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These proposals let family law lawyers discuss and vote on what changes they think should be made to the law or court procedures. The results can be viewed and shared with legislators and the Courts. The proposals put forth are written by member lawyers, and do not necessarily reflect the views of this website or its administrators. You can view more proposals or make a proposal yourself.

Proposal: Family Docket Court should be disbanded.
Court Procedure - Aug 19, 2021

Anonymous10 Comments

Morning Chambers was always a place where you could get procedural direction, but it was also a place where substantive but basic matters could be dealt with too. Now we have Docket, and Docket Bypass, and I just don't see the point.

53% in favour out of 38 votes

Proposal: Correct Clerk's interpretation of Section 7 Divorce Act; Rules of Court
Other - Aug 16, 2021

Anonymous3 Comments
The Divorce Act is federal legislation and property issues fall under provincial legislation. The constitution dealt with the division of powers.

The obligations under Section 7 of the Divorce Act have been added to the Claim for Divorce. During the introduction to the changes sponsored by the federal department, it was stated that section 7 was added to the Act for the benefit of reducing conflict over children. There was no indication that Section 7 was intended to apply to any other claim under the Divorce Act.

The Statement by Plaintiff refers to "parenting time", "protecting children", "resolving disputes through family dispute resolution processes", "providing current information required under the Act" and "complying with any Order under the Act". They are all statements that refer to parenting of children which falls under the Divorce Act.

The Clerks insist that every Claim for divorce, even where there are no children, include the Statement of Plaintiff signed by the clients. They will not accept a Claim for filing without that Statement being signed.

There is no jurisdiction to apply the federal Act to the division of matrimonial property which falls under provincial jurisdiction.

Even if they are applying Section 7 to the overall granting of a Divorce, it would be redundant to require up to date information as it relates to the granting of a Divorce, or to comply with the Order for Divorce. No divorce can be granted if the Plaintiff does not provide the required Claim information. In an uncontested divorce, there will be no Order to comply with. The parties receive a Divorce Judgment.

The second issue that arises from the overstepping of the feds is in the Rejection Notice that is used by the Clerks. The Alberta Rules of Court state that only originating processes must be served by personal service. The Rejection Notice used by the Clerks states that if any service other than personal service requires a supplemental Affidavit to be filed to give an explanation why personal service was not used. it seems to imply a requirement ...
93% in favour out of 15 votes

Proposal: Concise letter filing deadlines should be a couple of weeks before the hearing, not following the triggering date
Court Procedure - Aug 15, 2021

Ken Proudman of BARR LLP (Alberta)3 Comments

It used to be that filing deadlines ran backwards from the special chambers hearing, rather than running from the triggering date when special chambers is booked. Back then, we were able to push clients to negotiate by pointing to all of the money that they'd have to spend on us if they didn't reach a resolution. Now litigants tend to be so focused on meeting deadlines and drafting that there seems to be less negotiation during the first couple of months, and then once there's some breathing room, they've spent so much on lawyers that they seem to be more likely to want to see the decision (a sunk costs fallacy).

I understand the rationale of wanting all of the facts on the table so that lawyers can provide proper opinions to their clients, and wanting to decrease adjournments caused by late filing, but delaying the concise letter deadline, and calling them briefs again, would help to promote settlement by creating a cost which clients can avoid if they cooperate. It's also less costly to prepare the concise letter closer to the hearing, because it minimizes the number of times that we have to go through all of the materials and decisions.

96% in favour out of 28 votes

Proposal: Where resources permit, courts should be able to order arbitration
ADR - Aug 15, 2021

Ken Proudman of BARR LLP (Alberta)1 Comment

This would lessen the burden on the courts, and divert families to a process that's generally much faster (which can reduce long-term conflict), can result in better decisions as the decision-maker would be experienced in family law, in a process that can be customized for the circumstances, and is generally much less expensive than trial.

If there's a dispute about who the arbitrator is, I would expect that courts would be prone to select an arbitrator with family law experience and arbitration credentials. Biases could be brought to light by pointing to consistently-problematic online reviews.

In the very long-term, this might be where family law is heading anyways: regular meetings with an arbitrator or case worker rather than litigating in the courts.

44% in favour out of 18 votes

Proposal: Arbitration awards should be registrable with MEP
ADR - Aug 15, 2021

Ken Proudman of BARR LLP (Alberta)0 Comments

Rather than having to convert the award into a court order first. If there's an issue with the award a person can still apply to the Court for an order staying the award or varying it.

83% in favour out of 23 votes

Proposal: Spousal support should always terminate upon death, to instead be considered as a Family Maintenance & Support Claim
Spousal Support - Aug 15, 2021

Ken Proudman of BARR LLP (Alberta)2 Comments

Spousal support orders end on the death of the payor, unless they specifically state that the support is binding on the debtor's estate. Lippolt v Lippolt Estate, 2015 ABQB 118 at para 92 held that a separation agreement setting out spousal support can bind the estate as long as there's an enurement clause though. Support might even still be payable if the recipient dies, which is absurd.

The issue is that if for example an agreement provides for spousal support of $3000 per month for 10 years, that's $360,000, which could be the entire estate, meaning that the former spouse could receive everything, even if there are dependent children from a new relationship.

Instead, they should be making a claim for Family Maintenance & Support against the estate. FMS claims look at the remaining property and try to find a way to fairly allocate it between all of the dependents. That way one dependent doesn't automatically get a leg up over the other dependents.

