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INTRODUCTION AND PRIMER Family law deals with conjugal relationships both inside and outside of marriage. This includes any couple cohabiting in a romantic relationship (2+ people) whether or not they are legally married. The question often boils down to this: What are the rights and obligations of the parties to one another? To their children?
The rights and obligations are triggered upon the break down of a relationship in fact (when the separation is triggered (s. 8(2), DA). When we discuss the break down of a valid marriage, we are discussing legal marriages or common law structures. Under the federal act, divorce dissolves marriages between spouses (s. 14, DA). Sometimes, spouses will have separation agreements detailing the agreements they have made in respect of custody, access and/or property. In order to have a valid agreement, both parties must sign the document, date it and a witness must provide a signature. These agreements may be deemed null or void if there is a material non-disclosure upon which they are premised.
PART I: JURISDICTION AND FAMILY LAW The provinces have the jurisdiction to decide requirements for marriage. Family law is a creature of statute. Couples who do not separate/divorce are subject to provincial legislation. Federal Government S 91(26), CA 1867 permits legislation for marriage and divorce. This goes to the inherent capacity to marry. Areas of legislation:
* Capacity to marry (essential validity of marriage)
* Civil Marriage Act; marriage is not voidable by virtue of the same sex
* Marriage Prohibited Degrees Act: btw persons closely related (defines what is prohibited)
* Divorce Act: deals with corollary relief (e.g. custody and support) to divorce and divorce itself (Papp v Papp 1969 ONCA - DA provisions have a rational and functional connection with divorce)
* note that corollary orders must be linked to divorce here to fall under these proceedings
Provincial Government 92(12): solemnization of marriage (formalities) 92(16): property and civil rights in relation to cohabitation falls under this provision Areas of legislation:
* Marriage Act (formalities) - has sister acts across Canada. Deals with how marriages are solemnized, who can perform them, location, etc.
* Child and Family Services Act (adoption + children in need of protection)
* Family Law Act (contracts, cash flow, property, domestic violence)
* custody and access is included in the CLRA and FLA
* cohabiting couples are not entitled to the FLA property sharing provisions Financial and Custody matters:
* CLRA = custody and access
Superior Court - Court of inherent jurisdiction dealing with divorce and property
FLA = property and support
Provincial Court - deals with adoption; cannot deal with property
Which legislation does one proceed with?
Couples in Ontario can seek custody/spousal support under the FLA or the DA. In order to seek corollary orders from the DA, you must have already sought a divorce (don't need to actually be divorced just yet). Considerations include: 1) Costs
* There is an incentive not to have federal and provincial proceedings operating simultaneously 2) The decision to divorce has not yet been made 3) Privacy issues
* All proceedings (and whatever is filed, like a separation agreement) are open to the public unless your file is sealed, but it is very difficult to seal a file. The Divorce registry system notifies parties involved 4) Paramountcy: If another lawyer starts an action under a federal statute, you run the risk of the provincial action being stayed or having no force or effect (Section 27, CLRA's; 36 FLA). Generally, you are better off proceeding under the DA. But if the parties are not legally married, you cannot proceed with the DA. In every proceeding under the DA, you want to note that "in the alternative, should the court not grant divorce, applicant seeks corollary relief provincially". Note that it's best to proceed under the DA regardless (Section 13, DA: order of divorce has effect all throughout Canada).
How do you file for divorce?
In Ontario, one party can apply for divorce (8(1), DA). The judge can order a divorce within 30 days without the consent of the other party or a signature. The judicial event here is a court order.
Which courts are involved?
Family law matters are dealt with at the OCJ and the SCJ. Ontario has specialized Family Law courts in various jurisdictions - this is a branch of the SCJ. 17 centres in Ontario have a FLC. There are no FLCs in Windsor or Toronto so you have to know which court to go to - the OCJ is cheaper in these jurisdictions. The OCJ is a creature of statute and has no jurisdiction over equity or property matters, whereas the SCJ does. The OCJ cannot conduct hearings in respect of property or divorce (because they cannot deal with equitable relief). The OCJ hears protection and adoption matters - the SCJ hears these appeals.
What are the rules of procedure?
