Family law in Nova Scotia applies a distinct difference between common law relationships and marriage. While some provinces may allow common law, or cohabitation, to take on the rights and responsibilities of marriage after a certain period of time, this is not the case in Nova Scotia.
A common law relationship is simply the act of living together in a marriage-like relationship without actually being legally married. It does not require any kind of legal process to create a common law union. The definition of common law partnership also differs depending on the laws applied. For example, the Canada Pension Plan states that two people are in a common law relationship after a year of cohabitation. The Parenting and Support Act, on the other hand, requires two years of cohabitation before a relationship can be described as common law.
As family lawyers in 2024, we know that the composition of a household can take many different forms. When it comes to child custody and biological parents, things can get complex.
As lawyers who often get asked for consultations and to prepare legal documentation, clients often ask us about litigation cost awards in court cases. When a matter is taken to trial, the parties are asking a judge to make a determination of the issues on their behalf.
In many family law cases where there are children, a major objective is developing a parenting plan that meets the needs of the children.
Spouses can be separated as defined in the Divorce Act, or the Parenting and Support Act, even while still living under the same roof. Our family lawyers know that this is a fairly common situation, especially immediately after separation when individuals need time to figure out the logistics of their separation. However, whether this the case in your circumstances will depend on the facts of your specific situation.
The Divorce Act requires that a couple be separated for one year before they can apply for a divorce. The Parenting and Support Act requires the parties be separated at the time of commencing an application. Separation begins when one party decides that they want to permanently end the spousal relationship.
Sometimes there is a specific conversation or incident that allows for a precise date of separation. Other times separation is a more gradual process, where it is more difficult to determine a precise date of separation. The date of separation can be very important if the spouses are dividing property, because many types of property are valued as of the date of separation.
Separation under s. 8(2) of the Divorce Act requires that the parties be living “separate and apart”, however there is substantial case law deciding that spouses can be separate and apart while living under the same roof. The case law also is applicable to common law couples. Often this means that one spouse is sleeping in a separate room, and that their routines are distinct.
If there is disagreement over when the parties separated, the courts have laid out a number of factors to consider in determining if a couple has genuinely separated. These include:
● Having meals together
● Attending social events together
● Having sexual relations
● Representations to the outside world
● Vacations together
● Exchanging gifts
● Continuing to attend family functions together
● Separation of finances
This is not a definitive list and no one factor is conclusive of whether spouses living together are separated or not. However, if a court must determine when spouses living under the same roof separated, these are the types of specific facts they will use to make that determination.
The consequence is that two spouses could be living under the same roof, but meet the legal definition of separated. The date of separation impacts how property of the marriage is valued, and when the parties are able to file for divorce. As with all family law issues, the date of separation is very specific to your individual circumstances, and an experienced family lawyer at Lenehan Musgrave can help you determine your situation and options. Contact our office or submit the form below to schedule a consutlation
As family lawyers in Nova Scotia, we often get asked about spousal support. Spousal support, or spousal maintenance, is a monthly payment that one spouse pays to another when their relationship ends. You may be familiar with this concept through the American term “alimony”. Spousal support is the Canadian term used.
You can refer to our previous blog post for a more depth explanation of entitlement, but there are three basic reasons why a court may award spousal support. The first is compensatory support, where spousal support is awarded to compensate a spouse for some sacrifice or burden they have taken on for the sake of the family. Often this is when one parent was a stay-at-home parent or made a major career sacrifice for the family.
The second reason is non-compensatory spousal support, which is a needs-based award. It is awarded not to compensate a party for the roles adopted during the relationship. It can also be awarded to ensure a party does not suffer an immediate and major decrease in their standard of living upon separation. The court may award non-compensatory spousal support to give the spouse some time to become financially independent.
The third reason is the court can also find that an entitlement to spousal support based on a prior contract or agreement between the parties.
The amount that a court will award for spousal support is up to the discretion of the court, and typically less predictable than child support. With spousal support, the court can reference the Spousal Support Advisory Guidelines, which are a tool to determine the relevant ranges for spousal support. However, the court is not required to follow these guidelines.
In determining both quantum and duration, the court will consider the factors listed in s. 15.2 (4) of the Divorce Act. These include:
length of the relationship;
Functions performed by each party;
Any order or agreement relating to the support of either spouse.
The Parenting and Support Act also offers guidance on this issue at s. 4.
Usually, the longer the relationship between the spouses, the longer the duration for spousal support. In cases of longer relationships, the court can award spousal support for an indefinite time and reassess the situation after a period. For medium to short length relationships, a common rule of thumb is that the duration of support is usually awarded for a period between half the length of the relationship to the full length of the marriage. For example, an award for spousal support for a 12-year relationship may be for anywhere from 6 years to 12 years, depending on the surrounding factors. If the relationship was short, and there was no economic disadvantage to either spouse, the court may determine that no spousal support should be paid.
