Canadian Law Systems

Questions and Answers

What is Stare Decisis?

Stare Decisis is a term to describe how the common law relies on precedent.

What makes the Civil Law system different from Common Law?

The Civil Law system is not based on cases but on established laws and legal principles.

What are the two significant sources of international law?

Customary International Law (correct)

Executive Orders

Treaties (correct)

Regulations

What are all the aspects of Constitutional Law?

RCPFSJ Signup and view all the answers

What are the four parts of the New Brunswick government?

Government Departments and Agencies, School System, Hospital System, Crown Corporations Signup and view all the answers

Match the following courts with their jurisdiction under the Constitution:

Federal Courts = Appointed and paid by the federal government Provincial Courts = Responsibility for providing everything the courts need under their jurisdiction Signup and view all the answers

How can judges be removed in Canada?

Judges can be removed by a joint address of Parliament or a provincial legislature after an independent and impartial investigation shows good reason. Signup and view all the answers

How do you assess the true nature of a right in evaluating a claimed Aboriginal right?

By evaluating the current action, examining the conflict with state action, and linking the action to historical Aboriginal practices. Signup and view all the answers

What is the general rule regarding the duty of consultation and accommodation with Aboriginal groups?

The Crown has a legal duty to consult and accommodate Aboriginals. Signup and view all the answers

The Charter requires all provinces, except for New Brunswick, to provide for court proceedings in both official languages.

False Signup and view all the answers

What does section 530 of the Criminal Code allow?

Allows the accused to be heard in court in their language if it is an official language of Canada. Signup and view all the answers

What are the three situations that can override the duty of loyalty for public servants?

Life, health, or safety risks due to Government policies. Signup and view all the answers

What are the four criteria considered by courts for admitting additional evidence in trial?

<ol> <li>The evidence should generally not be admitted if by due diligence it could have been adduced at trial. 2) The evidence must bear upon a decisive or potentially decisive issue. 3) The evidence must be credible. 4) It must be such that if believed, it could reasonably be expected to have affected the result taken with other evidence adduced at trial.</li> </ol> Signup and view all the answers

What is the test for admission of prior inconsistent statements?

The statement must be made under oath or solemn affirmation following a warning, videotaped in its entirety, and the opposing party must have a full opportunity to cross-examine the witness. Signup and view all the answers

According to Valente v. The Queen, words of an Act must be read only based on their plain language.

False Signup and view all the answers

What are the three requirements for judicial independence within the meaning of section 11(d) of the Charter?

Security of tenure Signup and view all the answers

What are the three forms of contracts in relationships according to the content?

<ol> <li>Marriage contracts 2) Domestic contracts 3) Other contracts</li> </ol> Signup and view all the answers

What is the general principle of stare decisis?

Common law courts are bound by authoritative precedent for guaranteeing certainty in the law, subject to extraordinary exceptions. Signup and view all the answers

What is the purpose of the Official Languages Act?

Recognize the significance of Treaties and Aboriginal rights, Aboriginal-Crown relations in the context of the legal system, and relevant legislation and related case law. Signup and view all the answers

What does section 35 of the Constitution Act, 1982 do?

Recognizes and affirms the existing aboriginal and treaty rights of the Aboriginal peoples of Canada. Signup and view all the answers

What do aboriginal title holders have?

Exclusive right to occupy the lands, decide how to use the lands, and to the economic benefits of those uses. Signup and view all the answers

What does the Duty to Consult entail?

The Crown must consult with and accommodate the interests of the concerned Aboriginal group in good faith. Signup and view all the answers

What is the purpose of the Sparrow Test?

To identify infringement of Aboriginal rights. Signup and view all the answers

Aboriginal Title holders have the right to make decisions about land claimed by Aboriginal people.

True Signup and view all the answers

What are the three forms of contracts governing familial relationships?

Marriage contracts, cohabitation agreements, separation agreements Signup and view all the answers

When does New Brunswick have jurisdiction to hear a divorce proceeding?

If either spouse has been ordinarily resident in the province for at least one year Signup and view all the answers

What are the types of custody and what do they imply?

Physical custody (primary residence or shared custody) and legal custody (sole custody or joint custody) Signup and view all the answers

What is the intention behind child support determination?

