Tom - Family Law Outline

1 Family Law Outline: Family Violence: What type of family violence is it?  Coercive control.  Violent resistance.  Common couple violence.  Separation engendered violence.  Mental health conditions causing violence. What can a person do if they are subjected to family violence?  Can try criminal remedies under the Criminal Code .  Can seek exclusive possession of the matrimonial home under the FLA or FPA.  Can seek an EPO or QBPO under PAFVA. o PAFVA applies to ‘family members’: includes AIPS. But must do AIP analysis first. o EPO:  Ex parte.  Family violence must have occurred, and claimant must reasonably think it will happen again.  Will be reviewed by ABQB within 7 days. o QBPO:  Not ex parte. Less urgent.  No reasonable thought of future violence – just past violence needed.  Allows for different remedies, such as reimbursement of expenses caused by violence. Marriage and Validity: This deals with annulments.  Divorce: Marriage happened, but is legally ended.  Annulment: Marriage voided – as if it never happened. o Void marriage = never happened. o Voidable marriage = happened, but can be voided. o Void but subject to ratification = Can be void, but can be validated through conduct.

2 Why does it matter?  If marriage void, the DA doesn’t apply.  That doesn’t really matter though, because the FLA and FPA both apply to void/voidable marriages, and offer very similar corollary relief. o BUT, if parties knew that marriage void/voidable, then FPA doesn’t apply (means no property division). When assessing marriage validity, must have two aspects for a valid marriage: 1. Essential validity o Federal jurisdiction. o Deals with who can get married. o Lex domicile : Governed by laws where parties live. 2. Formal validity: o Provincial jurisdiction. o The ceremonies, procedures, which need to be followed to get married. o Lex loci celebrationis : Governed by the laws where the ceremony happened. How can essential validity be absent? Check for:  One or both parties can’t consummate the marriage = VOID marriage. o Can be physical or psychological inability. o Doesn’t apply if the party knew of the inability but married that person anyways.  Consanguinity = VOID marriage. o Can’t marry your relatives – within certain degrees.  Bigamy = VOID marriage. o Can’t be married to multiple people. A crime in the CC . o The party seeking the annulment must prove the bigamy.  Lack of consent: o No capacity to understand marriage = VOID but can be ratified by conduct.  Low bar. o Duress = VOIDABLE marriage. o Fraud = VALID unless a material mistake.  Party Underage = VOID marriage. o Must be 16+ to marry. How can formal validity be absent?  If ceremony in AB, governed by the AB Marriage Act .  Otherwise, governed by the laws of the place where the ceremony happened.  If ceremonies not followed, VOID marriage, but can be ratified by subsequent conduct. o Don’t have to follow ceremonies if impossible, or don’t submit to local law.

4  Finally, if there is a breakdown of the marriage and no bars to divorce, the divorce can be granted. If so, it can be severed from other issues so the parties can move on and remarry. AIPs: What if the parties weren’t married but still want corollary relief? May have been AIPs.  Must do AIRA analysis. o Living together for 3+ years? o Relationship of interdependence?  Economic and domestic unit?  If YES, then they qualify for corollary relief under: o FLA o FPA o PAFVA Corollary Relief: So, the marriage has been annulled, the parties are divorced, or they were AIPs but are separated. What now?  Can apply for spousal support.  Can apply for parenting rights to any children.  Can apply for child support.  Can apply for property division (not on exam). Spousal Support: Can seek it through the FLA and the DA.  If AIPs or void/voidable marriage, only through FLA. Three steps: 1. Eligibility: o Were they AIPs or married? 2. Entitlement: o Consider the factors (DA s. 15.2(4), FLA s. 58). o What basis of support do they point to?  Compensatory support?  Needs-based support? o Does that basis satisfy the objectives of spousal support? (DA s. 15.2(6), FLA s. 60) 3. Quantum and Duration:

5 o Use SSAG for this. Though non-binding, it is a guideline, and court must show why it departed from it. o Remember: is a range.  Compensatory basis = high range.  Needs basis = low ranger. o Two formulas:  Without child support.  With child support. Parentage: Why do this analysis?  Can matter for parenting and child support. Analysis steps: 1. First, can the person apply for a declaration of parentage, or for a declaration that someone isn’t a parent? o FLA s. 9(1) gives a list of who can apply. 2. Second, do the presumptions of parentage under FLA s. 7(2) apply? 3. Third, if the child was born through assisted reproduction or was adopted, do that analysis. o Assisted reproduction: Was it a male donor or female donor? o If two other people want parentage of a baby born to a surrogate:  The donor’s spouse/AIP must have consented to be a parent.  They need to make an s. 8.2 application for the birth mother to not be a parent.  Need consent of the birth mother for an s. 8.2 application! If the mother doesn’t consent, only she is the parent of the child. 4. Fourth, if dealing with paternity, check the presumptions under FLA s. 8. o If s. 8 presumptions don’t apply, or apply to multiple people, must do DNA test. 5. Fifth, is the person SIPP? o If dealing with DA, do Chartier analysis. o If dealing with FLA, do the s. 48 analysis. Consider also parens patriae jurisdiction of court. Parenting: Under DA s. 16.1, the party must be a parent (or SIPP) or spouse to qualify for a parenting or guardian order. Under FLA s. 23, the party can be a parent, SIPP, or a person who has care and control of the child for 6+ months.  So, parentage analysis matters.

7  Would the payor suffer undue hardship?  Does the payor have undisclosed income? Should income be imputed? o Gifts? o Lifestyle? o Do they have a corporation?  Is retroactive support an issue?