Family Law And Immigrants - PLEIS-NB

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Family Law and ImmigrantsA H ANDB O OK ON FA MILY L AW IS SUE SI N N E W BRUNSWIC KPUBLIC LEGAL EDUCATION AND INFORMATION SERVICE OF NEW BRUNSWICK

Public Legal Education and Information Service of New Brunswick (PLEIS-NB) is a non-profitcharitable organization. Our mission is to provide plain language law information to peoplein New Brunswick. PLEIS-NB receives funding and in-kind support from Department of JusticeCanada, the New Brunswick Law Foundation and the New Brunswick Office of the AttorneyGeneral. Project funding for the development of this booklet was provided by the SupportingFamilies Fund, Justice Canada.We wish to thank the many organizations and individuals who contributed to the developmentof this handbook. We appreciate the suggestions for content that were shared by membersof the Law Society of New Brunswick. We also thank the community agencies who work withnewcomers and immigrants who helped us identify some unique issues that immigrants mayface when dealing with family law matters.A special thanks as well to the individuals who participated in the professional review ofthe content, both from the perspective of legal accuracy, as well as relevance and culturalsensitivity.PLEIS-NB wishes to acknowledge the following agencies for giving permission to make use of,or adapt their existing information on family law and immigration status for this handbook: Community Legal Education Ontario (CLEO) Family Law Education for Women (FLEW) METRAC – Action on Violence Government of Canada, Global Affairs Canada Government of Canada, Immigration, Refugees and Citizenship Justice Education Society of BC Legal Services Society British Columbia Luke’s Place Springtide ResourcesWe have flagged this assistance throughout and the full list of agencies cited can be found onour Resources Cited section.Published by:Public Legal Educationand Information Serviceof New BrunswickP.O. Box 6000,Fredericton, NB E3B 5H1Telephone: 506-453-5369Email: pleisnb@web.cawww.legal-info-legale.nb.caEdition #1Aussi disponible en français.IIFAMILY LAW AND IMMIGRANTSwww.familylawnb.caISBN: 978-1-4605-0418-5Revised November 2017

Table of Contents1Marriage in Canada Page 323Common-Law Relationships Page 94Custody and Access of Children Page 195Explains the requirements for a legal marriage in Canada. Explores “Special Issues” including thelaw on registering your marriage in Canada, dowry and bridewealth, marriages of convenience,forced and arranged marriages, and sponsoring a spouse to come to Canada.Explains the various laws that deal with common-law relationships.Separation and Divorce Page 12Explains the meaning of separation, the legal consequences of leaving a spouse or commonlaw partner, and the requirements for divorce. Explains concepts of no fault divorce anddomestic contracts and discusses the role of the court, lawyers, family mediators, and legal aid.Explores “Special Issues” including the law on serving documents outside the province, having aforeign divorce recognized in Canada, religious divorce, translation and interpretation at court,responsibilities of a sponsor after divorce, financially supporting yourself after separation, and howseparation/divorce could affect immigration status (in situation with and without family violence).Explains the legal definitions of custody and access. Discusses parenting plans. Explores “SpecialIssues” including the law on children travelling with one parent, child abduction and deportation ofparents with children in Canada.Child and Spousal Support Page 25Explains options for child and/or spousal support from someone in or out of the province, and howto enforce a support order made in or out of the province.6Division of Marital Property Page 287Family Violence Page 308Immigration Status Page 349Finding Help and Information Page 41Explains how property is divided when legally married couples divorce, and the options forcommon-law partners. Explores “Special Issues” including how the Mahr may be dealt with underNew Brunswick law and the law on division of marital property located outside the country.Defines several types of abuse and discusses how to get emergency and long term help. Explores“Special Issues” including the law on spanking children, female genital mutilation, and the impacton immigration status if a spouse is convicted of an offence.Discusses the different ways separation or divorce could affect your immigration status in Canada.Discusses immigration status for victims of family abuse. Explores the difference between making aHumanitarian and Compassionate Applications or making a Refugee Claim after separation.Offers a Table of Helpful Contacts and includes all Resources Cited and a Glossary.A HANDBOOK ON FAMILY LAW ISSUES IN NEW BRUNSWICK1

