Further Topics and Overlapping Legal Issues in Family Law

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 section 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.

Same-sex relationships

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 that used to exist by the operation of law has been on the wane. From the Little Sisters decision on censorship to Egan v. Canada, [1995] 2 SCR 513, on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the Charter of Rights and Freedoms to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed suit.

The realm of family law has proven no exception. To quote barbara findlay QC, a tireless advocate for queer rights, from a speech to the Canadian Bar Association British Columbia a number of years ago:

"Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop."

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 Adoption Act is one of the few in Canada that 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.

How does family law intersect with gay and lesbian relationships? In every way. There is no relief known to family law of which straight couples can avail themselves that same-sex couples cannot.

Marriage

As a result of the 2005 federal Civil Marriage Act, same-sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the Married Spouses section of the Family Relationships chapter for more information about the capacity to marry, valid marriages and invalid marriages.

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 a Canadian marriage is certainly legal in Canada, it 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.

Children

Whether the battle over a child is between two parents of the same gender or between parents of opposite genders, the legal test that the parents and the court should consider is the same: what arrangements are in the child's best interests? That is the only concern. The courts have been crystal clear that the sexual orientation of the parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:

Anger v. Anger, 1998 CanLII 4490 (BCSC):

Mother sought an order that the children live primarily with her. Father opposed application as he found mother's sexual orientation "repugnant on religious and moral grounds." Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.

Murphy v. Laurence and Rogers, Ontario Superior Court, 2002:

Applications by biological mother and mother's lesbian partner for custody and child support. Parties had three year common-law relationship in which mother remained at home and partner worked outside the home. Both acted as parents to child, and following separation, partner exercised liberal access to child. Child later, by agreement, going to live mostly with partner. Court finding child to have benefited from care of both women, and ordering joint custody with primary residence of child to mother based on blood tie. Negligible access given to father in light of history of disinterest in child. No weight given to mother's sexual orientation.

"The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same-sex parents seeking custody are no different than opposite-sex parents seeking custody."

Bubis v. Jones, 2000 CanLII 22571 (ONSC):

Application by mother for vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same-sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.

"Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice."

"There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents."

Child support

Whether you are straight, gay, lesbian, bisexual, or something in between, if you qualify as a parent for the purposes of the Family Law Act, or the child qualifies as a child of the marriage for the purposes of the Divorce Act, child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable at the amount specified under the Child Support Guidelines unless the parent paying support (the "payor") fits into one of a very narrow range of exceptions:

• the payment of support in the usual amount would cause "undue hardship,"
• the person paying child support, the payor, is responsible for the care and control of the child for more than 40% of the child's time,
• the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient, or
• other persons are also under a legal obligation to care for the child.

The only one of these exceptions that 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.

Divorce

The Divorce Act no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.

Issues affecting the transgendered, transsexual and bisexual

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.

Marriage

As a result of the 2005 federal Civil Marriage Act, gender is irrelevant in determining the ability of a couple to marry.

Children

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.

On the bright side, the single reported case I was able to find in researching transgendered and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In Forrester v. Saliba, 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:

"I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination."

"The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being."

The mother's application was dismissed.

Child support

Trans issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.

Spousal support

The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the trans issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the trans issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.

Divorce

The Divorce Act no longer requires spouses to be of opposite genders, whether at the end of their marriage or at the beginning of it, to qualify for a divorce order.

Wills and estates issues

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 Wills Act. Sections 3 and 4 set out the basic requirements for a valid will:

3 A will is valid only if it is in writing.

4 Subject to section 5, a will is not valid unless

(a) at its end it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's direction,

(b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and

(c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator.

The provincial Wills Variation Act says that people are presumed to have a moral duty to provide for members of their immediate family. Under this act, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate.

A person who dies without leaving a will is said to die intestate. If a person dies intestate, their assets are dealt with according to the terms of the provincial Estate Administration Act. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, and the remainder being split with any surviving children.

Married spouses

The law treats married spouses differently than unmarried couples, and its important to be aware of the distinctions.