To ensure children benefit from parents' financial means after separation Signup and view all the answers

What information must be clearly stated in the notice of Directors?

full name, address including postal code, occupation, telephone number Signup and view all the answers

When does a Corporation come into existence?

On the date shown in the certificate of incorporation Signup and view all the answers

What is included in a Minute Book of a Corporation?

articles, by-laws, resolutions, directors, shareholders and transfer register, shareholders' ledger, minutes of shareholders and directors, share certificates and forms filed Signup and view all the answers

Section 48 of the NBBCA requires that a Corporation maintain a share register where it is required to include the names of each person who is or has been a shareholder, ______, and the latest known address of each person.

alphabetically arranged Signup and view all the answers

What rights do Shareholders have?

vote at any meeting of the shareholder, right to receive any declared dividends, right to receive remaining property upon dissolution Signup and view all the answers

What are the three bases for spousal support in Canada?

Compensatory, Contractual, Non-compensatory Signup and view all the answers

What are the four factors for making a retroactive order for child support and what are the relevant dates?

Reasons for delay, Misconduct, Hardship to children, Hardship to payor. Generally retroactive to effective notice date; not more than 3 years before notice. Signup and view all the answers

What is the two-stage test for varying an existing access plan?

Show material change in circumstances; Assess best interests of the child Signup and view all the answers

How does the concept of joint family venture build on the principles of D.B.S.? What is granted if a joint family venture is proven?

Link between contributions and assets; Proportional share of assets if monetary award is insufficient Signup and view all the answers

What are the objectives under s.17(7) of the Divorce Act?

Economic disadvantage, Apportionment of financial consequences of child care, Economic hardship from marriage breakdown, Self-sufficiency promotion within a reasonable timeframe Signup and view all the answers

What are the different types of partnerships? Explain.

General Partnership, Limited Partnership. A general partnership involves shared liabilities among partners, while a limited partnership offers restricted liabilities for some partners. Signup and view all the answers

What are the pros and cons of a general partnership?

Pros: Shared costs, Some tax benefits. Cons: Potential dissolution upon partner changes, Limitations on partner transfers, Shared responsibilities. Signup and view all the answers

What rights does a limited partner have in a limited partnership?

Inspect partnership books, share profits or compensation, demand contribution return, sue the partnership. Signup and view all the answers

What rights does a general partner have in a limited partnership?

All the rights and powers Signup and view all the answers

List the pros and cons of corporations.

Pros: Limited liability, perpetual existence, transferability of shares, easier financing, tax advantages. Cons: Costly to incorporate, heavy regulatory compliance. Signup and view all the answers

What is a joint venture and provide examples.

A commercial business activity by two or more parties; Equity joint venture, Contractual joint venture. Signup and view all the answers

What are the steps to create and maintain a partnership?

File a declaration of limited partnership with specific details, ensure renewal, and comply with filing regulations. Signup and view all the answers

What are the steps to incorporate and maintain a separate legal entity?

Choose federal or provincial incorporation, satisfy statutory requirements, reserve a name, submit articles of incorporation, set up registered office, list directors. Signup and view all the answers

What are the three statutory factors that determine the court's discretion in child support?

The set off between the amount each parent would pay applying the Table amount; The increased costs of the parenting arrangement; The condition, means, needs, and circumstances of each parent and child Signup and view all the answers

How is child support calculated when custody is divided between parents?

Child support is calculated as the set off between the amount each parent would pay for the child or children in the other parent’s care, applying the Table. Signup and view all the answers

What expenses can be covered in a child support order?

a) Child care expenses incurred due to custodial parent's employment, illness, or other reasons; b) Medical and dental insurance premiums for the child; c) Health-related expenses above insurance reimbursement; d) Educational expenses; e) Post-secondary education expenses; f) Extracurricular activity costs. Signup and view all the answers

What are extraordinary expenses and how are they determined?

Extraordinary expenses are those exceeding what the requesting spouse can cover, considering factors like the nature and number of activities, special needs or talents of the child, and the overall cost of the activities. Signup and view all the answers

What must be shown to prove undue hardship in child support arrangements?

Both a and b Signup and view all the answers

What factors are considered in determining spousal support?

a) Economic advantages/disadvantages from the marriage; b) Financial consequences related to child care; c) Relief of economic hardships post-marriage breakdown; d) Promotion of self-sufficiency within a reasonable time. Signup and view all the answers

Spousal misconduct plays a role in determining spousal support.