Spousal support is extremely fact specific and requires clear advocacy of your position. Our experienced family lawyers at Lenehan Musgrave are more than happy to help determine if there is an entitlement to spousal support, and if so, what amount and time period are fair. We encourage anyone who may have issues with spousal support to contact our office or submit the form below to arrange for an initial consultation to explore the options that may be available to you.
At Lenehan Musgrave LLP, our family lawyers in Nova Scotia often deal with property division between separated couples. When it comes to married couples and registered domestic partners, the Matrimonial Property Act dictates how property is divided. The Matrimonial Property Act does not apply to common law relationships; in fact, there is no applicable legislation that governs property division for common law couples in Nova Scotia. For more information on the difference between common law and married couples, see our Difference Between Common Law and Marriage blog.
Because the Matrimonial Property Act is not applicable to common law couples, to be able to establish whether an asset or assets should be divided upon separation, common law couples must look to the common law for remedy. One such remedy is the concept of “unjust enrichment.” Unjust enrichment requires the person making the claim to prove:
Their former partner received a benefit;
They suffered a loss corresponding in some way to the benefit; and
There was no juristic reason for the benefit and the loss
The spouse alleging unjust enrichment may also be successful in their claim if they can successfully demonstrate that a ‘joint family venture’ existed, as the basis for their unjust enrichment claim.
A joint family venture can exist when both spouses contribute to the family wealth during their relationship. The Court will determine the existence of a joint family venture by examining certain aspects of the relationship, such as economic integration, the intention of the spouses, the mutual efforts of the parties, and the priority of the family.
We recognize that property division in any form of a relationship can be complicated. Should you require assistance with dividing property after a common law separation, contact us today, or complete the form below to schedule a consultation with one of our family law lawyers to discuss your options.
The family lawyers at Lenehan Musgrave understand that divorce can be a very complex and emotional process to go through. While a lawyer can assist you to navigate this process, it can be helpful to understand the different grounds on which you can file for divorce, to help determine if it is the right time for you to begin the process.
It is important to understand that all grounds prove one issue, marriage breakdown. There is not a finding of fault in granting a divorce.
In Canada, the Court has the ability to grant a divorce if they are satisfied that there has been a breakdown of the marriage. Under section 8(2) of the Divorce Act, a breakdown of a marriage is established only if:
(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding; or
(b) one spouse has committed adultery, or treated the other spouse with physical or mental cruelty so that the other spouse has left the marriage.
Separation is the most commonly cited reason for divorce; it requires the spouses to establish that they have been living separate and apart for one year prior to finalizing the divorce. Spouses do not need to be living physically in different homes to be considered living “separate and apart;” however, they must demonstrate for the Court that even though they continue to live under the same roof, they remained separated.
There are a number of factors the Court may take into consideration to determine whether spouses residing together have separated. This can include whether the spouses sleep in the same bed, file their taxes together, attend social events together, have communicated to others their separated status, or participate in family events together.
The ground of separation is the most commonly pled ground in divorce proceedings.
Adultery includes voluntary sexual conduct between a married person and someone other than their spouse. The spouse who has committed adultery cannot file for a divorce based on their actions – only the spouse can. This ground can be complex, and is very fact specific.
In order for cruelty to be used as a ground for divorce, the cruelty must be “physical or mental cruelty of such kind as to render intolerable the continued cohabitation of the spouses.” This means that the spouse who is relying on this must provide sufficient evidence to establish for the Court that the level of cruelty is so serious that they are unable to continue living with their spouse and often requires evidence from a professional.
If you are seeking to move forward with a divorce, we encourage you to contact one of our family law lawyers to discuss which ground is most appropriate to your circumstances.
As family lawyers in Nova Scotia, we are often approached about denial of visitation rights and parental gatekeeping. Upon separation, parents often will work together to create a parenting plan that suits the needs of their children. When parents cannot agree, they look to the Court for assistance and a judge can court order a parenting plan each party is required to follow. But what happens when one parent begins withholding parenting time?
If this occurs, and the parties do not have a court order, they may choose to apply to the Supreme Court (Family Division) for relief. One such option is through a Notice of Motion for Interim Relief. More information about this can be found in our Interim Motions blog.
But what do you do if you have a court order that already outlines parenting arrangements? If your court order was issued pursuant to the Parenting and Support Act, there are a number of different options available to you. This can include a “Denial of Time” application pursuant to paragraph 40(1) of the Parenting and Support Act. This asks the Court to find that a parent has been wrongfully denied parenting time, and offers a number of remedies to resolve the denial. This may include, but is not limited to, make up parenting time, attendance at counselling, payment of costs, or a fine.
