Family Law

For more comprehensive family law information go to:

nsfamilylaw

Click on a topic below to learn more.

Access

For more comprehensive family law information go to:

nsfamilylaw

Nova Scotia's family law changed on May 26, 2017.  The new law is called the Parenting and Support Act. The Parenting and Support Act applies to couples who are not married, couples who never lived together, and married couples who are separating but who are not seeking a divorce. It also applies to grandparents and other people connected to the child.

Access is a child's right to spend time with each parent or guardian. The Parenting and Support Act does not use the word access to talk about the child's right to spend time with each parent or guardian. The Parenting and Support Act uses new terms to replace "access":

  • parenting time:  the time a parent or guardian spends with a child, under an agreement or a court order

  • contact time: the time someone who is not the child's parent or guardian spends with a child, under an agreement or a court order

  • interaction: direct or indirect association with a child.  Interactions cover things outside of parenting or contact time, like
    • keeping in touch with a child by email, text, phone, letter, online, etc.
    • going to a child's school events, or outside school activities
    • giving or getting gifts from the child
    • getting information about a child's health, school and overall well-being, including photos

The federal Divorce Act, which applies to people who are divorced or divorcing, still uses the word access to talk about spending time with a child.

Both the federal Divorce Act and provincial Parenting and Support Act use the word custody to talk about where the child lives, responsibility for the child's care, and rights and responsibilities to make decisions about the child's care and upbringing.

What is parenting time or access?

Parenting time is the time a child spends with a parent or guardian, under an agreement or a court order. Generally, parenting time is a child's right to visit and have contact with their parents who do not live together.  Parents can make a parenting agreement, or the court can make an order outlining when parenting time will happen.

A child who is living most of the time with one parent (sometimes called the primary caregiver or primary residence) will usually have parenting time with the other parent. Children have a right to spend time with each parent, as long as the contact is safe and reasonable. Generally, children benefit from a relationship with both parents and parenting time will only be denied if a judge is satisfied that the child would be harmed if there is contact.

Broadly, a parenting schedule may include:

Flexible time:  There is no set schedule so the parents must be able to agree on the times each parent will spend with the child. As there is no set schedule, it allows the parents to make their own flexible arrangements. This kind of arrangement works best when the parents are getting along reasonably well and have a positive relationship and can work out parenting arrangements between them, or when either parent can't commit to a regular schedule because they work out of province or have a work schedule that frequently changes.

Specified time: Provides regular set times that a parent may have parenting time with the child. The parenting schedule may be set out in a court order, separation agreement or other written agreement between the parents. For example, an arrangement might be that on every second weekend the parent will pick up the child on Friday after work and return the child to the primary parent on Sunday afternoon.  A shared parenting arrangement is when the child’s time is shared equally between the parents.

Supervised time: This type of parenting time provides that time spent by the parent with the child must be in the presence of another adult. The schedule may be set out in a court order, separation agreement or other written agreement between the parents. This type of arrangement is made if the parents agree, or the court believes it is necessary to ensure the child is safe during visits with the parent.  Some areas of the province offer a supervised access service.  Contact the court office in your area for more information about supervised access, or in the Halifax area see: veithhouse.ns.ca. You'll also find information about supervised access online at nsfamilylaw.ca

How do judges decide the child's bests interests?

When a judge makes a decision about a child, he or she must always be guided by what is in the child's best interests. All parties will have an opportunity to provide information on what they feel is in the child's best interests.

Nova Scotia's Parenting and Support Act provides a specific list of factors a judge must look at in deciding what is in the child's 'best interests'. 

Some of these factors are:

  • Who took care of the child's physical, emotional, social and education needs in the past, and who has done so since separation? Is this arrangement working for the child?
  • Is each parent willing to support and maintain the child's relationship with the other parent?
  • Each parents ability to communicate and cooperate on issues affecting the child
  • How strong and stable is each parent's relationship with the child?
  • What are each parent's future plans for taking care of the child?
  • The child's wishes, if the child is old enough and it is appropriate
  • The child's cultural, linguistic, religious and spiritual upbringing and heritage
  • The impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed to it.

A judge looks at similar factors in deciding what is in the child's best interests under the federal Divorce Act, which applies to divorcing or divorced parents.

Both the Parenting and Support Act  and the Divorce Act also recognize that a child should have as much contact with each parent as is consistent with the child's best interests.  This is sometimes called the "maximum contact" principle.

In some cases, if the parties cannot agree, either party may request, or a judge may order, a Custody and/or Access Assessment, or for older children, a “Voice of the Child Report/wishes assessment.” A trained professional prepares the assessment and makes a recommendation to the court.   The assessment may be considered by the court. Parents are usually expected to contribute to the cost of the assessment based on their income and number of dependents.  You will find information about assessments online at nsfamilylaw.ca

When can parenting time or access be denied?

Generally, the court will only deny parenting time to a parent if it would put the child at risk of physical or emotional harm. Once there is a written agreement or court order about parenting arrangments, it can only be changed by further written agreement or a new court order.

One parent cannot deny the other parent time with the child unless there are concerns that the child may be harmed if visits takes place.

For example, a parent may be justified in refusing parenting time if the parent exercising parenting time appears impaired by alcohol or drugs when he or she arrives to pick up the child, or threatens to immediately take the child out of the province, or is taking the child to a place where the child may be in danger.

A parent cannot deny the other parent time with the child because he or she is not paying child or spousal support. Parenting time, child and spousal support are separate issues, and one cannot be used to bargain for the other.

A parent who feels that the other parent should be permanently denied parenting time, and there is an order or agreement in place, must apply to the court to ask that the order be changed,  or both parents must agree to change the written agreement.

If you are being denied parenting time then you may apply to court to request court ordered time with your child.

Family violence is a factor in determining parenting arrangements

Nova Scotia's Parenting and Support Act says that a judge must look at the impact of 'family violence, abuse or intimidation' in deciding on a child's best interests.  Under that law the judge must look at:

  • the nature and frequency of the family violence
  • how recently it happened
  • how it has harmed the child
  • any steps the person causing the family violence has taken to stop it from happening again
  • if the family violence affected the ability of the person who caused it to care for and meet the child's needs
  • whether it is appropriate to require cooperation between parents where there has been family violence.

If the other parent abused the child, a judge may deny them time with the child or order supervised access depending on the circumstances and the risk of further abuse.

If the other parent abused you but not the children, the judge will try to make an order that is safe for you. For example, the judge might order that the other parent have no contact with you, that a third person, such as a relative or neighbour, supervise while your children go with the other parent, or that the other parent remain in the car at the curb while you send the children out. Sometimes this ends the abuse. If the abuse continues, you can ask the court to make an order that the other parent have no time with the children at all. It is harmful to children to see a parent abused, even if the children are not abused themselves.

For more information, go to nsdomesticviolence.ca/ and www.nsfamilylaw.ca

Can parents be forced to spend time with their children?

No, but they might lose access rights as a result. Sometimes a parent who has access will not visit his or her child. This is called "not exercising access" and it can hurt your child, especially if the child expects to see the other parent at a certain time and he or she does not show up, or cancels at the last minute. If this happens on a regular basis, you should explain to the other parent how a “no show” affects the child.  For example, the child may believe he/she did something to cause the access parent to lose interest in seeing him/her. 

Courts will sometimes order that a parent go to counselling or take parenting classes and you can ask for this in court if the other parent has a history of not exercising access. If the parent still fails to exercise access, there is little you can do except try to help your children deal with it. Counselling may help the children to understand that it is not their fault.  Go to nsfamilylaw.ca for information about parenting after separation or divorce, including information about protecting children in difficult situations.

Some parents who fail to exercise access will later claim that access was denied. If you are concerned about this, you should keep a record of access requests and visits so that you can show that you did not deny access to the other parent.

If you are being denied access you may wish to file an application with the court to have your access set out in a court order.  If you have an order for access, you can ask the court to help you see your child.

Where do I go to get a court order dealing with parenting arrangements?

If you are in Halifax Regional Municipality or Cape Breton custody and access matters are dealt with by the Nova Scotia Supreme Court (Family Division). In other areas of the province, you go either to the Family Court or the Nova Scotia Supreme Court.  You'll find more information about which court to go to, and how to apply to court, online at nsfamilylaw.ca

All courts in Nova Scotia have staff who can help you identify what your options are, and the programs and services for parents who are dealing with issues such as custody and access.

Can an agreement or court order be changed?

Yes. Either parent can apply to have a written agreement or court order for custody or access changed.

If both parents don't agree with the change, the parent making the application must show that there has been a change in circumstances for the child or one of the parents significant enough to justify a change in the order or agreement. The parent must also show that the proposed change(s) is in the best interests of the child.

As the child grows older, parents may need to review the arrangements for access. Children outgrow access arrangements the same way they outgrow clothes and toys. An arrangement that works for a toddler may not work for the same child in elementary school. Access that worked well for a child in junior high may not suit a teenager.

Teenagers may want to decide for themselves how often they see each parent. There is no specific age when a child can choose which parent they will live with, or the time they spend with the other parent. Generally speaking, younger children need shorter, more frequent periods of access, while older children and teens can do well with longer access periods and more time between access periods. Younger children tend to need more routine (that is, to know that they spend Wednesdays and every other weekend with the other parent), while older children may prefer more flexibility.

More information about changing a custody or access order is online at nsfamilylaw.ca

For more information

Family Courts are listed in the blue pages of the phone book under 'Courts.' You will also find court contact information on the Nova Scotia Courts' website at: www.courts.ns.ca.

You'll also find lots more family law information online at nsfamilylaw.ca

For information about ways to resolve a family law problem without going to court:

Last reviewed May 2017

 

Child Support

For more comprehensive family law information go to:

nsfamilylaw

What is child support?

As well as a responsibility to take care of the physical and emotional needs of their child, parents have a financial responsibility for their child. When parents are not living together or have divorced usually the child will live with one parent most of the time, and has parenting time with the other parent. Child support is an amount of money paid to the parent with whom the child lives by the other parent towards the care and support of the child.

Do parents have a responsibility to support their children?

Yes, any person who has a child has a responsibility to support them. Parents who are separating or divorcing and have children must ensure that arrangements have been made for their support. The parent without custody will generally pay child support to the parent with custody. In Nova Scotia, children are eligible for support until they reach the age of 19.

Support may continue past this age if the child is in an educational program such as university or community college, has a disability and is not able to support themselves, or for some other reason is unable to become self-sufficient. There are federal and provincial Child Support Guidelines to help parents estimate the proper amount of child support. This promotes consistency and encourages out of court settlement by the parents.

How do I get support?

Child support can be arranged by coming to an agreement with your spouse on who will pay support and on the amount to be paid. Such an agreement can be verbal or written. If you cannot agree, you can apply to the court for an order for child support under either the Federal Divorce Act or the Nova Scotia Parenting and Support Act.

How much child support must be paid?

The federal and provincial governments have passed Child Support Guidelines to provide parents, lawyers and judges with a way to estimate a proper amount of child support. The federal Child Support Guidelines apply to divorcing and divorced couples. The provincial Child Support Guidelines apply to married couples who are not seeking a divorce, and to other parents or guardians seeking child support. Nova Scotia uses the federal child support tables to determine child support amounts. Under the Federal Child Support Guidelines, the starting point is the "table amount" of support using the child support tables. To that amount is added any contribution to "special or extraordinary expenses" such as child care, some education and medical expenses, or certain extracurricular expenses. 