IntroductionPublic Legal Education and Information Serviceof New Brunswick (PLEIS-NB) offers a broad rangeof law information on many topics. The mostpopular is family law. Over 70% of requests fromthe public are for family law resources, particularlyon separation and divorce. With New Brunswick’sgrowing newcomer population, there is a needto provide accurate and accessible family lawinformation that is relevant to unique family lawissues that might arise in particular social andcultural contexts. We must also offer informationthat is accessible for individuals whose firstlanguage is neither English nor French.This handbook explains family law issues and setsout individual’s rights and responsibilities underNew Brunswick law. It also explains how the legaland court procedures for acting on ones’ rights inCanada could be affected by barriers unique toimmigrants and newcomers to Canada.This handbook is available online in French andEnglish. An accompanying booklet “Family LawMatters for Immigrants in New Brunswick,” hasbeen published in six languages, namely, English,French, Arabic, Korean, Mandarin and Spanish.We hope to be able to translate the booklet intomore languages over time.Intended AudienceThis handbook is for immigrants, newcomers toNew Brunswick, international students, refugees,and temporary residents living in New Brunswick.It is intended to offer information and options fordealing with family law issues experienced by bothimmigrant men and women. It is also intended asa resource for agencies that work with immigrantcommunities in New Brunswick.We recognize that immigrants come fromhundreds of different ethnic, cultural, and religiousbackgrounds and belief systems. We could notpossibly include examples from all of them inthis handbook. We have tried to generalize bysuggesting how some socio-cultural beliefs couldimpact family law situations. This is not intended tostereotype the richness and diversity of immigrantcultures.2FAMILY LAW AND IMMIGRANTSUsing this GuideThere are eight chapters in the handbook. Eachchapter deals with a particular subject. Thesubjects range from marriage and divorce, tocustody and support, to division of property, tofamily violence.Each chapter covers several sub-topics. Theywill help you understand the legal rights andresponsibilities that may relate to your situation.Some subjects or topics may not apply to you.Most chapters end with a discussion of “SpecialIssues” on that topic. These special issues may ormay not be relevant depending on your particularcultural or ethnic backgrounds. For example, thediscussion about bridewealth and dowry will notbe applicable to everyone who uses this guide.There is a glossary at the back of the handbook.Throughout the handbook the terms in purpleand underlined are linked to their definition in theglossary. All you have to do is click on the word.As you explore the handbook on the PublicLegal Education and Information Service of NewBrunswick websites, www.legal-info-legale.nb.caor www.familylawnb.ca you will be able to click onany “hot links” and they will take you immediatelyto additional material or resources on the subjectmatter.Information that was reprinted or adapted withpermission from other sources is referencedthroughout. The full citation is set out in theResources Cited section.This handbook does not contain a completestatement of the law and changes in the lawmay occur from time to time. Anyone needingspecific advice on his or her own legal positionshould consult a lawyer.

1Marriage in CanadaWhat is required to legally marry in NewBrunswick, Canada?Marriage is considered a basic part of societyin Canada. (R22) It is the foundation of familylife for many Canadians.The federal and provincial governmentsshare legal authority for marriage. The federalgovernment makes broad laws on marriage,like who is allowed to be married (called“capacity to marry”) and who can legallymarry each other. The provinces make lawson rules about the ceremony and on who hasthe authority to conduct the ceremony. This iscalled the “solemnization” of marriage.To get married in Canada, you will first needto have a marriage licence. You can apply fora marriage licence in New Brunswick at anyService New Brunswick Centre. Before they giveyou the licence, they will confirm you are legallyentitled to marry each other under Canadian law.To apply for a marriage licence, you will need: The date you are planning to marry The name and address of the person who willperform your marriage Proof of your age and identity (you can usea provincial or territorial driver’s licence,birth certificate, current passport, Canadiancitizenship card, or record of landing/Canadianpermanent resident card) Proof of your present marital status (If you werepreviously married, you will need a Certificateof Divorce, Decree Absolute, Final Decree, FinalJudgment or Order granting divorce, or a DeathCertificate issued by the Vital Statistics Officeor Statement of Death issued by a FuneralDirector) The marriage licence fee Additional information as required(R27)Note: If any of the documents above are in a languageother than French or English, you will need to get themtranslated by a qualified, impartial translator.A HANDBOOK ON FAMILY LAW ISSUES IN NEW BRUNSWICK3

