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Canadian family law
Family law in Canada concerns the body of Canadian law dealing with domestic partnerships, marriage, and divorce.
In Canada, family law is primarily statute-based. The federal government has exclusive jurisdiction over marriage and divorce under section 91(26) of the Constitution Act, 1867. The main piece of federal legislation governing the issues arising upon married spouses’ separation and the requirements for divorce is the Divorce Act. Pursuant to the Divorce Act, the federal government has jurisdiction over child custody and access matters and spousal and child support during or after divorce. The Divorce Act does not govern property issues. The provinces have exclusive jurisdiction over the solemnization of marriage under section 92(12) of the Constitution Act, 1867 and jurisdiction over spousal and child support, property division, custody and access, adoption, and child protection as part of the provincial government's jurisdiction over property and civil rights under section 92(13) of the Constitution Act, 1867 and jurisdiction over matters of a private nature under section 92(16) of the Act. Each province has an Act that addresses the rules of property division upon marriage breakdown.
Since 2005, a marriage may be formed between two individuals of different or same sex. Marriages are prohibited where an individual does not have the capacity or where there is a direct familial relationship such as parent/child or brother/sister. The minimum age to marry is 16 years. A valid marriage must be properly solemnized within the rules of the province.
A marriage may be nullified as void or voidable much in the same manner as a contract. A marriage is void when the parties do not have the capacity to marry (known as the essential validity of the marriage). Thus, marriages between blood relations, or parties already married, underage, or otherwise unable to consent would all be invalid for lack of essential validity. A marriage is voidable and can be annulled by a court if the spouses are incapable of consummating the marriage.
The formal prerequisites of a valid marriage are set out marriage laws of each Canadian province and territory. The parties must have a marriage license, be of proper age, or have parental consent. A marriage will generally be formally valid if it confirms to the laws of the province where the marriage is celebrated (lex loci celebrationis).
The legal implications of a marital separation may be governed by a contract. A separation agreement is typically negotiated and drafted with or without the assistance of lawyers. It is best negotiated when both parties are represented by their own legal counsel. It can set out the parties' agreement with respect to the division of property as well as child support, spousal support, custody, and access. Full financial disclosure and supporting documentation such as appraisals and income tax information is strongly recommended before parties enter into an agreement regarding support and property matters. Many jurisdictions offer mediation services to help parties resolve or narrow their issues, either with or without lawyers. Parties can also enter into pre-nuptial contracts to regulate the economic consequences of a future marriage breakdown. If it is shown that one party had unfairly negotiated the agreement can be invalidated. It is important that full and accurate financial disclosure is produced prior to entering into a marriage or cohabitation agreement, or there is a risk that the agreement could later be set aside by a court. Custody, access and child support cannot be agreed upon in a marriage or cohabitation agreement.
Under the Divorce Act, a spouse may only apply for a divorce when the spouses have been separate and apart for at least one year, when there has been adultery or cruelty. Practically, almost all divorces are processed under an application based on being separate and apart for at least one year. It is possible for spouses to live separate and apart while sharing the same residence. A central registry of divorce proceedings has been kept in Canada since July 2, 1968. If there is another divorce application involving the same two spouses, the Registry lets the courts know. Courts must complete an application form and send it to the Registry for each divorce application received. The Registry was created and is governed by Regulations made under the Divorce Act.
Matrimonial property can be divided any time during or after the separation, divorce, or death. All matrimonial assets and property is presumed to be split evenly between spouses, after deducting debts. The scope of divisible matrimonial assets varies among provinces. Most provinces include all assets acquired during the marriage and any other assets pooled together. The most significant divisible assets include matrimonial home and pensions. Assets excluded typically include inheritances (unless the inheritance has been used to purchase the matrimonial home or has paid on the mortgage of the matrimonial home) and monetary damages for personal injuries. Business assets may also be excluded in some provinces. Business assets are typically limited to assets that produce an immediate gain in some entrepreneurial capacity. The value of a business owned by a spouse can be determined and included in the property to be divided.