Click here for Justice Canada's Child Support Online Lookup to determine how much child support should be paid.  Please note that the Federal Child Support Tables changed as of November 22, 2017. 

Use the 2006 Federal Child Support Tables to figure out child support amounts before December 31, 2011. 
Use the 2011 Federal Child Support Tables to figure out child support amounts from December 31, 2011 to November 21, 2017.
Use the 2017 Federal Child Support Tables to figure out child support amounts from November 22, 2017 onward.

Click here for information about the Nova Scotia  Child Support Guidelines.  Nova Scotia uses the federal child support tables to determine child support amounts.

Free paper copies of a a federal child support workbook (to help you calculate child support), and the child support tables, are available from:

  • Justice Canada's Family Law Information Line at 1-888-373-2222
  • family courts in the province.  Courts are listed under 'Courts' in the government section of the phone book, or go to courts.ns.ca for court contact information.

The workbook, which is called 'The Federal Child Support Guidelines: Step-by-Step', is also available on Justice Canada's website at justice.gc.ca, under 'child support'.

How long does a child support order last?

The judge decides how long the order will last based on the circumstances of each case. Usually the judge will order periodic payments (such as monthly payments) but can order a lump-sum payment (one large payment). Under the Divorce Act, a federal act, an order for child support will usually continue until the child is 19. Under the Nova Scotia Parenting and Support Act, an order for child support can continue until the child is 19. In either case, a judge may order that child support continue for a longer period if necessary, for example, if the child is attending university or has a disability that prevents him or her from supporting him or herself.

How do the Child Support Guidelines work?


The guidelines are based on the income of the paying spouse, the number of dependant children, and the provincial income tax rate.

Under the Guidelines, the amount of child support is based on the gross income, that is income before tax or deductions, of the paying parent. There are Guideline tables for each province that take into account differences in tax rates. Use the table for the province where the paying parent lives. Once you have the applicable child support table amount, relevant special expenses could be added and this may result in a higher amount of child support.

The Federal Child Support Guidelines are used if the parents are divorced or getting a divorce.
If the parents were not married or where they are married but not seeking a divorce, the provincial child maintenance guidelines are used. The provincial guidelines are modeled on the federal guidelines, and Nova Scotia has adopted the federal child support tables to determine child support amounts.

For example, in Nova Scotia, if the paying spouse has a gross income of $20,000 and there are two children the suggested monthly payment is $286 (December 31, 2011 onward).

Click here for Justice Canada's Child Support Online Lookup to determine how much child support should be paid. 

Please note that the Federal Child Support Tables changed as of November 22, 2017. 

Use the 2006 Federal Child Support Tables to figure out child support amounts before December 31, 2011. 
Use the 2011 Federal Child Support Tables to figure out child support amounts from December 31, 2011 to November 21, 2017.
Use the 2017 Federal Child Support Tables to figure out child support amounts from November 22, 2017 onward.

If you are negotiating child support with your spouse or partner, the guidelines will give you the base amount of child support you would expect a court to order. A judge may order more or less than the base amount for special expenses or in cases of undue hardship.

What are special expenses?

Special expenses may include:

  • Childcare costs for the care of the child while the parent with custody is at work, or is sick, disabled or training for employment.
  • Medical and dental insurance premiums and health related expenses over $100 per illness or event.
  • Extraordinary expenses for education programs that meet the child's particular needs, extra-curricular activities, and expenses for post-secondary education.

As a general rule, the actual cost of these expenses will be shared by the parents in proportion to their incomes.

What is undue hardship?

In some circumstances, a parent may claim undue hardship. Either parent may make a claim. Reasons for claiming undue hardship include:

  • A high level of debt incurred prior to separation or incurred to earn a living
  • Extraordinarily high costs related to spending parenting time with the child, for example, the child lives in Vancouver with the mother and the father lives in Nova Scotia
  • A legal responsibility to support another person or child, or
  • A responsibility to support a person who cannot obtain the necessities of life themselves.

In order for the court to consider a claim of undue hardship, the household standard of living of the parent making the claim must be lower than that of the other household. In these circumstances, the income of a new partner or other people living in either household will be considered. The income of these household members will not affect the amount of support. It is only used by the court to apply the test to calculate the standard of living of each household. The test is laid out in the Guidelines.

Can parents claim or deduct child support payments for income tax purposes?

This depends when the child support order was made.

The Income Tax Act was amended in 1997. Before the amendments the rules were that the paying parent could claim child support payments as a tax deduction, and the receiving parent had to claim the support as income. If your child support order or agreement was made before May 1, 1997, the old tax rules continue to apply, unless you get a new order or agreement or vary the order after May 1,1997.

Child support orders made or varied since May 1, 1997, cannot be claimed as a deduction by the paying parent and the receiving parent does not have to claim the support as income.

Can support be reviewed or changed if my income changes?

Yes. If the agreement is unregistered the parents can agree to change it.

If there is a registered agreement or a court order for child support, the person paying or receiving support can apply to the court to change the order if circumstances change. In the case of child support, judges do consider a change in income as a change of circumstance and will revise a child support amount so that it is consistent with the child support guidelines.

Or, if your registered agreement or a court order specifically allows for it, you may be able to use Nova Scotia's Administrative Recalculation of Child Support Program., without having to make a court application, pay a court filing fee, or negotiate with each other.  Click here for information about the Administrative Recalculation of Child Support Program.

Otherwise, if there has been no change since the original amount of child support was ordered or agreed to, a judge will not generally make a change.

What is the Maintenance (Support) Enforcement Program?

The Maintenance Enforcement Program (MEP) is a service provided by the provincial government to help parents collect child support. MEP has a 24-hour automated voice system called the Infoline. If you are enrolled in MEP and have received a personal ID number, you can call the line at 902-424-0050 (Halifax area) or 1-800-357-9248 (outside Metro) to get information on:

  • enrollment status
  • amount of last payment
  • present account balance
  • last six enforcement actions
  • general information on MEP.

What can I do if support payments are not paid, or are late?

If you have a child support order, and you are having trouble getting your money, you should contact the Maintenance Enforcement Program (MEP) at 902-424-0050 in the Halifax area, or toll-free at 1-800-357-9248 from anywhere else in Nova Scotia. The Maintenance Enforcement Program came into effect in January 1996 and child support orders made after that date by a court are automatically sent to the Program.

If you have a written agreement with your spouse but not a court order you must register it with the court first before the MEP will accept it.

Once your order is registered with MEP, the person paying child support makes payments through the program. The MEP then sends the payment to the parent receiving payments. If the payor fails to make payments, MEP may take action. Enforcement officers may garnishee wages or other payments due to the payor such as income tax refunds, Canada Pension Plan benefits and employment insurance benefits. They may also seize bank accounts and can require the Registrar of Motor Vehicles to suspend the payor's driving privileges.

All support orders made by either the Supreme Court including the Supreme Court (Family Division) or Family Court since January 1, 1996 are automatically registered with MEP. Once your order is registered or enrolled with MEP, only MEP can enforce the order. If you do not wish to be enrolled in MEP, you may request to "opt out." Both parties should send a letter requesting to opt out to MEP within 10 days of receiving a notice of enrollment. This applies to new orders only.

If you have been in MEP for a while and no longer wish to be, you may send a letter asking to withdraw from the program. This request may or may not be approved, and you will be notified of the decision.

If your order or agreement is not registered with the MEP, you can apply to the courts for enforcement of your order under the Maintenance Enforcement Act, but you will be responsible for taking any action required to enforce the order made by the court. If you have an order for support from the Supreme Court, you can file an application in court for an execution order. You will also need to file a sworn statement saying that the support is in arrears. You can also apply to the Nova Scotia Supreme Court for a contempt order. Before you do this you should speak with a lawyer.

Can court orders be enforced outside Nova Scotia?

Yes. Court orders to be enforced in all the provinces, the United States and also in several other countries. Orders made in these places can be enforced in Nova Scotia. Sometimes people ordered to pay support will disappear and you may not know where to find them. The provincial and federal governments have sources that may help to locate persons who are not paying court-ordered support. If you are registered with MEP, they will use these sources to attempt to locate the payor.

For more information

For more information on the Federal Child Support Guidelines you can call the federal Department of Justice toll-free at 1-888-373-2222, or visit their website at www.canada.justice.gc.ca.

Last reviewed November 2017

Children and travel

Here are a few tips to protect your children and avoid delays while travelling.

You will need certain documents when you cross international borders:

  • All children need a passport, no matter what their age. Contact Passport Canada  for information on how to apply, and to find out about new rules for passport applications for children under 16, effective December 1, 2011. 
  • If travelling alone or with only one parent or guardian, your child should carry a consent letter confirming permission from the other parent to leave the country. Click here for a sample letter (Foreign Affairs Canada), or you can see your family law lawyer to assist with drafting the consent letter.
  • Whether you have custody or access rights, or are the legal guardian of the child you are travelling with, you should carry a copy of the separation documents or court order giving you these rights.

If you think a custody dispute might arise, you should get legal advice before your child leaves Canada. Other countries may not recognize your child custody arrangements. See International Child Abductions: A Manual for Parents for more information. The Canadian Public Prosecution Service also has  information about Parental Child Abduction, including on the Hague Convention on International Child Abduction.

Double-check any court orders and agreements between you and your ex-spouse to make certain there are no limits on taking your child out of the province or country. If you are unsure, get legal advice.

Last but not least,  do not make firm travel plans until you have all required documents and consents.  Plan your trip abroad well in advance, and give yourself enough time to deal with any possible bumps in the road.

For more information, see Passport Canada's information on Travelling with Children, go to the Foreign Affairs website for information on Children and Travel, and visit nsfamilylaw.ca

Last reviewed January 2017

Child Protection Video & Info Booklet



Child protection matters are very serious.  It is essential that you get legal advice.  Contact Nova Scotia Legal Aid or a lawyer in private practice to get help.

If your children have been taken into protective custody, this is a difficult time for you and your family. This video and the information booklet can answer many of your questions. With the help of a lawyer, and the right attitude, you can work towards getting your children back, or to keeping them in your home if being supervised by the agency. Watch all seven chapters in order. Later, you can watch the chapter that’s about the next step you’re about to take in the court process.

For the video in English – Click Here.

For the video in the Mi’kmaq language – Click Here.

See the Child Protection Information Booklet: What you need to know when Child Protection takes your children into care

This video and the booklet will answer some of your questions:

  • What has happened?
  • Where are your children?
  • When can you see them?
  • What can you do to make sure your family stays together?
    Important:
  • This video is for adults.
  • Do not watch it with your children.
  • Watch it with your lawyer, a social worker, or a support person.
  • Ask questions and get help as you go through the child protection process.


Go to nsfamilylaw.ca for more information about Child Protection.

The video was produced with the collaboration of the Nova Scotia Supreme Court Family Division, Executive Office of the Nova Scotia Judiciary, Nova Scotia Legal Aid, Nova Scotia Department of Community Services, Nova Scotia Department of Justice, with funding from The Law Foundation of Ontario. While financially supported by The Law Foundation of Ontario, the views expressed in this video production do not necessarily reflect the views of The Foundation.

Common Law Relationships

For more comprehensive family law information go to:

nsfamilylaw

What is a common law relationship?

