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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:
1. A court action must be commenced.
- A Petition is issued from the court.
- For a divorce, you must also file a Marriage Certificate.
- If anything except a divorce is desired, a Financial Statement will also be required.
- The Petition is a 'pleading'. It must set out the facts, but not the evidence, necessary to permit the judge to give the judgment that you are asking for, and of course, say what you are asking for.
- If a claim or fact is not included, you may not be able to add them later, so it is a very important document.
- The person who files it will be called the 'Petitioner'. The other parties will be the 'Respondents'.
3. Interim Relief must be settled.
- Sometimes, something requires a decision that can't wait for trial. You make a 'motion' which asks the judge to make an 'interim' decision which will last till trial, or further order, or agreement. There are two types:
- By Notice.
- You warn the other parties that you intend to ask the judge for something. You give them notice with a document called, logically, a Notice of Motion.
- The Notice of Motion must say what you are asking for, why you think you are entitled to it, and what material you will be filing to prove it.
- The judge still needs some evidence, but instead of hearing the witnesses, they swear paper oaths called Affidavits.
- It is customary to file a draft Order.
- Written argument may be filed if desired, called a Brief of Law.
- The Notice of Motion will set out the date for the hearing. However, there must of course be a judge available for that time. Unless special permission is obtained, it should be set to regularly scheduled 'Chambers'. Traditionally, a judge's office was his 'Chamber', but now, 'Chambers' is held in a small courtroom.
- Ex Parte (pronounced ex PARR tay)
- This means 'without notice'.
- This is for emergencies or for trivial matters or where notice is impossible.
- The judge will make a short order, like, "don't remove the child from Saskatchewan".
- The same material is used, except that a Memorandum for the Presiding Judge is filed instead of the Notice of Motion. It has the same requirements however, to say what you are asking for, why you think you are entitled to it, and what material you will be filing to prove it.
- In the normal case, nobody will see the judge, who will simply consider the application and give a written response. Special request may be made for a personal appearance.
- The other side always has the right to apply to change an Ex Parte order. Often, a Notice of Motion for the very same Order will be served with the Order, and the Ex Parte order will be written to expire on the hearing date.
- If the Order is granted, then the Order must be served.
- Interim Relief is available at any stage.
2. The Petition must be served
- 'Served' means delivered personally to the opposing parties.
- However, if necessary, the court can order substitutional service if regular service is an impossible or unreasonable requirement.
3. Pleadings Must be Closed
- Where there is no Answer
- When the Petition is issued, a Notice to Respondentis attached, which basically is a court order warning the other side, that if they don't serve and file an Answer within the time limit, they will lose, and a Judgment can be issued.
- If no Answer is filed within the time limit, then the Petitioner should ask the court Registrar (actually the Registrar's staff) to 'note the action for default'. After that, the Respondent cannot file an Answer without a judge's permission, and the Petitioner can skip the next steps and go straight to application for Judgment.
- If the Respondent doesn't want to fight, but does want to be informed, they can serve and file a Notice of Demand For Notice.
- Where there is an Answer
- If an Answer is filed, it too, is a pleading.
- In addition to an Answer, the Respondent can make their own claims, though they must be legally related, and would add a Counter-Petition to their Answer. Then it gets lawyerish, since the Petitioner must now be called a "Petitioner and Respondent by Counter Petition", and the Respondent gets a similarly long title. The Petitioner then must file an Answer to the Counter-Petition, again within a time limit.
- Adding Parties
- Sometimes as the Pleadings develop, the issues expand until they involve other people, in which case, Third Party Claims can be made, to add parties. If there are more than two parties, there can be Cross Claims.
- The general rule is that if you want the court to make an order against somebody, they must be a party. Sometimes, if they are just a bit player, as for instance where a bank is ordered to pay the husband's account to the wife, sometimes notice alone is sufficient. Either way, the general rule is that you can't make an order against somebody unless there must be notice to them, so they can be heard in opposition to it. This is subject, of course, to Ex Parte orders, as discussed above.
