Families, Relationships and Law

Family Law - Families, relationships and laws What is a family? Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships, Minister of Public Work and Government Services, December 21st 2001, pp i-28. Written at time govt was considering same sex marriage in Canada - Addresses adult relationships (not parent-child) - Outdated but ahead of its time Govt objectives in regulating personal relationships - Recognition of economic interdependence - Promote stability - Protect people’s expectations in relationships Adults can be emotionally and financially interdependent and these relationships matter too. - Diversity of adult personal relationships: marriage partners, conjugal common law partners, sharing home with parents, grandparents, adult siblings, or caregivers, blended fams - Legal recognition of family relationships generally linked to conjugality, not other forms Fundamental values and principles 1. Relational equality Seeks to equalize legal status among different types of relationships, All relationships should have same benefits in law if they are interdependent - Focusing on conjugal relationships entrenches unequal legal treatment of conjugal/non-conjugal relationships that may share the functional characteristics of emotional and financial interdependence. o Therefore, relational equality requires more than equal treatment of conjugal couples Addition of same sex marriage through constitutional challenges added to relational equality Modernization of Benefits and Obligations Act 2000 – largely eliminated distinctions between married and CL spouses – all now have equal protection in all federal laws Equality within relationships and after relationships – power imbalances etc 2. Autonomy • Requires govt allowing people to freely choose their personal relationships. • Stepping away from hierarchy in relationships 3. Other values • Can enhance personal security (addressing risks and vulnerabilities, financial and economic security) • Should promote privacy btwn partners through legal relationships, protect privacy rights (no unwarranted intrusion by the government into private relationships) • Coherence (between laws) Efficiency Stability Solidarity Equality • Marriage laws should be secular, respect religious freedoms Methodology for assessing a law’s ability to accomplish its objectives: 1. Are the objectives of the law legitimate? If no, repeal or revise 2. Do relationships matter to the relevance of the laws objectives 3. If relationships matter, can individual be permitted to designate the relevant relationship themselves? 4. If relationships matter and self-designation is not feasible is there a better way to include relationships? 4 Models for regulating close personal adult relationships Private Law Model - Using the private law to regulate the family Ascription - Imposition of rules based on a presumption that relationships correspond to the expectations of the majority - Assumes that certain individuals in relationships expect consequences to apply to their relationships - One size fits all approach Marriage - Was defined as man and woman only, law commission was seeking to expand it to same sex “2 persons” Registered partnerships - Inclusive, aims to not compromise privacy - Based on a positive action to choose to register - Presumes that adults will take the steps to register and understand the resulting obligations - New status which allows people to recognize their close personal relationships o Opens up range of rights and responsibilities and obligations o Vehicle for recognizing a broader range of caring and supportive relationships including non-conjugal - Affirm autonomy of choices o Registration schemes should not be restricted to conjugal couples or same sex couples o Should be able to terminate by mutual agreement - Could registration replace Marriage? o A registration scheme could be used to replace marriage as a legal institution. o Religious marriage ceremonies would continue to exist, but they would no longer have legal consequences. o Only a system of civil registration would bind two people to a range of legal rights and responsibilities, and any two people who wanted to obtain public recognition and support of their relationship could register. - Objective in marriage is to register couples; facilitate private ordering; provide an orderly framework in which people can express commitment to each other, receive public recognition and support, and assume rights and obligations, so why not extend beyond conjugal. Robert Leckey, Families in the Eyes of the Law: Contemporary Challenges and the Grip of the Past (2009) 15:8 IRPP Choices 2, introduction. Family is an aggregation of the relationships, rights, obligations connecting those individuals who form a family - Rights and obligations can inform spousal/child support, parental leave, insurance benefits, welfare, legal recognition or social recognition Oppositions: - Private law vs public law o Private law – regulates relationships between persons and between persons/property § Right and duties operate between family members bc of their relationships § Private law of the family treats matters of status and property as between family members (parent/child, adult partners). o Public law concerns the relationship between individuals and the state. How the state distributes services and goods to individuals by virtue of their family relationships § Govt policies ie taxation and social welfare produce the family in law § Problem: policies and regulatory schemes relate back to 19th century - Recognition of family can be instrumental (functional, produces a result, applies legal rights and duties) or noninstrumental (symbolic, give meaning to family bonds). o Same sex marriage – instrumental (opening definition and legislation to include same sex marriage to help identify partners in other law, to know who to provide benefits and recognition to) and symbolic (recognition of the importance of same sex intimate relationships) - Formal (legal) vs functional (social) - o Formal – defined structures of relationships, identified through formalities like marriage, parentage o Functional – what people do, function of the relationship (de jure formal, de facto functional) Formal equality vs substantive equality o Formal equality (in the law, equal treatment, identical treatment of individuals who are similarly situated) o Substantive equality (securing respect for individuals in a way that takes their differences into account) Lecture: No definition in law of the family. Definitions are contextual and contingent on factors. Definitions vary over time. Census family – Statistics Canada 1998-2006 Definition - No same sex families included - Husband wife only - Now married or CL or lone-parent Census family – Statistics Canada 2016 Definition - Married or CL, couple with/out children - Same or opposite sex - Children by birth, marriage, CL union, adoption - No age limit on child or no limitation by child’s marital status as long as live in same house without their own spouse or child. - Includes grandchildren living with grandparents but not parents. Vanier Institute, What's in a name? - Vanier Institute of the Family, Canadian, founded 1965, independent non-profit, Mission: to seek to understand families in Canada, family life, and family experience expectations and aspirations. How families interact with social economic environmental forces. DEFINITION: as any combination of two or more persons (can’t be alone) who are bound together over time (this can fluctuate – birth and marriage mean instant family!) by ties of mutual consent, birth and/or adoption or placement, and who together assume responsibilities for variant combinations of some of the following: Features: physical maintenance and care of group members; addition of new members through procreation, adoption or placement; socialization of children; social