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