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
New Child Support Guideline Tables
The Child Support Guidelines have been due for an update, and the DOJ has obliged. They have posted new table figures which will be used to make Guideline Child Support calculations from December 31, 2011 onwards. The adjustments are not even across the board. In some higher income cases, obligations have been nudged slightly higher. For some medium income calculations, the payor is actually required to forward less money. If you have a child maintenance obligation, or if you are receiving child maintenance, it would be a good idea to look at the new tables.
Posted: November 29th, 2011 under Child Support, Legislation Analysis.
Tags: Child Support, Child Support Guidelines
Common Law Property Division Changes Coming
On November 14, 2011, the Provincial government introduced Bill 16, which features a comprehensive revamping of the property law regime in the province. One significant change is that Property Division, which did not previously apply to “common law” spouses under part 5 of the old Family Relations Act, will now apply “common law” spouses.
The bill has not yet been passed, and of course there may be amendments or it may not pass at all. However, now is the time to take a serious look at your situation if you are in a “common law” relationship.
Of particular relevance to those in “common law” relationships is the proposed transitional section 252 of Bill 16. Section 252 provides that if you have an executed agreement regarding property, or if you have started a court proceeding regarding property division, before the act comes into effect, then the old Family Relations Act will apply to your case. If you are in a common law spouse with the lion’s share of the property and considering separating, get to a lawyer to discuss your options as soon as possible. Delaying could be very costly.
Posted: November 23rd, 2011 under Legislation Analysis.
Tags: agreement, Bill 16, common law, Family Relations Act, property, Property division, Reform
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
Post-Secondary Education Costs
There can be a positive obligation on separated or divorced parents to support a child through post-secondary education if that cost is labelled an extraordinary expense pursuant to s.7 of the Federal Child Support Guidelines. That section states that,
Special or extraordinary expenses
7. (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
The question this raises in my mind is why separated or divorced parents are subject to this potential obligation when children of parents still together are subject to the vagaries of their parents’ decision. Would a child of parents who are still together be able to secure similar funding if the courts were asked to intervene?
Posted: February 3rd, 2011 under Child Support, Legislation Analysis.
Tags: Child Support, education, Maintenance, married, separated, University
