However, even within areas of provincial jurisdiction, certain matters (eg, occupation of the family home) can only be dealt with by judges appointed under s96 of the Constitution Act (see JUDICIARY). There is a growing trend in Canada towards the creation of unified family courts in which all family law matters, whether federal or provincial, are dealt with before one judge.
Annulment makes a marriage legally void on the grounds that it was never fully legal owing to some disqualification. A marriage may be annulled if the parties are within the prohibited degrees if one is or was under age (unless the consent of both parents had been granted), or as a result of bigamy, a defective marriage ceremony, duress, mental incapacity, or the failure to consummate the marriage because of the physical or mental inability of one of the parties. (This last renders a marriage voidable rather than void.)
Separation is a legally recognized parting by spouses or the agreed cessation of cohabitation. It can be cited as grounds for divorce.
Divorce is the legal termination of a valid marriage. Until the federal Divorce Act of 1968, divorce was governed by pre-Confederation provincial statutes and inherited English legislation. In Newfoundland and Québec, where no divorce legislation existed, divorces could only be obtained through a private Act of Parliament. The 1968 Divorce Act was the first complete divorce legislation for the entire country. The 1968 Divorce Act was repealed and replaced by the 1985 Divorce Act.
The 1985 Divorce Act provides as the sole ground for divorce the breakdown of marriage. Breakdown of marriage can be established only on proof that the Respondent spouse has been guilty of cruelty or adultery or on proof that the parties have been living separate and apart for a year immediately preceding the divorce proceeding and were living separate and apart at the time the petition for divorce was filed. In relation to the separation ground, it is not necessary that the parties had lived apart for a year before the petition is filed. The year, however, must elapse before the divorce judgement is granted.
Maintenance can fall under federal law in connection with divorce, and under provincial law otherwise. Spouses, parents, children (who may have to support dependent parents) and guardians of children all have a legal obligation to support dependants. The means and resources of the parties are important factors in establishing the amount of maintenance. The Divorce Act (and some pieces of provincial legislation) set out other factors or objectives regarding the right to and amount of both child and spousal support. Wives may have to support their husbands and children, and in some provinces common-law relationships may result in support obligations.
Maintenance orders made under the Divorce Act are effective throughout Canada upon registration, but the enforcement of orders made under provincial laws when spouses live in different provinces depends upon the more cumbersome Reciprocal Enforcement of Maintenance legislation. Provincial Maintenance Enforcement legislation as well as federal legislation and inititatives have greatly improved the enforcement of maintenance in recent years.
Under old COMMON LAW, a husband acquired the right to own or manage his wife's property. The one recompense allowed the wife was a "dower" - ie, a life interest in the freehold property the husband owned when he died (see PROPERTY LAW). Married women had limited contractual capacity except as agents for their husbands. In the 1890s, married women's property Acts introduced into all Canadian provinces the concept of separation of property. This gave wives contractual and tortious rights and responsibilities, though in several provinces actions between husband and wife were still forbidden.
Giving women power to acquire property, however, did not alter the fact that employment opportunities for women were restricted and that most property was paid for by husbands and bought in the husband's name. A wife obtained no property ownership for her work of looking after the home and rearing the children, although she did obtain a measure of protection in her occupation of the matrimonial home under Dominion Lands Acts in the West and, to a lesser extent, DOWER Acts in the East.
The traditional rules required that for a wife to own property it must be bought in her name or she must have made some direct contribution to its purchase, so cases arose such as the MURDOCH CASE, in which the wife obtained no rights of ownership in what she thought were family assets. The harshness of this rule led all of the provinces to amend their legislation to give married women a fairer share in the division of the family's assets (see HUMAN RIGHTS), though the court has discretion to vary the proportions according to certain criteria; eg, the date and manner of acquisition of assets, whether there is an agreement between the spouses about the property, etc. Some of the provincial Matrimonial Property legislation distinguishes between family and business assets. Some (like Alberta) make no such distinction. All the statutes provide for a more equitable manner of sharing assets acquired during the marriage.
Generally "common law" relationships are not covered by Matrimonial Property legislation. However, case law has provided a remedy by way of constructive trust to those who contribute (by money and labour) to assets standing in the name of the other.
Custody refers to the legal right of parents (and sometimes others) to make decisions relating to children. Usually the day-to-day care and control of the child will go hand in hand with the decision making. However, if 2 adults have joint custody, then day-to-day care and control may rest with one only. Access involves visitation and is seen as the right of the child rather than of the adult.
There is no law requiring that the custody of young children be granted to mothers. Where both parents are working full time, fathers are increasingly winning custody. The courts do operate, however, on certain premises of common sense; eg, their unwillingness to disturb a satisfactory status quo and their reluctance to separate siblings.