control of members; production, consumption, distribution of goods and services; and affective nurturance (i.e. love). Deliberately broad definition - Goal to use inclusive term that captured everyone’s experience of family - Definitions for family too often relate to the definition of the people writing it, but this could negate others’ experiences (ie poly/LGBT etc) - The Institute’s definition is not about the status of the adults looking after the child. It’s a family if there is a set of relationships over time with individuals looking after the needs of another. It’s not about a marriage per se, but rather the commitment made – it could be common-law, sole-support or any number of family structures. The definition doesn’t require children, but it does require at least one relationship between an adult and another person – a relationship over time, which signifies that a commitment has been made. - How it’s made and what specific form it takes is independent of the definition. Definition looks at what families do – not what they look like. - What families are not what “we” might want them to be (ideal families vs reality of families) - Families do the same things, they just do them differently - Definition addresses the relationship between families and society. – families are shaped by and react to social, economic and cultural factors, but they have an impact on these same forces as well. Vanier Institute, Modern Couples in Canada. Census update 2016 - Married #s down to 79% of couples, but same sex increasing. - Cohabitation on the rise - Divorce rate increasing 1 out of 2 in Quebec! - Repartnering with increase in step parent families - Increase in single parent households - Increase in dual-earner couples - 21% couples common law, 44% are raising kids <14 years - 9.9 million families in Canada Vanier Institute, 50 Years of Families in Canada (2015). - 1968 Divorce Act introduced - 1971 UI Act introduced to provide benefits for sickness, maternity, retirement - 1978 Child tax credit introduced - 1981 “head of family” term dropped - 1981 CL couples counted in census - 1982 Charter introduced - 1986 DA revised, reduces separation period to one year (from??) - 1990 10 weeks added to parental leave benefits (2000 – 25 more weeks added) - 2005 same sex marriage legalized through Civil Marriage Act Carl E Schneider, “The Channelling Function in Family Law” (1992) Spring, 20 Hofstra L Rev 495, pp 495-512 + conclusion. In the channeling function, the law recruits, builds, shapes, sustains and promotes social institutions - Interplay between the social and legal worlds – law is shaped by society, society shaped by law. Law decides cases, cases create law. - Social institution – a pattern of expected actions of individuals or groups enforced by social sanctions both positive and negative. By their very existence institutions control human conduct by creating patterns of behaviour. Purpose of channeling function - Fosters social institutions and channels people into them - Makes the world predictable by setting laws and frameworks for ways to be, expectations of rewards - Past and future are linked (constant cycling – circularity) – family law is normatively neutral Family law creates these institutions and channels people into them - How? By rewarding participation in the institution, challenging competing institutions, penalizing the non-use of the institution Ie. Singles don’t get tax benefits, spouses get shared benefits - Social permanence – security and stability you get from a legal marriage document 5 functions of family law: 1. protective protect citizens against harms done by others; physical psychological harms 2. facilitative organize lives and affairs of people in the way they prefer; creating and enforcing contracts between people 3. arbitral resolve disputes; ie custody / property division / alimony 4. expressive symbolic expression of people’s relationships. 2 aspects: providing people with a way to speak to others, behaviours 5. channeling creates social institutions (ie marriage), channeling function means people are channeled toward the institution because of the law in order to make the world a predictable place with socially desirable place. This is a link between the past and the future when it comes to regulation of the families. Marriage and parenthood - two broad social institutions that illustrate family laws channeling function - Normative values (marriage is monogamous, heterosexual, parenthood (must be married, biological parents, authority over children). - Normative values describe ideals which have won and retained substantial allegiance in society How might a legislator interpret law as supporting these two institutions and channeling people into them? - should laws be used to set frameworks to shape sponsor and sustain ideal models and then channel people into institutions (legal recognition of a marriage or parenthood) - rewards participation in an institution (ie tax benefits, welfare benefits) - dis-favours competing institutions (prostitution, polyamory, same sex, single parent) Mark Henaghan, “The Normal Order of Family Law” (2008) 28:1 Oxf J Leg Stud 165 Reaction to Dewar’s piece on the chaos of family law - Family law historically based on power dynamics (between partners, between individual and state) - Functional model – look at people’s needs vs. broadly applying procedures with a goal of achieving specific ends John Eekelaar promoted family law and social policy functions – 1. Protective function “to protect individuals from the harm within the family” 2. Adjustive function “to provide a machinery for adjusting affairs between individuals when the family unit ends” 3. Support function “direct social support to families which are in need of resources” Challenging power – - need to re-evalute why one has power over another, - why ideas of family should bind future generations based on ‘the way things have always been’ - the past should not bind the future – individuals should make their own decisions separate from pre-ordered ideals Criticism: Eekelaar’s frameworks are highly theoretical, not necessarily practical. Not conscious of types of relationships where there is vulnerability and imbalance of power. Eekelaar understanding of power. - He sees law as a powerful tool - Law needs to be aware of its power - “The function of law is to constrain the wrongful exercise of power and to leave room for individuals to make free choices in the privileged sphere of their intimate lives” p 180 o power can be misused by family members, and by law - “The law should not be solely about controlling human behaviour, but about leaving space for people to find their own ways of leading their intimate lives and achieving love and fulfilment” p 181 Two instruments of power in family law: - Instrumentalism – promoting the interest of a dominant member (ie CL giving absolute right to husbands and fathers to govern their children) based on historical power of a monarch over their people - Welfarism – power is subject to a legal duty to advance the interests of the vulnerable o Can take on instrumentalism power and become patriarchal Suggestion: Replace ‘family law’ with ‘personal law’ - Friendship, friendship PLUS – includes a life plan and shared property - Responsibility exists during and after the union Lecture Notes: Twelve Tables, Rome 450 BC - Rules of family law - One of the first known written law code - Rooted in power and hierarchy (men over women and children) William Blackstone, Commentaries on the Laws of England 1765-1769 - Included family law rules - Coverture – by marriage the identity of the woman was suspended so that she had no legal identity, was incorporated and consolidated into that of the husband, under whose wing, protection, and cover, she performs everything An Act Concerning Marriage with a Deceased Wife’s Sister 1882 - Law prohibiting was repeated