Family Law Tip Sheets

Tip 1: Child support for children over 18, if qualified, is not necessarily the table amount. Section 3(2)(b) of the guidelines import a discretionary element for children over 18.

Tip 2: Spousal support guidelines are always discretionary and only a starting point. Always do further analysis for the court.

Tip 3: When drafting a separation agreement and periodic spousal support is being paid, if you are putting in reviews then the triggering event must be specifically stated. Do not rely upon the phrase “material change and circumstances”. For example, if retirement is to trigger a review then you must state “retirement will trigger a review”: (Templeton v Templeton 2005 ABCA 133).

Tip 4: Summary judgment is not available to proceedings under the Divorce Act and Family Law Act, but is available to deal with proceeding under the Matrimonial Property Act.

Tip 5: The test for summary judgment was changed in 2014 by the Supreme Court of Canada. Summary judgment is now to be granted whenever there is: “no genuine issue for trial.” The old test “plain and obvious” is now replaced with the new “modern rule.” Summary judgment rules are now to be broadly interpreted, not strictly interpreted (Hrynik v Mauldin, 2014 SCC 7; Windsor v CP Railway, 2014 ABCA 108).

Tip 6: Property rights for common law/AIPs do not require a minimum of 3 years of cohabitation. They must follow the constructive and resulting trust principles, which can occur within 3 years of cohabitation.

Tip 7: The definition of AIP involves multiple factors and cohabitation is not specifically referenced, although implied. Always check all of your factors not just the cohabitation.

Tip 8: Always file a CLP even if your client is a co-owner because where the other spouse has creditors then there is case law stating that the CLP will have a higher priority than the CRA (McCullough-Greiff v CRA, 2014 ABCA 202).

Tip 9: Client with no money? Apply for advanced costs. It’s a three part test: 1. impecunious, 2. prima facie case, and 3. special circumstances. Courts are very sympathetic to advanced costs if assets to divide and/or spousal support are likely.

Tip 10: Grandparents can apply for access under the Family Law Act but require leave and will unlikely succeed if that grandparent can get access through his or her child, being the parent of the subject of the application. Access for the grandparent must have been stopped on a permanent basis to get access.

By Darryl A. Aarbo