Divorce in Canada for Foreign Residents
The Act to Amend the Civil Marriage Act was tabled today in Ottawa. It seeks to adjust the act to allow non-Canadian residents married in Canada to be able to get a divorce in this country. Until this legislation passes, there are two bars to non-residents getting divorced here. The first is the residency requirement. At least one of the two married people must reside for at least one year in the province through which they are applying for the divorce. The second is that the current state of the law will not allow people to get divorced if their resident state did not acknowledge the marriage as valid to begin with. This is usually not a major hurdle. Marriage in Canada is generally accepted as valid throughout the world. Canada, however, recognizes and authorizes same sex marriages and there are many jurisdictions in the world which neither allow nor recognize those marriages.
The newly proposed legislation provides that if people marry in Canada, and if the jurisdiction in which the parties reside does not recognize the marriage, those people can get a divorce in Canada. The specifics are as follows:
- Both parties or one party may apply for the divorce. If only one party is applying and does not have the consent of the other, s.7(2) sets out that that party must obtain an affidavit from the jurisdiction in which he or she resides indicating why the other party’s consent is not forthcoming. This is extremely problematic. Divorce, unsurprisingly, is often accompanied by non-cooperation and given that the legislation is clearly focused on same sex marriages, the need for an affidavit could be an insurmountable barrier if it must be obtained from a jurisdiction hostile to such unions. In Saudi Arabia or in the Sudan, for example, homosexuality invites the death penalty. (more…)
Posted: February 17th, 2012 under Divorce, Legislation Analysis.
Tags: Divorce, Foreign, Foreign Residents, Gay, Residents, Same Sex
Who will care for my children when I’m gone?
When there is a separation or divorce, estate law and family law are very much intertwined with one another. At Henderson Heinrichs we have found that our clients are often justifiably concerned with who will care for their children in the event that the custodial parents pass away. The answer is not straightforward and there are many factors to consider. Below are some of the applicable provisions that you may have to consider when addressing this issue.
- In a situation in which both parties have joint custody and joint guardianship of the children:
- Pursuant to s. 29(1) of the Family Relations Act, if a joint guardian dies, the surviving guardian will continue as sole guardian of the children.
- In a situation in which one party is the sole guardian of the children and the other party has no guardianship or custodial rights:
- Pursuant to s. 29(2) of the Family Relations Act, if the sole guardian dies, a surviving parent of the children who is not a guardian at the time of the deceased’s death does not become a guardian unless the parent has been appointed under section 50 of the Infants Act or is, by order, appointed under section 30 of the Family Relations Act.
That section of the Infants Act states:
- i. That a parent may appoint, by deed if (the parent is) under age, otherwise by deed or will, a guardian to act in his or her place on his or her death as guardian of an infant child under 19 years; and,
- ii. If either parent dies, the surviving parent may by will transfer part or all of his or her rights and duties to custody, control and management of their infant child’s property, but not the infant’s services and earnings, to a suitable person.
- Pursuant to s. 30 (1) of the Family Relations Act, a court may, on application:
- i. appoint a guardian, or
- ii. remove from office a guardian appointed or acting by virtue of this Part or a deed or testamentary appointment.
- Pursuant to s. 30 (2) of the Family Relations Act, if a child is over 12 years of age, a court must not make or give effect under subsection (1) to an appointment unless:
- i. the child consents in writing to the appointment, or
- ii. if the child withholds consent to the appointment, the court is satisfied that the appointment is necessary in the best interests of the child.
- Pursuant to s. 30 (3) of the Family Relations Act, a person other than the father or mother of a child must not, under subsection (1) (a), be appointed guardian unless the court is satisfied that each parent of the child consents in writing to the appointment or, if a necessary consent has not been given, that:
- i. the parent who could give or withhold consent is not reasonably available, or
- ii. the consent is being unreasonably withheld.
- Pursuant to s. 30 (4) of the Family Relations Act, an order must not be made under subsection (1) unless the present and prospective guardians have been given notice and an opportunity to be heard in the proceeding.
- Finally, s 30 (5) of the Family Relations Act stipulates that if satisfied that circumstances warrant, the court may grant an exemption from subsection (4) respecting a present guardian.
Planning for your children’s future is a complex task and the intersection of family law and estate law makes it doubly so.
The best way to ensure that your wishes with respect to any issue being carried out after your death and that your children’s best interests are protected to is to obtain advice from independent legal counsel who can direct you through this legislative maze. Here at Henderson Heinrichs our lawyers are capable of advising you with respect to such a complicated issue.