85% in favour out of 13 votes

Proposal: Unless recurring or in substitution of income, withdrawals from registered investments and capital gains should be excluded from guideline income
Child Support - Aug 15, 2021

Ken Proudman of BARR LLP (Alberta)0 Comments

It's a common scenario: one spouse finances their legal fees by withdrawing their investments, and another spouse finances their legal fees by using income, bank account or loans from family. If they were both payors, the first spouse would have to pay increased child support, while the other would not. Similarly, where the parties sell a rental property or business to address the division of their property, one spouse may have to pay additional child support on their share of the property.

In some contexts such as high income earners, we ask whether each additional dollar would truly be used to increase the children's lifestyle especially if non-recurring, but otherwise there is no general discretion to exclude these amounts.

By limiting it to non-recurring amounts, that would exclude people who are in the business of selling assets (eg someone who flips houses). If someone is relying on their savings instead of working, that could be addressed through imputation.

74% in favour out of 19 votes

Proposal: Section 7 expenses should be split based on incomes after spousal support is determined, not before
Child Support - Aug 15, 2021

Ken Proudman of BARR LLP (Alberta)1 Comment

The Revised User's Guide to the Spousal Support Advisory Guidelines states "Section 7 expenses must be taken into account under the with child support formula. This continues to be the single most common and most significant mistake under the SSAG. The failure to consider s. 7 contributions will inevitably lead to the payor paying too much spousal support, possibly way too much if the s. 7 expenses are substantial."

The problem is that we often don't know what those expenses will be, they change over time, and reviewing receipts and agreeing on the annual amount is often not very cost effective to negotiate. Because this is such a common error, there are many payors who are paying around half of their income to the recipient and also paying a significant majority of section 7 expenses, which isn't a fair allocation of income.

This could be easily addressed by calculating the proportionate share of section 7 expenses after spousal support is calculated. So for example if the payor has 90% of the family income prior to support, but only 40% of family income after support (as calculated by ChildView or DivorceMate), then we make their share of section 7 expenses 40%.

The only issues that would need to be addressed would be a) where section 7 expenses are so high that they mean that no or much less spousal support should be paid (eg private school, nanny, where not justified by incomes); and b) it would be more difficult for judges to determine that proportion when they're just throwing out a somewhat-arbitrary amount of spousal support in chambers, so it would be imperfect until Specials, or they could ask counsel to calculate.

100% in favour out of 19 votes

Proposal: Add legislative criteria to consider when determining whether to implement shared parenting
Parenting (lawyers only) - Aug 15, 2021

Ken Proudman of BARR LLP (Alberta)6 Comments

We know that children generally benefit from having two very involved parents, and we know that there are scenarios where shared parenting would be dysfunctional. Courts can also be somewhat inconsistent, which likely leads to more litigation, to the detriment of children. Why not codify factors, while still leaving some discretion for unusual circumstances?

Here's an example of what that could look like:
Shared parenting shall be ordered except where:
a) Logistical hurdles such as distance, bussing, or employment schedules would make shared parenting impractical, would leave young children unattended, or would result in grossly excessive travel time for the children;
b) A parent lacks adequate accommodations for the child;
c) A parent lacks necessary skills, training, or equipment to attend to the needs of a disabled or special needs child;
d) The parents are in substantial conflict with each other, before trial or where there is also a significant disagreement on the evidence, and before parallel parenting can be properly instituted, except when the conflict is primarily the result of the unreasonable conduct of the parent seeking the majority of parenting time;
e) A parent poses a serious risk of physical, psychological, or developmental harm to a child because of their past conduct towards a child, demonstrated lack of basic parental knowledge, inability or unwillingness to follow the recommendations of a psychologist or teacher, violence, substance abuse, neglect, absence, or a mature child's resistance towards time with that parent;
f) A mature child's strong and justifiable preference to reside primarily with one parent;
g) Shared parenting for one child would result in prolonged absences from a sibling to which they have a strong connection;
h) A parent's housing or employment instability makes shared parenting an unlikely long-term arrangement;
i) A parent desires that their own parenting time be less than equal; or
j) Exceptional circumstances mean that shared parenting would not be in the best interests of the child.

Feel free to add others in the comments.

73% in favour out of 11 votes

Proposal: Always deduct estimated taxes and sale costs when dividing property and when accompanied by an accountant's estimate of taxes
Property - Aug 15, 2021

Ken Proudman of BARR LLP (Alberta)1 Comment

Subject to section 8 factors and exemptions, isn't the whole goal to leave each spouse with equal resources? We know that to pull money out of a house, you have to pay commission (likely 7% on the first $100,000 and 3% thereafter) as well as at least $1000 in legal and land titles fees. We know that if you elect to sell without a realtor, purchasers will generally be looking for a deal on the sale price. Each dollar in a bank account is simply worth more than each dollar in equity in a home. It's the same with taxable assets. Yet we often don't deduct taxes and sale costs unless there's an impending sale (except for taxes on RRSPs, which I don't understand the differential treatment other than that they're somewhat easier to calculate).

Some have argued that the sale costs and taxes may never be materialized during their lifetime, but isn't that the same with taxes on RRSPs? Doesn't it mean that they're just leaving their beneficiaries less when compared to other assets? Most assets probably will be withdrawn during someone's lifetime anyways, whether it's downsizing to a retirement home, selling a business, or using funds on retirement. Shouldn't the law be based on probably scenarios? At the end of the day, these assets are just worth less, and fairness requires that subject to s8 and exemptions, each spouse should have equal actual resources.

67% in favour out of 9 votes

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