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

Problems like children's parenting arrangements, support and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella. This chapter deals with the more common of these other issues, including adoption, family violence and protection orders, determining parentage, wills and estates issues, changing names and more.

This page is a bit of a grab bag and takes a look at a selection of relatively common family law problems. It talks about issues affecting the LGBT communities, 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 least the discrimination which used to exist by the operation of law has been on the wane. From the [http://canlii.ca/t/5239 Little Sisters decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513, on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed suit.

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 ''[http://canlii.ca/t/84g5 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.

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.

*the payment of support in the usual amount would cause "undue hardship",

The only one of these exceptions which has any special relevance to same-sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that other parent will also be obliged to contribute to the support of the child. In ''Murphy v. Laurence and Rogers'', the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.

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.

''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.

Making, changing, revoking and enforcing wills are governed by the provincial ''[http://canlii.ca/t/84fx Wills Act]''. Sections 3 and 4 set out the basic requirements for a valid will:

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.