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

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.

The realm of family law has proven no exception. To quote barbara findlay QC, a tireless advocate of queer rights, from a speech to the Canadian Bar Association British Columbia a number of years ago:

She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians, and our provincial ''Adoption Act'' is one of the few in Canada which permit adoption by same-sex couples. Gays and lesbians are equally entitled to pursue claims relating to the care of children, child support, spousal support and the division of property as straight people are; sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.

As a result of the 2005 federal ''Civil Marriage Act'', same-sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the [[Married Spouses]] page for more information about the capacity to marry, valid marriages and invalid marriages.

Whether you are straight, gay, lesbian, bisexual, or something in between, if you qualify as a ''parent'' for the purposes of the ''[[Family Law Act]]'', or the child qualifies as a ''child of the marriage'' for the purposes of the ''[[Divorce Act]]'', child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable at the amount specified under the Child Support Guidelines unless the parent paying support (the "payor") fits into one of a very narrow range of exceptions:

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

#the person paying child support, the ''payor'', is responsible for the care and control of the child for more than 40% of the child's time;

#the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient; or,

#other persons are also under a legal obligation to care for the child.

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.

The old ''[http://canlii.ca/t/52069 Family Relations Act]'' used to allow parents to sue their adult children for support. That part of the ''Family Relations Act'' was repealed on 24 November 2011 and is not carried forward in the new ''Family Law Act'', and as result claims for parental support may no longer be brought in British Columbia.

#either spouse normally lives in this province; or,

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.