Marriage in CanadaYou and your future spouse must meet with theIssuer of Marriage Licences who will intervieweach of you separately. You will complete and signan “Affidavit on Application for a Marriage Licence.”All information you share will be kept strictlyconfidential. (R42)Is same-sex marriage legal in Canada? Whatrights do same-sex couples have?Once you have your marriage licence, a legalmarriage may be performed as a religious or civilceremony. The ceremony may be held anywhere inNew Brunswick.Same-sex common-law couples are also recognizedin Canada and have the same rights as oppositesex common-law couples. (“Common-law” refersto certain rights and obligations couples gain byliving together in a marriage-like relationship,even if they did not have a marriage ceremony.)The person performing the marriage (called theMarriage Officiant) must have the authority todo so. Many religious leaders have authority fromthe government to perform a religious marriageceremony. To find someone who has legal authorityto perform a civil marriage ceremony, contact theCourt of Queen’s Bench in your region, or seethe list of registered officials at http://www.snb.ca/e/1000/1000-01/pdf/List-e.pdf.At what age can you get married in Canada?In Canada, it is a criminal offence to marry someoneunder the age of 16. It is also illegal to celebrate, aidor participate in a marriage ceremony if you knowthat one of the persons being married is underthe age of 16. Both offences are punishable with aprison term up to 5 years. (R7)Provinces may set other limits on marriage age. Toget married in New Brunswick before you are 18,you must have been married before, or your parentsor guardians must agree by signing an affidavit ofconsent. (R42)Is there anyone that I’m not allowed to marry?In Canada, you cannot marry your: Mother Daughter Sister (including adopted or half-sister) Grandmother Granddaughter Father Son Brother (including adopted or half-brother) Grandfather Grandson (R42 & R39)4FAMILY LAW AND IMMIGRANTSSame-sex couples are legally allowed to marry inCanada and they have the same rights as marriedopposite-sex couples.Is a man allowed to have multiple wives inCanada?In Canada, it is illegal to be married to morethan one person at a time. This is called bigamy(having two spouses) or polygamy (having morethan two spouses). It may be referred to as “pluralmarriage”. Anyone taking part in this kind ofrelationship (both husbands and wives) could beimprisoned for up to five years. (R5)Canadian law does not allow you to get married ifyou or the other person is already married. It doesnot matter where or when your first marriage tookplace. In Canada, you can only remarry if you arelegally divorced or if your spouse has died. (R22)You cannot sponsor someone to come to Canadaas your spouse if the marriage would not belegally recognized in Canada.Despite this law, plural marriages sometimesoccur. People may come to Canada from acountry that allows polygamy. A second orsubsequent marriage may take place as a religiousceremony that does not meet the requirementsin Canada for a legalcivil marriage.The secondreligiousmarriage isillegal.

Marriage in CanadaThis means the women in those marriages arevery vulnerable – they may believe they arelegally married and would have the protection ofCanadian family laws. But if the marriage ends, thismay not be the case.This can be a confusing area of law. Someprovinces have family laws on property divisionand spousal support that recognize polygamousmarriages if they were performed in a countrywhere polygamy is legal. This means that, insome circumstances, women in a polygamousmarriage may have some rights to a share ofthe family property and/or spousal support. (R47)However, a woman in this position should consulta lawyer before taking any legal action. She maybe opening herself to a risk of criminal charges forbigamy or polygamy under the Criminal Code.What surname may I use after I’m married?Who should I notify if I change my surname?After you have been married, you and/or yourspouse may choose a marital surname. You haveseveral options, including:a) Keeping your registered birth surname, whichis the name listed on your birth certificate.b) K eeping the surname you have from aprevious marriage, if it was used immediatelybefore your present marriage.c) Taking the surname of your spouse.d) Taking a combination surname made upof both your surnames, with or withouta hyphen. (R42)If you take a new surname, you will have to changeyour name on many identifying documents such asyour provincial driver’s licence, vehicle registrationand Medicare card.When you get married, your Marriage Officiant willgive you a “Statement of Marriage.” When you goto change your surname on your documentation,you show the “Statement of Marriage” as proofthat you can change your surname because ofmarriage. (Note: you do not change your surnameon your birth certificate.)For most documents, you will go to your nearestService New Brunswick office to change yourname. For documents that must be changedat other offices, you should contact the officebeforehand to see if they need you to bring otherdocumentation in addition to your Statementof Marriage for them to process your change ofname. (R42)A HANDBOOK ON FAMILY LAW ISSUES IN NEW BRUNSWICK5

