What changes should be made to family law?

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: Summary Judgment Should be Available for Divorce and FLA matters
Other - Mar 1st

88% in favour out of 16 votes

Anonymous 2017
   Edmonton Region, Alberta

Rule 12.48 came in before Hryniak v. Mauldin.

I think it could be useful. Some scenarios

1) No kids. Simply divorce. Parties married for 30 days before separation, and now separated for 5 years. Statement of Claim issued for divorce only. Statement of Defence contests there has been a separation. Is this really something requiring trial? If evidence clearly shows there is no triable issue, why the extra steps?

2) Special chambers sorts out all parenting and support. Justice now sees there remain no further triable issues. Why not have summary judgment as an option to just get it done?

3) Parties are following an agreement they signed, and defendant is just not coming to the table to sign a divorce judgment. Again, no issues in dispute. Does plaintiff really need to be scheduling chambers to set the status quo in place and permission to file for divorce without consent?

I get that there are concerns about it potentially being abused, or not appropriate in murky situations of parenting, child support, spousal support, income, etc. But we could find a better middle ground. Perhaps no summary judgment without leave? Perhaps no summary judgment when there is no interim or final order for support?

Hryniak and Maudlin talks about the "culture shift" - trial should not be viewed as a default approach. Perhaps our rules should take this more seriously? And especially there may be a pragmatic purpose now with things being scheduled many months out that probably don't need that.

Just a thought I had, haven't really weighed the pros and cons, throwing it out there.

0 9 months ago

Ken Proudman Executive
 view Arbitrator profile
   Edmonton, Alberta

Another example is where the only asset is a home and no section 8 adjustments are being sought. Why not address that in Special Chambers? I completely understand why the right to a trial might be important where there are material facts in dispute, but there are definitely some simple disputes that can be resolved or at least narrowed in Specials.

Who knows, with the right case maybe the court would be able to evolve the jurisprudence to allow some straightforward property division matters to be heard in chambers based on Hryniak v Mauldin. I've raised it before but the opposing party ended up consenting to the matter being decided in chambers.

Specials doesn't always sort out parenting or support though, the idea is that you can still address each of those at trial. I'm sure that there are some disputes which are so straightforward that they should be decided without a trial though.

1 9 months ago - edited 9 months ago

Anonymous 2020
   Red Deer Region, Alberta

In absence of Summary Judgment, consider using Summary Trial process.

0 9 months ago

You must log in or sign up to reply to conversations.

© 2016 to 2023 Kenneth J. Proudman. DISCLAIMER: The tools, documents, and other information herein are not legal, tax, or accounting advice or opinions. This website contains content and files submitted by third parties, to which you download or view at your own risk. By using this website, you agree to release Kenneth J. Proudman, BARR LLP, and Miller Boileau Family Law Group from all present and future claims and liability, including liability arising from any negligence.