A common law relationship is one in which two people live together but are not legally married to each other. For the relationship to be common law the couple must live together in a 'marriage-like' relationship, for example, by sharing finances, and publicly referring to themselves as partners or spouses.

How long must a couple live together before they are common law spouses?

There is no set time period. Provincial laws give you some rights for support after you have lived together for two years. Employers and insurance companies may have their own policies for defining a common law spouse for the purpose of deciding who qualifies for company or medical benefits.

Can common law couples register their relationship with the provincial government?

Yes.  Couples can choose to register a domestic partnership with Vital Statistics at Service Nova Scotia. For information contact Vital Statistics at 902-424-4381 or 1-877-848-2578 (toll free) or through their website at novascotia.ca/sns/access/vitalstats.asp.  Once a domestic partnership is registered, the partners will have many of the same rights, benefits and obligations as a married couple, such as pension benefits and the division of assets at separation or death. For specific information on these rights and benefits, you should talk to a lawyer.

Can common law couples put the terms of their relationship in a written agreement?

Yes, you can have a cohabitation agreement whether or not you register your domestic partnership. A cohabitation agreement is a document that says what has been agreed upon by the common law partners. It can cover whether one partner will take the other’s name, their financial arrangements, who will take most responsibility for caring for any children, and how property and debts will be divided if the relationship ends.

You and your common law partner can enter into a cohabitation agreement before you start living together or at any time during the relationship. You should both get separate legal advice before you sign any agreement.

How does a common law relationship end?

The relationship ends when you stop living together. You do not have to go through a divorce to end a common law relationship. Although the relationship ends, some rights and responsibilities may continue.

At the end of the relationship, you and your common law partner may be able to agree on parenting arrangements for the children, how the property will be divided and how you will deal with debts. You may already have set out the terms of the separation in a cohabitation agreement. If you do not have a cohabitation agreement and you cannot agree on the terms of the separation, you can go to court and have a judge decide.

If you have a Registered Domestic Partnership, you must formally end the partnership by:

  • Filing a joint “Statement of Termination” with the office of Vital Statistics; or
  • Registering a signed written separation agreement with the Family Court or with the Supreme Court (Family Division) if you are in Halifax Regional Municipality or Cape Breton and then file proof of the registration with the office of Vital statistics; or
  • Filing, with the office of Vital Statistics, a sworn written statement by one or both spouses that you have be separated for at least a year; or
  • One partner marrying someone else. A copy of the marriage certificate must be filed with the office of Vital Statistics.

Who has custody of and parenting time with the children at the end of a common law relationship?

Both parents have joint custody of their children if they have lived together. If they separate, they can agree on custody and parenting time with the children and detail the agreement in a separation agreementt. If they cannot agree, either can apply to the Supreme Court (Family Division) in Halifax Regional Municipality and Cape Breton or the Family Court in other parts of the province for court orders on custody and/or parenting time. For more information please go to nsfamilylaw.ca

Can I get financial support from my common law spouse?

Spousal support — In Nova Scotia, common law partners who have lived together for at least two years may have responsibilities to provide financial support for each other. If you have a Registered Domestic Partnership there is no two year waiting period.

If the relationship ends, either common law spouse can apply to Family Court or Supreme Court (Family Division) in Halifax Regional Municipality and Cape Breton for a spousal supportorder. If you are applying for support for yourself or your children, you should talk with a lawyer. For more information go to nsfamilylaw.ca on spousal support.

Child support — All parents (birth, adoptive, or step-parents) are required to support their children even when the parents are not married to each other or never lived together. For more information go to the section on Child Support.

Am I responsible for my spouse’s debts?

If you co-sign for loans with your spouse, you are each responsible for repaying the loan. You are not generally responsible for your spouse’s debts unless you co-sign for them. However, if the debt is for something that is used for the family such as fuel oil or food, you may be responsible along with your spouse.

If my common law partner dies who gets his or her property?

Your common law partner may provide for you in his or her will. If there is no will and you have a Registered Domestic Partnership, you will have the same rights as a married spouse. If you do not have a Registered Domestic Partnership, you may have a claim against your spouse’s estate depending on the circumstances. If there are dependent children from the relationship, they may also have a claim against the estate.

If you own property jointly with your common law spouse, you may have a claim against the property even if there is no will.

If you think that you or your children have a claim against your spouse’s estate, you should talk with a lawyer as soon as possible.

If you want your common law spouse to inherit all or part of your property, you should make a will.

Click here for more information about making a will.

For more information

For more information about common law relationships go to nsfamilylaw.ca

For information about common law couples and property division, go to http://www.nsfamilylaw.ca/separation-divorce/common-law/property-pensions-debts

 Last reviewed December 2016

Divorce - Custody Support Property

For more comprehensive family law information go to:

nsfamilylaw

Q- Can I get a divorce now, and deal with custody, access (parenting time), support and division of property and debts later?
No. In Nova Scotia, the court cannot grant a divorce until all of these other issues are decided. This means that the divorce process can often take 12-24 months or more, if you have not resolved all the issues.

Q- I need spousal or child support. Do I have to wait until I'm divorced to get it?
No. You can apply to the court for spousal or child support any time after you separate.

Q- Where can I get more information on child custody and access (parenting time)?

  • Visit the Nova Scotia Family Law  website: nsfamilylaw.ca
  • Call the Legal Information Society's free & confidential Legal Information Line at 1 800 665-9779 or 902-455-3135
  • Contact Nova Scotia Legal Aid for family law help: https://www.nslegalaid.ca/
  • Click here for other ways to get legal information or legal advice.

Q- How much child support should I pay/receive?

 The Federal Child Support Guidelines, developed by the federal government, are rules for deciding the amount of child support when a couple divorces. The amount of child support varies with income, number of children, and some other factors listed in the Guidelines.  Go to justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp to look up child support amounts.

Nova Scotia has almost identical Child Maintenance Guidelines for married couples who separate but are not seeking a divorce, for common law (unmarried) couples who separate, and parents who did not have a common law relationship or marriage.  Go to justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp to look up child support amounts.

The Guidelines basically calculate child support as follows:

The starting point is the use of tables that set out how much the parent paying support should pay depending on two factors:
1. the parent's total income; and
2. the number of children.

The income of the parent who has custody is only relevant in limited circumstances.

Each province has its own set of tables because the income tax rates are somewhat different from province to province. The table for the province where the paying parent lives is the table that applies, rather than the table in the province where the child lives. In Nova Scotia the table used under the Child Maintenance Guidelines is published under the Federal Child Support Guidelines, so you can use the federal child support table to figure out child support payable.

The Guidelines set out specific situations where child support may be set higher or lower than the table amount:

* A child has special expenses (see below). These may only be claimed by the parent who has custody or with whom the child lives;
* A child is the age of majority (19 in Nova Scotia) or older but is still dependent;
* The paying parent's income is more than $150,000;
* The paying parent is a step-parent who has acted as a parent to the child;
* Each parent has at least one child living with him or her (split custody) or both parents have the children at least 40% of the time (shared custody);
* The paying parent can prove that paying the table amount of support would cause that parent undue hardship.

If any of these situations applies to you, calculating child support is a bit more complicated and it would be wise to talk to a lawyer.

For more information about child support go to:

Q- What are special or extraordinary expenses?
Courts can order extra child support in addition to the table amount to cover special or extraordinary expenses. Sometimes these are called add-on expenses, or 'section 7' expenses, as section 7 of the Child Support Guidelines covers these expenses.

The basic rule is that the cost of these expenses is shared between the parents in proportion to their incomes.

For example, If John Doe earns $65,000 per year and Jane Doe earns $35,000 per year, they would add their incomes ($65,000 + $35,000 = $100,000) and John would pay 65% of any special expenses, and Jane would pay 35%.

The Guidelines recognize the following expenses:

* child care expenses while the parent who has custody is at work, school (employment training), or as a result of illness or disability
* health insurance premiums for the children
* other health related expenses for the child that exceed insurance coverage by $100 per year
* post-secondary educational expenses
* extraordinary educational expenses (primary, secondary or post-secondary) that meet your child's particular needs; and
* extraordinary expenses for extracurricular activities.

Special expenses must be reasonable and necessary for the child's benefit, considering both parents' incomes and spending patterns before separation.

Where either parent has medical or dental coverage available at a reasonable rate, the Court may order that coverage be acquired or continued for any children.

For more information about special expenses go to:

Q- Is child support still tax deductible under the Child Support Guidelines?
No. Income tax laws changed at the same time as the federal Guidelines came into effect (May 1, 1997). In any orders or agreements made after May 1, 1997, the parent paying child support does not deduct the payments from his or her taxable income. The parent receiving child support does not declare the child support received as part of his or her taxable income. Spousal support payments continue to be tax-deductible in most cases.

If you and your spouse had a written child support agreement or court order dating from before May 1, 1997, the parent paying support may be able to continue deducting child support from his or her taxable income and the parent receiving support can continue declaring the child support as income, at least until the agreement or order is varied in some way.

Contact the Canada Revenue Agency for more information, or talk to a lawyer or accountant for details.

Q- Where can I get a copy of the Child Support Guidelines?
The Child Support Guidelines are available on the federal Department of Justice family law pages - justice.gc.ca/eng/fl-df/. To figure out how much child support applies in your case, you should look at the Federal Child Support Guidelines: Step-by-Step publication from the federal Department of Justice, which is available online at  www.justice.gc.ca .  You can also call the federal government at 1 888-373-2222 to get a copy, and for more information about the Guidelines and free family law publications.  Go to justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp to look up child support amounts.

Q- What is spousal support?
Married spouses have a legal duty to provide for each other. Spousal support (also known as maintenance) is financial support provided by one spouse to the other after separation according to a written agreement or court order. Support can be periodic (usually monthly), lump sum, or both. If support is periodic, it can be time-limited or have no set ending. Support orders can be made on an interim basis - a temporary order before a divorce or separation agreement,  or on a final basis. Even final spousal support orders can sometimes be varied (changed) if there is a significant change in circumstances. 

For more information about spousal support go to:

Q- What factors does the court consider in deciding spousal support?
The court will not make a spousal support order unless the spouse seeking support proves they need support. The other spouse must have the ability to pay support.

The court will also look at whether there are any economic advantages or disadvantages to either spouse arising from the marriage or separation, the financial consequences of caring for children, relieving economic hardship caused by the separation, and promoting the economic self-sufficiency of each spouse within a reasonable amount of time. Spousal support is a complicated area of law, so it is a good idea to see a lawyer.  You'll find more information at nsfamilylaw.ca

Q- What are the Spousal Support Advisory Guidelines?
The federal Department of Justice published Spousal Support Advisory Guidelines  in an effort to make calculation of spousal support more predictable. Unlike the Child Support Guidelines, spouses, lawyers, and judges are not required by law to follow the Spousal Support Advisory Guidelines, but may choose to do so.  The Guidelines do not deal with the question of whether a spouse is entitled to support. Once it is determined whether there is an entitlement to spousal support (legal obligation to pay), the Guidelines can help to determine how much support should be paid, and for how long.

There are two formulas in the Spousal Support Advisory Guidelines, one for spouses with dependent children and one for spouses without dependent children. Support for spouses with dependent children is based on the difference in the spouses' net (after tax) incomes and the amount of child support paid. Support for spouses without dependent children is based on the gross (before tax) difference in the spouses' incomes and the length of their marriage. The formulas are quite complicated and you will probably require the assistance of a lawyer to use them.