Marriage in CanadaSpecial Issues - Marriage:If I was married in another country, is mymarriage valid in Canada?Generally, your foreign marriage is valid in Canadaif the marriage: Is legal under the laws of the place where ittook place; and Conforms to Canada’s federal laws on marriage.Do I have to register my marriage in Canada orNew Brunswick?No. Each province/territory is responsible forregistering marriages that take place there. In NewBrunswick, the Vital Statistics Office registers allmarriages that take place in New Brunswick, even ifyou are not a New Brunswick resident. You shouldregister your marriage according to the laws inthe province, territory, or country where you weremarried.You should get proof of marriage from theprovince, territory, or country where yourmarriage occurred. (R42) If you were married inNew Brunswick, you can get proof of marriage byordering a Marriage Certificate from any ServiceNew Brunswick Centre.What are the laws in Canada regarding dowryor bridewealth?Dowry is the property and/or chattels (items)brought into the marriage by the wife through herfamily, or, the property given to a wife and/or herfamily by her husband in return for her marriageto him. In some countries, like India, it has beenbanned, although it is still widely practiced. (R28)Bridewealth is the transfer of goods from thegroom or his relatives to the family of the bride. Thisis the most frequent type of marriage transactionacross cultures. (R1)Neither of these practices is widespread in Canadaand there is no legal entitlement to them underCanadian law. The legitimacy of the marriage inCanada is not connected to the payment of anydowry or bridewealth. The failure of one partner topay a dowry or bridewealth does not invalidate themarriage. To have a legal marriage, you only needto meet the requirements described above.Courts in Canada will not normally be ableto enforce claims for dowry or bridewealth.(R28)However, Canadian courts have tried tohonour these obligations if they are part of amarriage contract (sometimes called a prenuptialagreement) and do not contradict Canadianfamily law. (R13) To decide if the terms of a marriagecontract (or prenuptial agreement) are binding,the court will consider it the same way it wouldany other type of contract under Canadian law.For more information, see the PLEIS-NB pamphlet,“Domestic Contracts.”What is the law in Canada on marriages ofconvenience?A marriage or common-law relationship that isentered into for the sole purpose of sponsoring aperson to immigrate to Canada is called a marriageof convenience. Canadian citizens or permanentresidents may be charged with a crime if they arefound to have arranged a marriage of conveniencefor immigration purposes. (R22 & R6)6FAMILY LAW AND IMMIGRANTS

Marriage in CanadaWhat is the difference between forcedmarriage and arranged marriage?Longstanding principles in Canadian law make itillegal to force anyone into marriage in Canada. (R22)Both people must give their free and enlightenedconsent to marry each other. (R1.2) Both peopleinvolved should feel that they have a choice.Forced marriage: This is when someone ispressured, or threatened with harm to marrysomeone they do not want to. Often the pressureor harm comes from a family member or theirIt is illegal in Canada to do anything for thepurpose of removing a person who is undereighteen from Canada for the purpose of aforced marriage or underage marriage, and thepunishment could be up to 5 years in prison. (R7.1)Arranged Marriage: This is when both partiesagree to marry the partner suggested by theirparents or religious community. The couple arenot pressured or threatened to marry. (R14)What should I do if I am in a forced marriageand I want to get out? What if I am beingforced to marry someone?If you were forced to get married and you wantto get out, you should contact a family lawlawyer to talk about your options for leaving themarriage. You can also reach out for help fromother resources such as health care providers,counsellors, community organizations, trustedfriends and legal information services. If you feelyou are in immediate danger, call the police forhelp.religious community. Forced marriage can happento individuals of any culture, class, religion, andin any area of the world, even within Canada ortravelling abroad. It can happen to both menand women at any age, including minors. (R14)If an individual agrees to a marriage becausethey are pressured or fear being harmed this isnot considered to be a marriage that was freelyconsented to.If you are afraid that you are going to be forcedinto a marriage contact the police. Consider tellingthe police if you know someone who is beingforced to marry against his or her will.Types of threats or abuse that are often used incases of forced marriage are: Emotional pressure Threats Abduction (kidnapping) Forcible confinement Extortion Physical violence (R14)In some cases of forced marriage, family maytake the person to another country for the actualmarriage to take place. The person being forcedinto the marriage may not be aware of the purposeof the trip until they arrive.If you are in Canada and you believe that you arebeing forced to travel to another country to marry,look for help. Try contacting provincial socialwelfare authorities, local police, a student guidancecounselor, or a community legal clinic. You couldalso contact the Kids Help Phone, a women’sshelter or a victim services office. (R14)A HANDBOOK ON FAMILY LAW ISSUES IN NEW BRUNSWICK7