The effect of marriage

Under s. 15 of the Wills Act, a will is considered to be cancelled, or revoked, once a person marries. Unless you make a new will after your marriage, you will be considered not to have any will at all, and if you die your estate will be distributed under the Estate Administration Act.

The effect of separation and divorce

Although divorce doesn't revoke a will, divorce cancels those parts of a will which:

• name the dead person's former spouse to act as the executor of his or her estate, or
• make the former spouse a beneficiary under the will.

If a person dies intestate, only people who qualify as the person's spouse can benefit from the provisions of the Estate Administration Act. If the dead person has divorced or if his or her marriage has been annulled, a former spouse can't make a claim under the act.

If the dead person has only separated from his or her spouse, a surviving spouse is still a spouse who may be entitled to inherit under this act, even if an action for divorce has started or even if the parties have been separated for a long time. In the case of a couple who have been separated for more than a year before the death, however, the surviving spouse must apply to court to share in the estate.

Unmarried couples

A person can make a will making anyone a beneficiary of his or her estate. The nature of the person relationship with a beneficiary only becomes important if a beneficiary, or a person who thinks he or she ought to be beneficiary, wants to make a claim against the person's estate.

The Estate Administration Act, the law that applies when someone dies without a will, requires that a certain amount of a dead person's estate go to people who qualify as a spouse. Spouse is defined as included "a common law spouse"; common law spouse is defined as:

(a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or

(b) is living with another person in a marriage-like relationship, and has lived in that relationship for a period of at least 2 years;

The Wills Variation Act defines spouse as a person who:

(a) is married to another person, or

(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.

What's interesting about the Estate Administration Act and the Wills Variation Act is that they both require an unmarried spouses to be living with the person who has died at the time of his or her death. For married spouses, it's the fact of the parties' marriage that counts, not whether they are still living together.

Planning ahead

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 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.

If you are in an unmarried relationship, you should simply identify your former spouse as your former unmarried spouse, state that you do not wish to provide for him or her in your will, and briefly explain why you do not wish to provide for him or her.

Parental support

The old Family Relations Act used to allow parents to sue their adult children for support. That part of the Family Relations Act was repealed on 24 November 2011 and is not carried forward in the new Family Law Act, and as result claims for parental support may no longer be brought in British Columbia.

The conflict of laws

The conflict of laws refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:

• spouses have property in different provinces or countries,
• the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or
• the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.

The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.

Children

Different rules apply when orders about the care of children are made outside of British Columbia under the federal Divorce Act or outside of British Columbia, and outside of Canada, under another law.

Divorce Act orders

When a court order about children has been made under the Divorce Act, a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a provisional order which has no immediate effect. The Attorney General is required to send the provisional order to the court which made the order, and that court will have a confirmation hearing under s. 19. If that court confirms the provisional order, the order will be changed.

Since the Divorce Act applies to the whole of Canada, Divorce Act orders have effect throughout Canada. An order made under the Divorce Act may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

Other orders made outside British Columbia

When a court order about children has been made under a provincial law, such as Alberta's Family Law Act or the Children's Law Reform Act of Ontario, or the laws of another country altogether, the order can be recognized by the courts of British Columbia under s. 75 of our Family Law Act. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.

Under Division 7 of Part 4 of the Family Law Act, the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in meddling with the orders of another court. Our court will usually hear an application for an order different than the original order if:

1. the child normally lives in British Columbia, or
2. the child is physically present in the province but will be at serious risk unless the original order is changed.

Child support and spousal support

Different rules apply when orders about support are made outside of British Columbia under the federal Divorce Act or outside of British Columbia, and outside of Canada, under another law.

Divorce Act orders

An order for child support or spousal support made under the Divorce Act may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

Under s. 5 of the Divorce Act, the courts of British Columbia will hear an application for an order different than the original order if:

1. either spouse normally lives in this province, or
2. both spouses agree that our courts should deal with the matter.

