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INTRODUCTION TO LAW WINTER TERM.docx

74 Pages
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Department
Law
Course Code
Law 2101
Professor
Mysty Sybil Clapton

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Description
FAMILYCensus FamiliesConcept of a census family 2006 o Married coupleWith or without children o Common law couple not included until 1981Same or opposite sexSame sex not included until 2001No minimum period of cohabitationWith or without children o Single parent living with children under 18Higher percentage of married couples in Ontario than Quebec o Higher percentage of common law couples in Quebec than OntarioFewer people living as couples than in the pastMore young adults living in their parents homesThemesTrends 1 More Cohabitation Without Marriage o Percentage of census families that are common law couples is increasing 2 Quebec Distinct Society o Higher percentage of common law couples than any other province o 60 of children born in Quebec are born to nonmarried mothers 3 Delayed Family Formation o Average age for brides is going up 4 Family Breakdown Is Common o Divorces are increasing tho 383 of marriages wont reach their 30 anniversary o Common law couples more likely to divorce than married couples o 25 of children experience parental separation before age 10This number increases in common law relationships 5 Joint Custody Becoming More Common o Mostly goes solely to the mother but increasingly going for joint custody 6 Blended Families More Common o Over half a million blended families 2006 o Children of two different parents who got married 7 Smaller Families o Average family size is decreasing o Total fertility rate is decreasing but has recently been increasing 8 Canadas Population Is Aging 9 It Takes Two o Most familys have 2 wage earners o Most wives with children ages 05 now workValid MarriageNo defects in formalities o ORdefect is cured by legislative provisionExample s 31 of Ontarios Marriage ActNo problems with partners capacity to marry one another o Examples Not too closely related by bloodOf sufficient ageEnds on death or divorceEssentialFormal Validity of MarriageEssential validity o Capacity of partners to marry one anotherFormal validity o Ceremonial formalities needed for valid marriageImportant distinctions between essential and formal validity o Division of powers between Parliament of Canada and provincial legislative assembliesEssential validityFederal o S 91 26 of Constitution Act 1867Formal validityProvincial o S 91 12 of Constitution Act 1867 o Validity of marriages with foreign elementsExampleCanadians who reside in Ontario marry in MexicoCapacity to marry is determined by premarriage domicile of each personAlso marriage is valid if each has capacity according to law of intended homeFormal requirements are determined by place of marriageExample of Marriage with a Foreign ElementTwo Canadian citizens who permanently reside in Ontario marry in Dominican Republic o Capacity to marry one another is governed by Canadian law o Formal requirements governed by Dominican lawFormal ValidityOntarios Marriage Act o License or banns of marriage church announcement o Who can officiate o Ceremony o Age restrictionsValid o Effect of failure to complyTwo years after their marriage HW discover Reverend Bob who officiated at the wedding was excommunicated by his denomination three weeks before the ceremony and was not authorized to conduct weddings any effectS 31 of Ontarios Marriage Act cures this formal defect if HW acted in good faith and cohabited as a married coupleEssential ValidityCivil Marriage Act SC 2005 c 33 o S 2Marriage for civil purposes is the lawful union of two persons to the exclusion of all others o S 4For greater certainty a marriage is not void or voidable by reason only that the spouses are of the same sexBackground to samesex marriage o Halpern v TorontoMotivation for the challengeWould civil unions have made a differenceWhy was remedy significantKissing Cousins o Outside prohibited degrees of consanguinity and affinityMarriage Prohibited Degrees Act o You are legally allowed to marry your cousins second cousins etcNo preexisting marriage o Otherwise the new marriage is void o Was the first marriage of one partner ended by death or divorceProof of death sometimes problematicRecognition of foreign divorce may be in issueDivorceFederal legislation o 1968First national divorce legislationIntroduced no fault divorceDeserter could get divorce after 5 years separationMany fault grounds retained o 1986Current Divorce Act in effectLiberalized groundsGrounds for DivorceSingle ground o Marriage breakdown MBD o S 81 Divorce Act DAThree ways to establish MBD S 82 o Living separate and apart o Adultery by respondent o Cruelty by respondentLiving Separate and ApartRequisite period o One year immediately preceding the determination of the divorce proceedingseparate and apart at commencement of proceedingS 82 o Resumed cohabitation for period or periods totaling 90 days or less does not interrupt period of living separate and apartS 83Example o HW separate on January 3 2010 o W applies for divorce on January 5 o HW resume cohabitation May 2 to June 10 o Court can grant divorce on January 3 2011 o Effective on February 3 2011 after 31 daysAdulteryS 82bi Divorce ActImmediate entitlementOther spouses adultery onlyAdultery after separationCrueltyS 82bii Divorce ActImmediate entitlementOther spouses cruelty onlyCan be physical or mentalTest o Subjective elementApplicant must find continued cohabitation intolerable o Objective elementConduct must be grave and weightyMore than personality clash or irreconcilable differencesBars to DivorceReasonable arrangements for child support o S 111b Divorce Act o Applicable to all divorce applications o Proceedings stayed until o Courts insist on financial information o Courts insist that any discrepancy between support and Child Support Guidelines be explainedEffective Date of DivorceGeneral rule o Thirtyfirst day after the day on which the judgment granting the divorce is renderedS 121 Divorce Act
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