Jaques Law Office

Responsive

Reasonable

Effective

Professional Legal Services Relating to

Real Estate, Wills and Estates, and Small Business


Family Law


Disclaimer

The following is no substitute for advice provided by a lawyer specifically for you. It is intended only to help you understand that advice. No responsibility is taken for any problems arising except due to paid legal advice.

©1996 Jaques Law Office. All Rights Reserved.



Family law in a nutshell

Since 2005, we focus on Real Estate, Wills and Estates, and Small Business. We have left this web page in place as a public service.

Any aspect of law may be involved between family members. They may commit crimes against each other. They may go into business with each other. They may have commercial transactions with each other. But the uniquely 'family' issues are custody/access, maintenance, and property division.

It is basically normal civil procedure, as follows:

Procedure:

1. A court action must be commenced.

3. Interim Relief must be settled.

2. The Petition must be served

3. Pleadings Must be Closed

4. Disclose and Discover Information

Conduct The Trial

Apply For Judgment

Law

Child Custody and Access

The only consideration is the best interests of the child. The convenience or even suffering of the parents are not considered. The court never gives up jurisdiction over a child, or for that matter, other incapable parties like the insane or mentally challenged. For that reason, an agreement by the parents or even an order of the court is never really final. If circumstances change, then the court is prepared to act. However, orders and to a lesser extent, agreements are not meaningless, as they will be treated as a correct determination as of the time they were made.

Any interested party may apply for custody or access.

Custody, in law, really refers to legal power over the child. A legal custodian can consent to medical treatment, determine residence, sign up for school, have access to information about the child, etc. The legal custodian could, in theory, never live with the child. The Physical custody is quite different.

A natural parent generally automatically has custody of his or her children. So, at the child's birth, s/he is in the 'joint custody' of his/her parents. If the parents separate, in most cases, one will become the 'primary residence' of the child. That does not mean joint custody will end. The courts try to preserve or reinstate joint custody, but if the parties allow their disputes to interfere with the well-being of the child, the courts will end it.

The courts consider access to both parents extremely important to a child's best interests. Even if the parent is a menace, they will try to accomodate some sort of careful, safe access. In such a case, supervised access is generally used. The government does provide some services to offer supervision of access.

Physical custody arrangements can be anything which suits the child's needs. If the parents can afford and tolerate it, the "Bird's Nest" arrangement is a good one. In that case, the child stays in one residence, and the parents move in and out. "Alternating Custody" involves more or less equal turns with physical custody of the child. This can be disruptive to the child, but maintains good parental contact. "Standard Access" will give primary residence to one parent, while the other parent gets alternating weekends and holidays and three to six weeks in summer vacation.

Child Maintenance

In theory, the parents are both bound to contribute proportionately to their ability, to the extent of the child's needs, with credit given for the contribution of time and resources by the physical custodian.

However, in the late 90's, a federal-provincial task force recommended the adoption of standard maintenance tables. It was adopted as law throughout Canada. These tables consider only the income of the payer and the provincial residence and number of children. The tables were intended to ease the burden on the courts and the adversarial proceedings by substituting a kind of rough justice.

In the result, there seems to be little reduction in the court disputes concerning child maintenance. But the arguments seem to be more petty.

In addition to the table amount, the payer must pay proportionately for 'extraordinary expenses'. These must be both reasonable for that child and extraordinary for the circumstances of the parties. So, for low income families, hockey camp would not be reasonable unless the child is very talented. For high income families, hockey camp would not be extraordinary. There is much dispute about 'extraordinary expenses'.

The tables must be adjusted if the child is over 18, if the payer earns more than $150,000.00 per year, or if the payer claims certain types of tax deductions. For instance, a self employed person will claim depreciation at the rate approved by the Income Tax Act. However, the court can review that rate, and others of that type of expense, and adjust the 'deemed' income accordingly. There seems to be a tendency to forget that the equipment actually is depreciating and must eventually be replaced or the business income will suffer.

In addition to natural parents, a person can become a parent by living with a child and acting as a parent. This person can become liable to pay child maintenance.

A 'child' is a child within the meaning of the Divorce Act until they are both 18 years of age and able to withdraw from care. Maintenance will normally continue through post high-school education if the child is capable of it and applies themselves. Again, it must be reasonable, but if a child were bright enough to justify it, it could remain a child throughout lengthy university studies. There is an expectation that the child will contribute to the process, and maintenance will be reduced in consideration of that whether or not it actually happens. And, of course, some children, due to medical problems, can never withdraw from care.

Please see our Family Maintenance page for a more detailed look at maintenance.

Spousal Maintenance

There has been a lengthy evolution of this doctrine, and at no point has a prior version of the doctrine been clearly rescinded.

In medieval times, marriage was treated much more like a contract. In those times, the income earner and property holder was almost universally the man. If the man broke the contract, by adultery or cruelty or desertion, then he paid damages. He paid to keep the woman in the 'style to which she had become accustomed'. If the woman broke the contract, she got nothing.

It became recognized that such an approach created suffering in every case, though only on the party at 'fault'. So, gradually, it became a rule of thumb that the man paid a third of his income for spousal maintenance.