Other orders made outside British Columbia

Where a support order was made under the law of another province or territory, the order can be registered in the courts of British Columbia under the provincial Interjurisdictional Support Orders Act, and can be enforced as if the order were an order of our courts by the person to whom the payments are owed, the recipient, under the Family Law Act or by the recipient and the Family Maintenance Enforcement Program under the Family Maintenance Enforcement Act.

The Interjurisdictional Support Orders Act also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the Interjurisdictional Support Orders Act also applies to the orders of some other countries, including the UK, the United States, Australia and New Zealand.

Property and debt

The Family Law Act is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated, almost impossible to understand and you will almost certainly need to speak to a lawyer to figure them out.

Under s. 106 of the Family Law Act, where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may make decided to deal with a claim if:

• the person against whom the claim is made, the Respondent, has made a claim for the division of property under the Family Law Act,
• the parties agree that the court should deal with the claim,
• either party was "habitually resident" in the province when the court proceeding started, or
• there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the Divorce Act has been started here.

If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:

• dividing property here to take into account the value of the property outside the province,
• making orders about respecting the care, management or use of the property outside the province, and
• making orders about ownership of the property outside the province.

Immigration issues

Problems involving immigration usually crop up because one spouse has sponsored the other spouse into Canada, or a spouse is concerned about deportation once the relationship ends. The discussion that follows provides only an overview of some of these problems. If you have an immigration concern, you really should speak to a lawyer who practices this kind of law.

Permanent Resident spouses

Under new rules that were introduced in October 2012, sponsored spouses are under a conditional permanent residency status for the first two years. According to the press release from Citizenship and Immigration Canada:

"The spouse or partner must live in a legitimate relationship with their sponsor for two years from the day on which they receive their permanent resident status in Canada. The status of the sponsored spouse or partner may be revoked if they do not remain in the relationship."

In other words, the spouse who has been sponsored into Canada must stay with his or her spouse for at least two years or the spouse risks losing his or her permanent residency. This could be a serious problem if the potential loss of status forced people to stay in abusive relationships. However, the new rules appear to come with some exceptions. Here's more from the press release:

"The regulations include an exception for sponsored spouses or partners suffering abuse or neglect. The conditional measure would cease to apply in instances where there is evidence of abuse or neglect by the sponsor or if the sponsor fails to protect the sponsored spouse or partner from abuse or neglect. This abuse or neglect could be perpetrated by the sponsor or a person related to the sponsor, whether or not the abusive party is living in the household or not during the conditional period. The exception would also apply in the event of the death of the sponsor."

However, no matter what, your spouse may still remain responsible to support you and your children. If you are married, you will also remain entitled to claim a share in the family assets.

Although your spouse still has an obligation to support you as a sponsor, you will not lose your permanent resident status after the first two-year period if you have to apply for welfare, although you will be expected to try and get support from your spouse. If your relationship ended because of abuse, you may not have to try and get support from your spouse; speak to your caseworker right away.

Non-resident spouses

If you do not have permanent resident status, you must seek legal advice and help right away, as the breakdown of your relationship with your sponsor may affect your ability to remain in Canada, if that's in fact what you'd like to do. There are a number of agencies that help immigrants and refugees; seek them out immediately.

Sponsoring spouses

If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms. You have these responsibilities in addition to your responsibilities under the Divorce Act and the Family Law Act. A 2004 case of the Supreme Court, Aujla v. Aujla, 2004 BCSC 1566 held that a sponsor's obligations under a sponsorship agreement was and obligation between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal support under those acts.

If you are a sponsor and your relationship has ended, contact an immigration lawyer right away to find out exactly what your rights and obligations are.

Page resources and links

Legislation

• Charter of Rights and Freedoms
• Family Law Act
• Divorce Act
• Estate Administration Act
• Wills Variation Act
• Wills Act
• Civil Marriage Act
• Family Maintenance Enforcement Act
• Adoption Act
• Interjurisdictional Support Orders Act

Links

• News Release — “The Jig is Up on Marriage Fraud,” says Minister Kenney