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Law 2101 (694)

Family Law Notes

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Law 2101
Mysty Sybil Clapton

FAMILY LIFE IN CANADA Concept of Census Family (2006) Married Couples = 68.6% o With or without children Common Law Couples = 15.5% o Same or opposite sex o No minimum period of cohabitation o With or without children Single Parents (Child(ren) under 18) = 15. 9% Trends (1) More Cohabitation Outside Marriage o % Of Census families that are common law couples: 1981 6% 1991 10% 2001 14% 2006 15.5% (2) Quebec A Distinct Society o 28.8% of families are Common Law Couples Compared to 10.3% in Ontario o Over 80% of First Nations are Common Law Compared to 57% in Canada o About 60% of children born in Quebec are born to non -married mothers (3) Delayed Family Formation o Average age of first -time brides: 1960s age 22 2008 age 29 o Average age of first -time grooms: 1960s age 24 2008 31 o 20-24 year olds living as couples: 1986 28.6% 2006 17.9% o 25-29 year olds who live as couples: 1986 62.3% 2006 48.5% (4) Children Leave Home Later o 20-24 year olds in parental home: 1986 49.6% 2006 60.3% o 25-29 year olds in parental home: 1986 15.6% 2006 26% (5) Family Breakdown is Common o Divorce 1965: 10,000 divorces in Canada 1987: 96,000 divorces 2005: 71,241divorces th 40% of marriages will not reach 30 anniversary o Common Law Relationships Much more likely to s plit up than married coupleth 50% of Common Law relationships end before 5 anniversary 25% of children experience parental separation by age 10 (6) Joint Custody is More Common o Custody arrangements on divorce: 49.5% = sole custody to mother 41.5% = joint (legal) custody 8.5% = sole custody to father (7) Blended Families Are Common o Over million blended families o 10% of children under 12 live primarily in a family with a step -parent (8) Families Are Smaller o Average family size: 1971: 3.7 2006: 3 o Total fertility rate = 1.68 Highest since 1990 Was 3.9 in 1959 Replacement rate is 2.1 (9) Canadas Population is Aging o 2006 17.7% of Canadians were under the age of 14 1961 34% were under the age of 14 o 2006 13.7% of Canadians over the age of 64 (10) Both Parents Work Outside The Home More Often o About 70% of mothers with children aged 0 -5 are in the workforce Compared to 25% in 1970 MARRIAGE & DIVORCE Valid Marriage No defects in formalities OR defect is cured by legislative provision o Ex: s. 31 of Ontarios Marriage Act (p. F-5) No problems with partners capacity to marry one another o Ex: not too closely related by blood; of sufficient age Ends on death or divorce Essential & Formal Validity Formal Validity ceremonial formalities needed for valid marriage o Under PROVINCIAL legislation o S. 91(12) of Constitution 1867 Essential Validity capacity of partners to marry one another o Under FEDERAL legislation o S. 91(26) of Constitution Act 1867 Determining the validity of a marriage with a forei gn elemento Essential Validity (capacity to marry) is determined by law of pre -marriage domicile of each person o Formal Validity (ceremonial formalities) is determined by the place of marriage o Ex: Two Canadians married in Costa Rica Capacity to marry govern ed by Canadian law Formal requirements governed by law of Costa Rica Formal Validity Ontarios Marriage Act (p. F-4) License or bans of marriage Who can officiate Ceremony Failure to comply with Ontarios Marriage Act may have no legal effect o Ex: A couple finds out that the Reverend who officiated at their wedding was excommunicated by his denomination 3 weeks before the ceremony and was not authorizes to conduct weddings S. 31 of Ontarios Marriage Act cures this formal defect IF the couple acted in good faith and cohabited as a married couple Essential Validity Civil Marriage Act (Canada) (p. F-5) o S. 2 Marriage, for civil purposes, is the lawful union of 2 persons to the
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