Chapter 13

Question 1

Children and Family Law

Answer 1

• Deals with custody and access to children, support obligations of parents, abuse, etc.
• Can also involve grandparents and step-parents

Question 2

Custody

Answer 2

• who the child will live with
• court must decide what’s in the best interest of child (home environment, parent-child relationships, health of parent, support options/relatives, schedules, siblings, child’s wishes…above 14: seriously considered)
• custody typically awarded to primary caregiver

Question 3

Tender Years Principle

Answer 3

• most women get custody of their child because they’re the primary caregivers of children between 6-7 years old
• doesn’t work anymore as gender roles are changing

Question 4

Joint Physical Custody

Answer 4

child spends equal amount of time with each parent (lives with both)

Question 5

Joint Legal Custody

Answer 5

Children live with one parent, but have unlimited visitation with other parent

Question 6

Reasonable Access

Answer 6

Flexible & regular visitation rights

Question 7

Specified Access

Answer 7

Visitation at specific times only

Question 8

Supervised Access

Answer 8

Specified visitation times, but with a supervisor as well (ie. relative, social worker) to ensure child’s safety

Question 9

Level of child support deemed by…

Answer 9

• non-custodial parent’s income
• number of children to be supported
• provincial guidelines for support
• *if non-custodial parents’ living conditions are lowered, they can ask court to reduce payments**

Question 10

Property Division

Answer 10

Family Relations Act sets out how matrimonial property will be divided in BC

Question 11

Family Assets

Answer 11

Property owned by one or both spouses used for family purposes (ie. home, cars, money in joint bank account, pension plans, RRSP’s, etc.)

Question 12

Non-family Assets

Answer 12

• Business assets
• aren’t divided equally
• ie. business owned exclusively by 1 partner

Question 13

Family Assets divided equally unless…

Answer 13

1. marriage very short
2. assets purchased just before separation
3. it’s a gift or inheritance

Question 14

Spousal Support Obligations

Answer 14

1. often very short-term
2. only if there’s economic hardship
3. goal is self-sufficency

Question 15

Common Law Relationships

Answer 15

• if you live together for over 2 years, it’s now legally the same as being married
• after 2 years, a partner has the right to spousal support and child support
• old rules: no automatic rights to division of property…generally belongs to whoever paid for it

Question 16

Conditions of Marriage

Answer 16

• legally binding contract*
• each person expected to contribute equally
• each person has right to live in matrimonial home
• in divorce, both have a right to portion of home & other assets - alimony & child support may be necessary
• surviving spouse has legal right to property

Question 17

Essential Requirements of Valid Marriage

Answer 17

1. mental capacity
2. no prior marriage (bigamy)
3. genuine consent (no mistake/duress)
4. minimum age (19 w/o parental consent in BC, 16 with it)
5. sexual capacity (consummation, otherwise can be annulled)
6. not closely related (through affinity/marriage or contingency/blood)
7. 1 male & 1 female (until 2004)

Question 18

Formal Requirements of Marriage

Answer 18

1. marriage licence
2. performing ceremony (minister, priest, rabbi, justice of peace) + 2 witnesses
3. age
4. blood tests (not in BC)

Question 19

Annulment

Answer 19

court order stating marriage never happened

Question 20

Separation

Answer 20

• intermediate step between marriage and divorce

- couple lives “seperate & apart”…is possible to do this in same house

Question 21

Divorce

Answer 21

• process begins with petition for divorce
• petitioner: seeking divorce
• respondent: being issued divorce

Question 22

Grounds for divorce

Answer 22

• the Divorce Act of 1985’s only condition was marital breakdown
• separated for 1 year
• adultery
• physical or mental cruelty

Question 23

Uncontested divorce

Answer 23

No issues disputed… 90% of divorces happen this way

Question 24

Exector

Answer 24

person named in the will that handles the affairs of the deceased

Question 25

Letters Probate

Answer 25

- court must grant this to executor | - document declaring will to be valid and that persons handling affairs are indeed the exectors

Question 26

Interpreting the Will

Answer 26

- if there is any confusion over the will, the executor can apply to have court interpret it - aim is to determine true intention of testator (deceased person)

Question 27

Rights of Beneficiaries

Answer 27

- first thing: pay any debts - executor must try to distribute as many assets to beneficiaries as possible - if anything to be sold, executor's duty is to get best possible price - will must be interpreted in reasonable manner

Question 28

Beneficiaries

Answer 28

those named in the will who are to receive something

Question 29

Contesting the will

Answer 29

- if a person was named in an earlier will but not in current one, they can challenge its validity - can challenge on loss of mental competence, undue influence, etc. (evidence may be called in from deceased doctor or lawyer)

Question 30

Dying without a will

Answer 30

- court appoints administrator (only 1, usually next of kin) - all assets distributed according to legislation - if no next of kin, public trustee will take care of case

Question 31

Letters of Administration

Answer 31

- similar to letters of probate, but used when there's no will - applications of restate administration won't be heard until 14 days after deceased's death (problem: no-one has authority to pay for funeral from assets of estate... usually 1 beneficiary pays and is later reimbursed)

Question 32

Division of assets - married but no kids

Answer 32

spouse gets everything

Question 33

Division of assets - spouse and kids

Answer 33

spouse gets half, kids share rest

Question 34

Division of assets - kids but no spouse

Answer 34

kids share equally

Question 35

Division of assets - kids dead but grandchildren alive

Answer 35

grandchildren take their parent's share

Question 36

Division of assets - all children dead

Answer 36

grandchildren share equally

Question 37

Division of assets - no spouse, kids, grandkids

Answer 37

divided equally between all next of kin (parents, brothers/sisters, nephews/nieces, grandparents, aunts/uncles)

Question 38

Division of assets - no relatives

Answer 38

goes to provincial government