False Signup and view all the answers

The limitation period for applying for marital property division after divorce is ____ days.

60 Signup and view all the answers

Match the following terms with their definitions:

Intimate Partner Violence = Violence used to psychologically, physically, sexually, or financially dominate and control another person in a close relationship. Emergency Intervention Order = Immediate protective order granted in cases of intimate partner violence. Marital Property = Family assets acquired during a marriage that are subject to division upon separation. Exclusive Possession of Marital Home = Court-ordered right for one spouse to occupy the marital home exclusively for a specified duration. Signup and view all the answers

Study Notes

Sources of Canadian Law

Common Law:
- Judge-made law developed through common law courts
- Not based on written laws, but on a collection of court decisions
- Judges do not make the law, only declare it
- Stare Decisis: relying on precedent to determine the law
Civil Law:
- Inherited from France, used in Quebec
- Based on established laws, written as broad legal principles
- Includes doctrinal writings and interpretations by scholars
- Legislation is seen as the primary source of law
Bijurialism:
- Coexistence and integration of two legal traditions (Common Law and Civil Law)
- Canada is a mixed law jurisdiction
- Common Law applicable to all matters of private law, except in Quebec (Civil Law)
- Canadian Federal Law derives from the Common Law

Statutory Law

Many areas of law develop through the Common Law
Parliament and Provincial legislatures can enact new statutes to displace the Common Law
Statutory law is hierarchically above Common Law

Constitutional Law

At the pinnacle of domestic Canadian law
Written and unwritten forms
Entrenched legislation, incapable of amendment without special procedures
Unwritten constitutional law has primacy, but is the product of judicial decision making
Key principles:
- Rule of Law: all exercises of public power must have a source in the law
- Constitutional Supremacy: the Constitution is the supreme law of the society
- Parliamentary Supremacy: subject to the Constitution, the legislative branch has the power to make laws
- Federalism: division of law-making powers between the national parliament and provincial legislatures
- Separation of Powers: public power is exercised through three branches of government
- Judicial Independence: the judicial branch must have institutional independence

International Law

Two significant sources:
- Treaties: law-making contracts between states
- Customary International Law: unofficial laws, formed by general and universal state practice
Treaties are binding on the states that are party to them, and no others
Domestic law is paramount to international law, but the government must do its best to ensure compliance

Branches of Government

Judiciary:
- Resolves disputes according to law
- Interprets and applies the laws
- Includes judges and the courts
Legislature:
- Makes laws
- Exercises control over government actions
- Includes the House of Commons and the Senate
Executive:
- Delivers programs and services
- Responsible for administering and enforcing laws
- Includes the monarch (Governor General), the prime minister, and the public service

Official Languages in New Brunswick

Official Languages Act (SNB 2002, c O-0.5)
Purpose: ensure respect for English and French as the official languages of New Brunswick
Constitutional provision: English and French have equality of status and equal rights and privileges
Bill introductions and adoptions must be in both official languages

Treaties and Aboriginal Rights

Section 35 of the Constitution Act, 1982:
- Recognizes and affirms existing Aboriginal and treaty rights
- Includes Aboriginal rights and treaty rights
Aboriginal Rights:
- Cultural, social, political, and economic rights
- Includes the right to land, fish, hunt, and practice one's own culture
- Cannot be infringed without justification
Aboriginal Title:
- Exclusive right to occupy the lands, decide how to use the lands, and to the economic benefits
- Communal right held for the benefit of all present and future members
Duty to Consult:
- Government and individuals must consult with Aboriginal groups and accommodate their interests
- Required level of consultation and accommodation increases with the strength of the claim
- Claimants must be given priority over other groups, and fair compensation must be provided### Section 35 and Aboriginal Rights
The Supreme Court has developed a four-step process to deal with section 35 claims:
- Identify the precise nature of the First Nation's claim to an Aboriginal right
- Determine if the First Nation has proved the existence of the pre-contact practice and its integral connection to the distinctive pre-contact Aboriginal society
- Determine if the claimed modern right has a reasonable degree of continuity with the integral pre-contact practice
- Delineate the Aboriginal right with consideration to the objectives of economic and regional fairness, and the historical reliance and participation in the fishery by non-Aboriginal groups

