““Family Law 101”Family Law 101”Introduction of Basic Family Law Introduction of Basic Family Law

PrinciplesPrinciplesPresentation for WestCoast LEAFPresentation for WestCoast LEAF

Professor Gillian CalderProfessor Gillian CalderUniversity of Victoria, Faculty of lawUniversity of Victoria, Faculty of law

AgendaAgenda1.1. What is “the family” in family law?What is “the family” in family law?

a.a. DefinitionsDefinitionsb.b. Legal FrameworkLegal Frameworkc.c. Dispute ResolutionDispute Resolution

2.2. Family FormationFamily Formationa.a. Cohabitation and MarriageCohabitation and Marriageb.b. ParentingParentingc.c. Dispute ResolutionDispute Resolution

3.3. Family BreakdownFamily Breakdowna.a. DivorceDivorceb.b. Child CustodyChild Custodyc.c. Access and MobilityAccess and Mobility

4.4. Economic Consequences of Family BreakdownEconomic Consequences of Family Breakdowna.a. Division of PropertyDivision of Propertyb.b. Spousal SupportSpousal Supportc.c. Child SupportChild Support

Introduction: Families and Family Introduction: Families and Family LawLaw

• what is “the family” in family law?what is “the family” in family law?• are families what they look like or what they are families what they look like or what they

do?do?• how does law’s regulation of the family how does law’s regulation of the family

impact on our understanding of family?impact on our understanding of family?• how does law impact differently on how does law impact differently on

differently situated families?differently situated families?• how does the public/private divide impact how does the public/private divide impact

our understanding of family?our understanding of family?

Histories, Definitions and Legal Histories, Definitions and Legal ChangeChange

we know what families are because we know what families are because we have them; we see them in we have them; we see them in popular culture; law tells us what is popular culture; law tells us what is normativenormative

Legal FrameworkLegal Framework

s. 91(26) – marriage and divorce; s. 91(26) – marriage and divorce; federal jurisdiction over essence of federal jurisdiction over essence of marriagemarriage

Divorce Act, Divorce Act, RSC 1985RSC 1985 ss. 92(12);(13); (16)ss. 92(12);(13); (16) solemnization of marriage; property and solemnization of marriage; property and

civil rightscivil rights Family Relations Act, Family Relations Act, RSBC 1996RSBC 1996 Indian ActIndian Act, RSC 1985, s. 88, RSC 1985, s. 88

Dispute ResolutionDispute Resolution

mediationmediation collaborative family lawcollaborative family law BC Justice Review Task forceBC Justice Review Task force family autonomy, gender imbalance, family autonomy, gender imbalance,

cooperation, best interests of the cooperation, best interests of the childchild

Creating the FamilyCreating the Family

marriagemarriage cohabitationcohabitation parent/child relationshipsparent/child relationships

new reproductive technologiesnew reproductive technologies adoptionadoption

Cohabitation and MarriageCohabitation and Marriage

Family Relations ActFamily Relations Act, RSBC 1996, RSBC 1996 definitions of spousedefinitions of spouse division of matrimonial property – the division of matrimonial property – the

last frontierlast frontier Walsh v. BonaWalsh v. Bona, [2002] SCC 83, [2002] SCC 83

Contracting a Valid MarriageContracting a Valid Marriage CapacityCapacity

AgeAge ConsanguinityConsanguinity SingleSingle Opposite-sexOpposite-sex SanitySanity

ConsentConsent DuressDuress FraudFraud

FormalitiesFormalities ConsummationConsummation

Same-sex MarriageSame-sex Marriage

Civil Marriage ActCivil Marriage Act, SC 2005, SC 2005 July 20, 2005July 20, 2005 Reference re Same-Sex MarriageReference re Same-Sex Marriage EgaleEgale

Customary MarriageCustomary Marriage

marriage pursuant to aboriginal marriage pursuant to aboriginal traditionstraditions

formalities of marriageformalities of marriage Connolly v. WoolrichConnolly v. Woolrich Family Relations ActFamily Relations Act, s. 46, s. 46

