Specific Communities and Family Law

From Clicklaw Wikibooks

While family law has evolved to treat many minority groups, such as same-sex couples, in the same way as it treats the majority, this is not always true. People are sometimes subject to different laws in certain circumstances.

The resource you're reading has been updated to explain and recognize some of the ways laws apply differently to specific communities. Parts of this chapter deal with further topics unique to Aboriginal families and/or those living on reserves, newcomers to Canada and those who support or rely on them, and the LGBTQ community.

Aboriginal families

Aboriginal people exist in a unique legal environment arising from the fact that they are the first peoples of what is now known as Canada. Aboriginal people's longstanding occupancy and use of these lands give rise to Aboriginal rights which became constitutionally protected when s. 35 of the Constitution Act, 1982 was enacted over 30 years ago. The Constitution recognizes and affirms aboriginal and treaty rights of First Nations, Inuit and Métis peoples of Canada.

This chapter focuses on issues in family law that affect BC's Aboriginal families. While all of the usual factors apply to Aboriginal families, courts must also pay attention to Aboriginal ancestry, culture and traditions when they make decisions, including determining the best interests of Aboriginal children. This is because Aboriginal children have the right to keep a connection to their culture and heritage, which are the strong foundations of many Aboriginal families. This section briefly reviews particular issues unique to Aboriginal families, including:

  • the care of children,
  • child supportMoney paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.
  • spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship., and
  • family propertyA term under the ''Family Law Act'' referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property." and family debtA term under the ''Family Law Act'' referring to debt owed by either or both spouses that accumulated during the spouses' relationship, as well as after separation if used to maintain family property. Both spouses are presumed to be equally liable for family debt..

The section on Aboriginal Families also briefly addresses issues caused by the Indian Act, a law which has allowed the government to control most aspects of Aboriginal life since its inception in 1876.

Newcomers to Canada and their families

Many Canadian families are the product of Canadian citizens or permanent residents who partner with people from other countries. Sponsorship by a Canadian citizen or permanent resident of a foreign spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." this creates legal issues that are unique to families with members who are immigrants or refugees.

In 2017, the Canadian government introduced some important changes to the rules surrounding sponsored spouses. The updates in this chapter address those changes and provides information on:

  • support obligations of sponsors, and
  • agencies that help immigrants and refugees.

LGBTQ issues in family law

Not too long ago, this resource had an entire chapter about the particular issues affecting those in same-sex relationships. A stand-alone chapter for same-sex relationships, however, is no longer necessary.

For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislationAn act; a statute; a written law made by a government. See "regulations." has been on the wane. From the Little Sisters decision on censorship to Egan v. Canada, [1995] 2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the Charter of Rights and Freedoms to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed suit.

Gays and lesbians are just as entitled as straight people to pursue claims relating to:

  • the care of children,
  • child support,
  • spousal support, and
  • the division of propertySomething which can be owned. See "chattels" and "real property."

Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.

This said, legal uncertainty exists for people who are trans or gender non-binary, at least in some contexts. The section on Issues affecting transgender and transsexual people discusses some of the difficulties that the law has in serving people who traverse the gender spectrum.

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