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Canadian family law
Family law in Canada concerns the body of Canadian law dealing with domestic partnerships, marriage, and divorce.
In Canada, family law is primarily statute-based. The federal government has exclusive jurisdiction over marriage and divorce under section 91(26) of the Constitution Act, 1867. The main piece of federal legislation governing the issues arising upon married spouses’ separation and the requirements for divorce is the Divorce Act. Pursuant to the Divorce Act, the federal government has jurisdiction over child custody and access matters and spousal and child support during or after divorce. The Divorce Act does not govern property issues. The provinces have exclusive jurisdiction over the solemnization of marriage under section 92(12) of the Constitution Act, 1867 and jurisdiction over spousal and child support, property division, custody and access, adoption, and child protection as part of the provincial government's jurisdiction over property and civil rights under section 92(13) of the Constitution Act, 1867 and jurisdiction over matters of a private nature under section 92(16) of the Act. Each province has an Act that addresses the rules of property division upon marriage breakdown.
Since 2005, a marriage may be formed between two individuals of different or same sex. Marriages are prohibited where an individual does not have the capacity or where there is a direct familial relationship such as parent/child or brother/sister. The minimum age to marry is 16 years. A valid marriage must be properly solemnized within the rules of the province.
A marriage may be nullified as void or voidable much in the same manner as a contract. A marriage is void when the parties do not have the capacity to marry (known as the essential validity of the marriage). Thus, marriages between blood relations, or parties already married, underage, or otherwise unable to consent would all be invalid for lack of essential validity. A marriage is voidable and can be annulled by a court if the spouses are incapable of consummating the marriage.
The formal prerequisites of a valid marriage are set out marriage laws of each Canadian province and territory. The parties must have a marriage license, be of proper age, or have parental consent. A marriage will generally be formally valid if it confirms to the laws of the province where the marriage is celebrated (lex loci celebrationis).
The legal implications of a marital separation may be governed by a contract. A separation agreement is typically negotiated and drafted with or without the assistance of lawyers. It is best negotiated when both parties are represented by their own legal counsel. It can set out the parties' agreement with respect to the division of property as well as child support, spousal support, custody, and access. Full financial disclosure and supporting documentation such as appraisals and income tax information is strongly recommended before parties enter into an agreement regarding support and property matters. Many jurisdictions offer mediation services to help parties resolve or narrow their issues, either with or without lawyers. Parties can also enter into pre-nuptial contracts to regulate the economic consequences of a future marriage breakdown. If it is shown that one party had unfairly negotiated the agreement can be invalidated. It is important that full and accurate financial disclosure is produced prior to entering into a marriage or cohabitation agreement, or there is a risk that the agreement could later be set aside by a court. Custody, access and child support cannot be agreed upon in a marriage or cohabitation agreement.
Under the Divorce Act, a spouse may only apply for a divorce when the spouses have been separate and apart for at least one year, when there has been adultery or cruelty. Practically, almost all divorces are processed under an application based on being separate and apart for at least one year. It is possible for spouses to live separate and apart while sharing the same residence. A central registry of divorce proceedings has been kept in Canada since July 2, 1968. If there is another divorce application involving the same two spouses, the Registry lets the courts know. Courts must complete an application form and send it to the Registry for each divorce application received. The Registry was created and is governed by Regulations made under the Divorce Act.
Matrimonial property can be divided any time during or after the separation, divorce, or death. All matrimonial assets and property is presumed to be split evenly between spouses, after deducting debts. The scope of divisible matrimonial assets varies among provinces. Most provinces include all assets acquired during the marriage and any other assets pooled together. The most significant divisible assets include matrimonial home and pensions. Assets excluded typically include inheritances (unless the inheritance has been used to purchase the matrimonial home or has paid on the mortgage of the matrimonial home) and monetary damages for personal injuries. Business assets may also be excluded in some provinces. Business assets are typically limited to assets that produce an immediate gain in some entrepreneurial capacity. The value of a business owned by a spouse can be determined and included in the property to be divided.
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