Marriage in CanadaConsider making a safety plan if you think youmay be forced into a marriage either here inCanada or abroad. A safety plan should includelocal emergency numbers, a place to stay if youhave to leave quickly and photocopies of all yourimportant documents including your passport.If family is forcing you to travel to another countryto get married, let someone in Canada know. Givethis person the following important information: A number where you can be reached in theother country A photocopy of your passport and birthcertificate A recent photo of yourself Your travel itineraryIt may also be a good idea to: Keep some emergency cash on hand (keep ithidden if possible) Try to stay in contact with family and friends athome Try to bring a cellphone with you Sign up with the Registration of CanadiansAbroad service Know how to contact the nearest Canadiangovernment office abroad and carry theircontact information with you (R14)8FAMILY LAW AND IMMIGRANTSDoes my spouse (or common-law partner)have to be a certain age before I can sponsorhim or her to immigrate to Canada?On June 10, 2015, the minimum age requiredfor a spouse or common-law partner to besponsored was changed from 16 to 18 years. Allapplicants must be at least 18 years old at thetime the application is received by Citizenship andImmigration Canada. Anyone applying to sponsortheir spouse or common-law partner under theage of 18 after June 10, 2015 will be refused. (R20)

2Common-law RelationshipsIn a common-law relationship a couple livestogether as intimate partners, but are not legallymarried to each other. Same-sex common-lawcouples are recognized and have the same rightsas opposite sex common-law couples in NewBrunswick. Common-law couples do not havethe same rights as married couples, but theyare often granted certain rights and obligationsunder different provincial and federal laws.How long must we live together to become acommon-law couple?The amount of time you must live togetherbefore you are entitled to particular rights differsdepending on the law that grants the right.Some provincial laws recognize a common-lawrelationship after one year of living together. Inother situations, you must live together for twoyears, or even three years.Employers, federal laws, and insurance plans setout different criteria for recognizing commonlaw relationships. You should look at the differentlaws and policies to determine how they define acommon-law relationship. (R36)For more information on common-lawrelationships, see the PLEIS-NB booklet, “LivingCommon Law: Rights and Responsibilities.”How do we end a common-law relationship?Unlike a marriage, which requires legal measuresto end it, in New Brunswick, you do not haveto take any special legal steps to end yourrelationship with your common-law partner. Youjust need to stop living together as a couple to endyour relationship.A HANDBOOK ON FAMILY LAW ISSUES IN NEW BRUNSWICK9

