How Family Law Involving Divorce Is Arranged in Canada

In Canada Family lawyers often have to represent their clients in both federal and provincial court systems. This is the result of the statute based system used to arrange Family law in Canada.

The actual marriage or divorce is handled by the federal government under the Constitution Act of 1867. Marriage and Divorce are legislated under the Divorce Act. In accordance with the Divorce Act the federal government has jurisdiction over custodial and access matters and child support and spousal support during or after a divorce.

The Provincial Government has exclusive jurisdiction over property and civil rights as stated in the Constitution Act, 1867. This includes property division, spousal and child support, custody and access to children, adoption, and child protection. Therefore, each Province has an Act that covers the rules applied to property division.

Canada is very clear on what constitutes grounds for the dissolution of a marriage.

First the spouses must have taken part in a valid marriage. These can be between partners of different sexes or the same sex. A marriage is not valid if one of the partners does not have the capacity to enter into a marriage or to agree, or where a direct familial relationship such a parent/child or sister/brother exists. However, this exclusion may not apply if one or both siblings have been adopted. A valid Canadian marriage must be solemnized within the Province rules where it was preformed; although, this does not have to be the Province where the partners live.

The formal steps that need to be taken for a valid marriage are clearly defined in the Provincial Marriage Acts. They must have obtained a marriage license, they have to be old enough or have parental consent. In many cases, a marital separation may precede a divorce. In these cases a Family Lawyer will draw up a separation contract. A separation agreement generally includes agreements on the separation of property, child support and custody and access. Divorce can only be applied for when, the spouses have been separated and apart for at least one year, if there has been proven adultery, or when spousal cruelty is involved.

Family Lawyers in Canada help people to negotiate the convoluted process of marriage, separation, and divorce. They are also taxed with the mandate that they attempt to help couples work out their differences before taking steps to file for a divorce. This could entail having the couples involved speak with a marriage counselor or simply verifying that the grounds they are seeking the divorce for are valid. For instance in the case of spousal cruelty, if there is documentation of the cruelty then the Family Lawyer would be remiss in suggesting that one of the spouses place themselves in danger by continuing the marriage.

 

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