Family Law Basics
A person who is dealing with family breakdown will likely hear legal terms and the names of certain laws as they begin to look at the area of family law. Although the information on this site is written for people without any legal training, some understanding of the legal terms used and the laws that apply in different situations can help people navigate this area of the law.
Parents & Spouses
The parts of family law that deal with parenting arrangements and child support, as well as the rules concerning who is considered a parent, apply to all parents. This includes married parents, single parents, adoptive parents, parents who live together and same-sex parents.
The parts of family law that deal with family property and spousal support, however, only apply to spouses. Spouses include married couples but also include people who have lived together as spouses for a required period of time, including same-sex couples. The required time period can differ based on the type of claim being made and other circumstances, such as whether a couple have children together. In Saskatchewan, generally speaking, unmarried couples can only claim spousal support or family property rights after they have lived together as spouses for two years or more.
Lived Together as Spouses
Whether a couple has lived together as spouses is a question of fact. Because the way couples relate to each other is very individual, there is no single test to determine whether a couple will be considered spouses in the eyes of the law.
There are a number of areas of a couple’s personal life that would generally be taken into account, including:
- housing arrangements
- sexual and personal behaviour
- services / roles in the relationship
- social behaviour
- community & societal views
- household expenses & economic support
Under housing arrangements, a court might consider whether the couple slept in the same room or not. Under sexual and personal behaviour the court might consider if the couple had sexual relations but would also consider the reasons if they did not. Under services, the court could consider how household chores were dealt with. Under social behaviour the court might consider whether the parties presented themselves as a couple when socializing. Under society, the court could look at whether the community regarded them as a couple. Under economic support the court could consider how the couple shared the costs of living.
Married couples - regardless of how long they have been together - can ask for spousal support or family property orders. A couple can marry only if they are:
- over 18 (16 and 17 year olds can marry with the consent of their parents but no one under 16 can marry)
- not related as a grandparent, parent, child or sibling
Any couple that meets these requirements can get married, including same-sex couples. There are no blood tests or medical examinations required.
The couple must first purchase a Saskatchewan Marriage Licence. It must be purchased at least one day before the marriage ceremony and not more than 90 days before. The fee for this is currently $60. A marriage licence can be purchased at most jewellery stores and local town or city halls.
At the time of the purchase each party must complete a Statutory Declaration. The Declaration is a series of questions about things such as your name, address and current marital status. If either party is divorced, a Certificate of Divorce must be presented.
The marriage ceremony must be performed by a clergy member or marriage commissioner registered to perform marriages in Saskatchewan. Two witnesses over 18 are required. The marriage must be registered through eHealth Saskatchewan. The religious representative or marriage commissioner who performs your marriage ceremony will help you complete a Registration of Marriage form. The clergy member or the marriage commissioner will forward the completed Registration of Marriage form to eHealth Saskatchewan where your marriage will be registered and a legal record kept.
The Divorce Act is the law that applies all across Canada to married or divorced couples. Under this law people can formally end their marriage by divorce. If they are asking for a divorce they can also ask for other orders under the Divorce Act, such as parenting orders or support orders. They can ask for these at the same time as they ask for a divorce or after the divorce is final.
Children's Law Act
Couples who are married but not asking for a divorce, couples who are not married, and single parents use The Children’s Law Act to apply for a parenting order. Anyone else who has a sufficient interest in the child can also apply under this Act for a parenting order. As well the courts can declare someone to be the parent of a child under this law.
Are parenting cases decided differently based on the law that applies?
Most things are the same, for example the factors that the court considers when making a parenting order. There are, however, some differences. For example, a type of parenting order called a contact order can only be made under the Divorce Act. However, even though it is not called a contact order under The Children’s Law Act, courts can make the same type of order providing time with the child to someone who is not a parent.
Family Maintenance Act
The Family Maintenance Act is used by unmarried people or married people who are not asking for a divorce to ask for child or spousal support.
Child support orders can be made under The Family Maintenance Act. Anyone can apply for a child support order on behalf of a child. However, married parents who are asking for a divorce need to ask for child support under the Divorce Act. Anyone who is a parent of the child or who stands in the place of a parent can be ordered to pay child support under this Act.
Are child support cases decided differently based on the law that applies?
No. Under both the Divorce Act and The Family Maintenance Act the same Child Support Guidelines are used to determine child support.
Spouses who are not married and married spouses who are not asking for a divorce can apply for spousal support under The Family Maintenance Act. For these purposes spouses are:
- people who have lived together as spouses for at least two years
- parents of a child if they have lived together in a relationship of some permanence even if they have not been together for two years.
Married spouses who are seeking a divorce can ask for spousal support under the Divorce Act.
Are spousal support cases decided differently based on the law that applies?
The factors to be considered when deciding on spousal support and the goals of spousal support are not worded exactly the same under the two Acts. However, the general rule of considering the means, needs and circumstances of the spouses applies under both Acts.
Family Property Act
The Family Property Act is used by all spouses, married or not, to apply to the court to have their family property divided. Spouses for these purposes can be:
- married people
- people who have lived together as spouses for at least two years