondary education or unable to provide for themselves, regardless of age
• child support: payment one parent makes to the other to meet the financial needs of their children

Calculating Support Payments

• pre-1997: judge in custody case calculated support payments (variation between cases / prov.)
• 1997: Divorce Act amended to add Federal Child Support Guidelines
  • guarantees consistency and fairness throughout Canada of child support payments
  • regulations for child support payments
  • applies to all parents, incl. those in cohabitation
  • children incl. in any additional financial benefits after separation
• parent may apply for reduction in payments
  • if financial situation of paying parent deteriorates
• parent may apply for increase in payments
  • if financial situation of paying parent improves

Other Reforms

• Changes to Income Tax Act also part of child support reforms
• parents receiving child support was subject to tax on payments at one time
• however, payments could be deducted from taxable income
• challenged n Thibaudeau v. Canada [1995] 2 S.C.R. 627
  • challenge: discriminates against custodial parent, usually women
  • Thibaudeau, single mother, lost case
• Income Tax Act amended to reomve inclusion/deduction scheme

Other Family Issues

Protection of Children

• parents must care for children and protect them from harm
• offence under Criminal Code to abuse child physically or sexually
• all provinces / territories have laws to protect children from neglect and abuse
• agencies like Ontario Children’s Aid Society investigate allegations of abuse against children under certain age (usually 16)
  • provide counselling and other services to parents and children
• “best interests of children”, may incl.
  • returning children to parents
  • temporarily removing children from home
• Crown wardship order: family court judge’s order to make the state (gov’t.) the guardian of a child
  • removes child permanently from parents’ home
  • children moved to foster home or for adoption
  • extreme cases only

Adoption

• adoption: legal process by which a couple (or single person) becomes the legal parents of a child
• permission from birth parents not needed if child removed from family via Crown wardship order
• consent from birth parents required in other cases
  • case of infants: 7-14 day waiting period before birth parent can consent to adoption (most provinces)
  • further period of 3-4 weeks in case birth parents change their minds
• adopted children treated the same as biological children

Adoption and Aboriginal Children

• many prov. / territories require adoptive parents to consider Aboriginal child’s heritage and traditions while raising child
• Indian band child belongs to must be given notice of intention to put child for adoption
• Lower courts favoured Aboriginal adoptive parents over non-Aboriginal application (2 exceptions)
  • Natural Parents v. Superintendent of Child Welfare [1976] 2 S.C.R. 751
  • Racine v. Woods [1983] 2 S.C.R. 173
  • Supreme Court held that child registered under Indian Act will not lose their status
• custom adoption: traditional form of adoption within Aboriginal communities
  • had some legal recognition in Canada for >40 yrs.

Spousal Support

• partners may be obliged to support each other financially even after divorce
• i.e. a spouse quits his/her job and stays home full-time to raise the children
  • one spouse becomes financially dependent on other
• spousal support: money that one spouse pays the financially dependent spouse once the marriage or relationship has terminated
  • Judge examines need of spouse applying for spousal support
  • also examines ability of respondent spouse to pay
  • any existing agreements between spouses (i.e. prenuptial agreements)?
  • for cohabitators, only applies if they have agreement

Self-sufficiency

• Goal of spousal support is to make financially dependent spouse become independent again
• What if divorced spouse never becomes self-sufficient?
  • “Pelech triology”
    • Pelech v. Pelech [1987] 1 S.C.R. 801
    • Richardson v. Richardson [1987] 1 S.C.R. 857
    • Caron v. Caron [1987] 1 S.C.R. 892
  • Pelech applied for spousal support after a long time of divorce when in financial need
  • Judge dismissed case and argued it was unfair for husband Pelech to pay after so long
  • other case: one spouse may have to give spousal support indefinitely

Federal Guidelines

• 2005: Fed. gov’t. released draft of spousal support advisory guidelines
  • intended to bring more certainty and predictability to spousal support determination under Divorce Act
• Courts rarely overrule spousal support agreement made between spouses