ChildrenChildren

families also formed through families also formed through parent/child relationshipsparent/child relationships

parent/child definitions differ in parent/child definitions differ in different contextsdifferent contexts

biology vs. caregivingbiology vs. caregiving

What is a Legal Parent?What is a Legal Parent?

impact of new reproductive impact of new reproductive technologiestechnologies

presumptions of fatherhood based on presumptions of fatherhood based on marriagemarriage

Vital Statistics Act, Vital Statistics Act, RSBC 1996RSBC 1996 Family Relations Act, Family Relations Act, RSBC 1996RSBC 1996

AdoptionAdoption

the key aspect of adoption is the the key aspect of adoption is the legal consequence, that when a child legal consequence, that when a child is adopted, they cease, in law, to be is adopted, they cease, in law, to be the child of their birth parent the child of their birth parent

Adoption ActAdoption Act, RSBC 1996, RSBC 1996 customary adoptioncustomary adoption Casimel v. ICBCCasimel v. ICBC, ,

Legal Regulation of Family LifeLegal Regulation of Family Life

some families are regulated more some families are regulated more than other familiesthan other families

child protectionchild protection domestic Violencedomestic Violence

Child ProtectionChild Protection

Child, Family and Community Service Child, Family and Community Service ActAct, RSBC , RSBC

Gove InquiryGove Inquiry child in need of protectionchild in need of protection family autonomy vs. protection for family autonomy vs. protection for

vulnerable family membersvulnerable family members

Woman AbuseWoman Abuse

family as a safe havenfamily as a safe haven mediation and other forms of mediation and other forms of

alternative dispute resolutionalternative dispute resolution spousal violence at separationspousal violence at separation

Family BreakdownFamily Breakdown

divorcedivorce separationseparation law’s regulation of the separating law’s regulation of the separating

familyfamily

DivorceDivorce

Divorce ActDivorce Act, RSC 1985, RSC 1985 no faultno fault only grounds: marital breakdownonly grounds: marital breakdown living separate and apart for one yearliving separate and apart for one year bars to divorcebars to divorce negotiation more prevalent than negotiation more prevalent than

litigationlitigation

Child CustodyChild Custody

corollary of divorcecorollary of divorce available to cohabiteesavailable to cohabitees best interests of the childbest interests of the child conduct irrelevant; maximum contactconduct irrelevant; maximum contact joint custody presumption vs. joint custody presumption vs.

primary caregiver presumptionprimary caregiver presumption

Access and MobilityAccess and Mobility

decision-making tied to accessdecision-making tied to access relocation may lead to an application relocation may lead to an application

for variationfor variation the right to make enquiries, and to the right to make enquiries, and to

be given information, as to the be given information, as to the health, education and welfare of the health, education and welfare of the child child

Economic Consequences of Family Economic Consequences of Family BreakdownBreakdown

division of Propertydivision of Property spousal Supportspousal Support child Supportchild Support

Division of PropertyDivision of Property

statutory regime only available to statutory regime only available to divorcing couplesdivorcing couples

Walsh v. BonaWalsh v. Bona presumption of 50/50 dividepresumption of 50/50 divide application for reapportionmentapplication for reapportionment cohabiting couples: constructive trustcohabiting couples: constructive trust

Spousal SupportSpousal Support

Divorce ActDivorce Act Family Relations ActFamily Relations Act quantum and durationquantum and duration modelsmodels

means and needsmeans and needs CompensatoryCompensatory clean Breakclean Break

Moge v. MogeMoge v. Moge Bracklow v. BracklowBracklow v. Bracklow variationvariation

Spousal Support GuidelinesSpousal Support Guidelines

advisory guidelines; not statutoryadvisory guidelines; not statutory table formattable format Yemchuk v. YemchukYemchuk v. Yemchuk

Child SupportChild Support

Divorce ActDivorce Act Family Relations ActFamily Relations Act Child Support GuidelinesChild Support Guidelines legislated exceptionslegislated exceptions

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