Third parties, such as aunts or uncles, can also seek custody of a child. The Divorce Act of 1985 provides for increased contact between the child and both its parents without expressly mandating joint custody. The Act also provides for third parties (eg, grandparents) to apply for visitation rights, or even custody, with the court's permission.
Historically an illegitimate child was filius nullius, or the "son of no man." References to children in wills were usually taken as referring only to legitimate children, but the harshness of this rule has been gradually eroded. Illegitimate children in several provinces have rights of intestate succession against their mothers, or the right to ask for proper provision from their parents' estate under dependants' relief legislation. The "status" of illegitimacy has been repealed in several provinces by legislation and the legal effects of illegitimacy have been greatly diminished over the past years. Parents owe a duty to support their illegitimate children and provincial legislation provides for such applications. The procedure for establishing paternity is called filiation.
ALASTAIR BISSETT-JOHNSON AND CHRISTINE DAVIES
Family Law, Québec
Québec family law is largely of French origin, but because marriage and divorce are within federal jurisdiction, there is a strong common-law influence. Moreover, because Québec law has been revised drastically by legislation in the last 20 years, differences in family law between Québec and the rest of Canada are not as strong as they once were. Traditionally the Québec Civil Code consecrated a notion of "paternal authority," which made the husband the head of the family and gave him considerable powers over his wife and children. This notion was recently applied by the court of appeal in Cheyne v Cheyne (1977), but the decision has since been repealed and the revised Civil Code (1980) insists on absolute equality of spouses.
Other aspects of Québec family law have also changed drastically. Traditional Québec family law was heavily influenced by the church. Divorce was utterly prohibited; separation and annulment of marriage were difficult to obtain. Women could be deprived of their part of community property as punishment for adultery. Illegitimate children were subject to various discriminatory rules and even adopted children were denied full equality. All of this has now changed and has been replaced by modern, liberal provisions. One aspect of the new Québec law has been questioned, however, and that is the marked tendency to delegate discretion to courts instead of to individuals. For example, a minor who wishes to marry will, in the future, ask the court and not his parents for permission.
Separation and Divorce
If no regime is chosen by marriage contract, the couple is presumed to have selected partnership of acquests. Under this system, each partner keeps the property he or she had at the time of marriage and each administers his own property after marriage. However, when the marriage or the regime end, the property acquired after marriage is generally divided equally between the parties.
Marriage contracts must be drafted by a notary. In addition to the choice of regimes, contracts often contain gifts from one spouse to the other, either while both spouses are alive or in contemplation of death. Such gifts are enforceable notwithstanding a subsequent will. In case of divorce or separation, the court may reduce or eliminate the gifts, and it appears that those contracted in contemplation of death lapse automatically since the 1982 change of law.
Since 1982 the Civil Code has protected the spouse's interest in the matrimonial home and the furniture. In the case of a home owned by one spouse, the other spouse's rights are not protected unless a "declaration of matrimonial domicile" is registered at the appropriate registry office. One spouse is not entitled to dispose of furniture garnishing the matrimonial domicile without the other spouse's consent; however, purchases for value in good faith are protected. There is at present insufficient jurisprudence to judge what constitutes "good faith."
The most debated issue has been the new law under which all family law trials take place behind closed doors. Lawyers have protested but the validity of the law has yet to be contested. It has also provided that, in reporting cases, names not be published.
Author JULIUS GREY; ALASTAIR BISSETT-JOHNSON AND CHRISTINE DAVIES
Links to Other Sites
The courts system
This concise guide to the courts that make up the Québec judicial system is from Justice Québec.
McGill Law Journal
This site offers article abstracts about a wide range of legal issues. From the McGill University Faculty of Law.
A very extensive collection of resources that deal with federal and provincial legal issues, agencies, education and services. Covers both civil and criminal law.
Canadian Legal FAQs
See common questions and answers about criminal and civil law in Canada. From the Centre for Public Legal Education Alberta.
You and the law - Community Legal Information on the Web
An extensive listing of websites providing general legal information that may be of interest to Canadians. From University of Toronto’s Bora Laskin Law Library.
Canadian Lawyer Magazine
The website for "Canadian Lawyer Magazine."
The Legaltree.ca website offers legal research resources as well as legal literature contributed by lawyers in the Canadian legal community.
Duhaime.org is a very extensive source for Canadian legal information, history, and related resources.
Society of Trust and Estate Practitioners
The website for the Society of Trust and Estate Practitioners. Offers information about related legislation to professionals and consumers.
The International Journal of Child, Youth and Family Studies
The International Journal of Child, Youth and Family Studies (IJCYFS), a peer reviewed, open access, interdisciplinary, cross-national journal about research and services for children, youth, families and their communities. From the University of Victoria.
A Cruel Arithmetic: Inside the Case Against Polygamy
A synopsis of a book that provides an insider’s view of the constitutional reference case on Canada’s polygamy law. From Irwin Law Inc.