Family Law in the NWT. Rights. Responsibilities. Answers. Information.

Transcription

1 Family Law in the NWT. Rights. Responsibilities. Answers. Information. March 2013

2 HOW TO USE THIS GUIDE v Table of Contents Section 1 Family Law in the NWT WHAT IS FAMILY LAW? 1-1 ACTS AND REGULATIONS 1-3 THE COURTS 1-6 LEVELS OF COURT 1-6 COURT REGISTRIES 1-7 SOURCES OF LAW 1-8 PRIVATE (CIVIL) LAW AND PUBLIC (CRIMINAL) LAW 1-9 RESOLVING FAMILY LAW DISPUTES: OPTIONS 1-12 BY AGREEMENT 1-12 NEGOTIATION 1-12 MEDIATION 1-13 PARENTING AFTER SEPARATION 1-15 COURT 1-16 RULES OF COURT 1-20 Section 2 Personal Relationships MARRIAGE & COMMON LAW WHO IS A SPOUSE? 2-1 RIGHTS AND OBLIGATIONS OF A SPOUSE 2-3 MARRIAGE 2-4 COMMON-LAW 2-7 SEPARATION & DIVORCE SEPARATION 2-8 DIVORCE 2-11 CUSTODY OF CHILDREN AND ACCESS TO CHILDREN 2-16 WHAT IS CUSTODY AND ACCESS? 2-16 PARENTS FOREVER: PARENTING PLANS 2-20 CHILD SUPPORT 2-21 WHAT IS CHILD SUPPORT? 2-21 CHANGING CHILD SUPPORT 2-33 ENFORCEMENT OF SUPPORT 2-33 SPOUSAL SUPPORT 2-39 WHAT IS SPOUSAL SUPPORT? 2-39 CHANGING A SPOUSAL SUPPORT ORDER 2-40 ENFORCEMENT OF SUPPORT 2-41 PROPERTY 2-44 WHAT IS FAMILY PROPERTY? 2-44 DIVISION OF PROPERTY 2-45 THE FAMILY HOME ON RESERVE 2-48 PENSION PLANS AND RRSPS 2-48 ii Family Law Manual Government of the Northwest Territories

3 Section 3 Keeping Children Safe CHILD ABUSE 3-1 WHAT IS CHILD ABUSE? 3-4 WHAT ARE THE CONSEQUENCES OF CHILD ABUSE? 3-6 PROTECTION OF CHILDREN 3-7 REPORTING ABUSE AND NEGLECT 3-9 CUSTODY ORDERS 3-15 VOLUNTARY SUPPORT SERVICES 3-17 Section 4 Family Violence WHAT IS FAMILY VIOLENCE? 4-1 THE CYCLE OF VIOLENCE 4-5 SPOUSAL ABUSE 4-6 CONSEQUENCES OF VIOLENCE 4-8 EFFECTS OF FAMILY VIOLENCE 4-10 IF YOU ARE BEING ABUSED 4-11 STEPS TO APPLYING FOR AN EMERGENCY PROTECTION ORDER 4-15 STEPS IF A HEARING IS CALLED ON THE EMERGENCY PROTECTION ORDER 4-16 STEPS TO RESPONDING TO AN EMERGENCY PROTECTION ORDER 4-16 PROTECTION ORDERS 4-17 RESTRAINING ORDERS/PEACE BOND: 4-21 VICTIM SERVICES 4-23 Section 5 Additional Information ADOPTION 5-2 DEPARTMENTAL ADOPTIONS 5-4 PRIVATE ADOPTIONS 5-4 STEP-PARENT ADOPTIONS 5-5 INTERNATIONAL ADOPTION 5-6 ABORIGINAL CUSTOM ADOPTION 5-7 CHANGE OF NAME 5-8 LAWYERS 5-9 MEETING YOUR LAWYER 5-9 NEED A LAWYER: LEGAL AID 5-11 OFFICE OF THE CHILDREN S LAWYER 5-14 WHAT THE CHILDREN S LAWYER DOES 5-14 ROLE OF THE CHILDREN S LAWYER 5-14 WHEN A CHILDREN S LAWYER CAN BE ASSIGNED 5-15 APPENDIX A-1 COMMUNITY RESOURCES A-3 WOrksheets W-1 INFORMATION SHEET FOR YOUR LAWYER W-3 DEVELOPING A PARENTING PLAN W-21 Glossary G-1 Table of Contents iii

4 Second Printing, March 2013 Government of the Northwest Territories Department of Justice For information regarding this publication, please contact iv Family Law Manual Government of the Northwest Territories

5 How to Use This Guide This guide is an overview of family law and the legal system in the Northwest Territories as of March, It is for anyone who might need information about family law in the Northwest Territories. Family law refers to any of the laws making rules about family relationships in various situations, such as when people marry, when families change through divorce or separation, when children in a family are not properly cared for, or when a child is adopted. Dealing with lawyers and the court system can be confusing. The words and processes that are used can be hard to understand and there are special rules for dealing with things in family court. This guide is designed to help make things easier to understand. How to use this guide v

