LAW 201 Lecture Notes - Lecture 6: Shared Decision-Making In Medicine, Equalization Payments, Tender Years Doctrine
20 Jun 2018
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Module 6- Family Law
Module 6A: Marriage and Divorce
Family law:
Family law reflects values and beliefs of society
Laws both reflect and reinforce family idealogy
Enormous changes in family behaviours, values and law- “marriage” and “family” are
evolving constitutions
Family law lags behind changing values and behaviours
Family Law- Christian Basis:
Historical Christian view of marriage
oMonogamy and no divorce
oPatriarchy
Evolution of values and behaviours
oStarting about 1850 recognition of divorce
oSlow moves to gender equality in law- rights to women in separation
Marriage + Annulment:
To marry:
oNeed to be single- valid prior divorce if prior marriage
Civil Marriage Act 2005- same sex partners
If marriage is void, get an annulment
oNon-consummation (inability to have sex when “reasonable expectation” of sex)
oFamily Law Act rights as long as in “good faith”
Divorce Act 1985:
Federal statute: grounds- s. 8 Divorce Act
o1 year “separate and apart”
oAdultery of other party
Must not have been “condoned” (forgiven)
Often admitted but prove by “opportunity and inclination”
oCruelty of other party-physical or mental
Requires “reasonable provision” for child support
Mostly uncontested
Unmarried Cohabitation: “Marriage Lite”- Common Law
Property claims based on recognition of contribution
Spousal status for some statutory purposes
oFederal purposes after 1 year (ex taxes)
oOntario for spousal support if “cohabit in a conjugal relationship”
find more resources at oneclass.com
find more resources at oneclass.com
After 3 years
In a “relationship of some permanence” with child
Changed social attitudes
o1/6 of all families
Protection of women and children
What is the harm with polygamy?
Polygamy is often associated with:
oWomen are often pressured into polygamous marriage
oWorse outcomes for women than monogamy
oMental health, abuse, less satisfaction from marriage
Worse outcomes for children than monogamy
oHigher rates of emotional abuse, especially of less popular mother- poverty, poor
nutrition
oFemale adolescents may be coerced into marriage
oMale adolescents forced out- “lost boys”
Negative societal economic effects due to limited investment in children
BC Reference case on polygamy 1001 BCSC 1588
2011 decision upheld validity of Criminal Code s. 293, but no prosecution of those who
were minors when they entered polygamous marriage or those who are not in
“marriage” (ex polyamorists)
Accepted restriction of freedom of religion justified under s. 1 of the Charter to prevent
harm to women and children
Kody Brown (sister wives) v Buhan (Utah County) Dec 13, 2013, US District Ct.
US federal court rules that Utah anti-polygamy law that prohibits “polygamous
cohabitation” violates freedom of religion of US constitution and substantive due
process
Under the ruling, it is still illegal to obtain multiople marriage licences, but men can no
longer be prosecuted for cohabitation with multiple women or “purporting” to be
married (“celestial marriages”)
***US Court taking a different approach than Canadian Court***
The Family Justice Process:
Prospective, unlike most retrospective legal processes
In practice, lawyers and judges focus on settlement in context of potential for litigation
oFinancial and emotional cost of litigation
oParents will need to have an on-going relationship
Less than 2% of family cases go to trial
Rules of Family Courts:
Focus of process is usually on encouraging settlement
find more resources at oneclass.com
find more resources at oneclass.com
oNegotiate separation agreement
oConsent order
Government provides information for self represented, but law is complex and legal aid
is limited to lowest income groups
Government subsides mediation
Some cases have to be resolved by a judge
oSome family litigants are unreasonable, abusive, dishonest, too angry to settle
etc.
Module 6B: Economic Issues on Separation
Family Law Act (Married)- What is “property” and what is excluded?
“Property” includes:
oHome and other real estate
oCar
oPersonal items such as clothing, jewellery, books
oHousehold items such as furniture, appliances
oBank accounts, RRSPs, stocks, pensions
oAny businesses in which a spouse has an interest or share
Excluded property
oGifts or inheritances
Property Division for Married Couples (Ontario Family Law Act):
Property division concerns the value of property acquitted during the marriage
On separation, each spouse keeps their own property
But they share any increase in the value of the property that was acquired during their
marriage or owned before marriage
oDoes not include inheritance or gift from third party (parents) unless
matrimonial home always fully included
On separation, the wealthier spouse pays the other spouse an “equalization payment”
which has 2 main steps
Matrimonial Home: Possession
Both spouses have equal right to possession of the matrimonial home, even if the home
is owned by one spouse
oNot a financial interest, but a right to remain in the home after separation
Courts can make orders for “exclusive possession” of the matrimonial home in favour of
one spouse
oUsually to protect the interests of children and address issues of domestic
violence
oOrders may be made on an interim basis
oCourts reluctant to allow indefinite postponement of right to share in
matrimonial home
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Family law reflects values and beliefs of society. Enormous changes in family behaviours, values and law- marriage and family are evolving constitutions. Family law lags behind changing values and behaviours. Historical christian view of marriage: monogamy and no divorce, patriarchy. Evolution of values and behaviours: starting about 1850 recognition of divorce, slow moves to gender equality in law- rights to women in separation. To marry: need to be single- valid prior divorce if prior marriage. If marriage is void, get an annulment: non-consummation (inability to have sex when reasonable expectation of sex, family law act rights as long as in good faith . Federal statute: grounds- s. 8 divorce act: 1 year separate and apart , adultery of other party. Often admitted but prove by opportunity and inclination : cruelty of other party-physical or mental. Spousal status for some statutory purposes: federal purposes after 1 year (ex taxes, ontario for spousal support if cohabit in a conjugal relationship .