Integral to a Distinctive Culture Test

The Supreme Court developed a test to determine how to define an Aboriginal right as protected by section 35(1) of the Constitution Act, 1982:
- Courts must take into account the perspective of Aboriginal peoples themselves
- Courts must identify precisely the nature of the claim being made
- A practice, custom, or tradition must be of central significance to the Aboriginal society in question
- The practices, customs, and traditions which constitute Aboriginal rights are those which have continuity with the practices, customs, and traditions that existed prior to contact
- Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating Aboriginal claims
- Claims to Aboriginal rights must be adjudicated on a specific rather than general basis
- For a practice, custom, or tradition to constitute an Aboriginal right, it must be of independent significance to the Aboriginal culture in which it exists
- The integral to a distinctive culture test requires that a practice, custom, or tradition be distinctive, but not necessarily distinct
- The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom, or tradition is only integral because of that influence
- Courts must take into account both the relationship of Aboriginal peoples to the land and the distinctive societies and cultures of Aboriginal peoples

Aboriginal Title

The Supreme Court has established that Aboriginal title is a beneficial interest in land, being the right to use and manage it, enjoy it, occupy it, possess it, and profit from its economic development
The test for Aboriginal title is based on sufficient, continuous, and exclusive occupation by a First Nation prior to European sovereignty
Aboriginal title is not necessarily confined to specific settlement sites, but may extend to tracts of land that Aboriginal peoples regularly used prior to European sovereignty
The Crown owes a duty to consult with the First Nation where Aboriginal title is asserted, but not yet confirmed by court declaration or by agreement
Once a First Nation has established Aboriginal title, the title holders have the right to determine the uses to which the land is put and to enjoy its economic fruits

Consultation and Accommodation

The Crown has a legal duty to consult with Aboriginal peoples when making decisions that could infringe upon their rights or lands
The extent of the duty to consult varies with the strength of the claims
If the claim is strong, the Crown must accommodate the Aboriginal people and allow them to participate in the decision-making process
Weak claims require only notification

Language Rights

Section 23 of the Charter guarantees the right to education in either English or French
The Supreme Court has established that the duty to consult and accommodate applies to language rights
In R. v. Beaulac, the Supreme Court held that section 530 of the Criminal Code creates an absolute substantive right to trial in the official language of choice
In Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, the Supreme Court held that the appellants' rights under section 23 of the Charter were infringed

Duty of Loyalty

In Fraser v. P.S.S.R.B., the Supreme Court established that public servants owe a duty of loyalty to their employer, the Government of Canada
The duty of loyalty reflects the importance and necessity of an impartial and effective public service
There are three situations in which the balancing of the duty of loyalty with freedom of expression will likely result in an exception being made to the duty of loyalty:
- The Government is engaged in illegal acts
- Government policies jeopardize life, health, or safety
- The public servant's criticism has no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability### Stare Decisis
Common law courts are bound by authoritative precedent
A lower court must apply the decisions of higher courts to the facts before it (vertical stare decisis)
There is a narrow exception to revisit a legal precedent if new legal issues are raised, or if there is a change in circumstances or evidence that fundamentally shifts the parameters of the debate

Aboriginal Sentencing

Section 718.2(e) of the Criminal Code requires consideration of an offender's aboriginal status in determining a sentence
The provision is intended to address the chronic overrepresentation of aboriginal persons in the penitentiary population
The Court must consider the historical background of Canada's aboriginal people, including colonialism, displacement, and residential schools, and how it continues to affect aboriginal people today
Determining an appropriate sentence is based on the model of "restorative justice" emphasized in many aboriginal cultures

Statutory Interpretation

Words of an Act must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament
The Supreme Court held that the words of an Act must be read in their entirety to ensure a coherent and effective statutory scheme

Protection of Judicial Independence

Section 11(d) of the Canadian Charter of Rights and Freedoms guarantees the right to an independent and impartial tribunal
A judge needs to be impartial and independent, and independence refers to the quality of the relationship between the judge and the executive
The Court set out three requirements for judicial independence: security of tenure, financial security, and institutional independence in administrative matters

