Family Law 101

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Family Law 101

• Introduction of Basic Family Law Principles
• Presentation for WestCoast LEAF
• Professor Gillian Calder
• University of Victoria, Faculty of law

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Agenda

• 1. What is the family in family law?
• a. Definitions
• b. Legal Framework
• c. Dispute Resolution
• 2. Family Formation
• a. Cohabitation and Marriage
• b. Parenting
• c. Dispute Resolution
• 3. Family Breakdown
• a. Divorce
• b. Child Custody
• c. Access and Mobility
• 4. Economic Consequences of Family Breakdown
• a. Division of Property
• b. Spousal Support
• c. Child Support

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Introduction Families and Family Law

• what is the family in family law?
• are families what they look like or what they do?
• how does laws regulation of the family impact on
  our understanding of family?
• how does law impact differently on differently
  situated families?
• how does the public/private divide impact our
  understanding of family?

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Histories, Definitions and Legal Change

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

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Legal Framework

• s. 91(26) marriage and divorce federal
  jurisdiction over essence of marriage
• Divorce Act, RSC 1985
• ss. 92(12)(13) (16)
• solemnization of marriage property and civil
  rights
• Family Relations Act, RSBC 1996
• Indian Act, RSC 1985, s. 88

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Dispute Resolution

• mediation
• collaborative family law
• BC Justice Review Task force
• family autonomy, gender imbalance, cooperation,
  best interests of the child

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Creating the Family

• marriage
• cohabitation
• parent/child relationships
• new reproductive technologies
• adoption

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Cohabitation and Marriage

• Family Relations Act, RSBC 1996
• definitions of spouse
• division of matrimonial property the last
  frontier
• Walsh v. Bona, 2002 SCC 83

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Contracting a Valid Marriage

• Capacity
• Age
• Consanguinity
• Single
• Opposite-sex
• Sanity
• Consent
• Duress
• Fraud
• Formalities
• Consummation

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Same-sex Marriage

• Civil Marriage Act, SC 2005
• July 20, 2005
• Reference re Same-Sex Marriage
• Egale

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Customary Marriage

• marriage pursuant to aboriginal traditions
• formalities of marriage
• Connolly v. Woolrich
• Family Relations Act, s. 46

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Children

• families also formed through parent/child
  relationships
• parent/child definitions differ in different
  contexts
• biology vs. caregiving

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What is a Legal Parent?

• impact of new reproductive technologies
• presumptions of fatherhood based on marriage
• Vital Statistics Act, RSBC 1996
• Family Relations Act, RSBC 1996

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Adoption

• the key aspect of adoption is the legal
  consequence, that when a child is adopted, they
  cease, in law, to be the child of their birth
  parent
• Adoption Act, RSBC 1996
• customary adoption
• Casimel v. ICBC,

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Legal Regulation of Family Life

• some families are regulated more than other
  families
• child protection
• domestic Violence

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Child Protection

• Child, Family and Community Service Act, RSBC
• Gove Inquiry
• child in need of protection
• family autonomy vs. protection for vulnerable
  family members

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Woman Abuse

• family as a safe haven
• mediation and other forms of alternative dispute
  resolution
• spousal violence at separation

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Family Breakdown

• divorce
• separation
• laws regulation of the separating family

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Divorce

• Divorce Act, RSC 1985
• no fault
• only grounds marital breakdown
• living separate and apart for one year
• bars to divorce
• negotiation more prevalent than litigation

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Child Custody

• corollary of divorce
• available to cohabitees
• best interests of the child
• conduct irrelevant maximum contact
• joint custody presumption vs. primary caregiver
  presumption

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Access and Mobility

• decision-making tied to access
• relocation may lead to an application for
  variation
• the right to make enquiries, and to be given
  information, as to the health, education and
  welfare of the child

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Economic Consequences of Family Breakdown

• division of Property
• spousal Support
• child Support

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Division of Property

• statutory regime only available to divorcing
  couples
• Walsh v. Bona
• presumption of 50/50 divide
• application for reapportionment
• cohabiting couples constructive trust

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Spousal Support

• Divorce Act
• Family Relations Act
• quantum and duration
• models
• means and needs
• Compensatory
• clean Break
• Moge v. Moge
• Bracklow v. Bracklow
• variation

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Spousal Support Guidelines

• advisory guidelines not statutory
• table format
• Yemchuk v. Yemchuk

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Child Support

• Divorce Act
• Family Relations Act
• Child Support Guidelines
• legislated exceptions

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Thanks!