Analysis provided by: Maggie Smieszek, Legal Expert.

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Legality of Marriage

Marriages in Canada are recognized until and unless someone brings the flaw that makes a marriage voidable to the attention of a court. For example, a marriage is voidable where a person is coerced into marriage or where they were misled as to the nature of the ceremony. Provincial marriage acts provide details on the legal age required for marriage. Generally, marriages of males below the age of 15 are voidable and below 12 for girls.

Common-law relationships are legally recognized based on evidence that a couple has lived together in a conjugal relationship for a certain amount of time. In order to be recognized, common-law couples must meet the definition in each provincial statute. As of recent, two Canadian provinces have legalized same-sex marriage.

Bigamy and Polygamy

According to the CanadianCriminal Code, Section 291, every one who commits bigamy is guilty of an offence and liable to imprisonment for up to five years. A person commits bigamy in if s/he is married and goes through a form of marriage with another person, or, knowing that another person is married, goes through a form of marriage with that person. This provision applies to Canadian residents within or outside Canada (s. 290). A person has not committed bigamy if s/he believed in good faith that his/her spouse is dead, if the spouse of that person has been continuously absent from for seven years, or the former marriage has been declared void by a court of competent jurisdiction.

Section 293 of theCriminal Codestates that everyone who practices any form of polygamy or any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage is guilty of an indictable offence and liable to imprisonment for up to five years.

Legality of Divorce

The Government of Canada implements theDivorce Act, and because it is a federal law, it applies fully and equally in all parts of Canada. According to section 8 of theDivorce Act,a divorce will be granted if the spouses have lived separate and apart for at least one year or on the basis of cruelty or adultery. The first criterion is a non-fault one and may be invoked by either or both spouses. A divorce action may be commenced before the one year period has run, but the divorce judgment cannot be granted until it has elapsed. The second and third criteria, allow a quicker divorce without having to wait out the one-year waiting period. These are fault-based criteria and are available only to the "innocent" spouse. Divorces begin with an application to the court asking it to declare that there has been a "breakdown of the marriage".

Matrimonial Property

Separation of property regimes can be devastating to a spouse who neglects her career to raise the children, as she will be without a salary and therefore unable to acquire property in her name, while her husband would be able to do so. In an attempt to address this inequity, most provinces introduced the concept of a "trust" whereby the contribution of one spouse is held to be held in trust by the owning spouse.

InPettkusv. Becker[1980] 2 S.C.R. 834, a 19-year old common law relationship had ended. Ms. Becker's salary had gone towards family expenses while Mr. Pettkus was able to save his income, which went towards a thriving bee-hiving farm. Ms. Becker argued that an "implied trust" had developed in the farm. If this was not the case, then she argued that a constructive trust of "unjust enrichment" had developed. Constructive trusts are court-imposed and are designed to cure injustices where three conditions are met: where (1) someone has benefited (2) at the expense of another and (3) the enrichment is "unjust" or without legal justification. The Supreme Court decision gave Ms. Becker a 50% share of the farm and beehive operation. Since this decision, most Canadian provinces have passed legislation with support standards for common law relationships.

The Supreme Court inPeter v. Beblow[1993] 1 S.C.R. 980 imposed a constructive trust on Mr. Beblow to the benefit of his ex-common-law spouse, Ms. Peter. The Supreme Court also added two new principles: (1) that the courts retained the option of imposing a monetary award instead of imposing a constructive trust and (2) before imposing a constructive trust, monetary compensation must be shown to be inadequate and the connection between service rendered and the property must be direct and sufficient.

Spousal Support

Canadian courts have the authority, upon granting a divorce, to decide spousal support issues. Spousal support is corollary relief under theDivorce Act. The Court must consider condition, means, needs and other circumstances of each spouse for whom support is sought including the length of time the spouses cohabited, the functions performed by the spouse during cohabitation and any order or agreement relating to support of the spouse, in deciding whether to grant spousal support. Functions performed by the spouse during cohabitation include homemaking duties and the requirement to compensate such sacrifice in making a spousal support order. While a court must consider the terms of any spousal support agreement, they are not bound by it. Spousal support can be varied if there is a change in circumstances since the original order with the onus on the applicant to show that there has been a change. If spousal support is granted, four objectives are listed in theDivorce Act:

1. Recognizing economic advantages or disadvantages arising from the marriage or the divorce;

2. Once any child support obligations have been divvied, divide between the spouses any financial consequences arising from the care of any child.

3. Relieve any economic hardship a spouse might suffer as a result of the marriage breakdown;

4. In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. Each case is evaluated on its own merits and is dependent on market conditions.

The four objectives of theDivorce Acthave been repeatedly considered by the Supreme Court. Significantly, inMogev. Moge[1992] 3 S.C.R 813 the Supreme Court recognized that "in many if not most marriages, the wife still remains the economically disadvantaged partner" and that "women tend to suffer economic disadvantages and hardships from marriage or its breakdown because of the traditional division of labour within that institution". The Supreme Court said that while theDivorce Actdoes include self-sufficiency as an objective of spousal support, this is not the paramount objective, but one of four. Each case should be decided on its merits but where economic disadvantage continues to be experienced by a spouse as a consequence of the marriage and its breakdown, where she suffers a material change in circumstances which is causally related to the marriage or its breakdown, continued support, even after many years, is appropriate. Nonetheless, an issue for women in Canada has been that spousal support laws are too broad and subject to considerable discretion.

Child Custody

TheDivorce Actaddresses the issue of child custody, setting out in s.16 (8) that the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child. Little guidance is provided as to how the best interests are to be determined, although there is a considerable body of case law on the subject.  Generally, the court will try to grant maximum contact to each spouse taking into account the willingness of the spouse for such contact with the child. TheActdoes stipulate that the past conduct of either parent is not to be considered unless it is relevant to the ability of the person to act as a parent to the child, and that the willingness of the person seeking custody to ensure maximum contact with the other parent is consistent with the best interests of the child. Officially, courts say they do not follow the "tender-years doctrine" which says that really young children should be placed in the care of the parent that is the more "nurturing" which, in the vast majority of cases, is the mother. The provincial/territorial legislation regarding custody and access generally mirrors the federal legislation.

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