Since 2004, there are family law rules that apply at the OCJ and SCJ level. If the family law rules don't apply, the default is the civil procedure rules. Item 1: Pleadings (petitioner/applicant) and application
* contains facts supporting the claim
* the judge only sees the initial pleadings so it's important to ensure that all of the evidence is here Item 2: Insert and serve financial disclosure document with your income expenses and property (assets anywhere), liabilities and debts
* none of the information in the pleadings is sworn evidence so you cannot examine an applicant on a statement of claim, BUT the financial evidence is sworn and you can examine on it
* the issuing date is the date that the clerk has on the date of filing from the stamp
* the service date differs and is important in respect of the limitation period Item 3: Need a continuing record alongside financial form and an application
* this is the organization of the case
* the cover is red
* two volumes: 1st is court documents and 2nd is the orders/endorsements (hand writing of judge before a written order is issued) Response
* must also complete a financial statement
* once the continuing record is in, the trial date is set The pleading process generally costs thousands of dollars so it's important to be thorough. The time span is approximately 1-2 years for trial. At trial, the evidentiary rules apply. Courts were generally look to where the kids were during the trial. Post separation status quo is important to the judge. What happens in the interim to divorce is therefore critical. To obtain an order in the interim requires a motion supplemented by affidavits. In other provinces, like QC, motions require viva voce evidence. These motions are hard to change so it's important that you win them. It's all about lawyer-driven strategy here. There are concerns about whether you could prejudice your client if you don't do a fair job here. Ask where your client is living during these proceedings so you can include all of that evidence as "post separation evidence".
Where trials are not on the horizon...
Other ways to proceed include: 1) Case conferences a. This is generally mandatory after you file pleadings 2) Temporary orders 3) Discoveries 4) Settlement conferences - hearings in front of judge who reads settlement conference brief (SC can't be the trial judge)
There are 4 or 5 periods during the year for trials if you're unable to settle, but less than 1% of cases go to trial given the costs.
What happens with conflicting divorce orders?
If there are corollary reliefs after a divorce, the question is whether another court can make a different, inconsistent order pursuant to provincial legislation. Case law varies on this point. If there is a corollary order under provincial legislation, and a divorce is later granted, and the provincial relief is inconsistent, the federal order is paramount. In Spiers v Spiers 1996 BCSC: Custody order didn't indicate which jurisdiction relief was sought in. The SCC says the province loses jurisdiction over access once the order for custody is made under the DA.
PART II: CUSTODY AND ACCESS Divorce Act 16: Court of competent jurisdiction may make order in relation to custody on application from either or both spouses
16(4): authority for joint legal or physical custody 16(8): In respect of custody orders, court shall take only the best interest of the child of the marriage as determined by reference to the condition, means, needs and circumstances of the child 16(9): conduct is irrelevant unless it affects ability of person to act as parent s. 16(10): child of a marriage should have as much contact with each spouse as is consistent with best interests of the child and should consider willingness of person for whom custody is sought to facilitate such contact
Children Law Reform Act 24: merits of the application for custody or access shall be determined for best interests of the child 24(2): Court shall consider needs and circumstances including: love, affection and emotional ties between child and person claiming custody, child's view and preferences, length of time child has lived in stable home environment, ability and willingness of each person applying for custody, plan proposed by each person applying, permanence and stability of family unit, ability of each person to act as parent, relationship by blood or adoption 28: permits shared custody
24(3): past conduct relevant where it relates to violence or the ability to parent
DEFINITIONS Custody: custodial parent has the legal authority to make decisions with respect to the child's education, health and welfare (includes religious faith) (21, CLRA) Access: the right to spend time with the child and receive information about the child's health, education and welfare (20(5), CLRA; 16(5), DA) Joint custody: Children can still potentially be with one parent primarily. Physical care: both parents taking equal responsibility for child care here. Can provide this to child even if 1 parent has sole custody and other has access.
**Note the distinction between physical care and having joint custody of the child. There can be a combination of the scenarios above. The test for custody and access is the "Best Interests of the Child"
* Look to the statute and the case law to assess
* Parenting and the status quo is integral to custody and access
* The BIC assessment is generally objective, but it's difficult to truly ensure its objectivity o Nicholas Bala critiques the best interest of the child test because he believes it to be paternalistic in nature that is harmful to the child and overly substantive. He argues that it's subject to constraints because of agencies. There is mention of harm on women due to biases of judges and homosexual marriages.
* Article 3 of the Convention on the Rights of the Child notes that BIC should be a primary consideration in all actions concerning children, even though it's not legislated into Canadian law (See Baker v Canada).