6 We have included some definitions in the glossary at the end of the guide to help with words that have specific meanings within the law. You can refer to the topics on the side of the page to help you quickly find what you are looking for. It is important to understand that this guide provides general information only. How the law affects you will depend on the facts of your case. You also need to know that family law changes from time to time when the federal and territorial governments make new laws (legislation and regulations) and the courts make decisions (the common law). If you have a legal problem or need specific legal advice, it is best to talk to a lawyer who practices family law. This guide is to help you figure out if you have a legal problem and to prepare you for meeting with your lawyer. To find a lawyer, you can look in the phone book, call Legal Aid, or use the lawyer referral service through the Law Society of the NWT. If you need a lawyer and can t afford one, Legal Aid may be able to provide one at minimal or no cost to you. You can also find more step-by-step instructions on some of the topics in the guide, in brochures available from the Department of Justice or at If you need help finding a lawyer, a shelter, or other assistance, go to the Community Resources section, found on page A-3. vi Family Law Manual Government of the Northwest Territories v

7 ? Family Law in the NWT What is Family Law? Family law is a general term referring to any of the laws that make rules about family relationships. This can include rules about how to marry, who can get married, how to separate or divorce, how adoption works, and how to protect children who are not being properly cared for. Family law includes federal and territorial legislation and regulations. It also includes decisions made by judges about family relationships and the responsibilities and rights of the people in those relationships. You should contact a lawyer for advice specific to your situation. Section 1 - Family Law in the NWT 1-1

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9 [ Territorial laws make rules about separation between spouses dealing with: arrangements for children, responsibilities, how to divide property, financial support, adoptions, the protection of children and the enforcement of court orders for financial support for children and spouses. Acts and Regulations [ Territorial law sets out different ways to protect victims from violent family members. The rules for family law in the NWT are written in several Acts or sets of laws. The family laws of the Northwest Territories may not be the same as the other provinces and territories throughout Canada. The acts that are used most often are the Family Law Act, the Children s Law Act, the Divorce Act, and the Child and Family Services Act. Each of these acts is described briefly on the following two pages. Section 1 - Family Law in the NWT 1-3

10 Family Law Act The Family Law Act sets out the laws about the rights and responsibilities of married and common-law spouses, both before and after separation. It also deals with spousal support and how people divide their property after separation or divorce. Acts and Regulations Children s Law Act The Children s Law Act deals with things such as custody, support, access, and parentage. Custody involves determining where a child will live and who will make decisions about the care and upbringing of the child. Access means the time that a parent who does not have the day-to-day care of the child is able to spend with the child. Sometimes there is a question of who is the mother or the father of a child and the Act sets out the rules for determining who is considered to be the child s parent. Rules for determining who the parents of a child are in cases which involve assisted reproduction are set out in this Act, as well as the Vital Statistics Act. Divorce Act The Divorce Act applies only to people who are legally married and sets out the rules for ending a marriage. It does not apply to people who live together without being married, also known as common-law relationships. The Divorce Act is a federal law and is the same everywhere in Canada. The Divorce Act is a federal law. It applies to married spouses who want a divorce and deals with: arrangements for children; custody and access; child and spousal support. 1-4 Family Law Manual Government of the Northwest Territories

11 Child and Family Services Act The Child and Family Services Act provides for protection for children under the age of 16 years where there is a concern that they are being abused or neglected or are otherwise in danger from their family. Maintenance Orders Enforcement Act The Maintenance Orders Enforcement Act sets up the Maintenance Enforcement Program (MEP) and provides for various ways to enforce payments to make sure that child and spousal support orders or agreements are paid. The program is a free service and available if you register through the MEP office. Acts and Regulations Other Family Law Acts Other acts may apply to family relationships, and are referred to throughout this guide. These include the Adoption Act, the Aboriginal Custom Adoption Act, the Change of Name Act, the Marriage Act, the Vital Statistics Act, the Protection Against Family Violence Act, and the Inter-jurisdictional Support Orders Act. Section 1 - Family Law in the NWT 1-5

12 Levels of Court There are four levels of court in the NWT: Justice of the Peace Court, Territorial Court, Supreme Court and the Court of Appeal. Each level of court has certain responsibilities and decision-making powers for different legal matters. The Courts Justices of the peace are people who have some training in legal issues. ❶ ❷ Justices of the Peace Justices of the peace are people who have some training in legal issues. Justice of the Peace Court can make decisions in some child protection matters, like making a finding that a child is in need of protection. (Child and Family Services Act) Some justices of the peace have been trained to take emergency applications and can make Emergency Protection Orders in situations where a family member is violent. (Protection Against Family Violence Act) Territorial Court The Territorial Court can hear and make decisions regarding child protection, and can make decisions regarding custody, access and financial support for children of a relationship and maintenance enforcement. (Children s Law Act, Family Law Act, Maintenance Enforcement Act, Inter-jurisdictional Support Orders Act, Child and Family Services Act). 1-6 Family Law Manual Government of the Northwest Territories