 For more spousal support information go to nsfamilylaw.ca

Q- What is Matrimonial Property?
Each province has its own laws setting out how divorcing spouses should divide their property. In Nova Scotia, this law is called the Matrimonial Property Act.  It allows married spouses and registered domestic partners to divide property equally after separation, unless it would be unfair to do so.  The Matrimonial Property Act applies to married spouses and registered domestic partners.  It does not apply to common law couples.

Q- What are matrimonial assets?
The Matrimonial Property Act states that the matrimonial home and all assets brought into the marriage and acquired after the marriage are presumed to be matrimonial assets that should be divided equally after separation. Here are some examples:

* your family home and cottage;
* furniture and appliances;
* cars, trucks and campers;
* cash in the bank;
* investment accounts, stocks and mutual funds;
* RRSPs;
* Pensions, including employment pensions and Canada Pension Plan contributions.

Some types of property are not matrimonial assets. The law presumes that these types of property will remain with the person who owns them:

* gifts, inheritances or trusts received from someone other than your spouse, except to the extent they are used for the benefit of the family;
* money awarded to one spouse after a trial, unless it is in relation to a matrimonial asset;
* money paid under an insurance policy, but not in relation to a matrimonial asset;
* reasonable personal possessions, such as clothing and jewelry;
* business assets;
* property acquired after separation, unless the spouses reconcile;
* property excluded under a marriage contract or separation agreement.

The law does not require that each asset be divided; rather, the value of all the assets is calculated and the property is divided so each spouse receives assets with the same overall value.

Q- Should we divide our property equally?
The Matrimonial Property Act provides that all "matrimonial assets" should be divided between the spouses equally, unless an equal division would be unfair. An equal division might be unfair if:

* the marriage was short and one spouse brought in significantly more assets than the other;
* one spouse wasted or destroyed assets belonging to both spouses;
* one spouse built a successful business while the other spouse looked after the home or children;
* one spouse contributed to the education or career development of the other spouse; or
* one spouse would have to pay a lot of taxes because of the division of assets.

These are just a few common examples.

If an equal division of property would be unfair, the court can divide matrimonial assets unequally, or divide property that is not a matrimonial asset, in order to make things fair to both spouses.

See the page on matrimonial property for more information.

Q- What about pensions?
Employment pensions and Canada Pension Plan contributions are matrimonial property and are divided after separation. The general rule is that only the portion of the pension earned during the marriage is divided. If you lived together before you married, this time is counted as time during the marriage. Pension earned after separation is not counted.  Contact Canada Pension (Service Canada) at 1 800 277 9914 or go to the Canada Pension Plan's credit splitting web page for information about Canada Pension credit splitting. The Nova Scotia Family Law website - nsfamilylaw.ca, also has helpful information about pensions.

Q- How do I know what an employment pension is worth?
Pensions are valuable assets. For many spouses, an employment pension is worth as much, or more, than the matrimonial home. If one spouse is keeping his or her pension, you will need to have the pension valued to know how much the other spouse should receive to keep things equal.

To value a pension, you will need to get information from the employer's pension plan administrator. He or she can provide you with some basic information about the type of pension, contributions, and interest. You will then need to take this information to an actuary, a type of statistician. The actuary performs some very complicated math and then gives an opinion as to the value of the pension. A pension valuation from an actuary costs a few hundred dollars.

The other option is to divide the pension, with each spouse receiving a share. If this is done, the pension does not need to be valued separately. To divide a pension you will need a court order called a Corollary Relief Order (or Corollary Relief Judgment), which is then given to the pension plan administrator. The pension plan administrator can tell you how much each spouse will receive after the pension is divided.

Pension law can be complicated. If you or your spouse has a pension, you should speak with a lawyer.

Q- My spouse won't agree to give me any information about his or her pension. What do I do?
You should send a written request for information to your spouse's pension plan administrator. He or she is required by law to give you information about your spouse's pension.

Q- Am I responsible for my spouse's debts?
It depends on whether you co-signed for the debt or your spouse took on the debt him or herself. If you co-signed for the debt, you are equally responsible for it and the creditor can choose to pursue either or both of you for the money. If you did not co-sign the debt, you are not responsible to pay it unless a court orders you to do so.

Matrimonial debts can be divided just like matrimonial assets, but there is no law that matrimonial debts must be shared equally. Courts look at many factors in deciding how to divide matrimonial debts.

Spouses may agree that one of them will be responsible for a joint debt but unless the creditor also agrees, and takes the other spouse's name off the debt, if the debt isn't paid the creditor can still seek payment from both spouses.

If you are concerned about being responsible for joint debts after separation, you should call each creditor and explain that you are separated and ask about your options. If you decide to cancel any credit arrangements, you should do so in writing and keep a copy of the letter.

Q- Where can I get more information about dividing our property, including debts?

  • Call the Legal Information Line at the Legal Information Society of Nova Scotia at (902) 455-3135 in the Halifax Regional Municipality or toll free at 1-800-665-9779 elsewhere in Nova Scotia.
  • Read the matrimonial property page on the Legal Information Society's website.

The best way to obtain information specific to your situation is to talk to a lawyer.

Q- What is a separation agreement? Do I need one?
A separation agreement is a type of contract setting out how spouses have decided to deal with custody, access, support, and a division of property. It should be in writing, signed by both spouses, with each signature witnessed. The witness should be another adult.

Both spouses should get legal advice from a lawyer before deciding whether to sign a separation agreement. This is called getting independent legal advice. When you get independent legal advice about a separation agreement, your lawyer will sign a page at the back of the agreement called a certificate of independent legal advice, to prove you spoke to a lawyer before signing it. You and your spouse each need your own lawyer.

Most separating spouses have a separation agreement, which is then used to set the terms when one spouse applies for an uncontested divorce.

It is possible to get an uncontested divorce without a separation agreement but you will still need to agree on everything with your spouse and put this agreement into a court order called a Corollary Relief Order.

Q- How do I get a separation agreement?

You and your spouse can try to reach agreement in several ways. You can:

* negotiate the terms of an agreement directly with your spouse;
* hire a lawyer to negotiate for you;
* hire a mediator to assist you and your spouse in reaching agreement;
* file for divorce and ask a court conciliator to assist you in reaching agreement. A court conciliator is a court officer who can help you identify the issues involved in your case, ensure that you and your spouse exchange full financial disclosure, assist you in reaching an agreement, and refer your case to a mediator or judge if you and your spouse are unsuccessful in reaching agreement.

Mediators and conciliators cannot give legal advice. They do not decide issues for you and will not force you to reach an agreement. Conciliators can order a spouse to provide full financial disclosure and make limited orders for child support.

There are significant risks involved in trying to negotiate and sign a separation agreement without hiring a lawyer. If you do not have legal advice about your rights and obligations, you may forget to deal with an important issue or agree to something that is very unfair to you or your spouse without realizing it. If you make a mistake it can permanently affect your rights.

At minimum, both spouses should talk to a lawyer before signing any separation agreement. This is called getting independent legal advice. The lawyer will review the agreement with you and make sure you understand what it means and how it will affect you. A lawyer can explain your rights and obligations and may be able to give you an opinion as to whether the agreement is fair or not.

Once you agree to the terms of a separation agreement, it is very difficult to change unless you and your spouse both agree to change it.

Q- What should we put into our separation agreement?
Some of the matters you and your spouse will want to deal with in a separation agreement include:

* what type of custody and access arrangements you will have for your child(ren);
* child support (the minimum amount allowed by law is set out in the Federal Child Support Guidelines;
* whether either spouse will receive spousal support, how much, and for how long;
* how the family's property and debts will be divided;
* what procedure you will follow if either spouse wants to change something in the agreement later.

You will also want to think about any tax issues that arise as a result of your separation.

Q- I already have a separation agreement. What do I do next?
If you and your spouse have already signed a separation agreement, you can proceed to ask the court to grant an uncontested divorce if you have been separated for more than a year.

If you signed your separation agreement some time ago, you should re-read it to make sure that the custody, parenting time (access), and support arrangements in it are still up to date. If you and your spouse can agree on the new arrangements, you can put them in your uncontested divorce. If you cannot agree, you will need to settle the new issue(s) or apply to court for a variation before you apply for an uncontested divorce. If you get an uncontested divorce based on out of date parenting or support arrangements that are no longer followed, this can make it difficult to update them later, unless both spouses agree. You are required to give the court the most up to date information you have.

For more information on separation go to:

Last updated May 2017

Going to family court without a lawyer?

Going to court on your own, without a lawyer, is called representing yourself. There are things you can do to help yourself to prepare and present your case.

Reading the 'Going to Court: Self-represented Parties in Family Law Matters' workbook is a good place to start.

The 'Going to Court' workbook contains information on:

  • getting legal advice
  • proving your case
  • what the hearing process is like
  • what happens at the end of the hearing

Click here to go to nsfamilylaw.ca, and download the workbook.  The workbook also contains worksheets and checklists that will help you to prepare your case for court.

This workbook was a collaborative effort between the Nova Scotia Judiciary, the Nova Scotia Department of Justice Court Services, and Nova Scotia Legal Aid.

August 2015

Grandparents rights

Go to nsfamilylaw.ca to find legal information for grandparents who want to know how they may be able to reconnect or maintain contact with their grandchildren. You will also find information on nsfamilylaw.ca for grandparents who may be making an application to the court for contact time or interaction with or custody of their grandchildren.

Guardianship of a Minor

For more comprehensive family law information go to:

nsfamilylaw

Q - If I die who takes care of the children?

A- Usually, if the child's other parent is alive, he or she takes care of the children. The surviving parent becomes sole guardian if you have been living together or if you have joint or shared custody. However, the two of you may want to appoint each other in your wills or in a guardianship document, and also in your separation agreement if you are separated. This backs up your wishes in case someone (a grandparent, for example) should apply to be made guardian instead.

If you are a single parent with sole custody, the situation is much the same. Generally speaking, the child's other parent still has the right to become guardian if something happens to you. However, as a single parent it is more important that you appoint the other parent in writing. It could make things more straightforward if the time should come when a child needs a guardian.

If you are a single parent with sole custody and don't want the other parent to be guardian, you can name someone else as guardian. You should see a lawyer about this. The child's other parent may contest your choice in court and will probably be appointed guardian, unless the judge decides he or she is unsuitable.

A lawyer can help you write a statement of your wishes and concerns, and can make sure that your reasons for choosing someone else are clearly documented. Your statement can be critical to the court's decision.

Q - What happens if parents die without appointing a guardian?

A - The Court will choose a guardian from those who step forward. If no one does, the child will become the ward of a Children's Aid Society or other appropriate agency.

Q - How long does a child need a guardian?

A - Until age 19, the legal 'age of majority' in Nova Scotia.

Q - How do I appoint a guardian for my child?

A - There are two types of guardianship under Nova Scotia's Guardianship Act:

1) the first is care and custody of the child, where a "guardian" is appointed;
2) the second is management of the child's share of an estate, where a "trustee" is appointed.

You can appoint a guardian either in your will or in a separate guardianship document (a separate paper signed and witnessed with the same formalities as a will). A separate document is often recommended because it can be used if you are alive but can't communicate - for example, if you are in a coma.

You can hire a lawyer to do the paperwork and be present at the signing, or you can do it on your own. However, it is a good idea to check with a lawyer to make sure your wording is clear and that you have followed correct procedures.

