family law 101
TRANSCRIPT
““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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