Family Law 101
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Family Law 101 Presentation Transcript

  • 1. “ Family Law 101” Introduction of Basic Family Law Principles Presentation for WestCoast LEAF Professor Gillian Calder University of Victoria, Faculty of law
  • 2. 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
  • 3. Introduction: Families and Family Law
    • what is “the family” in family law?
    • are families what they look like or what they do?
    • how does law’s 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?
  • 4. 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
  • 5. 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
  • 6. Dispute Resolution
    • mediation
    • collaborative family law
    • BC Justice Review Task force
    • family autonomy, gender imbalance, cooperation, best interests of the child
  • 7. Creating the Family
    • marriage
    • cohabitation
    • parent/child relationships
      • new reproductive technologies
      • adoption
  • 8. Cohabitation and Marriage
    • Family Relations Act , RSBC 1996
    • definitions of spouse
    • division of matrimonial property – the last frontier
    • Walsh v. Bona , [2002] SCC 83
  • 9. Contracting a Valid Marriage
    • Capacity
      • Age
      • Consanguinity
      • Single
      • Opposite-sex
      • Sanity
    • Consent
      • Duress
      • Fraud
    • Formalities
    • Consummation
  • 10. Same-sex Marriage
    • Civil Marriage Act , SC 2005
    • July 20, 2005
    • Reference re Same-Sex Marriage
    • Egale
  • 11. Customary Marriage
    • marriage pursuant to aboriginal traditions
    • formalities of marriage
    • Connolly v. Woolrich
    • Family Relations Act , s. 46
  • 12. Children
    • families also formed through parent/child relationships
    • parent/child definitions differ in different contexts
    • biology vs. caregiving
  • 13. 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
  • 14. 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 ,
  • 15. Legal Regulation of Family Life
    • some families are regulated more than other families
    • child protection
    • domestic Violence
  • 16. Child Protection
    • Child, Family and Community Service Act , RSBC
    • Gove Inquiry
    • child in need of protection
    • family autonomy vs. protection for vulnerable family members
  • 17. Woman Abuse
    • family as a safe haven
    • mediation and other forms of alternative dispute resolution
    • spousal violence at separation
  • 18. Family Breakdown
    • divorce
    • separation
    • law’s regulation of the separating family
  • 19. 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
  • 20. Child Custody
    • corollary of divorce
    • available to cohabitees
    • best interests of the child
    • conduct irrelevant; maximum contact
    • joint custody presumption vs. primary caregiver presumption
  • 21. 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
  • 22. Economic Consequences of Family Breakdown
    • division of Property
    • spousal Support
    • child Support
  • 23. 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
  • 24. Spousal Support
    • Divorce Act
    • Family Relations Act
    • quantum and duration
    • models
      • means and needs
      • Compensatory
      • clean Break
    • Moge v. Moge
    • Bracklow v. Bracklow
    • variation
  • 25. Spousal Support Guidelines
    • advisory guidelines; not statutory
    • table format
    • Yemchuk v. Yemchuk
  • 26. Child Support
    • Divorce Act
    • Family Relations Act
    • Child Support Guidelines
    • legislated exceptions
  • 27. Thanks!