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Family Law 1-3
Modules 1-3 Prep for Midterm
| Question | Answer |
|---|---|
| Federal Government Jurisdiction | Make laws regarding marriage and divorce - Marriage: who can marry whom - Divorce: children; custody, access, support |
| Provincial Government Jurisdiction | Make laws regarding solemnization of marriage and property and civil rights - Solemnization: how we get married, the ceremony - Property: Diving assets - Civil Rights: Custody, access, child support - |
| Marriage Act | Provincial Requirements for legal marriage in Alberta |
| Marriages (Prohibited Degrees) Act | Federal Who can get married |
| AIP Act | Provincial Recognizes relationships outside marriage in which any two persons share one anothers lives, function as an economic domestic unit and are emotionally committed to one another. |
| Family Law Act | Provincial Parenting plans, child support, spousal/ partner support etc. |
| Divorce Act | Federal Jurisdiction, grounds and bars to divorce, corollary relief and variation orders. |
| Federal Child Support Guidelines | Regulation to the federal Divorce Act Tables and formulas for calculating the amount of child support payable |
| Protection against family violence Act | Provincial Provides protection orders and other relief for family members experiencing domestic abuse. |
| Issues that must go to QB | 1. Divorce (Divorce Act) 2. Custody (Divorce Act) 3. Access (Divorce Act) 4. Declaration of Parentage (FLA) 5. Division of property (Married: matrimonial property act) 6. Child Welfare (Child, youth and family enhancement act) |
| Mediation | Neutral 3rd party meets with parties to find resolution to issues. Non Binding Available for free to families where either mom or dad makes less than 30,000/yr Taken to lawyers- can be put into court order, then becomes binding. |
| Parenting after separation seminar PASS | Free Mandatory course for parents that provides basic legal information and the effects of separation on the children. Exceptions: - emergency situation - children are all over 16 - violence in realtionship Cant get an order without taking PA |
| Dispute resolution services | Experiences family law lawyers who volunteer. Provide an opinion as to likely outcome Help canvas likely resolutions ensure procedural matters are complete Mandatory if in calgary, at QB and the court application is for child support |
| Marriage Statutes | 1. Marriage act of alberta (age requirements, witnesses, ceremony) 2. Marriage (prohibited degrees) act (cannot marry lineally or siblings - full or half blood) 3. Civil Marriage Act (same sex marriage is valid throughout canada) 4. Criminal Code of Ca |
| Marriage Contract Requirements | 1. Capacity- did you understand what you were doing? 2. Consent- did you marry voluntarily? |
| AIP Definition | 2 people living together in a realtionship of interdependence for: - a continous period of no less than 3 years, or - a period of some permanence where there is a child of the realtionship by birth or adoption. or that the 2 persons entered into an AIP |
| Statutes that recognize AIP relationships | - Adult gaurdianship and trusteeship act - FLA - Dependants relief act - Intestate sucessions act - fatal accidents act |
| Statutes that DONT recognize AIP relationships | - Matrimonial Property Act - Dower Act |
| Family law agreements | can be done before, during or after a relationship ends. |
| Pre nuptial agreement | contracts entered into by intended bride and groom before their marriage. Sets out scheme for division of property Can mirror MPA or completly override it. Certificate: matrimonial property act acknowledgement and certificate of independent legal |
| Cohabitation Agreement | Option for parties who are not married or do not intend to be. Sets out how property would be divided in the event of a relationship breakdown. CERTIFICATE: no stat requirements but is common to have a Certificiate of legal advice. |
| Separation Agreement | Agreement negotiated when marriage, common law or AIP ends, addressing issues of child custody, access, support etc... NOT required to be considered legally separated. CERTIFICATE: Matrimonial property act Acknoledgement and Crertificate of independent |
| Emergency Protection Order | Claimant appears ex-parte in family division of PC. OR Police apply on behalf of the victim - Served on Respondent by Police. - EPO has to be reviewd at QB within 9 working days of the EPO being granted (made sure its valid) |