- Determining the Issues
- The parties are required to either dispute or agree to all the facts and claims.
- At some point, all the parties will be satisfied that all the proper issues are set out, and all the agreed issues are eliminated. Those issues will be what the trial determines. At that point, the Pleadins are 'closed'.
4. Disclose and Discover Information
- The many rules and procedures relating to sharing information are large part of the reason that superiour court trials are expensive and slow. On the other hand, they are essential to fairness, and to the rational resolution of issues, since they avoid trial by ambush, and they eliminate the advantage held by the informed party, who is usually the most powerful party.
- 'Disclose' means to reveal. 'Disclosure' is the process of doing so.
- 'Discover' means to learn. 'Discovery' is the process of doing so.
- Statement as To Documents
- Each party has an obligation to list all their relevant documents in a Statement as To Documents which must be served and filed.
- They must let the other side see and copy any of those documents which are not privileged.
- A 'privileged' document is subject to special rights of confidentiality given to permit lawyers to do their job.
- There is an ongoing responsibility to disclose documents.
- A document which has not been disclosed, cannot be used as evidence.
- If it is not produced, the other side can apply to strike out the Pleadings, and then win by default.
- Examinations For Discovery
- Each party has the right to question the other parties under oath.
- If the answers are helpful (e.g., "Yes I stole it") then they can simply be 'read' to the court at trial.
- If the answers are not helpful, they may still be used. For instance, if the party says, "I didn't steal it, I was in California." that may be used in cross-examination if they later say something inconsistent, like, "I didn't steal it, I was in Oregon."
- You can force the party to appear by issuing and serving an Appointment.
- You must pay the other party's transportation and accomodation costs by delivering 'conduct money' along with the Appointment.
- The party being questioned has a duty to answer any relevant question. If they do not deliberately, a court order may be obtained. If they are just ignorant, the questioner may accept an 'undertaking' (special promise) to provide the answer later.
- Examination of Third Parties
- This procedure of questioning people who are not parties to the law suit is permitted in Saskatchewan, but only with a special court Order. The courts appear to be reluctant to grant it.
- This is quite common in the United States.
- In the United States, there is a procedure to ask the other side questions in writing, from time to time. Starting in 2000, in Saskatchewan, there is a similar procedure for family actions.
Conduct The Trial
- The trial is a complex procedure all on its own. Suffice it to say here that the court may only decide upon sworn evidence, and will only listen to relevant and admissible evidence.
Apply For Judgment
- Some party will want the judge to issue the Judgment, which is a permanent court order. So, theoretically, they must ask the judge to do so with a motion. After a simple trial, the motion will usually be simply understood by the judge who will grant Judgment without being asked. Usually since all the parties are present at trial, a motion may simply be oral. But after a complex trial, nobody wants a sloppy judgment, so the application and notice of the application will be typically in writing.
- A draft Judgment will accompany the application.
- If there was no Answer:
- There will not have been a trial. Therefore, the judge won't have any evidence. So therefore, an Affidavit must be filed in support of the motion.
- If there was a Notice of Demand For Notice filed by the Respondent, then you must serve and file a Notice of Application For Judgment, and somebody must attend the scheduled hearing, called 'Chambers'. If not, then simply an Application For Judgment is filed.
- If a divorce is claimed:
- There must be a certificate from the Central Divorce Registry that the divorce hasn't been claimed anywhere else in Canada. The court's registrar's staff will have applied for that when the Petition was issued.
- A draft Certificate of Divorce must be filed. It will be issued, if there are no appeals, 30 days after the Judgment is issued.
- Four envelopes must be filed, two for each spouse.
- If maintenance is claimed:
- A separate Order must be issued and there must be a registration for the Enforcement of Maintenance or an opt-out form for the Enforcement of Maintenance.
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.
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.
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.
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