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family law.doc

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CRIM 135
Graeme Bowbrick

TOPIC #9 – FAMILY LAW I. CONSTITUTIONAL RESPONSIBILITIES 1. Introduction • There is a lot of constitional overlap • Roles for both federal and provincial government 2. Federal Jurisdiction: s.91(26) • Federal government defines marriage • Authority over divorce • Sets up process for divorce • Spousal support ,child support 3. Provincial Jurisdiction: s.92(12) & 92(13) • Dominant position • Solemnization of marriage (process of marriage) 92(12) • Property and civil rights in the province 92(13) • Child protection, adoption II. MARRIAGE AND DIVORCE 1. Marriage: the Civil Marriage Act • Union of one man and one women to the exclusion of all others ( prior to 2005 common law) • New definition of marriage : marriage for civil : union of two person to the lawfully exclusion of all others 2. Divorce (a) Introduction • It makes sense that marriage has a distinct process • Distinct and legal requirements to get unmarried • Requirements are set out in federal statue : the divorce act • Legal requirements : grounds for divorce • Meet at least one of the necessary grounds (b) History 1 (i) Pre-1968 • Rare and difficult to obtain • Only option was to get a bill passed in the federal parliament • Bill need to pass 1 2 committee (review app for divorce) (expensive) • Result :divorce was really rare because of the process (ii) 1968 Reforms • Divorce act of 1968 • 1 reform : process through court ( apply to court) • 2 ndreform : original grounds for divorce : • Adultery, rape, bigamy ( married to more than one ) ,physical or metal cruelty, imprisonment( spouse was sent to prison), drug addiction, failure to consummate, bestiality( sex with animal), (fault) • living for separate and apart for 5 years ( no fault) • Beginning of no fault divorce (iii) 1985 Reforms • Reforms completed the transition from fault based to no fault based divorce • Fault based and no fault based (c) Grounds for Divorce Today (i) Living “Separate and Apart” for 1 Year • Sort out details such as money and kids • No fault ,no court needed if both agrees, • Divorce order will be issued ( desk order) • 99.9 percent on this basis • No fault divorce system (ii) Adultery • Can get divorce based on adultery • Long and complex process because is going to trial ( burning money) • Other spouse will deny so you have to go to court • Divorce in less than 1 year than people would opt for fault based grounds (iii) Mental or Physical Cruelty 2 III. “COMMON LAW” RELATIONSHIPS 1. Definition • No legal status known as common law, instead there are certain legal rights and responsibilities when it ends • Marriage like relationship, sexual, sharing of responsibilities, emotional intimacy • May have to pay spousal support, dividtion of properity 2. Legal Repercussions of “Common Law” Relationships • Length of relationship : different periods of time for provinces: in BC (march 2013) family law act : • Rights and responsibility “spouses” if your spouse’s than certain legal rights and responsibility follows • Definition of spouse: • people who are married • People have lived together in a marriage like relationship for at least two years • Two people who have a child together and have lived together in any amount of time • Vary by province • All Canadian jurisdictions in terms of government: common law as marriages, benefits and health care ( low income) • In BC when it comes to relationship breakdown the consequences are equal when anyone is defined as spouse : common law and marriage ( same law applies) • Breakdown of relationship is when all the problems occur • Advantage of common law : no formal process for ending it : no divorce process • IV. LEGAL CONSEQUENCES OF RELATIONSHIP BREAKDOWN 1. Spousal Support (a) Concept 3 • Relationship breakdown should not resolve in one spouse being less well off than the other • Some period of time ( short and long) • Example: man and women meet each other 20, get married a year later, women never finishes post sec because kids meantime husband continues education and starts career over 25 years, women stays home and husband builds career and more earning power, something goes wrong they want a divorce, leaving his wife with no formal education and kids ,no career skills of any kinds and man is making 200 thousand a year. Explicit or implicit agreement ( deal) (b) Divorce Act vs. Family Law Act
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