in 1882. So now you can marry your SIL Law and Equity Act article 60 – women are still specified to be equals when they are married STILL Spousal capacity and property 60 (1) a married person has a legal personality that is independent, separate and distinct from that of his or her spouse. (2) A married person has and must be accorded legal capacity for all purposes and in all respects as if the person were unmarried. (3)Without limiting subsections (1) and (2), (a) each spouse has the same right of action in tort against the other as if they were not married, (b) a married woman is capable of acting as litigation guardian or next friend as if she were an unmarried woman (c) a married woman is capable of acquiring a domicile independent from that of her husband, Responsibility for former spouse 60.1 (1) This section applies if spouses are a) divorced b) marriage dissolved c) separated d) marriage null and void (2)Subject to the Family Law Act, on the happening of an event described in subsection (1), (a) each former spouse must be considered an unmarried person in respect of property, the right to contract, and rights and duties in civil proceedings, and (b) a former spouse is not, except if the liability arose during the marriage, liable for (i) a contract the other former spouse enters into, (ii) a wrongful act or omission by the other former spouse, or (iii) costs incurred by the other former spouse in a proceeding. Legal framework Federal legislation - 1968: First divorce act (no no-fault divorce) - 1982: Charter - 1985: Revised divorce act added no-fault - 1990: Prohibited degrees - 2001: Harmonization act (no 1) o looks at substance of marriage o provinces had different age limits for marriage o clarified that marriage under federal powers, age requirement under federal power - 2005: Civil Marriage Act – allowed for same sex marriage - Illegitimate children 1963 o Effect of illegitimacy – if born out of wedlock no equality until after 1985 with charter o Law and equity act – section 60 still refers to wives not being persons o Family relations act 1978 o Family law act 2013 (and Ontario CLRA 2017 revision) Quebec - 1866-1994 CCLC family was included in the law of persons (marriage and its effect, children were part of the effects of marriage) - 1994 CCQ o family in the code since 1980 o first book was enacted in 1980 (before the whole revised book was all enacted in 1994), had a book on the family Marriage Reforms 1990 modification of ‘prohibited degrees of consanguinity and affinity’ - Marriage (Prohibited Degrees) Act SC 1990 c 46 - Prohibition 2(2) no person shall marry another person if they are related lineally or as brother or sister or halfbrother or half-sister including by adoption - Marriage void 3(2) a marriage between persons above is void 2005 same sex marriage legalized - - Initially, the Civil Marriage Act only removed the common law’s requirement that spouses be of different sexes for their marriage to be valid. In 2015, amendments fueled by a political agenda focusing on forced marriage and polygamy added requirements of ‘free and enlightened consent’, a minimum age of 16, and the dissolution of any prior existing marriage. Cases leading up: i. Miron v Trudel 1995 – challenged unmarried cohabs protected under charter ii. M v H 1999 - granted unmarried SAME SEX cohabs protected under charter iii. Egale BC 2001 – same sex marriage – union of 2 persons not man and woman iv. Halpern 2002 – same sex marriage v. Walsh 2002 – unmarried spouses / property division on breakdown vi. Hendricks 2004 – same sex marriage vii. Reference 2004 – same sex marriage viii. AG v A 2013 – unmarried cohab, are spouses entitled to same mechanisms upon breakup in Quebec Common Law – property division, protection of residence, etc. Divorce <1968 only by private court order. - Was not supposed to be easily accessible. - Purposefully difficult to obtain. - Chevrette and morel >1968 Divorce Act no fault 2 years separation - Be skepticcal, maybe it existed prior? 1925 Divorce Act. When marriage was understood as life-long commitment. Women could seek court divorce if husband cheated on her. - Divorce was possible but not optimal - In 1890- An act respecting jurisdiction in proceedings for divorce. >1985 period of separation shortened to 1 yr for no fault - DA includes support for child and spouse and parental authority – prima facie within prov power but considered ancillary to Division of powers Jurisdiction over family matters Superior and Provincial courts, constrained by s 96. Federal s 91 91(26) marriage and divorce – matters of legal status – requirements for marriage’s essential validity - Has a lot to do with morality (and morality is usually federal issue) Why under federal? To stop divorce from happening perhaps in provinces? - Couldn’t be exclusively federally regulated, would be unacceptable due to the private nature of family - Federal role in regulating families is a limited one - Provides uniform rules for the recognition of marriage and divorce – matters of legal status. - In the exercise of its divorce power, the federal government has led in developing family law policy, and federal norms have influenced the enactment of provincial laws and their judicial interpretation. - Federal head of power intended to minimize the role of religion in laws defining the institution of marriage. Essential validity of marriage (capacity to marry) in federal jurisdiction – essense of marriage, divorce, some of its effects Formal validity of marriage (ceremony and procedural requirements) in provincial jurisdiction. - provincial power has been interpreted generously to include the granting of marriage licenses and the imposition of requirements regarding minimum age and parental consent - All of the common law provinces have enacted comprehensive Marriage Acts dealing with matters such as the requirement of a license, the authority of officiants, the form of the ceremony, and the need for witnesses Federal powers deal with issues of consent and legal capacity - Marriage requires s 2.1 free and enlightened consent of two persons to be the spouse of each other - S 2 marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. 2005 Federal legislation: - Divorce Act RSC 1985 - Civil Marriage Act SC 2005, c 33 o S 2 marriage for civil purposes is the lawful union of two persons to the exclusion of all others - Marriage (Prohibited Degrees) Act o Prohibition 2(2) cannot marry your linear relations including bro, sis, half-bro, half-sis or by adoption o Marriage void 3(2) if above applies - Zero Tolerance for Barbaric Cultural Practices Act SC 2015 c. 29 o Amends the Civil Marriage Act – requires free and enlightened consent to marriage, and that a former marriage be dissolved first, and requires minimum age of 16 for marriage in BC 91(24) Indians – completely different in Ab law 91(27) criminal– offences against consanguinity, AHRA 91(29) declaratory power Provincial s 92 92(12) solemnization of marriage in the province – limits the federal scope of power - Marriage Act RSBC 1996 c 282, Anything to do with regulation of families: Vital Stats Act, Family Law Act, Adoption Act, etc 92(13) property and civil rights 92(14) administration of justice (and establishment of provincial courts) 92(16) matters of a local or private nature – inherently private nature of family law. Open to regional diversity. - However, these assumptions about the inherently ‘private’ nature of family law and the inevitability of significant regional diversity are open to question. - Practice in Canada and other federal jurisdictions has shown that ideas about the nature of family law are shaped by social and political context: it is possible to understand family law as having a public dimension and as reflecting the evolution of national norms. Civil Law Substantive conditions Physiological (age) Psychological (consent) Sociologial (consanguinity) Formal