FAMILY
CONTENTS
PRELIMINARY MATTERS
[§1.01]
Introduction
1
[§1.02]
Initial Interview
1
[§1.03]
Financial Disclosure
2
[§1.04]
Special Duties of Counsel
3
[§1.05]
Urgent Matters
1. Status of Litigation
2. Preservation of Property
3. Protection of Persons
4. Preservation of the Status Quo
5. Limitation Periods
3
3
3
3
3
3
[§1.06]
Mediation
1. The Process
2. Who is Entitled to Mediate?
3. When to Consider It
3
4
4
6
[§1.07]
Collaborative Law
6
[§1.08]
References
7
APPENDICES
Appendix 1 — Sample Confidential Questionnaire
Appendix 1A— Precedent Retainer Letter
8
14
FAMILY LAW PROCEEDINGS
[§2.01]
The Legislation
21
[§2.02]
Choosing the Forum
1. Jurisdiction
2. Disclosure
3. Enforcement
21
21
22
22
[§2.03]
Initiating Court Proceedings
1. Supreme Court
(a) Writ of Summons and Statement of Claim
(b) Financial Statements (Form 89)
2. Provincial Court
22
22
22
23
25
[§2.04]
Variation Proceedings
1. Supreme Court
2. Provincial Court
25
25
26
[§2.05]
Divorce Proceedings
26
[§2.06]
Guardianship
26
(ii)
[§2.07]
Custody
1. Divorce Act
2. Family Relations Act
3. Additional Factors Governing Determination of Custody
4. Access
27
27
27
28
29
[§2.08]
Support
29
[§2.09]
Spousal Support
1. Taxation
2. Jurisdiction and Limitation Periods
(a) Divorce Act
(b) Family Relations Act
3. The Principles
(a) Divorce Act
(b) Family Relations Act
(c) The Caselaw
29
29
29
29
29
30
30
30
31
[§2.10]
Child Support
1. Taxation
2. Governing Legislation
(a) Divorce Act
(b) Family Relations Act
3. Eligible Children
4. Liable Parents
(a) Divorce Act
(b) Family Relations Act
5. The Child Support Guidelines
31
31
31
31
32
32
32
32
32
33
[§2.11]
Variation of Custody or Support Orders
1. Jurisdiction
(a) Divorce Act
(b) Family Relations Act
2. Variation of Spousal Support
(a) Divorce Act
(b) Family Relations Act
(c) Principles
3. Variation of Child Support
4. Variation of Custody
(a) Divorce Act
(b) Family Relations Act
(c) Principles
34
34
34
34
34
34
35
35
35
35
35
35
35
[§2.12]
Dividing Assets
1. Dividing Family Assets Between Married People
2. Specific Assets
(a) Pensions and RRSPs
(b) Business ventures
(c) Homes on reserve
(d) Other assets
(e) New assets
3. Reapportionment
4. Marriage Agreements
5. Canada Pension Plan
6. Property Division Between Unmarried People
7. Variation of Property Division
37
37
37
37
39
39
39
39
40
40
40
40
41
(iii)
APPENDIX
Appendix 2 — Jurisdiction
42
INTERLOCUTORY APPLICATIONS
[§3.01]
Introduction
43
[§3.02]
Family Law Judicial Case Conference Pilot Project
1. Rule 60E
2. Procedure under Rule 60E
43
43
44
[§3.03]
General Considerations on Applications without Notice
45
[§3.04]
Common Interlocutory Orders
1. Contempt
2. Interim Custody – Family Relations Act, ss. 9 and 35 and Divorce Act, s. 16(2)
3. Interim Support for Spouse or Children – Family Relations Act, ss. 9 and 93
and Divorce Act, ss. 15.1, 15.2 and 15.3
4. Interim Disbursements
5. Appointment of Expert to Investigate a Family Matter
6. Order Prohibiting Interference – Family Relations Act, s. 38
7. Non-Molestation – Family Relations Act, s. 37
8. Information Concerning Address – Family Relations Act, s. 40
9. Guardianship
10. No Prospect of Reconciliation
11. Exclusive Occupancy
12. Restraining Use, Disposition or Encumbrance of Assets
13. Restriction of Contact
14. Severing Joint Tenancy
15. Examination of Witnesses
16. Appointment of Receiver or Receiver Manager
17. Joining Proceedings
18. Security for Costs
19. Extraprovincial Custody and Access Orders
45
45
45
46
46
46
47
47
48
48
48
49
49
51
51
51
51
52
52
52
APPENDICES