| Review of EPO can result in: | - confirmed (and continue for a furhter specified time) - Revoked - Converted into a QB protection order |
| QB Protection Order | can include additional terms not available under EOP such as: - respondent to reimburse claimant for monetary losses. - Respondent required to attend counselling. |
| Restraining Order | Available at QB Usually in place for a short period of time (2 weeks) |
| Custody | 2 parts 1. LEGAL CUSTODY 2. PHYSICAL CUSTODY |
| Legal Custody | Joint: Parents have joint decisions making authority over major decisions in a childs life (health care, religion, education). Can still excercise joint custody even if one parent does not have physical care. 2. Sole: Parent who is granted sole custody h |
| Physical Custody | Sole: children live mostly with one parent Shared: 50/50 sharing of time Split: Splitting the sibling group |
| Access | -Time with child - Communication with child - Information about the child. Right of the child Not a trade off for child support |
| Types of Access | Unspecified: flexibility with arragements from time to time. Older children. Specified: Specific times and dates set out in agreement order. Supervised: Non custodial parent may be allowed to excercise access under supervision. |
| Deciding on type of custody and access | best interests test factors: - conditions, means, and other circumstances - past conditions of the parent is not a factor - Willingness of parent to facilitate contact with other parent. |
| Applications in QB using the divorce act- Documents | Family Application + Affidavit = Order |
| Contested order | made where one or both sides cannot agree on a settlement |
| Consent Order | Issued where all partied consent of agree on a settlement |
| Interim Order | Temporary order issued by a judge pending a hearing on the matter where a final order will be issued. |
| Variation Order | Court order that changes some or all of the terms of an existing order. |
| Notice to Disclose | Objective is to promote financial disclosure and to facilitate an exchange of information on a timely basis. |
| Notice to Disclose- Documents | 1. A Notice to disclose that requires the opposing parent to provide specific financial information to the requesting parent witihn one month of service 2. Application that provides consequences if respondent does not provide the finanacial documentaion |
| Who is required to pay child support | 1. Parents 2. (possibly) Persons who are in loco parentis |
| In Loco Parentis | - Must be spouse of AIP of the mother or father - Must have shown a "settled intention to treat the child as his or her own" |
| Who is a child? | - under the age of majority and has not withdrawn for parents charge - Age of majority or over and is under the charge of their parents because of illness, disability or other cause. |
| Child Support Formula | Table Amount + Payors share of special Expenses = Total Child Support |
| Steps to determine child support | 1. Determine number of children 2. Determine type of custody arrangment 3. Choose appropriate table 4. Calculate guideline Income 5. Determine Table amount 6. Detemrine and apportion special expenses 7.Apply Formula |
| Guideline income | Used for calculating child support. calculate on annual basis Include income earned by parent from all sources |
| Special Expenses Formula | Payors income/total of both parents incomes |
| Special Circumstances | 1. Shared custody 2. Split Custody 3. Incomes over 150,000 4. Adult Children 5. Undue Hardship Carrying custody, access or child support orders |
| Undue Hardship | Trying to make arrangement to pay less than the guideline Payor argues that paying the full amount will cause undue hardship |
| Test for varying an order | Has there been a material change in circumstances since the granting of the last order. |
| Maintainece Enforcement Program MEP | way of collecting child or spousal support from somone who isnt paying Payments the debtor would usually pay to the creditor are paid directly to MEP, then are forwarded to the creditor once funds are cleared through a trust account. |
| MEP Enforcement Remedies | 1. Seizure of debtors assets 2. Garnishment 3. Denials and Restrictions 4. Registrations against debtors property 5. default hearing |
| MEP- Different Provinces | Payment of support can be co-ordinated through the provincial program using: - Maintenance Enforcement Act - Inter-jurisdictional Support Orders Act |
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