conditions Publication (Prenup medical exam) Parental consent Solemnization Charter: S 1, 2, 6, 7, 15 Provincial frameworks BC Vital stats act, marriage act, family law act ALBERTA ONTARIO • • • Marriage Act for marriage solemnization and Vital statistics act for registering births deaths etc Family law act, defines spousal support obligations s 29 (M v H) o Division of family property o Definition of Spouse 1(1) – does not include cohabs – have separate def for cohabiter o Domestic contracts – for those who are married or intend to marry – analogy to cohab agrmts FLA supplemented by other rules: • • • Children’s Law Reform Act – custody, access, guardianship Amended in 2017 Child and Family Services Act – child protection, adoption, rights of children Family Responsibility and support arrears act QUEBEC - CCQ Book 1 The Person - Acts of civil status Outlines means of registering: Marriage birth death CUs Book 2 The Family * FORMAL ADULT RELATIONSHIPS (NO COHAB) * SECTION 1 – Marriage • 365-377 solemnization of marriage • 378-379 proof of marriage • 380-390 nullity of marriage • 391-430 effect of marriage – spousal rights • 431-492 matrimonial regimes – property division • 493-515 separation from bed and board – marriage but separated • 516-520 dissolution of marriage SECTION 1.1 CIVIL UNIONS (AMENDMENTS ADDED LATER) • 521.2 civil union – CL marriage – for SScouples before SS marriage existed – added 2002 * PARENT CHILD RELATIONSHIPS * SECTION 2 – Filiation (not parentage!) • • • Blood Assisted Reproduction Adoption * ADULT-ADULT AND PARENT-CHILD (formal spouses only, not cohabs) * SECTION 3 – Obligation of Support * PARENT-CHILD ONLY * SECTION 4 – Parental Authority – rights and obligations of a parent to child Jurisdiction The Provincial (Family) Court can deal with: - guardianship of children under the Family Law Act parental responsibilities, parenting time and contact under the Family Law Act child support, spousal support, and orders protecting people. The Supreme Court can deal with all family law problems. - guardianship and the care of children, child support and spousal support under the Family Law Act - divorce - custody and access under the Divorce Act - dividing family property and family debt, and - orders protecting property. - appeals of decisions made by the Provincial Court. Supreme Court Divorce Yes Care of children Yes Time with children Yes Child support Yes Children's property Yes Spousal support Yes Family property and family debt Yes Protection orders Yes Financial restraining orders Yes Provincial Court Yes Yes Yes Yes Yes BC FLA ON JURISDICTION Part 10 FLA – Court Processes • SUPREME COURT Division 1 – Jurisdiction of court generally • 192(1) subject to the divorce act the SC has jurisdiction in all matters under this act • 192(2) subject to the divorce act the SC continues have jurisdiction in all matters respecting marriage and divorce • 192(3) inherent parens patriae jurisdiction vested with SC PROVINCIAL COURT • 193(1) all FLA matters; 193(2) but cannot do (2a) parentage (declaration or order of parentage), 2(b) property division, pension division, childrens property • in some instances they could make a parentage declaration – when the parties are there in the prov court for another reason (ie child support) Section 197 Positive duty to inform clients that the court is not where to resolve disputes – should use ADR Section 198 Time limit for division of property or family debt, and for spousal support 2 YEARS 198(2)(a) from date of divorce / marriage nullity order 198(2)(b) from date of separation of CL spouses Part 2 FLA – Resolution of FLAs, clear preference for ADR Division 3 – standing in Ab matters Division 4 – general orders the court may make Division 5 – orders respecting conduct Division 6 – enforcement Division 7 – rules about appeals Adult Relationships Types of Adult Relationships Marriage: religious or civil Formal partnerships – registration schemes for non-conjugal partners - civil union in QC - Alberta statute about adult interdependence Unmarried - Difference of sex - Living apart together (LAT) Formal (de jure) vs functional (de facto) Number of partners - You cannot be married to more than one person - But you can have another lover! Bigamy s 290 (1) Every one commits bigamy who (a) in Canada, (i) being married, goes through a form of marriage with another person, (ii) knowing that another person is married, goes through a form of marriage with that person, or (iii) on the same day or simultaneously, goes through a form of marriage with more than one person; or (b) being a Canadian citizen resident in Canada leaves Canada with intent to do anything mentioned in subparagraphs (a)(i) to (iii) and, pursuant thereto, does outside Canada anything mentioned in those subparagraphs in circumstances mentioned therein. (2) No person commits bigamy by going through a form of marriage if (a) that person in good faith and on reasonable grounds believes that his spouse is dead; (b) the spouse of that person has been continuously absent from him for seven years immediately preceding the time when he goes through the form of marriage, unless he knew they were alive! (c) that person has been divorced from the bond of the first marriage; or (d) the former marriage has been declared void by a court of competent jurisdiction. Polygamy s 293(1) o Any form of conjugal union with more than 1 person at the same time o Polyamory not separated in law Marriage and Civil Union De jure – marriage, civil union De facto – cohab, unmarried relationships Common law definition of marriage: Evolution of Spouse definitions: Hyde v Hude and Woodmansee: voluntary union for life of one man and one woman. Person of opposite sex. Andrews v Ontario Min of Health 1988 CanLII 4825 (ONSC) Spouse has to be opposite sex - Charter s 15 case - Health insurance under provincial policy, same sex female couple denied dependant coverage - Parties cohabitated, one had 2 kids from prev marriage, one no kids ISSUE: EXTENSION OF BENEFITS same as those of opposite sex partners Decision: Province would cover the partner’s children, but not the partner! Definition “the spouse of an insured person” - Spouse had to be person of the opposite sex, claim dismissed Canada (Attorney General) v Mossop [1993] 1 SCR 554 Immed family not CL same sex. Denied discrimination - Male/Male partners. Denied bereavement leave to attend partners father funeral Collective agreement – defined “immediate family” included only CL spouse of opposite sex ISSUE: FAMILY STATUS DISCRIMINATION? Decision: Denied discrimination claim Miron v Trudel [1995] 2 SCR Unmarried cohabitation is analogous ground - extending auto accident benefits to non-married cohabitating opposite sex couples - imposing legal disadvantages on unmarried opposite sex cohabs relative to married cohabs violates constitutional prohibition on marital status discrimination. - Marital status was not found to be a reasonable marker of the financially interdependent relationships relevant to the achievement of the legislative objective. Equality rights required that the legislature find a better way of identifying relationships characterized by financial interdependence. - Decision: Marriage is not simply a choice, you should extend benefits to all spouses, cohab or married - RATIO: The definition of spouse needs to be expanded to include cohabitating partners Egan v Canada [1995] 2 SCR 513 Sexual orientation is analogous ground - Old Age security allowance for SS partners - Only extended to opposite sex spouses - Denied claim of discrimination on s 15 BUT sexual orientation was recognized as an analogous ground M v H [1999] 2 RCS Unmarried same sex cohabitation is analogous ground, entitled to s 29 spousal support - Ontario’s FLA violated Charter in excluding same sex couples - Imposing legal disadvantages on same sex conjugal cohabs relative to their unmarried opposite-sex