13 ❸ Supreme Court of the Northwest Territories The Supreme Court can hear and make decisions on all issues under the Divorce Act and most other matters involving children and families, such as custody, child and spousal financial support and the division of family property. The Protection Against Family Violence Act is under the jurisdiction of the Supreme Court and the court reviews all emergency protection orders made by designated justices of the peace. ❹ Appeals The Court of Appeal does not conduct trials. It hears appeals, both civil and criminal, from the lower courts. To appeal means to ask a higher court to reconsider a case if a judge has made a mistake about the law. The reasons for an appeal from a lower court decision are limited to the judge making an error about the law. It is not enough that you disagree with the decision or that you disagree with the decision the judge made about who was telling the truth. If you think this may have happened in your case, you should talk to your lawyer about it. The Supreme Court hears appeals of rulings made in Justice of the Peace Court and in the Territorial Court. The Court of Appeal hears appeals from the Supreme Court. In rare circumstances where there is a unique issue of law, an appeal from the Court of Appeal can be made to the Supreme Court of Canada. Supreme Court Territorial Court Justice of the Peace Court of Appeal Court Registries There are three Territorial Court registries in the NWT. They are in Inuvik, Yellowknife, and Hay River. There is one Supreme Court registry, located in Yellowknife. Court registries keep records of all court actions that have been started in the NWT. If you want to start an action for custody, child support or another family law matter, you have to file documents at the court registry. You can call the Yellowknife registry at (867) or toll free at Section 1 - Family Law in the NWT 1-7

14 [ Laws come from statutes (federal, territorial) and from the common law or case law. A statute is a written law created by the legislative body. Many statutes will also have a set of regulations. The regulations set out in detail how the law works. Sources of Law The common law is not written like a statute but is a record of the past decisions of judges. This practice of using previous judges decisions, called case law applies not only where there is no statute but also where a statute needs interpretation. When judges are asked to interpret laws, they look at the decisions of other judges in earlier cases to see what meaning the words of the statute have been given in the past. In our system the lower courts follow higher court decisions. Similar legal problems are decided similarly. The highest court is the Supreme Court of Canada followed by the Territorial Court of Appeal then the Supreme Court of the Northwest Territories and finally the Territorial Court. All other courts must follow the decisions of the Supreme Court of Canada unless the Supreme Court of Canada overrules its previous decision. [This precedent system allows lawyers to advise their clients on what the law says, and how a court might apply the law in their client s similar circumstance. 1-8 Family Law Manual Government of the Northwest Territories

15 Private (Civil) Law and Public (Criminal) Law Private or civil law matters concern the rights of individuals in relationships with one another. Private law deals with the rights of individuals to enter into personal relationships (family law, children s law) make agreements with others (contract law, commercial law) own and deal with property (property law, will and estates) to be free from unwanted or harmful actions from others (tort law) Most family law issues are civil matters such as divorce, child custody, family property division and the enforcement of maintenance payments. In family law cases, the party who starts the action (applies to court) looking for a solution is usually called the petitioner or applicant. The person who must respond to the application is called the respondent. A civil law dispute might be resolved by applying common law, interpreting a statute or by a combination of both. Public law regulates the relationship between individuals and the government. It broadly affects the community and the public obligations that are the concern of the state. This includes criminal law, administrative law and constitutional law. Section 1 - Family Law in the NWT 1-9

16 Private (Civil) Law and Public (Criminal) Law Our criminal justice system is a system of public prosecution because the interests of the community are harmed by criminal acts. Society as a whole has agreed that certain conduct is unacceptable and imposes a penalty for individuals who commit such acts. The criminal law is broad but in general criminal offences are set out in the Criminal Code of Canada and other federal statutes such as Controlled Drugs and Substance Act. Offences established by territorial statutes or municipal by-laws may have penalties but are not criminal offences. The person charged with committing a criminal offence is known as the accused. Criminal proceedings are conducted in the name of the Queen to represent the interest of the state. The lawyer representing the Queen is called the Crown Counsel and in the Northwest Territories is an employee of the Office of the Director of Public Prosecutions, Canada Family Law Manual Government of the Northwest Territories

17 Private Law (Family law) the aim is to resolve matters between individuals; you must bring action (start the legal process) yourself; costs for filing and the lawyer are your responsibility; you can change your mind and decide not to go to court; the parties can make an agreement and settle at any time; you must prove your case on a balance of probabilities (lower standard than criminal); and the parties to the action have the most interest in its result. Private (Civil) Law and Public (Criminal) Law Public (Criminal Law) the aim is to protect and regulate society, punish offenders and offer rehabilitation; the government through the Crown brings the action on the information of the complainant; in most instances the Crown does not allow the complainant to decide whether the matter will proceed; the case must be proven beyond a reasonable doubt (criminal standard of proof); and society has an interest in justice being done. Section 1 - Family Law in the NWT 1-11