You will need two adults to sign and witness your signing of the document. They must be at least 19. Neither they nor their spouses can stand to gain any money from the document they are signing. For example, if you are appointing the guardian in your will, the witnesses cannot be your beneficiaries (people who are entitled to receive something under your will).

Q - Are there any rules about who can be a guardian or a trustee?

A - They must be 19 years or older, and mentally competent. This means that they must be competent to make decisions and understand the consequences of their actions. You should also make sure that they are willing and feel able to take on the responsibility of caring for your child.

Q - Must the Court approve my choice of guardian?

A - No. There is no process of registration or approval. If something happens to you, the person you have appointed will automatically become guardian. Your choice will stand unless someone appears before the Court and successfully contests it.

Q - What Court looks after guardianship?

A - In the Halifax Regional Municipality and Cape Breton the Supreme Court (Family Division) hears cases involving guardianship and in other parts of the province the Supreme Court of Nova Scotia.

Q - Does the guardian also become responsible for the money or property I leave to my child?

A - No. Under Nova Scotia's Guardianship Act, a "guardian" is appointed to have care and custody of the child and a "trustee" is appointed to manage the child's share of your estate.

You can also appoint someone to look after the financial side of things by naming them as 'trustee' in your will, stating that they will hold the child's share of your estate in trust.

The trustee will manage the funds or property until your child reaches adulthood, making financial decisions about investment, etc. Also, the trustee will provide your child's guardian with funds from your estate to cover, or help with, the costs of raising your child. In your will, you can set out terms and instructions for the trustee to follow.

Q - Can I name the same person as guardian and trustee?

A - Yes, and this is what usually happens. However, if you are unsure whether the person you want to name as guardian can handle both tasks, you should talk with your lawyer.

Q – Does a trustee have to be bonded?

A - Generally, no. The trustee may have to be bonded if he or she is also the executor of your will, or if he or she does not live in Nova Scotia.

Q - If the guardianship is contested, how will the Court decide?

A - If the person contesting your choice is the child's other parent, he or she will probably be appointed guardian unless the court has reason to believe he or she is unsuitable.

In all other cases, the court will consider all parties equally and base its decision on what is best for the child. Your wishes will be taken into account and given considerable weight. However, the court may overrule you if the person you have chosen is unsuitable (involved in crime, for example), or if the contesting party presents a strong enough case.

The factors the judge may consider include:

  • how well the child knows the person,
  • whether there is a blood relationship,
  • how much the child's life would be disrupted (for example, by having to move), and
  • if there are siblings, whether they would be able to stay together.

Children's wishes may also be considered, and will be given particular weight if they have reached age 14.

Q - What if I die without appointing a trustee?

A - In this case, a "guardian of property" will be appointed by the Supreme Court to manage the child's share of your estate. The Court will choose someone who steps forward and is found to be suitable.

Generally, in the case of a court appointment, the person will have to be bonded. This means he or she will have to provide a personal bond, or arrange for a 'surety bond' through an insurance agent. Bonding can be a complicated process. Generally there are fees involved, which are charged to the estate.

The purpose of bonding is to provide a financial safety net. It protects the child from any financial misconduct by the trustee.

If no one makes an application to be appointed guardian of the finances of the child under the Guardianship Act  the Public Trustee of Nova Scotia is automatically the guardian of the finances or estate of the child's property.  The Public Trustee of Nova Scotia is without court order the guardian of the finances/property of every child who resides in Nova Scotia.  No court appointment is required for the Public Trustee to act.  As well, the Public Trustee is authorized to receive funds on behalf of any child if there is a gift or money coming to the child but no guardian or trustee has been named.  For example, if a child is the beneficiary of a life insurance policy but no guardian or trustee has been named to handle the proceeds, the Public Trustee may receive and manage the proceeds of the policy on behalf of the child until he or she reaches the age of nineteen.

The Public Trustee will manage and hold the funds in trust for the child until the child reaches the age of nineteen which is the age of majority in Nova Scotia.  When the child reaches the age of majority the funds will be turned over to the child.

Q - What if I have no money or assets to leave for my child?

A - In this case, the guardian who has care and custody of your child will have to provide financial support. There are some government departments that can help. The guardian can apply to Child Tax Benefits to receive the same assistance that a parent would receive. Also, the Canada Pension Plan provides monthly benefits to children with a parent who has died, provided that the deceased parent paid into Canada Pension. These benefits go to the guardian until the child turns 18. They are then paid directly to the child, if he or she is still enrolled in an educational institution, until age 25.

Q - Where can I get more information?

PO Box 685
5670 Spring Garden Road, Suite 405
Halifax, N.S. B3J 2T3
(902) 424-7760

1-800-387-1193 (toll free)

1-800-277-9914 (toll free)

Last updated January 2017

Marriage

For more comprehensive family law information go to:

nsfamilylaw

Q - What is marriage?

A - As of July 2005, 'Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.'

Q - Who can marry?

A - Anyone over 19 years of age may apply for a marriage licence in Nova Scotia. If you are under 19 years of age you must first obtain the consent of both parents. If you are under the age of 16 years you must have the consent of both parents and also get the consent of the Court before you can marry. Your local Deputy Issuer of Marriage Licences has the required consent forms. For a list of Deputy Issuers of Marriage Licenses visit http://www.gov.ns.ca/snsmr/access/vitalstats/marriage-licence.asp

Same sex couples are permitted to marry in Nova Scotia. For a copy of the federal Civil Marriage Act visit Justice Canada's website laws-lois.justice.gc.ca

You do not have to be a Nova Scotia resident to be married here, but a marriage licence issued in Nova Scotia is only valid in this Province.

Q - Who cannot marry?

A - Individuals who are presently married are not allowed to remarry before their first marriage has legally ended. Separation is not sufficient. If you want to marry and you were previously divorced, you will be asked to provide final proof of divorce (called Certificate of Divorce or Decree Absolute) when you apply for a marriage licence. If the divorce occurred in another country and the final divorce papers are in another language, you will need to provide a copy of the translated document.

If you were widowed, you must provide proof of death of your spouse.

In addition, the Marriage (Prohibited Degrees) Act prohibits persons who are closely related by marriage, blood or adoption, or who are brother and sister, half brother and half sister, or adopted as a brother and sister from marrying one another (laws-lois.justice.gc.ca)

Q - Who can perform the ceremony?

A - In Nova Scotia, couples can choose to have either a religious or a civil ceremony. Every ceremony must be witnessed by two people who are at least 16 years of age. Religious groups can refuse to perform marriages that are not in accordance with their religious beliefs.

The religious representative you choose to perform a religious ceremony must be registered with Nova Scotia Vital Statistics under the Solemnization of Marriage Act.

A Justice of the Peace or a Judge will perform a civil ceremony. The Deputy Issuer of Marriage Licences can provide a list of Justices of the Peace authorized to perform marriages in your area. You can also get this list from the Nova Scotia Department of Justice website: http://www.gov.ns.ca/just/

The fee for a religious marriage ceremony is set by agreement between the religious representative and couple being married. The fee for a marriage ceremony performed by a Judge or Justice of the Peace is set by the government.

Q - Who do I contact to get married in Nova Scotia?

A - To be lawfully married in Nova Scotia, you must contact:

  • the Deputy Issuer to apply for a marriage licence, and
  • a religious representative, judge or justice of the peace, to perform the ceremony.
  • Please see additional questions below for more information, or contact Nova Scotia Vital Statistics.


Q - How do I get a marriage licence in Nova Scotia?

A - Under the laws of Nova Scotia you must have a marriage licence before getting married in Nova Scotia. The licence does not mean that you are married, but only that you may get married. The licence will expire one year from the date it is issued.

Either you or the person you intend to marry must apply in person to a Deputy Issuer of Marriage Licences in your community. The person applying will have to provide identification and proof of age for both parties to the intended marriage. Information required with identification will include: full name, including given names, age, marital status, and current address.

In Halifax Regional Municipality, you can purchase a marriage licence by appointment with a Deputy Issuer, or from a Halifax Regional Municipality Customer Service Centre during regular business hours. In all other areas of Nova Scotia, you can purchase the licence by appointment with a Deputy Issuer, or from a Service Nova Scotia Access Centre.

Visit www.gov.ns.ca/snsmr/access/vitalstats/marriage-licence.asp for a list of the Deputy Issuers in each county and their contact information. The fee for a marriage licence is $132.70.

Q - Do I have to register my marriage?

A - Yes. All marriages performed in Nova Scotia, must be officially registered by the Vital Statistics Office of the Government of Nova Scotia. This formal documentation is your proof of marriage. Registration is not the same as a marriage licence.

The person who performs the marriage ceremony must complete the marriage registration form which becomes the official record of the marriage. He or she must send the completed Registration form to the Deputy Issuer of Marriage Licenses within 48 hours of the marriage ceremony. The Deputy Issuer forwards the Registration Form to the Office of Vital Statistics which registers the marriage and keeps the legal record.

Registration of the marriage registration form is free.

Q - What is a marriage certificate?

A - At the time of the ceremony, your religious representative or Justice of the Peace or Judge will provide you with a certificate of marriage. This certificate is a "memento" document, and is not legal proof of marriage. After the marriage, and following the receipt and registration of the Marriage Registration Form, you may apply to Vital Statistics for an official Marriage Certificate, which is legal proof of marriage.

To order an official marriage certificate, visit: www.gov.ns.ca/snsmr/access/vitalstats/marriage-certificate.asp

Q - How soon can I marry after divorce?

A - You can marry anytime after your divorce is final and you have a Certificate of Divorce. This usually means 30 days after the judge grants the divorce and provided there is no appeal from your spouse. However, when planning a date for the wedding, keep in mind that it takes five days to get the marriage licence and you won't be able to apply for a licence until you have proof that the divorce is final.

Q - Do I have to take my spouse's last name when I marry?

A - No, you may:

  • keep using your current last name if you wish, or
  • go back to using your given name if you were previously using a former spouse's last name, or
  • use a combination of your name and your spouse's name or
  • your spouse could take your name.


Q - If I get married outside of Nova Scotia, or outside of Canada, is there anything special I have to do to have the marriage recognized in Canada?

A - No. All the licensing and legal requirements will be according to the laws in the province, state or country where the marriage is performed. The marriage will be registered where it took place, outside Nova Scotia.

Canada issues 'Statements in lieu of Certificates of Non-Impediment to Marriage Abroad' for persons who want to get married outside Canada in a country where such a document is needed. For more information visit travel.gc.ca/travelling/documents/marriage-overseas

Q - How do you annul a marriage?

A - An annulment is a legal declaration that the marriage between two people never came into existence. There is a presumption that a marriage ceremony was properly carried out. This presumption can be rebutted if, for example, there is proof that :

  • the marriage ceremony was not performed by an authorized person,
  • a marriage licence was not obtained, or
  • one or both of the parties to the marriage were minors and did not have the parents' consent.

A marriage may be void (never came into existence) if:

  • one of the parties was still married to someone else when the marriage took place
  • the marriage violated the Marriage (Prohibited Degrees) Act which prohibits marriage between certain close relatives.
  • one or both of the parties was incapable of giving consent at the time of the marriage as a result of insanity, illness or intoxication etc.
  • one of the parties was acting under duress, or
  • one of the parties was mistaken as to the identity of the other party.

Where a marriage is annulled, property reverts to its original owner as if the marriage did not take place. Children of the marriage are not considered to be illegitimate as long as either parent thought the marriage was valid. The children's rights in relation to care, financial support and inheritance from their parents will not be affected.