counterparts violates constitutional equality by discriminating on the basis of sexual orientation. - Leg objectives were to increase economic equality in breakdown of intimate relationships, found to be furthered by inclusion of same sex couples. Preamble and part 1, Civil Marriage Act, SC 2005, c 33; WHEREAS the Parliament of Canada is committed to upholding the Constitution of Canada, and section 15 of the Canadian Charter of Rights and Freedoms guarantees that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination; WHEREAS the courts in a majority of the provinces and in one territory have recognized that the right to equality without discrimination requires that couples of the same sex and couples of the opposite sex have equal access to marriage for civil purposes; WHEREAS the Supreme Court of Canada has recognized that many Canadian couples of the same sex have married in reliance on those court decisions; WHEREAS only equal access to marriage for civil purposes would respect the right of couples of the same sex to equality without discrimination, and civil union, as an institution other than marriage, would not offer them that equal access and would violate their human dignity, in breach of the Canadian Charter of Rights and Freedoms; WHEREAS the Supreme Court of Canada has determined that the Parliament of Canada has legislative jurisdiction over marriage but does not have the jurisdiction to establish an institution other than marriage for couples of the same sex; WHEREAS everyone has the freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms; WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs; WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage; WHEREAS, in light of those considerations, the Parliament of Canada’s commitment to uphold the right to equality without discrimination precludes the use of section 33 of the Canadian Charter of Rights and Freedoms to deny the right of couples of the same sex to equal access to marriage for civil purposes; WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians; AND WHEREAS, in order to reflect values of tolerance, respect and equality consistent with the Canadian Charter of Rights and Freedoms, access to marriage for civil purposes should be extended by legislation to couples of the same sex; NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: S 3 FLA BC “spouse” 3 (1) A person is a spouse if the person (a) is married to another person, or (b) has lived with another person in a marriage-like relationship, and (i) has done so for a continuous period of at least 2 years, or (ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person. (2) A spouse includes a former spouse. (3) A relationship between spouses begins on the earlier of the following: (a) the date on which they began to live together in a marriage-like relationship; (b) the date of their marriage. (4) For the purposes of this Act, (a) spouses may be separated despite continuing to live in the same residence, and (b) the court may consider, as evidence of separation, (i) communication, by one spouse to the other spouse, of an intention to separate permanently, and (ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently. Ss 1(1) “spouse”, 1(2) FLA ONT “spouse” means either of two persons who (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”) S 1 “spouse”, CLRA; “spouse” means the person to whom a person is married or with whom the person is living in a conjugal relationship outside marriage; (“conjoint”) S 1(e) “spouse”, Matrimonial Property Act, RSA 2000, c M-8. (e) “spouse” includes a former spouse and a party to a marriage notwithstanding that the marriage is void or voidable. Would this include same sex? Consent required to marriage of person under 19 years of age 28 (1) Except as provided in subsections (2) to (4), a marriage of a minor, other than one who has been married before and whose spouse has died, must not be solemnized, and a licence must not be issued, unless consent in writing to the marriage is first given (a) by all of the minor's living parents who have guardianship of that minor, or (b) by a guardian of that minor, or (c) if the minor has no living parents and no guardian, by the Public Guardian and Trustee or the Supreme Court. (6) A marriage of a minor must not be solemnized, and a licence must not be issued, unless a certificate of birth or other satisfactory proof of age has been produced (a) to the issuer of marriage licences, or, (b) if the marriage is to be solemnized after the publication of banns, to the religious representative. Marriage of person under 16 years of age 29 (1) Except as provided in subsections (2) and (3), a marriage of any person under 16 years of age must not be solemnized, and a licence must not be issued. Validity of marriages preserved 30 Nothing in section 28 or 29 invalidates a marriage. Solemnization of Marriage Marriage Act RSBC 1996 c 282 S 3 Who can solemnize marriage 3(1) must be registered with registrar general as religious rep - must be ordained or appointed by your church 3(d) religious body must be sufficiently well established in the province – continuity of existence 3(3) must be registered, not expired Authority to solemnize marriage 7(1) religious officials 7(2) registration and authorization of religious rep requirements 7(3) (a) religious official registered under the act – 7(3) (b) marriage commissioner 7(3) (c) treaty first nation member designated under the laws of the treaty first nation to solemnize marriages 8 religious rep must be licensed and registered to perform marriages, under both VSA and Registrar– applies to everyone 9 (1) must be in the presence of 2 or more witnesses besides the religious representative. 9 (2) The ceremony must be performed in a public manner, unless otherwise permitted by licence. 9 (3) Both parties to the marriage must be present in person at the ceremony. Licenses 15 parties must have license to get married, authorized by the registrar general of the VSA 17 unused marriage license void after 3 months 18 if the license was done irregulary or mistakenly, the parties would be protected Registration of marriage 25(2) must be signed by each party, 2 witnesses, religious rep/commissioner/first nation designate Consent 28 consent required under age 19 by parent, guardian, or public guardian 29 nobody under 16 can marry (on line between essential and formal validity) but “in some circumstances it could be ok” be critical of this Civil marriage – s 8, 20 and 32 are what apply Commissioner Performing – Civil Marriage 8 Must be licensed under VSA and Reg General 10 Marriage performed by person registered under section 2 (7) is as valid as one performed by a religious representative. 20 slightly different rules for marriages by marriage commissioner (civil marriage) vs religious rep - must still have licence - marriage commissioner must still be registered - must be public 20 (a) and have 2 or more witnesses - parties and witnesses must declare something specific 20(B) 32 The minister may appoint marriage commissioners necessary for carrying out this Act. 20 A marriage may be contracted before and solemnized by a marriage commissioner under a licence under this Act and on payment of the prescribed fee if (a) the marriage is contracted in a public manner in the presence of the marriage commissioner and 2 or more witnesses, (b) each of the parties to the marriage in the presence of the marriage commissioner and the witnesses declares, "I solemnly declare that I do not know of any lawful impediment why I, A.B., may not be joined in matrimony to C.D.", and substantive, creates essential validity of the marriage, blurs the line with federal sense of validity. Also procedural safeguard to ensure that requirements are met (c) each of the parties to the marriage says to the other, "I call on those present to witness that I, A.B., take C.D. to be my lawful wedded wife (or husband) (or spouse)". Again both procedural and substantive Vital Statistic Act 15 Registration of marriage 37 marriage certificates Comparison to Quebec and Ontario Requirement of publication of banns exists in Ontario but not in BC - warns the public about the marriage and allows public input to prevent marriage - BC It is not necessary that banns or another public announcement of the marriage be published before the marriage ceremony takes place. Ontario and Quebec have much higher publicity requirements QUEBEC Who can solemnize - 365-377 rules respecting the solemnization of civil marriages and civil unions - anyone can be authorized to conduct/celebrate a marriage (judge, clerk, friend or family, notaries, mayors, any one) - must be 18 or older, not have a recent criminal offence record, Canadian citizen or QC resident - marriage can be civil or religious - celebrant must agree to follow all formalities for performing the marriage QC Religious Marriage - Priests and ministers authorized by a religion to perform - The justice minister must also authorize them to perform marriages Formalities Before the Marriage - must meet with the officiant before the marriage - The officiant must make sure that the future spouses meet all legal requirements - ensure that both future spouses have given free and informed consent to the marriage. - The officiant must apply to the Directeur de l’état civil (registrar of civil status) for publication of a notice of marriage. This notice must be published on the Directeur’s website at least 20 days before the marriage. - Marriage must take place within three months following publication of the notice. If not, a new notice must be published. The reason for the notice is to advise people of the upcoming marriage so they can inform the officiant if there is a reason the marriage should not take place. May not be necessary in serious cases (ie risk of danger) The Marriage Ceremony - can take place anywhere, any day of the year between 9 a.m. and 10 p.m., - The ceremony can be religious or civil, but it must follow all legal requirements Required formalities – During the Ceremony - the marriage must be performed by a person who is authorized to perform marriages. - Requires two witnesses - officiant must read certain articles from the Civil Code of Québec to the spouses that deal with their rights and obligations. - After reading the articles, the officiant asks each spouse to consent to the marriage. - Following the traditional "I do's," the officiant declares that the spouses are married. - The officiant signs a declaration of marriage. - The spouses and two witnesses must sign it as well. - The declaration provides written proof of the marriage. - The officiant must send the declaration to the Directeur de l’état civil within 30 days of the marriage. - The Directeur then prepares the official act of marriage, which is the official document proving the marriage. If the spouses want a copy of the official document, they must apply to the Directeur de l’état civil. Effects of Adult Relationships White paper on Family Relations Act Reform, pp 79-85 BC moved from judicial to statutory division of property under FLA - Previously under FRA it had been closer to the NS model that had been challenged in Walsh - In common law since late 70s obligation of support applies to both de facto and de jure spouses - However the family property division did not apply to de facto spouses - In BC the move was made under FLA to include all spouses in property division requirements Nova Scotia (AG) v Walsh, (2002) SCC 83: Nova Scotia 2002 * cohabs are not spouses, SCC: not unconstitutional • • • • • Challenged the fact that cohab was not considered a spouse for purpose of division of property Parties agreed before it went to the SCC, so the case was really a theoretical exercise NS challenged the ability to expand the definition of spouse to expand the division of family property Decision: Defining spouse as married couples only is not unconstitutional: CL people are not married on purpose so don’t want or need the same rights and obligations as married people Dissent: Unmarried hetero couples should get same rights as married couples Facts: Walsh and Bona cohabited for 10 years, had 2 children. Property at issue is Bona’s net value of $66K. Upon the breakdown of their relationship, Walsh applied for spousal support, child support and a declaration that the definition of "spouse" in s.2(g) of the Matrimonial Property Act was unconstitutional for failing to provide her with the presumption, applicable to married spouses, of an equal division of matrimonial property, in violation of s.15(1) of the Charter. Issue: Is the definition of "spouse" in s.2(g) of the Matrimonial Property Act a violation of s.15(1) of the Charter? NO TRIAL: Judge held that the exclusion of common law spouses from the definition of "spouse" did not constitute discrimination within the meaning of s.15(1). Court of Appeal set aside the decision, concluding that the legislation infringed s.15(1) and that the infringement was not justifiable under s.1 of the Charter. SCC Appeal allowed, s.2(g) is not unconstitutional. Ratio The application of the Matrimonial Property Act only to married couples is not unconstitutional. The right to choose to avoid the consequences of marriage or registered domestic partnerships must be respected. P 50, 57, 58 Reasons - Matrimonial Property Act clearly provided differential treatment for married and cohab couples - Miron v Trudel had determined that marital status was an analogous ground in the Charter - Distinguished Miron v Trudel because it involved the relationship between a choab couple and a third party, whereas the Act focused on regulating the spouses relationship directly. - However, the effect of the exclusion in the Act did not deman Walsh’s personal dignifty - The equality guarantee is a comparative concept: must compare against appropriate group: can only compare between married and unmarried heteros - Para 40: CL people make a choice to not marry and not take on the obligations ascribed to persons who get married: CL relationships are shorter, can be considered a “trial marriage”, can be a deliberate substitute for marriage; persons who do not marry have less conventional attitutes toward marriage and family and reject the instiution THIS IS A KEY PART - Making a conscious choice not to marry - No constitutional requirement for the state to extend the protections of the MPA to cohabs para 57 - Unmarried people have alternative choices and remedies (co-ownership, domestic contracts) Majority - Bastarache, writing for the majority, held the distinction between unmarried and married couples in the Act does not affect the dignity of these persons and does not deny them access to a benefit or advantage available to married persons. Bastarache applied the test set out in Law v Canada to test whether a statute violates s.15(1): - does the law impose differential treatment between the claimant and others, in purpose or effect; NO - are one or more enumerated or analogous grounds of discrimination the basis for the differential treatment; NO - does the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee? YES Bastarache found that s.2(g) passed the first two questions of the test, but not the third. Many opposite sex individuals in conjugal relationships choose to avoid marriage to avoid the legal consequences that flow from it. To ignore the differences among cohabiting couples presumes a commonality of intention that simply does not exist. Finding this was not the case effectively nullifies the individual's freedom to choose alternative family forms and to have that choice respected by the state. Unmarried cohabitants maintain their respective proprietary rights and interests throughout the duration of their relationship and at its end. If they so choose they are free to marry, enter