18 [ [ Solutions can be reached in different ways. Depending on the circumstances of your family, some may work better than others. Resolving Family Law Disputes: By Agreement If you agree on the terms of your separation, you can write them into an agreement. You may have a lawyer put it into a formal agreement that you can both sign. Options Each of you should consult your own lawyer to make sure you understand your rights and responsibilities and that the agreement means what you wanted and is enforceable. Negotiation Separating couples that cannot reach an agreement may negotiate an agreement through their lawyers. Your lawyer will work with the other side s lawyer to come up with a reasonable solution. The lawyers will give you advice based on their knowledge of family law and what the outcome would most likely be if you had to go to court. Most family law matters are resolved this way. When lawyers are involved, negotiations are normally done through the exchange of letters setting out suggestions for settlement until a compromise is reached that everyone can agree to Family Law Manual Government of the Northwest Territories

19 The negotiation process has a lot of flexibility, which allows both of you to come to an agreement that meets everyone s needs. Negotiation is often used in divorces and after separation. For example, negotiation may be used to divide property between divorcing spouses. For a list of lawyers who practice family law, contact the Law Society of the Northwest Territories. Contact information can be found at page A-3 of this guide. Mediation In mediation, the two sides sit down with a neutral person, the mediator. The mediator does not represent either party and is not personally affected by the result. Unlike a judge or arbitrator, a mediator can t make decisions for you. Mediation offers separating or divorcing couples the opportunity to work together to reach their own agreement. The mediator makes sure that both parties get an opportunity to tell their side of the story and to hear and talk about what is really important in reaching an agreement. Although mediation can involve talking about what you hope for and what your feelings are about those things, it is not counseling or therapy. Section 1 - Family Law in the NWT 1-13

20 [ The benefits of using mediation are: Both people, who best know their needs and resources and those of their children, control the decision-making. Private and confidential that means you do not have to tell anyone what you talked about. Neither of you can use anything said in mediation in court later. You decide what should happen. Because you are making the agreement, you are both much more likely to be happy with it and to follow through. Mediation Having succeeded in reaching agreement once, you are more likely to deal successfully with differences that develop later. You can avoid the trial process, which is often painful for children, parents and extended family. Any agreements that you reach during mediation will be included in a document prepared by the mediator. If you want this document to become a legally binding separation agreement, additional steps are needed and may involve getting legal advice and having a lawyer draft a more complete agreement for you both to sign. Call to talk with the mediator. Mediation services for a limited number of hours are available through the Department of Justice at no charge for parents who are divorcing or separating to deal with issues regarding their children or spousal support. [ There are family lawyers who also provide mediation services, for contact information call the Law Society of the Northwest Territories Family Law Manual Government of the Northwest Territories

21 [ Parenting After Separation Parenting after Separation is a free workshop that is offered Yellowknife. The goal of the program is to make separation or divorce easier for both children and parents. You will learn how to cope with difficult issues that arise during and after separation or divorce. You will also learn how to help your children deal with their emotions in a positive way. The workshop focuses on a variety of things such as: the changing family, dealing with separation and loss, ways to communicate effectively, legal issues like custody, access and child support and planning for your future as a separated parent. You will learn why it is important to follow child support and custody/access agreements. Child support is also explained. Collaborative Approach If you live in Yellowknife, you are required to provide a certificate showing attendance at the workshop before you can begin family law proceedings in the Supreme Court of the Northwest Territories. Other situations may require your attendance as well. If you are uncertain you should speak with your lawyer or contact the Yellowknife Court Registry at or toll free at [ More information about the workshop and how to register is available online at: ParentingAfterSeparationandDivorce.shtml Section 1 - Family Law in the NWT 1-15

22 Starting a Court Process This is a very general description of court procedure for separation and divorce. Court procedures in other family matters are different so check for more information in the other chapters of the guide. Court Court proceedings begin when you file specific documents at the court registry. The documents that begin a family court proceeding are usually a petition (in the case of a divorce) application, originating notice (if the court in the NWT has never dealt with this matter) or notice of motion (if the court has dealt with this matter before) and may include a notice to respondent (directions to the other person). The party who files the documents is called the petitioner, the applicant, or sometimes the plaintiff. [ People who have brought a legal disagreement to the courts for a decision are called parties. Anyone who wants the help of the court must apply to the court. [ 1-16 Family Law Manual Government of the Northwest Territories

23 Notice or Service of Documents After you have filed the documents with the court, you must give one copy of each document to the other person. This is called serving the other person. Documents served usually give notice of a legal proceeding and the copies of all papers filed with the court. Some documents may be served by mail or left with a designated person on behalf of the named person. Other documents must be served personally by putting the documents into the hands of the named person. Court Process Under the Divorce Act, if service is required, a third party (not one of the spouses) must serve the documents. The documents may not be served on his/her lawyer unless the lawyer agrees to accept the documents for their client. Reply If you disagree with the claims or statements of the other party or if you wish to make a claim against them, you must respond to the documents served on you and file your response with the court registry. This may be done as a counter petition (in a divorce) or as a reply (for a child support matter or counterclaim). Speak with your lawyer. Serving Documents There are a number of ways to serve documents: the Rules of Court provide for the type of service required and the number of days required to be given to the other party to respond. The documents must be delivered to the correct person. Section 1 - Family Law in the NWT 1-17