Posted: November 2nd, 2011 under Custody and Access, Divorce, Legislation Analysis, Wills and Estates.
Tags: custody, death, estates, Guardianship, Infant's Act, predeceased, survivor, wills
What does it take to Separate?
At Henderson Heinrichs, we are often asked to seek a determination that the spouses in a marriage have no reasonable prospect of reconciliation. Normally, this is not a particularly contentious issue. However, there are circumstances in which a declaration such as this have far-reaching consequences.
In Wolfman-Stotland v. Stotland, 2011 BCCA 175, (CanLII) the court grappled with the question of a spouse’s capacity to separate. In this case, the claimant wife and the respondent husband were 92 and 93 years old respectively, and the wife applied for a s.57 declaration that there was no reasonable prospect of reconciliation. In opposing that application, the Husband sought and received an order that a doctor provide an opinion as to the Wife’s capacity to make the – though the doctor found that the wife had the capacity to instruct counsel regarding the financial aspects of the divorce claimed, she “did not have the capacity to form the intention to live separate and apart from her husband” [at paragraph 14]. The Chambers judge defined the relevant issue as whether the wife had the ability to both manage her affairs and instruct counsel. The Court found that she did not.
The Court of Appeal disagreed. Upon re-examination of the issue, the Appeal Court determined there should not have been a dual test. The ability to manage ones affairs was determined to be a higher capacity than the one needed to instruct counsel and the court overturned the Chambers Judge’s decision.
The Husband’s application to appeal to the Supreme Court of Canada was dismissed, and the test for the capacity necessary to separate therefore remains a very basic one.
Posted: October 18th, 2011 under Case Analysis, Divorce, Family Court, Procedure.
Tags: capacity, declaration, s.57, Section 57, separation
Review Hearing vs. Variation of an Order for support
The BC Court of Appeal just released a decision called Domirti v. Domirti, 2010 BCCA 472, which considered an appeal by the husband from an Order that he pay indefinite spousal support to his wife. The basis on which the husband made his appeal was the manner in which the judge treated the application at the Supreme Court level; that is, that the judge made a mistake in treating his application as a variance instead of a review. The Court of Appeal agreed with him and reversed the judge’s order.
Previously, the parties have been separated since 1994. The initial child and spousal support order was made in 1996, and varied in 2004. The 2004 Order specified that, anytime after a year had passed, either party could seek a review hearing on the issue of spousal maintenance. The husband sought that review in 2005, and then again in 2009 when it was alleged the youngest child of the parties was no longer a child of the marriage. The husband sought to terminate spousal support at that point.
At the 2009 application the judge indicated she was relying on Section 17 of the Divorce Act, which relates to the variation of support orders. She concluded the husband ought to keep paying indefinite support to the wife in the amount of $1250.00 per month.
On appeal, the Court of Appeal noted that Section 17 of the Divorce Act is irrelevant in the context of review hearings and should not have been relied on by the judge. Instead, at a review hearing, the judge should have conducted a “reconsideration” of entitlement and quantum of support having an eye to the Spousal Support Advisory Guidelines, which the Court of Appeal concluded would have assisted the husband in terms of the duration of support.
This decision clarifies the test that a party must satisfy when bringing an application for a review of support as opposed to the test that must be met on an application to vary support. Procedurally, this distinction is important to note as the legal test is markedly different.
Posted: October 27th, 2010 under Case Analysis, Child Support, Divorce, Procedure.
Tags: appeal, Domirti, Maintenance, review, Support, variation
Divorce Ads
I came across an article in the Walrus last week regarding a Chicago law firm which put out a rather risqué advertisement trumpeting, “Life’s short. Get a divorce”. This got me thinking about what, as family lawyers, the line is between our facilitating the breakdown of a relationship and our advocating that breakdown. The advertisement perpetuates the stereotypical “ambulance chaser” image of lawyers, but in this case the chaser actually advocates the accident. The danger of glamourizing that which is, for virtually everybody involved, a serious and difficult undertaking ignores the complex and often destructive ripples left by that breakdown, not only on the parties, but on the children of the parties. Divorce is not fun; it is not trivial, and to treat it in a flippant manner disrespects those who treat their relationships seriously.
Posted: August 12th, 2010 under Divorce.
Tags: advertising, Divorce, family lawyers, lawyers