into domestic contracts, own property jointly or register as domestic partners. As a result, the application of the Act to married persons only is not discriminatory in this case as the distinction reflects and corresponds to the differences between those relationships. Dissent ** HELD IT WAS UNCONSTITUTIONAL! L'Heureux-Dubé, in the dissent, held that the Act was discriminatory and could not be saved under s.1 as unmarried heterosexual couples were deserving of the same protections that the Act was passed to provide. Heterosexual unmarried cohabitants have historically faced disadvantages through a legal system that fails to acknowledge them as legitimate family forms. Many heterosexual unmarried cohabitants cohabit not out of choice but out of necessity. For many, choice is denied them by virtue of the wishes of the other partner. To deny them a remedy because the other partner chose to avoid certain consequences creates a situation of exploitation. - Para 117 the goal of matrimonial property regimes and family law is to redistribute economic resources on the breakdown of a family - Para 118 unmarried heteros have the same needs as married heteros when relationship ends: relationships are then functionally equivalent - Unmarried becoming more common - Para 140 It is no excuse to deny the benefit of equal sharing to all heterosexual unmarried cohbs simply because some members of the group do not seem to deserve nor want this equal division (should it actually be protection and obligation) - Choice: Para 153: cohab instead of marriage is not always by choice, and was rejected in Miron Eric v Lola - Quebec (AG) v A, 2013 SCC 5 * Quebec spousal & property div only for MARRIED or CU, not CL RATIO: Provision in CCQ that only applied to division of property of married or CU spouses was unconstitutional under the Charter s 15(1) but saved by s 1 (close call) “Showcases a divided approach to two of the main policies underlying the family law regime: protection of choice and autonomy over how individuals choose to structure their interpersonal relationships on the one hand, and protection of vulnerable spouses on the other” Canlii connects Facts: 19 yo in relationship with 32 yo Eric. Had a fling, breakup, back together for 7 yrs, have kids, not married. Lola wanted to marry, Eric did not believe in marriage. Separated, had contract that Lola got home and Eric paid child support. Lola challenged not having access to spousal support or property sharing entitlements that were available to married or CU spouses. Issue: are the provisions that only extend spousal support and property sharing to married or CU spouses (specifically articles 401-430, 432, 433, 448-484, and 585) violations of the equality guarantee under section 15 of the Charter? Decision: SCC 5-4 decision. 5 found it violated s 15(1). 4 dissented. Complete disagreement over s. 1 (4 didn’t consider s 1 as found it didn’t violate s 15, 1 found no violation, 1 found total violation, 3 found no violation except one provision article 585) Cohab couples still do not have access to the spousal support and property division regime that married and civil union spouses have access to. Reasons: Pursuant to Eric and Lola’s domestic contract, Lola was still entitled to the home and to child support. While the ultimate result was not in Lola’s favor, the division within the Court may be the catalyst needed to prompt the Québec government to review the legislation and consider extending the articles at issue to cohabiting couples. Section 15 analysis: Majority: Justice Abella, writing for the majority’s analysis of section 15(1), also agreed that marital status is an analogous ground (indeed, once a ground is found as analogous, the claimant does need to prove the ground in subsequent cases). She disagreed, however, with Justice Lebel’s interpretation of the test. She stated that prejudice and stereotype are two possible indicia of discrimination, but are not discrete elements that a claimant must prove. She recognized that requiring claimants to prove prejudice or stereotype would not only elevate the threshold for finding a violation of section 15(1) but may also miss other ways that discrimination and disadvantage manifest themselves. Justice Abella went on to state that the focus on “choice” should not have been relevant at the section 15(1) stage. Claimants are not required to prove that they could have avoided discrimination to establish that their equality rights have been violated. Choice, therefore, is irrelevant to a finding of discrimination and should instead come up at section 1 within the context of justifying the legislation. Dissent: Justice Lebel’s dissent recognized marital status as an analogous ground (this had first been determined in Miron v Trudel, [1995] 2 SCR 418), but concluded that a claimant must prove either prejudice or stereotype in order to ground a finding of discrimination. In rejecting that prejudice or stereotype were at play in this case, Justice Lebel prioritized the notion of choice. Although he recognized that cohabiting, married, and civil union relationships are functionally similar, he believed that it would be unfair to extend the obligations and rights which exist at separation for married and civil union spouses to cohabiting couples because the latter had specifically “chosen” not to marry. Tension between majority and dissent - arises because of the different policy rationales relied on by each judge: - Justice Abella focuses on the protection of vulnerable spouses - Justice Lebel focuses on respect for autonomy and choice. - Woven through this tension are certain gendered aspects of familial relationships that tend to arise at family breakdown—particularly, the feminization of poverty (which is understood to mean that women and children have little access to economic support either from their former spouses or the state). - The feminization of poverty typically results from gendered divisions of labour in the household whereby women remain outside of the paid labour force. As such, upon separation, the woman is left entirely dependent on her spouse and the state to provide resources. - Justice Abella noted that the disproportionate number of women who experienced poverty at separation played an important role in the development of spousal support entitlements and family property division in the Code. Section 1 analysis: - All of the judges writing about section 1 agreed that the purpose of the legislation was pressing and substantial: the exclusion of cohabiting spouses from the statutory regime was meant to preserve their freedom of choice to remain outside the legal regime governing married and civil union spouses - Abella: provisions fell at the minimal impairment stage: - the benefits of ensuring the vulnerable spouse is protected far outweighs any concerns about freedom of choice and autonomy that the non-vulnerable spouse could bring to the table - Dissent McLachlin: all provisions pass each stage of Oakes test - Majority (3) objected to treating spousal support entitlements and property division entitlements in the same way. - Whereas spousal support entitlements arise by virtue of the interdependence of the spouses as a result of the relationship itself, property entitlements arise because of a conscious choice Canadian courts are not settled on the proper way to navigate the protection of vulnerable family members on the one hand, and respect for choice and autonomy on the other. Complicating this picture is that, the parties litigating are typically quite wealthy-may skew the balance in favor of choice and autonomy since the courts may presume that the vulnerable spouse does not need protecting. Not true for vast majority of cohab couples. Walsh and Lola both deal with: Choice, consent, protection, liberty, solidarity, expectations, start, end, explicity consent, positive step, stereotyping. Quebec Obligations in Marriage What is expected of you as a spouse - You must respect your spouse (not abuse them), not commit adultery, and live together ongoing DA S 8(2)(c) Breakdown of a marriage established if (a) living separate and apart x 1 year, (b)(i) adultery, (b)(ii) abuse physical and emotional Civil code 392-400 As per 391 these are mandatory duties! Cannot be contracted out of DIVISION I 392. RIGHTS AND DUTIES OF SPOUSES The spouses have the same rights and obligations in marriage. They owe each other respect, fidelity, succour and assistance. They are bound to share a community of life. LIVE TOGETHER 393. In marriage, both spouses retain their respective names, and exercise their respective civil rights under those names. 