Family Law

There are three forms of contracts in relationships: marriage contracts, domestic contracts, and separation agreements
A divorce will be granted if there has been a breakdown of the marriage, established by either:
- Living separate and apart for at least one year
- Adultery or physical or mental cruelty
Custody and access determinations are based on the best interests of the child
Types of custody:
- Physical custody: where the child lives
- Legal custody: who makes major decisions for the child
Jurisdiction for custody and access is governed by the Divorce Act and the Family Services Act in New Brunswick

Child Support

Under the Family Law Act, child support is determined in accordance with the Federal Child Support Guidelines
Objectives of the Guidelines are:
- Consistency
- Efficiency
- Objectivity
- Fairness
The Guidelines apply to both divorced and separated parents, as well as unmarried parents
The court uses the "Total income" displayed on the T1 General form to determine income, unless the court feels this income is not a fair determination of income
The court may impute income to a party if they are intentionally diverting income or are intentionally un/under-employed

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Understand the core legal concepts applicable to the legislative and regulatory system in Canada, including common law, civil law, statutory law, and international law.

Canadian Law Systems

Questions and Answers

What is Stare Decisis?

What makes the Civil Law system different from Common Law?

What are the two significant sources of international law?

What are all the aspects of Constitutional Law?

What are the four parts of the New Brunswick government?

Match the following courts with their jurisdiction under the Constitution:

How can judges be removed in Canada?

How do you assess the true nature of a right in evaluating a claimed Aboriginal right?

What is the general rule regarding the duty of consultation and accommodation with Aboriginal groups?

The Charter requires all provinces, except for New Brunswick, to provide for court proceedings in both official languages.

What does section 530 of the Criminal Code allow?

What are the three situations that can override the duty of loyalty for public servants?

What are the four criteria considered by courts for admitting additional evidence in trial?

What is the test for admission of prior inconsistent statements?

According to Valente v. The Queen, words of an Act must be read only based on their plain language.

What are the three requirements for judicial independence within the meaning of section 11(d) of the Charter?

What are the three forms of contracts in relationships according to the content?

What is the general principle of stare decisis?

What is the purpose of the Official Languages Act?

What does section 35 of the Constitution Act, 1982 do?

What do aboriginal title holders have?

What does the Duty to Consult entail?

What is the purpose of the Sparrow Test?

Aboriginal Title holders have the right to make decisions about land claimed by Aboriginal people.

What are the three forms of contracts governing familial relationships?

When does New Brunswick have jurisdiction to hear a divorce proceeding?

What are the types of custody and what do they imply?

What is the intention behind child support determination?

What information must be clearly stated in the notice of Directors?

When does a Corporation come into existence?

What is included in a Minute Book of a Corporation?

Section 48 of the NBBCA requires that a Corporation maintain a share register where it is required to include the names of each person who is or has been a shareholder, ______, and the latest known address of each person.

What rights do Shareholders have?

What are the three bases for spousal support in Canada?

What are the four factors for making a retroactive order for child support and what are the relevant dates?

What is the two-stage test for varying an existing access plan?

How does the concept of joint family venture build on the principles of D.B.S.? What is granted if a joint family venture is proven?

What are the objectives under s.17(7) of the Divorce Act?

What are the different types of partnerships? Explain.

What are the pros and cons of a general partnership?

What rights does a limited partner have in a limited partnership?

What rights does a general partner have in a limited partnership?

List the pros and cons of corporations.

What is a joint venture and provide examples.

What are the steps to create and maintain a partnership?

What are the steps to incorporate and maintain a separate legal entity?

What are the three statutory factors that determine the court's discretion in child support?

How is child support calculated when custody is divided between parents?

What expenses can be covered in a child support order?

What are extraordinary expenses and how are they determined?

What must be shown to prove undue hardship in child support arrangements?

What factors are considered in determining spousal support?

Spousal misconduct plays a role in determining spousal support.

The limitation period for applying for marital property division after divorce is ____ days.

Match the following terms with their definitions:

Study Notes

Sources of Canadian Law

Statutory Law

Constitutional Law

International Law

Branches of Government

Official Languages in New Brunswick

Treaties and Aboriginal Rights

Integral to a Distinctive Culture Test

Aboriginal Title

Consultation and Accommodation

Language Rights

Duty of Loyalty

Aboriginal Sentencing

Statutory Interpretation

Protection of Judicial Independence

Family Law

Child Support

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