Family law is critical to most Canadians as it governs relationships between spouses, and between parents and their children.
Family law is critical to most Canadians as it governs relationships between spouses, and between parents and their children. In family law, marriage and divorce fall under federal jurisdiction but most other issues, including adoption and matrimonial property disputes, fall under provincial laws that vary widely. Traditional family structures have changed significantly over time, with increasing numbers of same-sex and common law relationships, and growing divorce rates. This has led to intense debates over the future of family law, court challenges and provincial reviews of legislation.
Family Law in the Provinces and Territories (Except Québec)
Marriage ceremonies are governed by provincial law, but Parliament has jurisdiction over marriage (e.g., the age when people can marry, laws forbidding marriage between certain people, and divorce).
A marriage can be annulled if one party was under age, or as a result of bigamy (being married to more than one person), a defective marriage ceremony, duress, mental incapacity, or the failure to consummate the marriage because of a physical or mental disability.
Separation and Divorce
Separation is a legally recognized parting by spouses or the agreed end of cohabitation, and can be cited as grounds for divorce. 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 divorce legislation for the entire country. It was repealed and replaced by the 1985 Divorce Act.
The 1985 Divorce Act states that divorce must be based on a breakdown of marriage, which can be established only with proof of cruelty or adultery, or proof the parties have been living apart for a year immediately before the divorce proceeding, and were living apart at the time the petition for divorce was filed. (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.)
Spousal and child support following a divorce falls under federal law, and all other maintenance agreements come under provincial law. 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 relating to the right to receive support and the amount of child and spousal payments. Wives may have to support their husbands and children, and in all provinces except Québec, common-law relationships may result in support obligations.
Under old common law, a husband had the right to own or manage his wife's property. However, wives had the right of "dower"—a life interest in the property the husband owned when he died (see Property Law). In the 1890s, married women's property Acts introduced the concept of separation of property. This gave wives contractual and tortious rights and responsibilities, though in several provinces legal 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 did not obtain ownership based on domestic work or rearing the children, although she did obtain a measure of protection by living in the matrimonial home under Dominion Lands Acts in the West and, to a lesser extent, Dower Acts in the East.
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. This led to the Murdoch Case, in which the wife had no rights of ownership in things she assumed were family assets. The harshness of the old property rules 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). Some provincial matrimonial property legislation distinguishes between family and business assets, while in Alberta there is no distinction.
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, however, use a degree of common sense and can be unwilling to change the status quo if things are working well in a home and can be reluctant to separate siblings.
Third parties, such as aunts or uncles, can also seek custody or visiting rights. The Divorce Act of 1985 provides for increased contact between the child and both parents without expressly mandating joint custody.
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. The "status" of illegitimacy has been repealed in several provinces, and parents now have a duty to support their illegitimate children. The procedure for establishing paternity is called filiation.
Modernizing Family Law
British Columbia undertook a major overhaul of its legislation in recent years and on 18 March 2013, the province’s Family Act replaced the Family Relations Act, which was more than 30 years old. The new legislation makes many changes to family law. Notably, it clarifies how property is divided up when couples, including those in common-law relationships, break up. It states that common-law couples have the same rights and responsibilities as married couples after two years of living together, and that debts and assets acquired over that time are divided 50-50. The law was amended to reflect the fact that the number of common-law families in British Columbia is growing at a rate three times faster than the number of married couples.
Most other provinces define a couple as acquiring common law status after two or three years of living together, or after less time if there are children. Elsewhere, laws surrounding spousal support and division of assets vary widely. Most jurisdictions require that common law couples have a co-habitation or other legal agreement to deal with the division of property.
Family Law in 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 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 Roman Catholic Church (see Catholicism). Divorce was 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 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.
Québec marriage law is based on principles similar to those in other provinces, i.e., marriages must be monogamous, require consent of both parties and must include a ceremony, either civil or religious. Québec stands apart regarding common law relationships, though. It is the one province that does not give common law couples financial rights or responsibilities when the relationship ends, yet it has the largest concentration of common law couples in the world (about one-third of the province’s residents are in a common law relationship). On 25 January 2013, in a high profile case known as Lola vs. Eric, The Supreme Court of Canada ruled in a narrow 5-4 vote that Québec can continue to exclude common law couples from receiving spousal support. The court ruled after the law was challenged by the ex-partner of a wealthy business owner who was seeking a $50-million separation payment. The couple was not identified to protect the children.
Separation and Divorce
Separation can now be obtained in Québec with a minimum of formality. Divorce is obtained under federal law. Québec adopted its own fairly liberal divorce provisions in the 1982 Civil Code, but these articles have not been proclaimed because they are not constitutional (divorce is an area of federal not provincial jurisdiction).
The 1982 code abolished the concept of illegitimacy and includes adoption. It is illegal to trade in children or to accept payment for a private adoption. Parents and children owe each other support even when the child has reached majority, although both parties must strive to be as independent as possible.
The Québec Civil Code and Code of Civil Procedure have been amended in recent decades. In December 1983, a new set of rules for foreign adoptions came into effect making it very difficult to adopt foreign children.
Québec law kept the civilian concept of matrimonial regime (i.e., sharing or separating property between spouses). Couples are free under the Marriage Act to choose one of three regimes. The most common regimes are separation of property and partnership of acquests. 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. However, when the marriage ends, the property acquired after marriage is generally divided equally between the parties.
Simon Fodden, Family Law (1999); Julien D. Payne and Marilyn A. Payne, Canadian Family Law, 6th ed. (2015).