24 Uncontested Proceedings If the other party (usually called the respondent) does not file an answer to the application within the time the court allows, the hearing may proceed without the respondent. Court Process The applicant may submit documents to the court, for example, financial information. The applicant will testify under oath or affirmation and may call witnesses to testify on his or her behalf. At the conclusion of the hearing the court may make an order. Interim Orders Family law cases often take a long time. There are some issues that need to be resolved much earlier and this can be done at an interim hearing. This can provide a temporary solution to parenting arrangements and child support. For this reason either party may make a court application (a motion) for a temporary order (interim order) at any time after the court proceeding has started. These usually occur in chambers. Chambers A hearing before a judge that is based on written evidence. The applicant must serve the motion documents on the other party unless the applicant can convince the judge that serious harm would result if notice were given to the other side. The parties give their evidence by means of affidavits. An affidavit is a document in which a person sets out the facts relevant to the motion and swears, or solemnly affirms, the truth of the statements. The affidavits must not contain irrelevant or purely inflammatory statements. If they do, the court may reject all or parts of them and penalize the party who filed them. The judge will review the filed documents, and the parties lawyers can argue their cases before the judge at an appointed time. Oral evidence is usually not provided at an interim hearing Family Law Manual Government of the Northwest Territories

25 You (if you are acting for yourself) or your lawyer are responsible for preparing a written order as directed by the judge, in the proper form for the court to sign. Each of you will receive a copy of the signed order. Consent Orders If at any time in the proceedings, the parties can agree on any issues in their dispute, the court can issue a consent order without the parties having to attend a court hearing. Court Process Pre-Trial Before the final court hearing (trial), there are steps taken to make sure that the parties are ready for the trial. These should include reaching agreement on as many issues as possible to shorten the trial time or eliminate the need for a trial. Examinations for Discovery If you need more information about the other person s claim, you can require the other person to provide relevant documents and come to an examination for discovery. It generally takes place outside of court at a lawyer s office. Your lawyer can ask the other person questions about the case. For example, your lawyer might ask about the other person s plans for caring for the children or the person s financial situation. A court reporter records all the questions and answers and a printed record (transcript) is produced. Section 1 - Family Law in the NWT 1-19

26 Rules of the Court These rules are procedures that people must follow. The rules guide every step of the hearing and set time limits for when certain things must be done. The Rules of Court also include official court documents called court forms that must be used if a person is filing any document with the court. For example, if parties file for a divorce, they must follow the Supreme Court of the Northwest Territories Divorce Rules. The Rules of Court are available on-line at on the Department of Justice website at nt.ca/legislation/legislation_rules.shtml and at the Courthouse Library. Court Process The Trial At trial, both of you can testify under oath and call witnesses to testify on your behalf. Everyone who testifies at a court hearing may also be cross-examined by the other party or his or her lawyer. After all the evidence is given, each party can make a final presentation to the court. Each party summarizes the evidence and the law and tries to convince the judge that his or her position is the correct one. After the hearing the judge will consider all the evidence, which includes the testimony given in court and any documents accepted by the judge as evidence during the trial. The judge will also review any legislation or case law submitted by the parties. The judge will make a decision and give it to the parties, either orally in court or in a written decision (usually issued later). You (if you are acting for yourself) or your lawyer are responsible for preparing a written order as directed by the judge, in the proper form for the court to sign. Each of you will receive a copy of the signed order Family Law Manual Government of the Northwest Territories

27 ? Personal Relationships Who is a Spouse? A spouse is a person who: is married to another person; has lived in a marriage-like relationship with another person for two years or more; or has lived in a marriage-like relationship with another person for less than two years, but who has a natural or adopted child with that person. In the Northwest Territories, if you are in a spousal relationship you have certain rights and obligations to your spouse and any children of the relationship. Section 2 - Personal Relationships 2-1

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29 [ Spouses are expected to support each other. They are required by law to contribute to the financial needs of the family to the extent that they are able. In some families, this could mean that one of the spouses may stay home and take care of children or manage a household while the other goes to work. In other families, both spouses may work and both incomes will be used to meet the family s financial needs. Both spouses are entitled to use the family home and assets. This means that one spouse cannot deny the other access to the family home, money, or possessions without a court order. Rights and Obligations of a Spouse [ Being a spouse gives you certain rights and responsibilities if the relationship ends and you separate. See the section entitled Spousal Support on page 2-39 for more information on support for spouses and other rights and responsibilities you have when a relationship ends. Child support is separate from spousal support. See the section entitled Child Support on page 2-21 for more information on child support. Section 2 - Personal Relationships 2-3

