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Family Law in Canada

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.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).

Annulment

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 It was repealed and replaced by the 1985 Divorce Act.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.)

Maintenance

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.

Matrimonial Property

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.