Difference between revisions of "Further Topics and Overlapping Legal Issues in Family Law"

This page takes a look at a selection of relatively common family law problems. It talks about issues affecting the LGBT commuities, wills and estates law, immigration law, parental support and what happens when people and property are located in different legal jurisdictions.

Not too long ago, this wiki had an entire chapter about the particular issues affecting those in same-sex relationships. That chapter, 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 the discrimination which used to exist by the operation of law has been on the wane. From the Little Sisters decision on censorship to ''Egan v. Canada'' 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.

===Marriage===

It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriage. However, while Canadian marriages are certainly legal in Canada, they may not be recognized as a valid marriage at home. If a couple's home country does not recognize same-sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.

Whether the battle over a child is between two parents of the same gender or between parents of opposite genders, the legal test that the parents and the court should consider is the same: what arrangements are in the child's best interests? That is the only concern. The courts have been crystal clear that the sexual orientation of the parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:

<blockquote>Mother sought an order that the children live primarily with her. Father opposed application as he found mother's sexual orientation "repugnant on religious and moral grounds." Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.</blockquote>

<blockquote>"The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same-sex parents seeking custody are no different than opposite-sex parents seeking custody."</blockquote>

<blockquote>Application by mother for vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same-sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.</blockquote>

<blockquote>"There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents."</blockquote>

#the payment of support in the usual amount would cause "undue hardship";

The ''Divorce Act'' no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.

To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of "the same or opposite genders" that only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgendered and transsexual people may well encounter difficulty dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community. If you have a family law problem and your orientation, gender or identity becomes an issue, contact a lawyer known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to.

Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while shows like Will and Grace, The Birdcage and The L Word have made straightforward homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the trans community. It can be very difficult for people, including ex-partners, to understand trans issues and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why his or her self-identity has no impact at all on his or her ability to parent, nor on the expected outcomes for the children.

<blockquote>"I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination."</blockquote>

The mother's application was dismissed.

Trans issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.

The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the trans issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the trans issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.

The ''Divorce Act'' no longer requires spouses to be of opposite genders, whether at the end of their marriage or at the beginning of it, to qualify for a divorce order.

''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a dead person's estate is distributed when there is a valid will, how a dead person's estate is distributed when there isn't a valid will and how certain relatives can challenge a dead person's will. In family law, issues concerning a person's will usually only come up when a couple have separated or are getting a divorce.

<blockquote><tt>3 A will is valid only if it is in writing.</tt></blockquote>

<blockquote><blockquote><tt>(c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator.</tt></blockquote></blockquote>

The law treats married spouses differently than unmarried couples, and its important to be aware of the distinctions.

Under s. 15 of the ''Wills Act'', a will is considered to be cancelled, or ''revoked'', once a person marries. Unless you make a new will after your marriage, you will be considered not to have any will at all, and if you die your estate will be distributed under the ''Estate Administration Act''.

Although divorce doesn't revoke a will, divorce cancels those parts of a will which:

If a person dies intestate, only people who qualify as the person's spouse can benefit from the provisions of the ''Estate Administration Act''. If the dead person has ''divorced'' or if his or her marriage has been ''annulled'', a former spouse can't make a claim under the act.  

If the dead person has only ''separated'' from his or her spouse, a surviving spouse is still a spouse who may be entitled to inherit under this act, even if an action for divorce has started or even if the parties have been separated for a long time. In the case of a couple who have been separated for more than a year before the death, however, the surviving spouse must apply to court to share in the estate.

A person can make a will making anyone a beneficiary of his or her estate. The nature of the person relationship with a beneficiary only becomes important if a beneficiary, or a person who thinks he or she ought to be beneficiary, wants to make a claim against the person's estate.

What's interesting about the ''Estate Administration Act'' and the ''Wills Variation Act'' is that they bother require an unmarried spouses to be living with the person who has died at the time of his or her death. For married spouses, it's the fact of the parties' marriage that counts, not whether they are still living together.

If you have separated and don't want your spouse to make a claim to your property after you die, you should change your will. If you are married and have separated, you should include wording in the new will which to the effect that the new will is being made with your divorce in mind and stating that you do not wish to provide for your spouse as a result. You should then prepare another new will after the order for your divorce is made and is in effect.

If you are in an unmarried relationship, you should simply identify your former spouse as your former unmarried spouse, state that you do not wish to provide for him or her in your will, and briefly explain why you do not wish to provide for him or her.

The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:

The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.

Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''Divorce Act'' or outside of British Columbia, and outside of Canada, under another law.

When a court order about children has been made under the ''Divorce Act'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court which made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed.

Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

Under Division 7 of Part 4 of the ''Family Law Act'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in meddling with the orders of another court. Our court will usually hear an application for an order different than the original order if:

#the child is physically present in the province but will be at serious risk unless the original order is changed.

Different rules apply when orders about support are made outside of British Columbia under the federal ''Divorce Act'' or outside of British Columbia, and outside of Canada, under another law.

An order for child support or spousal support made under the ''Divorce Act'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

#both spouses agree that our courts should deal with the matter.

The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the UK, the United States, Australia and New Zealand.

The ''Family Law Act'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated, almost impossible to understand and you will almost certainly need to speak to a lawyer to figure them out.

Under s. 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may make decided to deal with a claim if:

If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:

Problems involving immigration usually crop up because one spouse has sponsored the other spouse into Canada, or a spouse is concerned about deportation once the relationship ends. The discussion that follows provides only an overview of some of these problems. If you have an immigration concern, you really should speak to a lawyer who practices this kind of law.

Under new rules that were introduced in October 2012, sponsored spouses are under a ''conditional'' permanent residency status for the first two years. According to the press release from Citizenship and Immigration Canada:

Although your spouse still has an obligation to support you as a sponsor, you will not lose your permanent resident status after the first two-year period if you have to apply for welfare, although you will be expected to try and get support from your spouse. If your relationship ended because of abuse, you may not have to try and get support from your spouse; speak to your caseworker right away.

If you do not have permanent resident status, you must seek legal advice and help right away, as the breakdown of your relationship with your sponsor may affect your ability to remain in Canada, if that's in fact what you'd like to do. There are a number of agencies that help immigrants and refugees; seek them out immediately.

If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms. You have these responsibilities in addition to your responsibilities under the ''Divorce Act'' and the ''Family Law Act''. A 2004 case of the Supreme Court, ''Aujla v. Aujla'', held that a sponsor's obligations under a sponsorship agreement was and obligation between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal support under those acts.