30 You have the right to a share of the property you and your spouse have acquired during the relationship. You may also have the right to receive support from your former spouse to help you meet your own financial needs. It is also possible that you will be required to provide money to your former spouse to help support him or her. This is called spousal support. Rights and Obligations of a Spouse You should talk to your lawyer if you have any questions about spousal support. Whether you are entitled to receive money from your spouse or must pay money to your former spouse after separation depends on many things. Some things that will be taken into account by the courts are: how long the couple lived together; the role each person played in the family during the relationship; whether or not there are children of the relationship; and the ability of spouses to support themselves. Who can Legally Marry? You can only marry if you are not already married to someone else. If you have been married, you must have proof of divorce, annulment, or that your former spouse has died before you can get married again. Marriage You cannot marry certain relatives. In the NWT you must be 19 to get married. If you are younger than 19, you can get married if you have your parent s or guardian s consent or if you have met certain conditions. You should contact a lawyer or Legal Aid for advice in this situation. Same-sex couples can legally marry. 2-4 Family Law Manual Government of the Northwest Territories

31 [ How a Valid Marriage Takes Place To be married, you must go through a legally recognized marriage ceremony with another person. The ceremony can be a religious or civil one. Before you can get married there are several things you have to do. After you have made sure that you are legally allowed to marry, you must either get a marriage license or have a member of the clergy do a publication of the banns for two consecutive weeks. Banns are published when a member of the clergy names the two people who plan to get married during a regular worship service. Marriage A marriage commissioner, which includes members of the clergy, must perform the ceremony. Once you are married you stay married until one of you dies, you divorce or your marriage is annulled. You are married whether or not you live together. Even if you separate and decide to end your relationship, you are still married until you take the legal steps to formally end the marriage. A member of the clergy is someone who is ordained or appointed by his or her religious body, and is authorized by the Marriage Act to formalize marriage. [ For a list of marriage commissioners in the Northwest Territories, contact the Department of Health and Social Services at (867) or toll free Section 2 - Personal Relationships 2-5

32 [ How to Get a Marriage License Marriage licenses are available from the Health Services Administration Unit of the Department of Health and Social Services in Inuvik. You may also obtain a marriage license from a marriage license issuer, located in many communities. Marriage In most cases, you will have to make an appointment with the marriage license issuer. Both people who plan to marry must attend this appointment. You will need to provide the following documents or information: birth certificate; social insurance number; full names for both sets of parents (including mothers' maiden names); place of birth for both sets of parents; There is a fee to get a marriage license. immigration documents (if applicable); a decree absolute or certificate of divorce if either person has been divorced; and death certificate(s) (if either person has been widowed). [ For the location of the marriage license issuer nearest you, call the Department of Health and Social Services at (867) or (toll-free). 2-6 Family Law Manual Government of the Northwest Territories

33 What is a Common-Law Relationship? As soon as you move in with someone you share a marriage-like relationship with, you have entered a common-law relationship. Until you have been living together for two years or have a child together, however, you have very few rights or obligations if the relationship ends. For example, you may not be entitled to support or a division of property. A common-law relationship is defined as two people living together as a couple. If you do not live together, you are not considered to be in a common-law relationship, and do not have to take any formal steps or legal action in order to end the relationship. Common-Law Relationships Under NWT family law, people do not have rights or obligations as spouses unless they have lived together for two years or have a child together. However, some federal laws recognize relationships as common-law after different amounts of time. For example, the Income Tax Act says that a couple is can be recognized as common-law after living together for 12 months. See the section entitled Spousal Support on page 2-39 for more information on support for spouses. See section entitled Property on page 2-44 for information on division of property. Section 2 - Personal Relationships 2-7

34 Separation and Divorce When a relationship ends, you can choose to make it final with a separation agreement or divorce. If you are legally married, you can get a separation agreement, a divorce, or both. If you are not legally married, but live in a common-law relationship, you can get a separation agreement to formally end the relationship. You can also ask the court to make an order about children, property and support if you are unable to reach an agreement on these issues with your former partner. Separation There is no such thing as a legal separation. You are separated in the eyes of the law when one spouse moves out, and does not intend to reconcile. Sometimes, you can also be considered separated even if you still live under the same roof as your spouse. A lawyer can help you figure out if this applies to you. For example, if it is hard to find housing in your community and you cannot move out, you may still be considered separated in certain circumstances. The date of your separation is important. Under the Family Law Act, the date of separation is used to determine the value of the things you and your spouse own together. For example, any bank accounts will be divided according to how much was in the account on the date of separation. Once you separate, you and your former spouse will have to resolve issues such as who will care for your children or how you divide the things you own (like your house) this is called division of property. These matters are often resolved by agreement between the spouses. 2-8 Family Law Manual Government of the Northwest Territories

