NCA Family Law common mistakes
NCA Family Law · Understand the traps and how to avoid them.
Treating the best-interests-of-the-child test as a single-factor inquiry and resting the analysis on whichever factor the facts emphasize (usually the child's stated preference or the status quo), without canvassing the statutory checklist and weighing each factor against the evidence.
Candidates memorize the statutory list but, under time pressure, collapse it into a conclusion. The preference of a child or a stable home is vivid and easy to argue, so it crowds out the harder analysis of each parent's ability to meet the child's needs, the history of care, and the effect of any family violence on parenting capacity.
What to do instead
Before writing, build a two-column table listing every statutory factor, the evidence supporting each, and the weight assigned. Explicitly address factors that cut against the client and explain why they are outweighed. Reserve a paragraph for the interaction between family violence and each parent's capacity and the child's safety.
Applying the wrong property regime by defaulting to the matrimonial home or to an equal split, rather than first characterizing each asset as family property, excluded property, or property acquired before the relationship, and tracing any increase in value.
The equal-division intuition from popular understanding of family law is strong, and candidates skip the characterization step because it feels preliminary. They also forget that the presumption of advancement and the treatment of gifts and inheritances differ by regime and jurisdiction.
What to do instead
Adopt a fixed sequence for every property question: identify the regime (statutory deferred sharing, community of property, or separate property with equitable adjustment); classify each asset by acquisition date and source; trace growth in excluded assets; apply any statutory presumption; then calculate the division. Show the sequence in the answer so the marker can follow it.
Confusing the grounds for divorce with the grounds for annulment, and asserting fault-based divorce or a voidable-marriage defect without identifying the specific statutory basis and the evidence required.
Terminology overlaps in ordinary speech, and older case law on fault and matrimonial offences lingers in study materials. Candidates state that a marriage is 'invalid' or that a spouse is 'at fault' without tying the claim to a recognized defect such as lack of capacity, prohibited degree, duress, or non-consummation within the permitted period.
What to do instead
Maintain a comparison chart separating divorce (breakdown ground plus separation period or other statutory route) from void and voidable marriages (defect, who may petition, time limits, and effect on property and children). For each fact pattern, name the statutory provision and the evidentiary burden before arguing merits.
Calculating child support from a bare income figure without applying the statutory table or formula, without adjusting for shared parenting time or split custody, and without addressing special or extraordinary expenses and undue hardship claims.
Candidates treat support as a simple percentage and overlook that the guideline amount changes with the parenting arrangement, that special expenses are apportioned separately, and that a hardship claim requires a comparison of household standards of living. They also fail to consider imputing income to a self-employed or underemployed payer.
What to do instead
Work the calculation in ordered steps: determine each parent's guideline income (including imputation), identify the custody arrangement and the applicable table or formula, add the parties' proportionate shares of special expenses, then test any hardship claim with the comparative-standard-of-living analysis. State the resulting figure and the assumptions behind it.
Treating a domestic contract as conclusive and enforceable without testing formation requirements, disclosure, independent legal advice, unconscionability, and the statutory power to set aside or vary for support and parenting terms.
Candidates read a signed agreement in the facts and move straight to interpreting its terms, forgetting that formation defects and inadequate disclosure can invalidate it and that child support and parenting arrangements are not fully immunized by contract.
What to do instead
Screen every agreement through a validity checklist before interpreting it: writing and signature formalities, full financial disclosure, independent legal advice or a waiver, absence of duress or undue influence, and no unconscionability. Then note which terms remain subject to statutory review, especially child support and parenting, and argue those separately.
Answering a spousal support question with a single entitlement conclusion and no quantification, or quantifying without addressing the statutory objectives, the condition, means, needs and other circumstances of each spouse, and any compensatory or needs-based rationale.
The entitlement and quantum stages blur together, and candidates are unsure how to use advisory spousal support guidelines, so they either stop at 'support is payable' or pick a number without justification. They also overlook the effect of a self-sufficiency clause or a prior support waiver in a contract.
What to do instead
Structure the answer in three stages: entitlement (contract, statute, or compensatory and needs-based grounds), quantum (apply the advisory range, then adjust for the statutory objectives and the parties' circumstances), and duration and review. Explain any departure from the range and address variation and termination triggers.
Asserting a restraining order or exclusive possession claim without establishing the statutory threshold, the relationship between the parties, and the specific feared conduct, or without distinguishing emergency protection orders from longer-term civil remedies.
Candidates conflate the criminal peace bond, the emergency protection order, and the civil restraining order, and they assume that any conflict in the home justifies an order. They also fail to plead the evidence of fear and the balance of convenience for exclusive possession.
What to do instead
For each protective remedy, state the governing statute, the eligible applicant and respondent relationship, the threshold (reasonable fear of harm, history of violence, best interests of the child), the available terms, and the duration and review mechanism. Then map the facts onto the threshold element by element.
Ignoring jurisdictional and conflict-of-laws issues when the parties, the children, or the assets are in more than one province or country, and proceeding directly to the merits without addressing which court may hear the matter and which law applies.
Candidates treat jurisdiction as a preliminary formality and focus on the substantive merits. They miss the distinction between the court's authority to decide and the recognition of a foreign order, and they overlook the child's habitual residence and the requirement to decline jurisdiction in favour of a more appropriate forum.
What to do instead
Open every multi-jurisdiction answer with a jurisdiction section: habitual residence or ordinary residence of the child, real and substantial connection for the spouses, forum non conveniens, the risk of conflicting orders, and the recognition rules for foreign divorces, support orders, and custody orders. Only then address the merits under the applicable law.
Addressing child protection only through the private custody lens, proposing a change in parenting arrangements instead of testing the statutory grounds for a protection finding, the least restrictive intervention, and the plan of care.
The same best-interests vocabulary appears in both areas, so candidates apply the private-law framework and skip the threshold question of whether the child is in need of protection. They also fail to discuss the agency's duty to consider kinship care and the court's power to supervise or terminate access.
What to do instead
Separate the two frameworks explicitly. In a protection answer, first apply the statutory definition of a child in need of protection to the facts, then consider the least intrusive disposition consistent with the child's safety, including kinship placement, supervision orders, and access terms, and identify the standard of proof and the parties' procedural rights.
Failing to identify the correct procedural vehicle and limitation period, such as bringing a variation application where an appeal is required, missing a time limit for a support or property claim, or omitting the financial disclosure and case conference steps that condition the relief.
Substantive law is studied more than procedure, so candidates know the right outcome but choose the wrong process. They also assume limitation periods run from separation rather than from the discovery of the claim or the triggering event, and they overlook the court's discretion to extend time.
What to do instead
For every question, add a short procedure note: the originating process, the limitation period and its trigger, any mandatory pre-trial steps, and the available remedies and enforcement mechanisms. Where a deadline has passed, address the extension test expressly rather than assuming the claim is lost.
Stating the legal rule without applying it to the specific facts, so the answer reads as a textbook summary that never reaches a conclusion on the client's situation.
Candidates memorize rules and reproduce them to demonstrate knowledge, believing that reciting the correct test earns the marks. The result is an answer that never resolves the disputed issue or advises the client on likely outcome and next steps.
What to do instead
Use an issue, rule, application, conclusion structure for each issue, and make the application section the longest. End each issue with a concrete prediction and the practical step that follows, and reserve rule statements for the minimum needed to support the analysis.