A religious annulment is not the same as a legal annulment. If you have a religious annulment and you want to remarry, you may have to get a divorce or a legal annulment as well.

Q - What happens if a marriage breaks up?

A - Where a marriage breaks down, parties must decide whether they wish just to separate or to divorce and formally end the marriage. To get a divorce, one or both of the parties must apply to the court to grant a divorce on the grounds that there has been a breakdown of the marriage. A breakdown of the marriage can be established in Canada in one of three ways:

1) the spouses have lived separate and apart for at least one year,

2) one of the spouses committed adultery,

3) one of the spouses was physically or mentally cruel to the other.

On either separation or divorce, a spouse may be entitled to apply for a parenting order, child support, spousal support and a division of matrimonial property. For more information, please refer to the family law pages relating to separation, divorce, child and spousal support, parenting arrangements and matrimonial property, or go to nsfamilylaw.ca

 

Matrimonial Property

For more comprehensive family law information go to:

nsfamilylaw

This page only gives legal information. It is not intended to replace legal advice from a lawyer.

On this page ‘spouse’ means same or opposite-sex married spouses or registered domestic partners. The information here does not apply to common law couples. For information about common law relationships go to LISNS page on common law relationships, and nsfamilylaw.ca.

Nova Scotia’s Matrimonial Property Act sets out the law on matrimonial property.  The Matrimonial Property Act only applies to married spouses and registered domestic partners. It does not apply to common law couples.

Q - Do common law and same sex couples have the same rights to matrimonial property as married couples?

No. The Matrimonial Property Act does not apply to common law relationships. Common law couples cannot ask for a division of property under the Nova Scotia Matrimonial Property Act unless they have a Registered Domestic Partnership.

For information about common law relationships go to nsfamilylaw.ca.

Q - What is matrimonial property?

Matrimonial property is any property or assets either spouse owns or obtains before or during the marriage. It doesn’t matter whose name the property is in. The starting point in law (‘presumption’) is that all matrimonial property should be shared equally (50/50) between the spouses if they separate or divorce.

Matrimonial property includes things like:

  • Your family home (‘matrimonial home’) if you and/or your spouse own it;
  • Other property you or your spouse own and use as a family, such as a cottage;
  • Furniture;
  • Cars or other vehicles;
  • Pensions, including CPP;
  • RRSPs (Registered Retirement Savings Plans);
  • Cash and savings;
  • Income tax refunds;
  • Stocks, bonds, GICs and mutual funds; and
  • An employment severance package.

There are a few exceptions - see "What is not matrimonial property?" below.

You should talk with a lawyer about the property you own and whether it might be considered matrimonial property.

Q - What is not matrimonial property?

The following are not usually considered matrimonial property:

  • A gift or inheritance you or your spouse received from another person. However, it may be matrimonial property if it was used for the benefit of the family. For example, you inherited a cottage and have used it for family vacations;
  • An insurance payout or damages awarded to you by a court. For example, an insurance payment for injuries you received in a car crash;
  • Personal possessions such as clothes;
  • Business assets (ie., property like tools or a factory building used in connection with a commercial business);
  • Property that you or your spouse acquired after you separated; or
  • Property you agreed to exclude in a pre-nuptial agreement, marriage contract or separation agreement.

Q - What is matrimonial debt?

Matrimonial or family debt is debt that was acquired by both or either spouse during the marriage that was used for ordinary family matters such as household expenses, the mortgage on the family home or debt used to finance a family car. If some debts were acquired after you separated from your spouse they may be considered matrimonial debts if they were used to pay for necessary living expenses or to maintain the house or car or other assets.

Q - How are matrimonial debts and matrimonial property usually divided?

The general rule is that matrimonial property and matrimonial debts will be divided equally (50/50) between the spouses.

Each spouse must usually have his or her assets, and any property they own jointly, valued or appraised. Usually the value is based on the value at the date of separation, although the ‘valuation date’ may be a different date, such as the date when either spouse applies to court for property division.

Once you know the value of your matrimonial property, each spouse should value their matrimonial debts and deduct them from their matrimonial property to get the total or “net” amount of the value of their property.

The spouse with the higher net amount after deducting matrimonial debts from matrimonial property should then pay over 50% of this net amount to the other spouse, either with a transfer of money or property. This ensures that both spouses end up with the same net amount of money and/or property.

For example, the spouses share the $100,000 value of the matrimonial home, meaning each receives $50,000. The amount of matrimonial debt is $10,000 which the spouses agree to share, meaning they each take on $5000 debt and each now has net matrimonial property of $45,000. However, one spouse kept a cottage that was used for family vacations. The cottage is worth $50,000. Therefore, the spouse who kept the cottage now has $95,000 worth of net matrimonial property while the other spouse only has $45,000 of net matrimonial property. The spouse with the higher net matrimonial property must pay over $25,000 to the other spouse so they both end up with the same amount of net matrimonial property (ie., $70,000).

Q - Who decides how matrimonial property is divided?

Spouses can come to an agreement on how to divide their property. You can make this agreement before you enter into the marriage (‘pre-nuptial agreement’), or during the marriage (‘marriage contract’). Or you can agree after you separate. This is called a separation agreement.

Your lawyer and your spouse's lawyer can help you and your spouse work out an acceptable agreement. Coming to an agreement on how to divide your property may be a lot less expensive than going to court to divide your property so you should seriously consider how you may come to a fair agreement with your spouse.

Before you sign any agreement you should get advice from a lawyer. You should not use the same lawyer as your spouse.

If you cannot reach an agreement with your spouse, either of you may apply to court for a division of property under the Matrimonial Property Act. A judge will make an order stating how you are to divide your property. In most cases the judge will order you and your spouse to share your matrimonial assets and debts 50/50. You can apply to court any time after you separate or as part of your divorce.

Q - Can agreements be changed?

Courts are reluctant to change property agreements in a pre-nuptial agreement, marriage contract or separation agreement unless either spouse did not have advice from a lawyer before signing the agreement, or if one spouse hid property and assets from the other spouse at the time of signing the agreement, or if a spouse was pressured into signing the agreement. Courts may also change agreements if the agreement ends up being severely unfair to one spouse.

If you want to try to change an agreement you should get advice from a lawyer.

Q - Can a judge order a divison of matrimonial property that is not 50/50?

Yes, but only if a 50/50 division would be unfair. In most situations judges will order a 50/50 division of matrimonial property and will only divide property unequally in limited types of situations. Examples of where this might happen include:

  • The marriage or Registered Domestic Partnership was short and one spouse brought most of the property to the relationship;
  • One spouse wasted the matrimonial property. For example by gambling away the couple's savings;
  • One spouse gave up a career to look after the children so that the other spouse could build his or her business or career;
  • One spouse contributed to the education or professional career of the other spouse.

If you feel an equal division of matrimonial property would not be fair, you should talk to a lawyer.

Q - What if our home is only in my spouse's name?

Both spouses have equal rights to live in the family home (‘matrimonial home’) even if only one spouse is on the deed. One spouse is not allowed to sell or mortgage the home without the other spouse's consent. When couples separate or divorce usually one leaves the home. If they cannot agree on who will leave, either may apply to the court for an 'exclusive possession' order. This means that a judge may order one spouse to leave the home. A spouse who is ordered to leave by the court does not lose their ownership interest in the home, just the right to live in the home. A judge will consider which spouse has custody of the children and whether it is in the best interests of the children to stay in the home.

Q - If I leave the home do I give up my rights to share in the matrimonial property?

No. You do not give up rights to share in the matrimonial property by leaving the matrimonial home.

Q - Am I entitled to a share in my spouse's pension?

Yes, you may be. Workplace pensions, RRSPs and Canada Pension Plan credits are valuable matrimonial assets that should not be overlooked. Usually, pensions earned before and during the marriage or Registered Domestic Partnership are divided 50/50, although there may be some exceptions like where the marriage or registered domestic partnership only lasted for a short time.

It is difficult to figure out how much a pension is worth so you may need help from an actuary. Also, pension laws are complicated, so you should talk with a lawyer. You should not give up rights to a share in your spouse's pension without getting legal advice.

Q - Can I share in my spouse's business assets?

Usually business assets (ie., property and assets like tools or a factory building used in connection with a commercial business) are not considered matrimonial assets. This means that unless they are in the name of both spouses they are not assumed to be divided 50/50.

However, you may be entitled to a share of the business assets that are in your spouse’s name if you worked for or helped build or maintain the business. This is especially so if you were not paid or were only paid a small amount for the work you did for the business.

As well, if a 50/50 division of the matrimonial assets and debts does not give you a fair share of what you and your spouse own at the time of separation then you could be entitled to share in some of the business assets. If you think you have a claim against your spouse's business, you should talk with a lawyer

Q - Am I responsible for my spouse's debts that are not matrimonial debts?

As discussed above, as a general rule both spouses are equally responsible for a debt that is in both your name and your spouse’s name. You may also share responsibility for debts in your spouse’s name only, if the money was used to buy something that benefited you and/or your family. Examples are heating oil or a family vacation.

Usually you are not responsible for your spouse's non-matrimonial debts unless you co-signed or guaranteed them. For example, you would not usually be responsible for debts your spouse acquired to run their business, or debts acquired by your spouse before the marriage.

Debt division can be very complicated, so it is best to talk to a lawyer about your options.

Q - I am concerned that my spouse might borrow money on joint accounts or for debts I co-signed, without my consent, what do I do?

For debts that you guaranteed or co-signed for on behalf of your spouse, you should contact the bank and notify them that you and your spouse are separated and you do not consent to be responsible for any further money borrowed by your spouse.

If your spouse has access to a secondary credit card for which you are the primary card holder (ie., your spouse has a copy of a credit card that is in your name only and for which only you are responsible for paying the bills) you should cancel the secondary credit card if you are concerned that they will abuse it.

You should also consider talking to your bank about any joint accounts. You may consider reducing any overdraft that your spouse also has access to and requesting that a joint account be changed to require two signatures to access money in the account.

Q - What else should I consider on separation?

You should consider removing your spouse as your beneficiary on any RRSPs, pension death benefit policies and insurance policies. As well, you should consider seeing a lawyer and getting a new will, enduring power of attorney and personal directive.

Q - Where can I get more information?

For more information about matrimonial property go to nsfamilylaw.ca.

If have a family law problem and need legal advice you should try to see a lawyer. Here are some ways to find a lawyer:

  • Contact Nova Scotia Legal Aid to see if you qualify for their help. Legal Aid is listed in the telephone book under ‘Legal Aid’, or go to nslegalaid.ca to get contact information for your local Legal Aid office;
  • To find a lawyer in private practice – that is, a lawyer you would pay - look in the Yellow Pages under lawyers – there is separate section for family law
  • Call the Legal Information Society’s Lawyer Referral Service at 902-455-3135 or 1 800 665-9779 toll free in Nova Scotia
  • go to nsfamilylaw.ca for more tips.

 

 

Mediation and collaborative family law

Family mediation and collaborative family law are non-court ways to resolve family law disputes.

Q - What is mediation?

A - Mediation is an alternative to court.  It is a way of working out legal disputes together without going to court.  It is a voluntary process.  Both parties must be willing to participate in mediation, and feel comfortable doing so. 