35 An agreement can be made in writing or simply agreed on orally. In order for an agreement to be legally binding however, it must be in writing, signed by each of the former spouses, and witnessed. This is called a separation agreement. A separation agreement may address things like: where the children will live; how you and your former spouse will share the costs of raising the children (called child support); whether one spouse will give money to the other to help with living costs (called spousal support); and how property the things owned by the couple and any debt they might have is divided. Separation and Divorce Both common-law and married couples can make separation agreements. It is a good idea for both people to talk to lawyers before making a written agreement. This is to make sure the agreement covers all of the major issues, and so that each of you understands how an agreement might affect your rights. Before signing a written agreement check with a lawyer for advice. Separation Agreements If you are having difficulty reaching an agreement with your former spouse, a lawyer can help you to negotiate the terms of an agreement. Once an agreement is reached, a lawyer can also help you put the agreement in writing and make sure that it is complete. See the section entitled Spousal Support on page 2-39 for more information on support for spouses. Section 2 - Personal Relationships 2-9

36 If you are married and enter into a separation agreement, you are still able to get a divorce later if you choose. You will need a divorce if you want to get married again. Separation and Divorce See section entitled Property on page 2-44 for information on division of property. Separation agreements are an effective way to deal with the end of a relationship. Everyone agrees on how to divide the things you own, arrangements for the children, how much support should be paid for children and/or for spouses and other issues that may arise on separation, without having to go to court. If you can t agree on everything, you can make an agreement on some things and let a judge decide the rest. If you are married, but are planning to seek a divorce, you and your former spouse can, through a separation agreement, deal with some issues ahead of time. This can make the divorce process quicker and easier Family Law Manual Government of the Northwest Territories

37 Divorce If you are legally married and decide to end your legal relationship with your spouse you will have to ask the court to grant you a divorce. Divorce is the legal way to end a marriage. Many couples also choose to deal with issues like custody, access, support, and division of property at the same time as the divorce. If you already have a separation agreement that deals with these things, that agreement may be added into the divorce order. Requirements for Divorce Before you can get a divorce in the NWT, you must meet certain requirements. You or your spouse must have lived in the NWT for one year before starting the divorce action. (Residency requirement) and Separation and Divorce See page 1-15 for information on attending the Parenting After Separation workshop, which may be required for those living in Yellowknife prior to beginning family law proceedings in the Supreme Court of the Northwest Territories. You must have grounds for divorce. The law will allow a married couple to divorce when the marriage has broken down. Marriage break down can be shown if: You and your spouse have been living separate and apart (separated) for one year or more; or Your spouse has committed adultery. This is when a married person has voluntary sexual intercourse with a person other than their spouse, whether or not they are still living with their spouse; or Your spouse has treated you with such cruelty as to make it intolerable to continue living together. This can be physical or emotional cruelty. Section 2 - Personal Relationships 2-11

38 The Divorce Process The Divorce Process If you and your spouse are willing to work together, you may choose to file a joint petition. This means that both of you are asking the court for the divorce. This is used when both spouses have come to agreement on the issues. It is the simplest way to get a divorce. The papers are signed and no one has to go to court. Once the papers for the joint petition are filed, a court can issue a divorce judgment. Thirty-one days after the court grants the divorce judgment, the divorce becomes final. See the section entitled Spousal Support on page 2-39 for more information on support for spouses. The court will require proof that there is no child of the marriage or if there is a child of the marriage, that reasonable arrangements have been made for the support of the child that comply with the Child Support Guidelines. If you don t file a joint petition, one of you will have to file a petition for divorce, which is then served on the other spouse. If the other spouse fails to respond, the court assumes that nothing is contested, and the spouse who petitioned for divorce can ask the court for a divorce judgment to end the marriage Family Law Manual Government of the Northwest Territories

39 The steps in a simple, uncontested divorce are: 1. A petition for divorce is filed with the court. 2. The petition is served on the other spouse (respondent). 3. The respondent has 25 days if served in the Northwest Territories and 30 days if served outside of the Northwest Territories to file an answer or counter-petition. 4. If no answer or counter-petition is filed, the person seeking the divorce must swear an affidavit outlining the facts and circumstances of the marriage, the separation, the children of the marriage and other relevant facts. This affidavit, along with a number of other necessary documents, can then be presented to the court with a request that a divorce be granted. The Divorce Process 5. A judge will look at the documents and, if satisfied that all of the conditions for a divorce have been met and that child support has been addressed for any children of the marriage, will grant a divorce judgment. 6. The divorce judgment is sent to the respondent by the court. The respondent has 30 days from the date that the judgment was granted to appeal the judgment if he or she wishes to do so. 7. If the judgment has not been appealed, it becomes final on the 31st day. At this time, a request can be made for the court to issue a certificate of divorce. This document is the evidence that will be required to prove your divorce should you need to do so for any reason. An uncontested divorce usually takes at least three months to complete but may take longer depending on the circumstances. When the judgment is issued, the court may make a corollary relief order. This is an order of the court that can deal with custody, child support, and spousal support. The court may also issue a property order that sets out how the property and debts of the couple are to be divided. See section entitled Property on page 2-44 for information on division of property. Section 2 - Personal Relationships 2-13

