Breakdown of Relationships

Divorce o When marriage does not meet the expectations of 1 or both partners o Lack of marital satisfaction o Rates fluctuate as a result of social and moral values o Today: controlled by religion and government o Statistics Canada estimated 28-30% of marriages will end in divorce o Average age at divorce: 44.5 for men and 41.9 for women

History of Divorce

History of Divorce Ancient Romans – purely family concern rather than state-governed ◦Very attainable, happened frequently Early Christians - 11 th -12 th century ◦First consideration from a religious standpoint Catholic Church – Marriage as a Sacrament ◦Marriage as a sacred rite, spiritual importance ◦Divorce was the breaking of something sacred ◦Kind Henry VIII: ◦

Early 20 th Century Functionalist perspective ◦Stability created by roles and division of labour Traditional ◦Economic ◦Childbearing basis Divorce meaning suing for “matrimonial office” ◦Adultery and cruelty

Mid 20 th Century o Romance as the basis for marriage o Assessment of satisfaction = how happy are you? o Divorce treated as “marriage breakdown” o Divorce law reflects love and companionate purposes of marriage

Late 20 th Century o Divorce is increasingly common o Divorce law decreases the time required to get a divorce

Divorce Law Constitution Act Marriage and Divorce federally governed 1925 – Adultery grounds for divorce (for women) Divorce Act “Marriage breakdown” after 3 years of separation Sharp increase in divorce rates Divorce Act 1 year of separation before divorce Single ground for divorce (marriage breakdown); it could be established by proving either separation for at least a year, or one of 3 fault-based criteria: adultery, physical cruelty, or mental cruelty. It is upon the petitioner to prove it

Phases of Divorce AWARENESS SEPARATION REORGANIZATION

Awareness o One person requests/initiates o Recognition of ongoing problems o Denial until confronted by request for divorce o Begin shifting energy to outside roles

Separation (legally binding contract) o Plan the break up o Settle child custody and finances o Notify friends, family and coworkers o 2 new households

Reorganization o Establish 2 separate lives (social, financial) o Form new social life as a single person o Negotiate new parental roles

Legal Matters: Divorce o In 1985, what changes were made to the Divorce Act? o What is the “single ground” for divorce? What 3 conditions can give reason for divorce? o Define separation. Outline the conditions surrounding the process of separation o Adultery and cruelty are still considered to be ”matrimonial offences”. Outline how these offences can and cannot be used as grounds for divorce. o What kind of evidence is needed to prove the presence of adultery or cruelty? Why are these “offences” treated differently?

TWO Landmark Family Law Decisions Research and present findings: Pettkus v Becker Constructive trust in husband’s property granted to a divorcing case Murdoch v Murdoch The Matrimonial Property Act, 1979 Abuse

Laws Designed to Protect Victims of Abuse PARTNER – ELDER – CHILD

Restraining Order o Obtained in the Court of Queen’s Bench, often without notice to the other party. A review date is set to give the respondent a chance to dispute the Order. o There must be violence, threats of violence or other actions that make you afraid for your physical safety. o Start by filling in a Restraining Order Application form. o Restraining order should not be used to settle property disputes – if the issue is who is to remain in the home, the proper remedy is an Exclusive Possession Order. o Restraining order should not be used to settle parenting / custody disputes. If the issue is where the children are to live or whether the other party is to see the children, the proper remedy is to apply for a parenting or custody order. o There are no filing fees if only relief asked for is a restraining order. o If done without notice, it can be obtained very quickly (often the same day). o If the Restraining Order is continued at the review date, it is usually in place for 3 months, but it can be longer, or even permanent, if necessary. o If a Restraining Order is breached, the respondent is arrested and held until hearing before a Queen’s Bench Justice – usually the next morning. If found that they did breach the order, they can be fined or jailed.

Peace Bond o Obtained through the criminal process o Complaint is made to police, accused is arrested and given appearance notice to appear in court. o At court, accused is asked if they will agree to a peace bond. If so, the bond is prepared for them to sign, and the matter is ended. o If they will not sign, the matter is set for trial (several weeks or months later). If, the trial judge finds that the accused has done something to make the complainant reasonably fear for their safety, then a peace bond will be ordered. o The peace bond does not create a criminal record. o It is in place for up to a year, has conditions that the person may not contact the complainant, and may have other conditions. o If breached, the person is charged with breach of a peace bond – which is a criminal offence. The trial may be several weeks or months after the breach.

Emergency Protection Orders (EPO) o Available when violence or threatening behaviour occurs between family members (related by blood, marriage, adoption or adult interdependent relationship or have a child together). o There must be a need for immediate protection. o If the police are investigating a domestic disturbance, the investigating officer can obtain an EPO, even in the middle of the night. o The application by the police can made by phone to a Justice of the Peace. o The police officer gives evidence (hearsay) and the order is granted immediately and faxed to police officer. o Can use to remove offender from home, and prevent their return. o You can also apply yourself for an Emergency Protection Order from the Provincial Court. The application is done without notice to the other party. o The Emergency Protection Order must be reviewed by a Queen’s Bench justice within 9 working days of being granted. o At that time, the complainant has an opportunity to file an affidavit with their evidence supporting a continuing order o Respondent may file an affidavit contesting the application o Justice can replace the Emergency Protection Order with a Queen’s Bench Protection Order. o If an Emergency Protection Order or a Queen’s Bench Protection Order is breached, the respondent can be arrested and Summonsed to appear before a Provincial Court. If found that they did breach the Order, they can be fined or jailed.