Mediators are neutral, unbiased professionals who are trained in helping spouses or partners come to an agreement, such as a cohabitation agreement or separation agreement. If you are separating you may need help reaching agreement on issues such as who the children will live with, parenting time (access), possession of a family home, debts and support payments.  The mediator helps you plan for the future. Mediators will not decide who is to blame or try to impose an agreement.  Under Canada’s divorce law (the Divorce Act), your lawyer should tell you about the opportunity for mediation and may be able to answer many of your questions about it.

Q - How does mediation work?

A – Mediators are generally psychologists, lawyers, or other professionals trained in alternative ways to resolve disputes, sometimes called 'alternative, or 'assisted' dispute resolution. Once hired, the mediator will meet with both of you to identify your particular issues.  The mediator will listen to what is important to you and help you to come to your own decisions about the future.  Mediation is a process of compromise and ‘give and take,’ where the aim is that neither party will be a winner or a loser.  Remember, the mediator works for both of you and only wants to help you come to an agreement that you’re both satisfied with.  Each mediation is unique and it will be adapted to the particular needs or wishes of your family.

Q - How do I know if mediation is right for me?

A – Mediation is generally not appropriate if your spouse or partner abused you or your children in any way, including physically, sexually, emotionally, psychologically, verbally, or financially.

Mediation is voluntary, and you should feel safe and comfortable throughout the process.  Consider mediation only if you feel confident expressing your views, and feel that you and your spouse or partner will be on an even playing field in discussions, and are likely to reach an agreement. 

Q - If I hire a mediator, do I also need a lawyer?

A - Mediators do not give legal advice.  Even if your mediator is also a lawyer, each of you should have your own lawyer.  The mediator will work to find agreement on issues, but you need your own lawyer to ensure that your rights are protected and that the law has been followed.  If the mediation is successful, either the mediator or your lawyer will write a draft agreement.  If the mediator writes the draft, be sure to have your own lawyer review it before you sign.  Once signed, it is a binding contract.  As changes are only allowed if both parties agree or a court orders them your own lawyer’s advice is very important.

Q - I already have a lawyer, can he or she be our mediator?

A - For a successful mediation, both parties must trust the mediator to be completely neutral. Your lawyer’s job is to protect your interests and negotiate on your behalf.  Your lawyer is not neutral.   Lawyers can be mediators, but only where both you and your partner together decide to hire the lawyer specifically for mediation, and not to provide legal advice.  In such a case, the lawyer will act only as the mediator.

Q – How do I decide which mediator is best for me?

A – Before you hire a particular mediator, you will want to ask about their qualifications, training, experience and fees.  Be sure to discuss with the mediator his or her personal mediating style to see if it meets your needs.  Remember to check if your medical plan covers mediation costs.

Q – How do I find a mediator?

A – Mediators are listed in the yellow pages of the telephone book, both online and in-print, under ‘Lawyers’ or ‘Marriage, Family & Individual Counsellors’.  You can also contact Family Mediation Canada at www.fmc.ca or 1 800 362-2005, or the Legal Information Society of Nova Scotia's Mediator Referral Service for a mediator referral, at 1-800-665-9779 or 902-455-3135.  Your lawyer may also be able to suggest a mediator.

The Family Court or Supreme Court (Family Division) in your area may also be able to refer you to a mediator.  Go to nsfamilylaw.ca or contact your local court (courts.ns.ca) for more information.

You will also find find further information about family mediation, and other ways of resolving a family law issue without court, online at nsfamilylaw.ca/services/ways-resolve-problem-without-going-court

Q - What is collaborative family law?

A - Collaborative family law uses a teamwork approach to resolving family law disputes.  The aim is to avoid court.  Each spouse or partner has their own lawyer, but everyone signs an agreement at the outset that they will not go to court.  The process requires open communication and cooperation, and is private and confidential.  The negotiation process involves 4 way meetings which both spouses and their respective lawyers attend.  The meetings should be respectful, balanced and fair.  Relevant financial and other information are shared, as well as costs of any experts that might be agreed upon and hired.  The end result of the process would hopefully be a binding separation agreement or consent court order.

Q - What happens if I decide to go to court after trying the collaborative process?

A - If either spouse decides to go to court that ends the collaborative process.   At that point each spouse would need to get a new lawyer and basically start from scratch.

Q - Why should I consider mediation or collaborative family law instead of court?

A – Courts are adversarial, which means that your lawyer will argue for your interests and your partner’s lawyer will argue for his or her interests.  In court decisions, there are sometimes ‘winners’ and ‘losers.’  Unfortunately, this system doesn’t encourage compromise and your direct input is very limited.  For people who wish to develop their own agreement and avoid the court process, mediation or collaborative family law are good alternatives.  Finally, reaching an agreement out of court is often less expensive. 

Non-court alternatives are generally not appropriate where there is a history of family violence or if either spouse or partner is not willing to fully participate in the process.


Q – How do I find a collaborative family law lawyer?

A - Lawyers who do collaborative law have special training.  To find a collaborative family lawyer contact Collaborative Family Law Nova Scotia at www.collaborativefamilylawyers.ca or look in the telephone book under 'Lawyers'.

Links updated May 2017

Parenting after separation

Canada's Department of Justice has two publications to help parents who are dealing with a separation or divorce. 'Making Plans: A guide to parenting arrangements after separation or divorce', covers a range of topics, from parents' emotions in dealing with separation, to what the kids may be experiencing when their parents split, protecting the kids from conflict, and options for putting together the type of parenting plan that may be best in your situation.

The second publication is a 'Parenting Plan Tool' that, together with 'Making Plans', gives practical guidance, including sample clauses and wording, on specific parenting plan issues such as how and who makes decisions about the kids, scheduling parenting time, vacations, childcare, and relocations.

Both publications are available in English and French, online at:

You will find a list of other parenting resources under "Ways to Help My Kids" at www.nsfamilylaw.ca

Also check out Families Change, a great web resource for kids, teens and parents dealing with a family break up.

 

Separation

For more comprehensive family law information go to:

nsfamilylaw

Q - I am not getting along with my spouse, should we separate?

A - Only you can answer that question. A temporary break can help couples deal with problems in a marriage or relationship or it may be the first step in ending the marriage or relationship that is not working out. There are counselling services that can help couples talk about their problems and come to a decision, or to come to terms with whatever decision you make.  You can find a marriage counsellor or family therapist by looking in the Yellow Pages under 'Marriage, Family and Individual Counsellors', or Psychologists.

The law does not say that once you are married or once you are in a long-term relationship you must "stick it out". The law does provide ways of dealing with issues that arise as a result of separation.

You should get a lawyer's advice before making a decision, if only to understand fully your rights and responsibilities. Mediation or counselling services may help you deal with problems, come to an agreement or decide what to do. See the 'Mediation and Collaborative family law' page on this website for information about mediation.

Q - How do I get a 'legal' separation?

A - Once you are no longer living together, you are considered separated, and no further action is required to make it "legal". However, you will need to work out the terms such as child custody and access, child and spousal support, division of property and rights to pensions. Some people choose to write up the terms of their separation in a separation agreement, although the law does not say you have to do this.

Q - Must one of us leave the home before we are considered "separated"?

A - Usually when couples separate, one leaves the family home and lives somewhere else. However, it is possible to live under the same roof and be considered separated for legal purposes.

You need to show that you no longer live together as a couple sharing each others lives. This means more than that you are no longer having a sexual relationship. You must show that you no longer perform any functions normally expected of a married couple.

It is difficult to prove such a situation. You should get legal advice if you and your spouse are living in the matrimonial (family) home but want to be considered "separated".

Q - If I leave the matrimonial home, can I take my things with me?

A - You have a right to take at least your personal belongings and, if the children are going with you, their personal belongings such as clothes and toys. You may also have a right to take some matrimonial property such as household items to enable you to set up your new home. Each case is different and, if possible, you should get legal advice on your situation before you leave the home. Your lawyer will advise you what you can take with you and what your share of the matrimonial property may be.

You must not give away, sell or destroy household items you take with you.

Q - What if we cannot agree on the terms of separation?

A- If you cannot agree likely you will have to ask the courts to settle the matter.
In Halifax Regional Municipality and Cape Breton the Nova Scotia Supreme Court (Family Division) deals with all family matters, including divorce and matters arising from the separation such as custody, support and division of property.

In other areas of the province, the Nova Scotia Supreme Court can deal with these matters or, if you only want to deal with parenting arrangements for children, child and/or spousal support, you can apply to the Family Court. The Family Court cannot deal with division of property or grant a divorce.

Your lawyer can help you make the decision as to which court is most appropriate for you.

Q - Can we get help to reach an agreement on the terms of separation?

A -Your lawyer acts on your behalf and works to ensure that any agreement is in your best interests.

You and your spouse may also wish to reach an agreement through a mediation process. A mediator is an independent person who will work with both spouses to help you reach an agreement you both can live with. Before you sign anything, you should take the agreement to your lawyer to ensure that your rights are protected and the terms are explained to you.

Your lawyer may be able to suggest a qualified mediator, or you can contact Family Mediation Canada.  Mediators are also listed in the yellow pages of the telephone book, or you can contact the Legal Information Society of Nova Scotia's Mediator Referral Service at 1- 800-665-9779 or 902-455-3135. 

Another approach is collaborative family law, where lawyers and spouses agree not to go to court, and work together to reach an agreement.  You can find out more about collaborative family law, and find a list of lawyers who are trained in the collaborative approach, at www.collaborativefamilylawyers.ca

If you are attending the Supreme Court (Family Division) you will meet with a conciliator who facilitates the exchange of information between spouses and identifies issues. The conciliator may help you and your spouse draft an agreement if you apply to the court.

Also visit nsfamilylaw.ca for more information about mediation, conciliation, and other ways to resolve family law issues without going to court.

Q - What sorts of things should we put in the separation agreement?

A - A separation agreement usually describes the terms of your separation. Your lawyer will advise you on what terms will best protect your interests and meet your needs. Following are some things to include in an agreement:

  • who will have primary custody of the children or if the custody will be shared;
  • the arrangements for access to the children;
  • the arrangements for child support;
  • whether one spouse will pay maintenance for the other, and if so, how much and for how long;
  • will the family home be sold; if not, who will live there;
  • who will pay for the mortgage, the repairs, and insurance on the home;
  • if the home is sold, how will the profit be divided;
  • how will other family property be divided such as pensions, furniture, stereo, car, and savings;
  • how will family debts be paid;
  • who will pay for insurance policies and who will be the beneficiary;
  • how will the agreement be adjusted if circumstances change;
  • will the separation agreement form the terms of a divorce agreement.

When you are discussing child support, you should keep in mind the child support guidelines. They provide a guide to the level of child support based on the number of children and the income of the paying spouse. See the page on child support for more information.

The agreement can also include a term that says you and your spouse agree not to harass or interfere with each other.

The separation agreement does not have to be made as soon as you separate. It can be made at any time before a divorce. However, the sooner you can agree on the terms of the separation, the sooner you will be certain of your and your spouse's rights and responsibilities.

Q - Must the agreement be in writing?

A - No. You and your spouse can verbally agree to the terms of your separation. However, for your protection you should put the terms into a written agreement. If it is not in writing, it may be harder to prove what you agreed should a dispute arise at a later date. Do not sign any agreement until you have talked with a lawyer.

Q - Can I be forced to sign a separation agreement?