40 A divorce judgment becomes final thirty-one days after it is made by the court. After that time, it cannot be appealed and it is final. When a divorce judgment becomes final, you have to ask the court to issue a divorce certificate. This is the document you need to prove that you are no longer married. The Divorce Process In order to obtain a divorce certificate you must contact the Supreme Court Registry that granted the divorce order. If you are not sure of the location of the registry where your divorce was filed, you can contact the Central Registry of Divorce Proceedings for Canada. They will not be able to give you the document but will be able to tell you at which registry your divorce was filed. [ The Central Registry of Divorce Proceedings flas-padf/crdp-bead/index.html or Telephone: , or Facsimile: [ See section entitled Children on page 2-21 for information on child support Family Law Manual Government of the Northwest Territories

41 [ The Court Process Whether you are married or have lived common-law with your spouse, if you are unable to resolve the issues when your relationship ends, you can ask the court to decide the issues for you. It is almost always better to resolve your differences with your former spouse without going to court because you can have some control of the outcome. If you go to court, you are asking the judge to make the decision. A judge does not have as much flexibility as you do to create a result that meets the needs of everyone, including your children. A court may not always consider things that you think are important when making a decision. Because your time in court is limited, it is sometimes difficult to explain to the judge why you think the issues should be resolved in a particular way, the reasons you are taking certain positions, or why you have done things in certain ways. The Court Process Your lawyer can continue to help you to negotiate an agreement while you are taking the steps necessary to prepare for trial, or you can ask for the help of a mediator. You and your spouse can negotiate or mediate things like custody, child and spousal support, and division of property. If, in the end, these negotiations fail, you will have to go to trial. A trial can be long, complex and expensive. You will likely need a lawyer. [ Even after a court action has been started, you can still try to resolve the issues by agreement. Section 2 - Personal Relationships 2-15

42 What is Custody and Access? Custody of Children and Access To Children When parents separate, they have to decide where their children will live and who will meet their day-to-day needs. The legislation that helps parents resolve these issues are the Children s Law Act and the Divorce Act. There are a number of options for parents, including sole custody, joint custody, shared custody, and split custody. Access When a child lives with one parent, the other parent almost always has the right to visit the child. The legal word is access. Access recognizes that it is in the best interest of the child to continue to have a relationship with both parents after they separate. Sometimes an access order says that the parent who doesn t have custody should have reasonable and generous access. This leaves it up to the parents to arrange visiting times. Custody This is a legal term that says which parent or other person is responsible for making decisions regarding the children. The four types of custody are sole custody, joint custody, shared custody and split custody. In the NWT it is presumed that parents will have joint custody unless they agree or a court orders otherwise Family Law Manual Government of the Northwest Territories

43 Sole Custody Sole custody means that one parent has day-to-day care of the child and makes most decisions about the child. This parent is called the custodial parent. The custodial parent can and must make medical and schooling decisions, determine what faith the child is raised in (if any), and make all the other major decisions about the child s life. The other parent is normally able to spend time with the child as agreed between the parents or as ordered by a judge. Joint Custody Joint custody means that both parents continue to have input into the major decisions that affect the child s life. The child may live with one parent or may move back and forth between the parents homes on a regular basis, depending on what the parents decide. The parents work together to make decisions that are in the best interest of the child, and must be willing to cooperate with each other to do this. Custody of Children and Access To Children Shared Custody Shared (and joint) custody occurs when the child lives with each parent for about an equal amount of time but at least 40 percent of the time in a year. For example, the child may spend two weeks with one parent then two weeks with the other. Most parents who share custody will make decisions for the child together. This type of custody works best when both parents live in the same community. Section 2 - Personal Relationships 2-17

44 Split Custody Split custody can happen when there are two or more children and some children live with each parent. In this situation each parent is primarily responsible for the care of at least one child. Custody of Children and Access To Children When parents settle on a living arrangement which splits the children between two homes, legal responsibilities can be shared in a number of ways: each parent may have sole custody of the child or children in his or her care; the parents may have joint custody of all of their children for the purpose of making decisions affecting the children s lives; or one parent may have sole custody of one or more children and the parents can share joint custody of others. If the parents cannot agree where a child should live or which parent should make decisions about the child s life, lawyers or mediators can help parents work toward an agreement. If no agreement can be reached, even with the help of a lawyer or mediator, either of the parents may ask a court to make that decision. If this happens, the judge will focus on the best interests of the child, not the interests and rights of the parents. The judge will base their decision on what they believe is best for the child and what arrangement can best meet the child s needs. Although many people don t know this, parents have no legal right to custody of or access to their children. This means that you are not guaranteed custody or access just because you are a parent. If it is in the best interest of the child to deny custody or access, a judge may choose to do so. The judge must decide what living arrangement will best meet the child s needs Family Law Manual Government of the Northwest Territories