Enforcing Support Payments

• Contempt charges and jail sentences possible, but rare
• provinces established enforcement agencies to help collect child and spousal support payments
  • i.e. B.C.: Family Maintenance Enforcement Program
  • agencies collect support and pass it on
• Methods of Collection
  • court order to employer to deduct money owed from employees’ paycheque to enforcement agency
  • Ont. suspend driver’s license

Family Assets

family assets: property / items owned by either spouse (or both) and are normally used for family purposes

i.e. family house, vacation property, vehicles, furniture, appliances, pension plans, savings

Equal Division of Property

• pre-1980s: only monetary contributions considered in division → raising children and working in home not considered contributions
  • i.e. Murdoch v. Murdoch, [1975] 1 S.C.R. 423
  • acquired several cattle ranches
  • all property registered under husband’s name
  • Irene Murdoch maintained farm while husband absent
  • Supreme Court of Alberta and S.C.C. dismissed Irene’s appeal to get 1/2 share of property

Dividing the Assets

Steps:

1. add up value of each party’s assets
2. deduct debt from total value
3. net family property: the value of a couple’s assets, w/ debts deducted, at the date the relationship ends
   • property divided equally among spouses

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• equalization payment: what the spouse with the higher value of assets pays to the other spouse to make the division of total assets more equitable
  • done if property cannot be equally divided
• in Ont., each spouse allowed to keep value of assets that were his / hers at time of marriage

The Matrimonial Home

• matrimonial home: the main residence where the spouses resided before their separation
• often biggest and most important family asset
• automatically considered family property
• each spouse has equal right of possession; neither can force one another to leave
• “in the interests of the children”, one spouse may have exclusive possession of family home (right to live) until children leave home
• home than sold and split equally among spouses

Unequal Division of Property

• sometimes, equal division is unfair to spouse who contributed more to marriage
• order of unfairness or unconscionability: order requiring a division of property that recognizes the unequal contribution of spouses
  • some assets are not incl. in net family property

Division of Property in a Common-law Relationship

• no automatic rights or privileges as married couples
• contracts required
• each spouse entitled to what he/she brought into the relationship

Division of Property on Death

• will: legal document that states how a person’s property and possession should be divided after death
  • important for anyone who has assets
  • most spouses leave their property / possessions to surviving spouse
• if no survivor listed in will
  • Ont: surviving spouse can apply to province for division of matrimonial property within 6 months of death
• intestate: the state of dying without having written a will
• succession: the legal right to inherit property
  • determined under prov. / territorial legislation during intestate
  • in some prov., no legal protection for cohabitating spouse whose spouse dies in intestate

Division of Property on Reserve Lands

• married couples who live on reserve lands subject to different laws
• cannot buy or sell reserve land
• reserve land owned by the Crown for the use and benefit of Aboriginal ppl. living on reserves
• if person granted right to possess reserve property, he / she can transfer this right only to another member of the band or to the band itself
• challenge in Derrickson v. Derrickson [1986]

Case: Derrickson v. Derrickson, [1986] 1 S.C.R. 285

Background

• Rose and William Derrickson were members of Westbank First Nation in BC
• Rose sought divorce
• She applied under BC Family Relations Act for a half-interest in properties that William had been granted under s. 20 of Indian Act
• Rose prepared to accept compensation in lieu of property
• Supreme Court of British Columbia dismissed Rose’s application
  • fed. Indian Act supersedes prov. Family Relations Act
  • on appeal, Court of Appeal stated that Rose was not entitled to interest of land; but she should be compensated financially

Legal Question: Do the provisions dealing with division of family assets in British Columbia Family Relations Act apply to reserve lands held by an Aboriginal person?

Decision

• S.C.C. held that right to possess reserve lands is a federal matter
• Court awarded Rose compensation for her interest
• Court could not award her equal division she would have had under prov. legislation
• Critics argue that this law puts Aboriginal women at a disadvantage bcz. majority of Certificate of Possession holders are men