Kara Sears
Family law in Canada deals with domestic partnerships, marriage, divorce, child custody, and support. The federal government has exclusive jurisdiction over marriage and divorce under the Constitution Act, 1867, while provinces have jurisdiction over the solemnization of marriage. Divorce and separation are regulated by the federal Divorce Act, which outlines that a spouse may apply for divorce if spouses have been separated for a year, or if there has been adultery or cruelty. The Act also governs child custody and access matters, and spousal and child support. Family lawyers play a vital role in guiding families through legal matters, including divorce, separation, and parenting arrangements. They help families understand their rights and navigate complex legal processes, ensuring their clients' best interests are served.
| Characteristics | Values |
|---|---|
| Marriage | Prohibited if either party is already married, underage, or in a direct familial relationship. The minimum age to marry is 16 years. |
| Divorce | Grounds for divorce include separation for at least one year, adultery, or cruelty. |
| Child Support | Children have a legal right to financial support from their parents. |
| Spousal Support | Money paid by one spouse to the other after separation or divorce. |
| Child Custody | The best interests of the child are the main consideration. |
| Family Violence | Child abuse, female genital mutilation, and honour-based crimes are illegal. |
| Human Trafficking | Considered a crime, with laws in place to protect victims. |
| Separation | Governed by the federal Divorce Act and provincial/territorial laws. Separation agreements address property division, child support, spousal support, custody, and access. |
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What You'll Learn
Divorce and separation
The Divorce Act gives the federal government jurisdiction over child custody and access matters, as well as spousal and child support during and after divorce. However, it does not govern property issues, which can be divided at any time during or after separation, divorce, or the death of a spouse. The provinces have exclusive jurisdiction over the solemnization of marriage and spousal and child support.
When it comes to children, the Divorce Act proposes to repeal the terms "custody" and "access" in favour of "decision-making responsibility" and "parenting time", which would be set out in a "parenting order". The main consideration in these cases is the best interests of the child or children, and there is a list of criteria to be considered when determining this.
Spousal support is money paid by one spouse to another after they separate or divorce. This can be a tricky area, and it is recommended to seek legal counsel to negotiate and draft a separation agreement. This agreement can also cover the division of property, child support, custody, and access. It is also possible to enter into prenuptial contracts before marriage to regulate the economic consequences of a future marriage breakdown.
There are many tools and support services available to help families going through divorce and separation, including resources to help locate family justice services, calculate child support amounts, and develop a parenting plan.
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Child support
Family law in Canada deals with marriage, divorce, and domestic partnerships. Child support is a critical aspect of family law, ensuring that children receive financial support from their parents after a separation or divorce. This support is a legal right of the child, and it is calculated using established guidelines and tables of amounts.
In Canada, child support guidelines are the legal framework for determining the amount of financial support required for a child's care. These guidelines are based on federal and provincial regulations, with the Federal Child Support Guidelines being the primary reference in divorce cases. The guidelines take into account the standard of living of both households to ensure the child's needs are met.
The Divorce Act, a key piece of federal legislation, grants jurisdiction over child support matters during or after divorce. It specifies that child support orders must follow the applicable guidelines. However, courts have discretion to deviate from these guidelines in specific circumstances, such as when special provisions are made for the child's benefit or when both spouses consent to an alternative arrangement that reasonably provides for the child's support.
The amount of child support is typically determined by the parent's income and the number of children requiring support. The parent with whom the child resides primarily incurs most of the costs and receives support from the other parent. This support helps defray the costs of raising the child. It's important to note that the definition of a "parent" extends beyond biological or adoptive parents to include step-parents or individuals who have demonstrated an intention to treat the child as their own.
In Ontario, Canada, there are two separate Acts that govern child support: the Federal Divorce Act and the provincial Family Law Act. Claims for child support can be made under the Divorce Act as part of divorce proceedings, while applications for child support in cases of separation without divorce fall under the Family Law Act. However, it's important to note that the amount of child support payable remains the same regardless of the Act under which the claim is made, as both sets of guidelines mirror each other.
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Spousal support
The method of spousal support payments can have significant tax implications, so it is important to consult a lawyer or accountant. The amount and duration of spousal support depend on various factors, including the length of the relationship, the income of both spouses, and the presence of children. The Divorce Act prioritises child support payments over spousal support, meaning that in cases where there is not enough money to pay both, child support takes precedence.
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Parenting arrangements
Bill C-78 proposes to replace the terms "custody" and "access" with phrases like "decision-making responsibility" and "parenting time" in the Divorce Act. This shift in terminology reflects a more modern approach to parenting arrangements, recognising that both parents typically retain some level of responsibility and involvement in their children's lives even after separation or divorce.
When parents separate or divorce, they must make crucial decisions regarding their children's care and well-being. These decisions encompass various aspects, including where the children will live, how much time they will spend with each parent, and how major decisions about their health, education, and welfare will be made.
In Canada, family law regarding parenting arrangements falls under provincial and territorial jurisdiction, with the federal Divorce Act governing child custody and access matters during or after divorce. The Divorce Act allows either spouse to apply for divorce, but they must demonstrate that their marriage has broken down and that they have made arrangements for their children's support.
To assist in these situations, family lawyers play a crucial role in helping families navigate the complex legal landscape of parenting arrangements. They guide their clients through the process, ensuring that the best interests of the children remain at the heart of any decisions made. Family lawyers also aid in drafting and negotiating separation agreements, which can include provisions for child support, custody, and access, ensuring that the rights and needs of both parents and children are protected and prioritised.
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Marriage requirements
The Civil Marriage Act outlines that a valid marriage requires the free and enlightened consent of two persons to be the spouse of each other. This means that marriages are prohibited where an individual does not have the capacity to consent, or where there is a direct familial relationship such as parent-child or siblings. The minimum age to marry in Canada is 16 years, and persons under the age of 18 cannot marry unless a judge gives written consent or in other circumstances set out in The Marriage Act.
In Manitoba, a marriage ceremony, whether religious or civil, may take place anywhere, such as in a church, private home, park, or hotel. At least two witnesses must be present at the ceremony. A marriage licence is required unless the couple regularly attends a place of worship and banns declaring their intention to marry have been proclaimed during a religious service. Marriage licences can be obtained from authorized businesses or Vital Statistics in Winnipeg. The couple must apply together for the marriage licence at least 24 hours before their wedding, and the wedding must take place within three months after the licence is issued.
It is important to note that it is a crime to marry a Canadian citizen or permanent resident solely for the purpose of gaining entry into Canada. Marriages must be properly solemnized within the rules of the province, and marriages that are not in accordance with the religious beliefs of officials from religious groups may be refused.
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