A - No. A separation agreement is only valid if both spouses voluntarily agree to the terms and sign the document. Once the agreement is signed, it is a legally binding contract and can be enforced through the courts. Before signing a separation agreement you and your spouse should have legal advice. You should not use the same lawyer.

Q - Can an agreement be enforced?

A - Yes. However, enforcing an unwritten agreement can be difficult since often there is only your word against your spouse's about what you agreed to.

The usual way of enforcing parenting arrangements in a written agreement is through the court. In Halifax Regional Municipality and Cape Breton you register it in the Supreme Court (Family Division). In other areas of the province, you need to register the agreement with the Family Court. You can register the signed agreement by delivering a copy to the court.

If your agreement is not registered with the Family Court, you can apply to enforce it through the Nova Scotia Supreme Court. Going to the Supreme Court is more complicated and costly than going to Family Court.

Orders for maintenance made after January 1, 1996, by the Supreme Court, Family Court or Supreme Court (Family Division) are automatically registered with the Maintenance Enforcement Program (MEP). See the page on child support for more information about the MEP, or visit the Nova Scotia Maintenance Enforcement Program website at mep.novascotia.ca/

Q - Is it a good idea to have a separation agreement?

A - If you and your spouse can agree to the terms of separation and can set them out in a written agreement, you can save time and money.

  • The separation will take less of a toll on your emotions and on those of your children. Going to court to fight over child support, spousal support, custody and access or property can be a stressful drawn-out and unpleasant experience for any family.
  • If you have a written separation agreement, your rights and obligations are set out as soon as the agreement is signed. You do not have to wait for court dates and other delays.
  • If you later decide to divorce, you can include the terms of the separation agreement in the divorce order.
  • If you are making support payments to your spouse under a written agreement, you may be able to claim them on your income tax form. You should talk with a lawyer, an accountant or Canada Revenue Agency about spousal support payments and income tax.
  • It can be helpful for establishing dates of your separation for Canada Pension Plan credit splitting. However, administrators of employment pensions may require a court order and not just a separation agreement. You should check with your lawyer or with the pension-plan administrators.

Q - Must a lawyer draw-up the agreement?

A - While you can draw up your own agreement, it is not wise to do so. A separation agreement is an important legal document that will affect your rights and responsibilities. You should get legal advice on those rights and responsibilities from a lawyer, discuss possible terms with your spouse, and then have your lawyer draw up a formal agreement.

You should not sign any document that may affect your rights until you have spoken with a lawyer. Your lawyer can ensure that the agreement covers all the necessary issues.
If you cannot agree on the terms of separation, you will need a lawyer or mediator to help you. You and your spouse should not use the same lawyer.

Q - Can the agreement be changed once it is signed?

A -Yes. It is possible to change an agreement.

  • If you have a verbal agreement, you can change it by agreeing to the new terms. However, it is difficult to enforce a verbal agreement since it will only be your word against that of your spouse.
  • If you have a written agreement, it may have a provision allowing for it to be adjusted to meet changing circumstances. Or, you and your spouse can agree to changes. The changes should be put in writing and witnessed. If the agreement is registered in the court, and you cannot agree on changes, you can apply to the court to settle the matter.

Keep in mind that once the agreement is signed it is a binding contract. Judges are reluctant to change agreements. The judge will have to be convinced that both spouses agree to the changes or that the terms of the agreement are unduly harsh and you did not have legal advice before you signed it or that you were forced into signing it.

Q - Are there other matters to consider when we separate?

A - Yes, depending on your situation. You should review the terms of your will, life insurance, RRSPs, TFSAs and other financial instrument where you've named your spouse as beneficiary, as well as health insurance. A lawyer can advise you on these matters.

 

 


 

 

Sexual Assault

This page gives legal information only, not legal advice.

Assault is any intentional use of force against you without consent. Touching, slapping, kicking, and punching are all examples of assault. An attempt or threaten to use force may also be an assault in some situations.

Sexual Assault is a form of assault that involves circumstances of a sexual nature that violate your sexual integrity, such as touching private areas of your body, kissing, fondling, or sexual intercourse without your consent.

Q - What is sexual assault?

'Simple' assault involves things like having private areas of your body touched, being kissed, or becoming involved in sexual intercourse or oral sex without your consent.

'Sexual assault causing bodily harm' involves sexual assaults where you are injured.

'Sexual assault with a weapon' involves the use of a weapon, or a threat to use a weapon during sexual assault. Aggravated sexual assault involves life-threatening sexual assaults, including those where you are wounded, maimed, disfigured, or your life is put in danger.

The penalties and procedures for dealing with assault depend on the type of assault and the amount of violence used. There are mandatory jail sentences for many sexual assault offences.

Q - Can a spouse or partner be charged with sexually assaulting me?

Yes. The police can charge your spouse or partner with sexually assaulting you. There does not have to be a witness for a judge to convict a person of sexual assault.

Q - Can I drop the charges?

No. If the police have laid charges, you cannot withdraw them. After a charge is laid, the Crown Attorney decides whether a charge will be changed, withdrawn, or go to trial. If you are afraid or do not want to give evidence, tell the Crown Attorney as soon as possible. You will find contact information for the Crown online at: novascotia.ca/pps/contact.asp, or look under 'Justice' in the government section of the telephone book.

Q - What is consent?

Consent is the voluntary agreement to take part in the activity. There is no consent if

  • you did not agree;
  • you were incapable of consenting. (For example, you were passed out, drugged, or too drunk or too young to consent);
  • you were persuaded to take part in the sexual activity because of a person's position of trust, power, or authority over you;
  • you indicated by word or action that you did not want to take part in the sexual activity. For example, you might have said no or pushed the person away;
  • you agreed to the activity but later indicated that you no longer wished to continue with it;

If the person mistakenly believed that you consented even if you did not, the judge may not convict him or her. It is up to the judge (or jury) to decide whether the accused person's mistake is reasonable and honest.

Q - What happens when I report a sexual assault?

The police will take a statement from you. They may collect evidence. The police may want a medical record, and to photograph any injuries. The police will likely question the accused person and place him or her under arrest. The police will lay a criminal charge against him or her, if they believe there is enough evidence of sexual assault. Once you report the assault, or if you are considering reporting an assault and want more information about what to expect, you may wish to contact Victims Services, a Sexual Assault Centre, a Transition House, or a Women's Centre for support. Key contact information is listed under 'Where can I get more information?' below.

The police or judge will probably release the accused from jail before the trial after getting him or her to sign an "undertaking" or "recognizance". Usually the accused must agree not to contact you, or attempt to contact you. If you are afraid that the accused will contact or harm you before the trial talk to the Crown Attorney (the lawyer that will make the case against the accused.)

Q - Will I have to go to court?

Yes. You will probably have to go to court, unless the accused person pleads guilty. If someone serves you with a subpoena, you have to go to court and testify or the judge may issue a warrant for your arrest. The judicial system usually requires you to give evidence in court in both a preliminary hearing (if there is one) and a trial.

Publication ban: The judge can, and often will, make an order directing that your identity not be published or reported by the media.

For more information on being a witness, go to the 'Being a witness' page.

Q - Will my sexual history be discussed in court?

To have your sexual history submitted in court, the accused must apply in writing. The judge then holds a two stage hearing to decide, and must provide written reasons for his or her ruling. The media cannot publish any information from these hearings without the judge's permission. For the court to admit your sexual history, it must covers specific events, be relevant to an issue at the trial, or have significant value. Nobody can bring up your sexual history in order to suggest that you are more likely to have consented to the sexual activity on which the charge is based, or suggest that you are less worthy of belief. When deciding whether to admit your sexual history, the judge must consider the rights of the accused to defend him or herself, the potential prejudice that this information might raise, as well as your right to personal dignity and privacy.

Q - Where can I get more information and support?

  • Health care

Phone 911 in an emergency. Police and highly trained paramedics will respond with emergency medical care. You can also go to a hospital emergency department for urgent medical care.

Your family doctor.

HealthLink 811. HealthLink 811 is a 24/7 province-wide service. There is no charge to phone 811. Callers can receive information, advice, or community-based referrals. Bilingual nurses are available to support callers in French & English. 811 can also support callers in more than 120 languages through a third party interpretation service.

  • Transition Houses

There are shelters throughout Nova Scotia where a woman and her child can go for safety, information and support. To find a shelter in your area, contact the Transition House Association of Nova Scotia (THANS): www.thans.ca, or phone (902) 429-7287

Every transition house has its own free long distance number. A woman can call the transition house anytime to get information, support and safety planning from a trained counsellor, even if she does not want to live in the shelter. She does not have to give her name. Interpretation services may sometimes be available.

  • Go to nsdomesticviolence.ca for more information, resources and support services, including support services for male victims of sexual abuse

  • Sexual Assault Nurse Examiner (SANE) program

In Halifax, phone the Avalon SANE response line at 902-425-0122, 24 hours, 7 days a week. Visit avaloncentre.ca/services/sexual-assault-nurse-examiner/ for information about SANE. Capital Health provides clients who have a language barrier with free access to face-to-face interpretation.

In Antigonish, phone the Antigonish Women's Resource Centre & Sexual Assault Services Association at 1 877-880-SANE. The Antigonish SANE Program serves Pictou county and the Guysborough Antigonish Strait Health Authority.

In Lunenburg & Queens Counties, Sexual Assault Nurse Examiners are available at Bridgewater, Liverpool and Lunenburg hospitals. Go to www.saslq.ca for information about the SANE program, and about other sexual assault services available for victims across the South Shore.

  • Victims Services

The Provincial Victims Services Program has 4 offices that help victims when the police are involved. Phone for free from anywhere in Nova Scotia: 1 888-470-0773. Phone in Halifax 902-424-3307.

RCMP Victim Services: call 902-426-1280 or visit rcmp-grc.gc.ca

Halifax Regional Police Victim Services: call 902-490-5300 or visit www.halifax.ca/police/programs/victimservices.php


Last reviewed February 2016.

Updating your child support amount (recalculation)

A new Administrative Recalculation of Child Support program, making it easier for parents to update child support amounts in a court order or registered agreement, is now available in Nova Scotia. 

The Administrative Recalculation of Child Support Program recalculates the table amount of child support where a court order or registered agreement allows for this to happen.The recalculation happens once a year at the time of the anniversary of the court order. The Program recalculates certain child support orders based on updated income information provided by the parent paying support. The person paying support is called the ‘payor.’

Only orders that have a section in them saying that they are a part of this Program can be considered for recalculation. There are other requirements for using this Program as well, like what the payor’s income source is. The Program allows parents to update the table amount of child support without having to file a court application, pay a filing fee or negotiate with each other.

For more information about the Administrative Recalculation Program, click here.

If you are a lawyer and need information about the Administrative Recalculation Program, click here.

January 2015


 

 For basic family law information in Arabic, Farsi, Mandarin, Nepali and Tagalog, CLICK BELOW:

arabicfamilycustody

Custody & access - Arabic

 

  arabicfamilymarriage

 Separation & divorce - Arabic

 

farsicustody

 Custody & access - Farsi

 

  farsimarriage

 Separation & divorce - Farsi

 

chinesecustody

 Custody & access - Mandarin

 

  chinesemarriage

 Separation & divorce - Mandarin

 

nepalicustody

 Custody & access - Nepali

 

  nepalimarriage

 Separation & divorce - Nepali

 

tagalogcustody

 Custody & access - Tagalog

 

  tagalogmarriage

 Separation & divorce - Tagalog