Lesson 3: Family Law

Topic 1: Family Unit Defined

Family Structure Changes in Canada

Changes in the Structure of the Family in Canada

Family law is a complicated aspect of law in Canada. The structure of family is ever fluctuating. A family does not look the same as it did even 10 years ago. The basic family structure consisted of a mother, father and their children. Usually families were formed through marriage. But things have change in the “typical Canadian family.”

Statistics Canada now defines family as married couples with or without children, unmarried couples in a common law relationship with or without children as well as lone or single parents with children. People are marrying later in life because of a desire to have a good education and career before starting a family. Families are now smaller, having only one or two children. New relationships also make up Canadian families; these include common law and same-sex partners, blended families, extended families where grandparents share the home and two income families with or without children. For the legal requirements of marriage see Handout 2: Legal Requirements of Marriage.

Common Law Partnership

Common law partnership has become a facet of family life in Canada. Many people believe that if you live with a partner for a certain length of time you become married. This is not true. To be married, you must enter into a legally binding agreement. A common law relationship or cohabitation is similar to marriage and the partner is seen as a spouse. Cohabitation means the act of living together in an intimate relationship without being married. In all provinces and territories, common law relationships have some benefits under the law.

Unlike in married separations or divorce where the assets are equally divided, in a common law separation each partner can only take what they have paid for or came into the relationship with; it is like a business partnership. When a partner dies in a marriage, the remaining partner inherits the estate; however, in a common law partnership, the deceased must have a will specifying that the common law partner is the heir. With no will, the surviving partner must go to court to claim a share of the estate. If a common law partnership is longer than three years in length and it dissolves, partners can claim support for children as well as themselves.

Legal Requirements of Marriage

When people marry in Canada, they enter into a legally binding contract as long as certain requirements are met. When you go to a wedding, whether it is a religious marriage in a church performed by a member of the clergy or a civil ceremony performed by a Justice of the Peace, a legal register is signed. If this register is not signed, you are not legally married. If your marriage ends in divorce, it is the legal termination of a contract. Most provinces have a Marriage Act. If the essentials of marriage are not met, the marriage could be null and void.

Essential Requirements of Marriage    

  • Mental Capacity: You must have full mental capacity. No one can marry if they are devoid of mental capacity due to illness, drugs or alcohol.
  • Genuine Consent: No one can be forced to get married. Both parties must give full consent to the marriage or the marriage is illegal. (Example: If you marry the wrong twin or the wife’s parents threaten her with murder if she does not get married.)
  • Minimum Age: This is dependent on the province. In BC, the legal age without parental consent is 19 or older and at least 16 with parental consent. Nunavut and Yukon require parental consent for persons under 19 years of old who wish to marry. In Quebec, the legal age for marriage is 16, but people under 18 may marry with parental consent.
  • Close relationship: You cannot marry someone in your immediate family that includes parents, sibling or half siblings and grandparents.
  • Unmarried status: Both people must not already be married when they get married. Monogamy is the only form of marriage at this time in Canada. Bigamy, being married to more than one person at one time, is illegal in Canada and is a criminal offence.
  • Marriage Licence or Bann: You must have a legal marriage licence or a Bann (a document read at a place of worship).
  • Religious or Civil Service: You can choose to have either a religious service or a civil service. Both services must be performed by a registered or licensed official to make it legal under the law.
  • Registration: You must also register your marriage to obtain a certificate of marriage, a document that proves the marriage.