Appendix 3 — Notice to the Profession Re: Masters
Appendix 3A — Affidavit Guidelines
Appendix 3B — Restraining Order, Form 134
Appendix 3C — Praecipe and Notice of Judicial Case Conference,
Litigants’ Guide and Case Management Plan Worksheet
54
55
60
62
PRE-TRIAL INVESTIGATION AND PREPARATION
[§4.01]
Discovery
67
[§4.02]
Retaining Experts
67
[§4.03]
Custody Reports
67
[§4.04]
Identifying and Interviewing Witness
67
[§4.05]
Interrogatories
68
[§4.06]
Schedule of Assets
68
(iv)
APPENDIX
Appendix 4 — Interrogatories
69
OTHER PRE-TRIAL PROCEEDINGS
[§5.01]
Judicial Case Conference and Case Management
71
[§5.02]
Pre-Trial Conference
71
[§5.03]
Settlement Conference
71
[§5.04]
Mini-Trial
71
[§5.05]
Summary Trial and Summary Judgment
71
[§5.06]
Offers to Settle
72
[§5.07]
Rule 51A
72
JUDGMENTS, AGREEMENTS AND ENFORCEMENT
[§6.01]
Judgments and Orders
73
[§6.02]
Enforcement of Restraining Orders
73
[§6.03]
Enforcement of Other Orders
1. Support Orders
2. Family Maintenance Enforcement Act
3. Contempt Proceedings
74
74
75
75
[§6.04]
Enforcement of Agreements
75
UNDEFENDED DIVORCES
[§7.01]
Undefended Divorces
1. Other Proceedings
2. Definition
3. Practice Directions
4. Certificate of Pleadings
5. What to File
6. The Order
76
76
76
76
76
76
77
[§7.02]
Child Support in Undefended Divorces
77
APPENDIX
Appendix 7 — Consolidated Family Law Practice Direction,
Direction #3, October 18, 2002
78
OTHER PROCEEDINGS
[§8.01]
Child, Family and Community Service Act
87
[§8.02]
Adoption Act
90
(v)
FAMILY LAW APPEALS
[§9.01]
Family Law Appeals
1. The Decision to Appeal
2. Re-Argument
3. Cost
4. Appeals of Fact or Law
5. Court of Appeal Act
6. Family Relations Act
7. Divorce Act
8. Appeals of Interim or Interlocutory Orders
9. Time Estimate
10. Applications to Extend the Time for Appeal
11. Motion for Leave to Appeal
12. Custody Appeals
13. Stay of Proceedings
14. Further Reading
92
92
92
92
92
92
92
93
93
93
93
93
93
94
94
APPENDICES
— Consolidated Family Law Practice Direction,
Direction #5, October 18, 2002
Appendix 9A — Notice Re: Fast-track for Family appeals
Appendix 9
95
96
DOMESTIC AGREEMENTS
[§10.01]
Domestic Agreements
1. Introduction
2. Drafting Separation Agreements
3. Marriage Agreements
4. When Should a Marriage Agreement be used?
5. Judicial Intervention in Marriage Agreements
97
97
98
98
98
99
[§10.02]
Cohabitation Agreements
99
[§10.03]
Minutes of Settlement and Consent Orders
99
APPENDIX
Appendix 10 — Sample Separation Agreement
101
TAX IMPLICATIONS OF SPOUSAL SETTLEMENTS
[§11.01]
Introduction
109
[§11.02]
Spouse for Tax Purposes
109
[§11.03]
Income Tax Consequences of a Division of Family Assets
1. General Rules
2. The Family Relations Act: The Concept of Deferred Community of Property
3. Time of Division
4. Tax Deferred Dispositions of Family Assets
5. Shares and Depreciable Property
6. Attribution Rules
7. Joint and Several Liability
109
109
110
110
111
113
113
115
(vi)
8.
[§11.04]
Splitting Tax Liability
Taxation of Support Payments
1. Tax Regime
2. Support Amounts
3. Child Support Amounts
4. Periodic Payments
5. Allowance for Maintenance
6. Third Party and Other Specific Purpose Payments
7. Prior Payments
8. Court Orders and Written Agreements before May 1, 1997
9. Registration of Court Orders or Written Agreements
10. Equivalent-to-Spouse Tax Credit
115
115
115
116
116
116
116
116
117
117
117
118
[§11.05]
Deductibility of Legal Fees
118
[§11.06]
GST
1. Introduction
2. Imposition of Tax
3. Input Tax Credits
4. Commercial Activity
5. Application to Spousal Settlements
6. Summary
119
119
119
119
119
120
120