394. The spouses together take in hand the moral and material direction of the family, exercise parental authority and assume the tasks resulting therefrom. 395. The spouses choose the family residence together. In the absence of an express choice, the family residence is presumed to be the residence where the members of the family live while carrying on their principal activities. 396. The spouses contribute towards the expenses of the marriage in proportion to their respective means. The spouses may make their respective contributions by their activities within the home. 397. A spouse who enters into a contract for the current needs of the family also binds the other spouse for the whole, if they are not separated from bed and board. However, the non-contracting spouse is not liable for the debt if he or she had previously informed the other contracting party of his or her unwillingness to be bound. 398. Either spouse may give the other a mandate in order to be represented in acts relating to the moral and material direction of the family. This mandate is presumed if one spouse is unable to express his or her will for any reason or if he or she is unable to do so in due time. 399. Either spouse may be authorized by the court to enter alone into any act for which the consent of the other would be required, provided such consent is unobtainable for any reason, or its refusal is not justified by the interest of the family. The authorization is special and for a specified time; it may be amended or revoked. 400. If the spouses disagree as to the exercise of their rights and the performance of their duties, they or either of them may apply to the court, which will decide in the interest of the family after fostering the conciliation of the parties. 5 principles of effects of adult relationships in Quebec – mandatory, cannot contract out of them 1. Family residence 401-413 401. Neither spouse may, without the consent of the other, alienate, hypothecate or remove from the family residence the movable property serving for the use of the household. The movable property serving for the use of the household includes only the movable property destined to furnish the family residence or decorate it; decorations include pictures and other works of art, but not collections. 402. A spouse having neither consented to nor ratified an act concerning any movable property serving for the use of the household may apply to have it annulled. However, an act by onerous title may not be annulled if the other contracting party was in good faith. 403. Neither spouse, if the lessee of the family residence, may, without the written consent of the other, sublet it, transfer the right or terminate the lease where the lessor has been notified, by either of them, that the dwelling is used as the family residence. A spouse having neither consented to nor ratified the act may apply to have it annulled. 404. Neither spouse, if the owner of an immovable with fewer than five dwellings that is used in whole or in part as the family residence, may, without the written consent of the other, alienate the immovable, charge it with a real right or lease that part of it reserved for the use of the family. A spouse having neither consented to nor ratified the act may apply to have it annulled if a declaration of family residence was previously registered against the immovable. 405. Neither spouse, if the owner of an immovable with five dwellings or more that is used in whole or in part as the family residence may, without the written consent of the other, alienate the immovable or lease that part of it reserved for the use of the family. Where a declaration of family residence was previously registered against the immovable, a spouse not having consented to the act of alienation may require from the acquirer the grant of a lease of the premises already occupied as a dwelling, under the conditions governing the lease of a dwelling; on the same condition, a spouse having neither consented to nor ratified the act of lease may apply to have it annulled. 406. The usufructuary, the emphyteuta and the user are subject to the rules of articles 404 and 405. Neither spouse may, without the consent of the other, dispose of rights held by another title conferring use of the family residence. 407. The declaration of family residence is made by both spouses or by either of them. It may also result from a declaration to that effect contained in an act intended for publication. 408. A spouse not having given consent to an act for which it was required may, without prejudice to any other right, claim damages from the other spouse or from any other person having, through his fault, caused the spouse injury. 409. In the event of separation from bed and board, divorce or nullity of a marriage, the court may, upon the application of either spouse, award to the spouse of the lessee the lease of the family residence. The award binds the lessor upon being notified to him and relieves the original lessee of the rights and obligations arising out of the lease from that time forward. 410. In the event of separation from bed and board, or the dissolution or nullity of a marriage, the court may award, to either spouse or to the surviving spouse, the ownership or use of the movable property of the other spouse which serves for the use of the household. It may also award the right of use of the family residence to the spouse to whom it awards custody of a child. The user is exempted from furnishing security and from making an inventory of the property unless the court decides otherwise. 411. The award of the right of use or ownership is effected, failing agreement between the parties, on the conditions determined by the court and, in particular, on condition of payment of any equalizing sum, all at once or by instalments. When the equalizing sum is payable by instalments, the court fixes the terms and conditions of guarantee and payment. 412. Judicial award of a right of ownership is subject to the provisions relating to sale. 2. Family patrimony 413-426… 415*** Value of house or residences of family 413. A judgment awarding a right of use or ownership is equivalent to title and has the effects thereof. 414. Marriage entails the establishment of a family patrimony consisting of certain property of the spouses regardless of which of them holds a right of ownership in that property. 415. The family patrimony is composed of the following property owned by one or the other of the spouses: the residences of the family or the rights which confer use of them, the movable property with which they are furnished or decorated and which serves for the use of the household, the motor vehicles used for family travel and the benefits accrued during the marriage under a retirement plan. The payment of contributions into a pension plan entails an accrual of benefits under the pension plan; so does the accumulation of service recognized for the purposes of a pension plan. • residential property(s), Cars, Movable propert, Pension and rrsps 417 net value is all assets above and all debts 418 The value of these assets will be divided in equal value at the end of the relationship