* Generally, appellate courts won't interfere with custody and access decisions unless there's an error in principle or a factual error that is a matter of significance (Haider v Malach 1999 SCKA)
* where claims are vexatious, they can require leave of court to commence pursuant to s 140 of Courts of Justice Act (Geremia v Harb 2008 Ont SCJ)
* Where a parent will facilitate access, despite allegations of their unfit lifestyle, they may be granted custody (Carton v Watts 1998 AB Prov Ct)
Custody and Access - Relocation and Mobility
Much of the case law on mobility in respect of custody is entirely fact specific which makes it difficult to advise clients as to how the stakes will proceed. Where a move impedes on access, parties will apply to vary the order. Generally, moves are permitted if there is (1) an agreement OR (2) a court order. You cannot move without permission if there is a custody order or agreement, unless it's included in the agreement. The time factor is key because the less time spent means the less significant the role of the parent is.
Until the late 1980s, it was common that the custodial parent would move, so long as it was reasonable to do so. In Carter v Brooks 1990 ONCA, the reason for the move was the single most important factor which led to the decision that the custodial parent does not have the inherent right to move. Each parent bore an evidential burden to demonstrate the child's best interest to the court hereinafter. After Carter, 40% of moves weren't permitted due to absence of compelling reasons. In MacGyver v Richards 1995 ONCA, the courts acknowledged that the child's best interest are inextricably tied to that of the parent. The parent need only be acting responsibly. There was deference to the custodial parent's decision here and the court restored the presumptive approach noting that the burden was on the opposing parent to show that the move was not in the child's interests on a BOP. Gordon v Goertz 1996 SCC F: F, access; M, custody. F spent more time with child post separation because M was dentist. M wanted to move to Australia to pursue career goals. F brings custody app to restrain mother from moving. App judge permitted move and gave F access to child in Australia with 1 month's notice. H: F has access in CDA and Aust. M permitted to move. R: Guidelines for parents access to child in respect of relocation involves a 2 stage inquiry: 1) Establish a material change in means or needs or circumstances of child which materially affect child, were not foreseen or couldn't be contemplated at time of initial order (29, CLRA)
* Parent applying for change in custody or access order must meet this threshold in respect of circumstances affecting the child
* This is in tandem with s. 17, DA which requires changes in conditions required to vary custody order 2) Look to the current BIC.
* there is no legal presumption in favour of the custodial parent
* custodial parent's views are entitled to the greatest respect because the knowledge is intimate
* deference to where custodial parent seeks to live or work is key
* best interests depend on circumstances of case, not what's best for parents
* Here the just must look to the following factors: o existing custody arrangement and relationship o existing access arrangement and relationship o desirability of maximizing contact between child and both parents o views of the child o reason for moving only exceptionally where relevant to parent's ability to meet child's needs o disruption to child of change in custody o disruption to the child as a consequence of removal from family, schools and community the child has come to know Reasons: Custody was always with M; reasons for seeking custody haven't changed and they would be disruptive to child. This outweighs impact on relationship with father and taking child from community.
* viva voce evidence and written affidavit materials must be included when establishing the BIC
* after this case, 60% of cases were decided positively in favour of the move
* this case leaves considerable room for judicial discretion in deciding these matters
* courts have the discretion to weigh all of the Gordon factors and they are highly subjective
- the difficulty is advising clients as to their success
CASE LAW APPLYING BIC Woodhouse, Lockhurst, Ligate, Young Woodhouse v Woodhouse 1996 ONCA (Relationship affects move based on age of child) F: 2 sons aged 4 and 6. M custodial parent and wanted to move from Hamilton to Scotland where her new husband resided, to be a homemaker. F sought order for custody OR variation on access - wins at trial. H: F's father upheld. Move permitted only within certain municipalities in Ontario. R: All mobility cases must be dealt with using the best interests of the child. Reasons: Here there were no economic benefits to the move, but the degree to which the child's relationship with parent will be at stake. Luckhurst v Luckhurst 1996 ONCA F: 2 sons (twins). Joint custody. M wants to move from London, ON to Cobourg, ON. TJ permits. JC left unchanged. Job security in Cobourg. H: Cities are sufficiently proximate. Mother willing to accommodate and drive them halfway. Ligate v Richardson 1997 ONCA (Deference to primary caregiver) F: M wants to move from Toronto to Cambridge. TJ says move not within BIC. On appeal, she's permitted to move. H: BIC for M to move to AB. She was willing to stay in Ontario if it was the only way that she could retain custody. Her views should be afforded significant weight. COMMENT:
* If you're the primary caregiver, whether or not you have joint custody, you force the court to move to reinforce the importance of the relationship with the child
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