In the 1970's, a doctrine more like tort principles developed. In it, if either party suffered a loss of their income earning capacity due to the marriage or breakup, the other party would pay to compensate. This seemed a flexible and sensible approach. In a short marriage, likely no maintenance would be paid. In a longer marriage, maintenance might be paid in a comparatively high amount, but for a short time, sufficient for example, for retraining. In a long term traditional marriage, there might be permanent maintenance since there would be no realistic prospect of a return to work.

Those principles are enshrined in our current Divorce Act. However, in the 1990's, the Supreme Court of Canada in the Moge case decided that the courts had been placing too great an evidentiary burden on the women claiming it, and too high an emphasis on the duty to become self-sufficient. Courts were instructed to presume that a woman had suffered the qualifying economic disadvantage arising from the marriage. However, there was no guidance offered on how much to pretend they had suffered.

Now the Supreme Court has come out with another twist. A woman had, after the breakup, lost her ability to work when she suffered a mental illness totally unrelated to the marriage. She was awarded maintenance, on the theory that since, had she still been married, her economic situation would have been better, obviously she suffered 'economic disadvantages arising from the marriage or its breakup'.

In short, there is little in the law that offers predictability. However, in practise, the courts seem to be fairly generous on interim awards, thus creating a more level playing field financially for the trial, but less generous if there is sufficient matrimonial property.

Spousal maintenance claims can be made by unmarried spouses.

Agreements between the parties concerning spousal maintenance have been well respected by the courts, but can be changed if circumstances change relating to the marriage. That may well have a greatly expanded meaning under the latest Supreme Court rulings.

Please see our Family Maintenance page for a more detailed look at maintenance.

Matrimonial and Family Property

Until the latter part of this century, property division was determined standard legal doctrines like contract, partnership, gift, and so forth. Doctrines of Trust law were expanded and applied. Saskatchewan was a leader in expanding the rights of non-owning spouses, generally women. There were many valuable family farms in the names of just the husbands. The old doctrines were working a lot of hardship on women who had worked hard over many years to build them.

In the 1970's, the Matrimonial Property Act (now known as the Family Property Act) was passed in Saskatchewan. It introduced a fairly straight-forward scheme. Matrimonial property would be divided according to the contributions of the parties in acquiring it, ignoring the legal ownership. The legal ownership was not tampered with. We did not become a community property regime. However, the Act gave the court the power to change the ownership.

The court was directed by the Act to begin with the assumption of equal contributions and expressly instructed the courts to consider domestic contributions. It quickly became obvious that the courts were delighted with this, and were nearly impossible to persuade that the contributions were anything but equal. Obviously the parties had agreed or at least tolerated the way they conducted their own affairs.

The Act gave an even stronger presumption of equal contributions to the matrimonial home and furnishings, but it didn't turn out to make much difference. Except in the case of an extraordinarily short marriage, property will be divided equally. Extraordinarily bad conduct was a factor at the beginning, but increasingly, vices are seen as illnesses not really the fault of the non-contributing party. That certainly applies to alcoholism, drug addiction and gambling.

There is still plenty of room for argument.

The Act provides that property owned at the time of the marriage is exempt, unless it is matrimonial home or furnishings. The proceeds of such property are also exempt, if they can be 'traced' within the meaning of the old trust doctrines.

A more detailed look at the operation of this Act can be found at our Matrimonial Propertypage

It should be noted that it is very bad planning to purchase a home just before marriage.

It is also very difficult to evaluate certain assets, especially pensions. Sometimes the help of expert evaluators or actuaries is required.

This Act only applied to married couples. For unmarried couples, the doctrines of trust continued to expand. If a spouse contributed to the acquisition of property, but received no ownership of it, then the court would deem it held in trust for the contributor under a 'Resulting Trust'. So, if a spouse did all the housework, relieving the other spouse to spend more time earning an income, the housekeeper would be entitled to a resulting trust for the value of the housework. However, if the other spouse proved it was intended as a gift, then no trust resulted.

A Constructive Trust resulted if a spouse contributed, expecting an interest in property, and the other spouse permitted the contribution knowing of that expectation. In the example of the housekeeper, the trust would be a half interest in all the property acquired, which might be considerably more than the value of the housework.

In 2001, the law changed in Saskatchewan to expand the definition of spouse to include unmarried couples, including same-sex partners. If two people live together for two years, they may find themselves unexpectedly considered spouses within the meaning of the law. Previously, unmarried couples status as spouses varied from Act to Act, contract to contract.

Parties can contract out of the legislated property scheme, but there are strict formality requirements, including the independent advice of both spouses. At a stroke, the change in the definition of spouse rendered many cohabitation agreements invalid.

The Family Property Act isn't the same as The Homestead Act. That Act gives a non-owning spouse veto power over any deal which would dispose or encumber the land which is the 'home quarter'. In other words, if the deal involves the land on which the parties live or lived as man and wife, then that land, up to one quarter section in size, is protected by the Act. The Act does not create any property interest however, or right to change any property interest. It just provides for the veto, and how it may be over-ridden.

Please see the map of all our pages


Thank you for visiting our site.

Office Kevin Jaques, B.A., LL.B.
Homepage Education
About Our Office Affiliations
Privacy Policy Experience
Jobs Available At our Office (No vacancies at this time) Biography
Retain Personal
email email

Remember, like any other form of communication, email may be intercepted.