Common-Law RelationshipsDo I have the right to have custody or accessof the children?Parents in common-law relationships, as well asparents who have never lived together, have thesame rights and obligations to their children asmarried parents. In New Brunswick both parentsare assumed to have joint custody of the childrenin the absence of a court order or an agreement,even if they are not married. If parents cannotagree, the court will only look at what is in the“best interests of the child.”For more information on the types of custody andhow courts make decisions about custody, seeSection 4 of this handbook and read the booklet“Custody and Access in New Brunswick.”In New Brunswick,both parents have alegal obligation tosupport their childfinancially untilthe child turns 19years old (possiblylonger in certainsituations), even ifthe parents havenever been married or lived together.For information on child support, see Section5 of this handbook, and read the booklets“Child Support,” and the Federal Child SupportGuidelines: Step by Step.Do I have the right to ask for spousal support?To be eligible for spousal support under the FamilyServices Act, you must have been dependent onyour partner and have lived together for more than3 years. Or, you may be eligible for spousal supportafter only one year if you had a child together. Youmust file for support within a year of separation.(These restrictions are not placed on marriedspouses.)For more information on spousal support, seesection 5 of this handbook, and read the booklet:Spousal Support.Do I have an obligation to support the childrenif we were never married?In Canada, it is the right of the child to have thefinancial assistance of both parents.Child support is the money paid by one parent tothe other parent for the support of their children.The support is usually paid to the parent who hasthe primary care of the children. It is used to helpcover the costs of raising a child such as feeding,clothing, housing, and otherwise providing foreveryday needs.In some countries children whose parents are notlegally married may not have rights to support andinheritance. Some people think that they do nothave to pay child support if the couple never livedtogether.10FAMILY LAW AND IMMIGRANTSHow will the property be divided if we end ourcommon-law relationship?Unlike legally married couples, there is noautomatic entitlement to half of the propertyfor a common-law partner. Many people haveheard that if they live together for 3 years as acommon-law couple they get all the same rights aslegally married couples. This is not true. The rightsand entitlements of common-law couples varydepending upon particular legislation related tothe type of property.Generally, any property you brought into orbought during the relationship is yours. When youbreak up, the person who has paid for the itemor whose name is on the deed may be the onlyperson entitled to it. If you bought somethingtogether (such as furniture), you both own it. Ifyou separate, you must decide how to divide theitems you bought together.

Common-Law RelationshipsIf you are not able to come to an agreement withyour partner on how to divide your property, youcan hire a lawyer to assist. The lawyer will make anargument to the court on why you should get ashare of the property and what amount that shareshould be.If you are arguing for an equal division of propertyin court, you must prove that you were a jointfamily venture regarding finances.Factors that indicate a joint venture are: having children joint bank accountsFactors that indicate no joint venture are:Special Issues: Common-LawRelationships keeping money separate acting as if you are two separate financialentitiesThe more factors you have in favour of a jointfamily venture, the more likely your property willbe shared between you. For more informationon common-law relationships, see the PLEISNB booklet, “Living Common Law: Rights andResponsibilities.”How can we decide these family law issues?Do we have to see a lawyer?Immigrants have similar rights as Canadians touse the courts to settle their family law matters.However, it is less stressful and less expensive ifyou can work them out for yourselves. If you do,you can ask a lawyer to write these issues up ina separation agreement. If you can’t agree, youwill have to go to court. It is a good idea for eachof you to talk to different lawyers before signingthe separation agreement, because otherwise theagreement could later be declared invalid.For more information on settling your differences,getting legal assistance, and making parentingplans you should review the other Sectionsof this Handbook. You can also check out thebooklet “When Couples Separate: Rights andResponsibilities,” and “Making Plans: A guideto parenting arrangements after separation ordivorce.”How does Immigration, Refugees andCitizenship Canada define a Common-LawPartner?Immigration, Refugees and Citizenship Canadadefines a common-law partner as a person whohas been living with another person in a conjugalrelationship (a relationship like a marriage) for atleast one year. That means living together forone year without any long periods where youdid not see each other. Either partner may haveleft the home for work or business travel, familyobligations, and so on. However, the separationmust have been temporary and short. (R24)Can my common-law sponsor make me leaveCanada?No, your common-law partner cannot force youto leave Canada. If you have permanent residentstatus or conditional permanent resident status,only Immigration, Refugees and CitizenshipCanada can make you leave Canada. This will onlyhappen after an immigration hearing takes place.Immigration, Refugees and Citizenship Canadawill not make you leave Canada just because yoursponsor wants you to. (R2)A HANDBOOK ON FAMILY LAW ISSUES IN NEW BRUNSWICK11

3Separation and DivorceSeparation means that a person has left arelationship or a marriage because they wishto end the relatio

popular is family law. Over 70% of requests from the public are for family law resources, particularly on separation and divorce. With New Brunswick's growing newcomer population, there is a need to provide accurate and accessible family law information that is relevant to unique family law issues that might arise in particular social and

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