Another option available to parties is the “Power to Require an Appearance”, pursuant to paragraph 41 of the Parenting and Support Act. Under this provision, any person can be compelled to attend Court to explain why they are not complying with a court order. The Court then has the power to make any additional order deemed necessary to ensure compliance with the original order.
Unfortunately, these provisions are only available to those parties who have an Order issued pursuant to the Parenting and Support Act. If you are a parent who has an Order pursuant to the Divorce Act, you may choose to make an application for contempt. Those who have Orders pursuant to the Parenting and Support Act may also make a contempt application. Contempt applications are quasi-criminal in nature, and carry with them very serious consequences.
We encourage anyone who may have issues exercising their parenting time with the children to contact our office or submit the form below to arrange for an initial consultation to explore the options that may be available to you. Our family law attorneys specialise in child custody disputes and parenting time enforcement - we’re here to help you.
As family lawyers in Nova Scotia, we know that legal proceedings pertaining to family matters can be lengthy in time, resulting in months and/or years before the matter is completed and a final Order is granted by the Court. This can be difficult if your circumstances require more immediate relief in the form of an Order, to address issues related to (but not limited to): decision-making, parenting, child support, spousal support, and/or property division.
Some cases may require an Interim Order to provide stability, while the parties are working through the Court process. For instance, a party may ask the Court to grant an interim Order for parenting arrangements when the parties are unable to agree on a parenting schedule, and there are no prior Orders addressing this issue. This would provide the family (most importantly the children) with the temporary stability and comfort of a set parenting schedule, while the long-term parenting arrangements are addressed with the Court.
Typically, if there is already an Order in place in relation to an issue, the Court will not allow an interim Motion to move forward, as there is already an Order in place providing direction to the parties. This is not always the case, however, as there are rare circumstances in which a prior Order must be changed immediately. For instance, if there is a parenting Order in place which presently presents a danger to the children, it may be appropriate to file an interim Motion to address this new circumstance.
To have an interim Order granted by the Court, parties may file an interim Order that has been consented to by the parties or their counsel, with the necessary supporting documents. If the Court is satisfied with the materials, the interim Order will likely be granted. In the event the parties cannot agree to the terms of an Interim Order, the party seeking relief must file a Notice of Motion for Interim Relief with the Court and must cite the applicable legislation allowing the Court to grant such an Order. In support of the interim Motion, the motioning party must file an Affidavit with the Court, explaining the interim relief they are seeking, and why. In recent years, the Supreme Court (Family Division) has put filing restrictions in place, whereby parties are only permitted to file five (5) page Affidavits with the Court in support of interim Motions (not inclusive of Exhibits).
After filing the Motion with the Court, a 30-minute organizational Conference will be scheduled with a Justice of the Court to determine how to address the Motion (either by consent, through a Judicial Settlement Conference, or through an interim Hearing).
There are occasions when interim relief may be sought on an “urgent” or “emergency” basis. The Notice of Motion for Interim Relief may be labelled as such; however, the Court will have final say as to whether it deems the matter to be of an “urgent” or “emergency” basis. This labelling of a Motion may result in it being heard more quickly before the Court.
The family law lawyers at Lenehan Musgrave LLP can help you navigate whether making a Motion to the Court would be appropriate in your circumstances, and how to best present this to the Court. Schedule a consultation with us today.
The Nova Scotia Supreme Court (Family Division) has been clear that child support is the right of the child, and not the parent. As such, parents have an obligation to support their children commensurate with their earning potential and capacity. Upon separation, this gives rise to a child support obligation. More information on the concept of child support can be found in our previous child support blog.
However, clients often wonder what happens if a parent quits their job to avoid paying child support. Or what happens when a parent chooses to go back to school? Or quit their high-earning job to start their own business? How does this affect child support? Our family law lawyers explain.
Because child support is based on the payor’s income, changes to employment and income may create concern that a payor is not supporting their children to the fullest extent they would ordinarily have been able to. In some of these circumstances, the recipient parent may wish to advance a claim to “impute” an income to the payor parent. In these kinds of applications, a parent can ask the Court to attribute to the other parent an income they are not actually earning. The payor parent would then pay child support based on the imputed income – not their actual income.
This is only one example of an “imputed income.” Under s. 19(1) of the Federal Child Support Guidelines, there are many different circumstances in which incomes can be imputed. Section 19(1) states:
19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted, which would affect the level of child support to be determined under these Guidelines;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
Claims for imputed income are very fact specific, and require evidence to advance. The family law lawyers at Lenehan Musgrave LLP can help you navigate whether such a claim would be appropriate in your circumstances, and how best to present this to the Court. Learn more about booking a family law consultation or complete the form below to book yours today…
As a team of family lawyers in Nova Scotia, we often discuss with our clients the different property claims available to them through the Courts. One such claim is that of occupation rent. Occupation rent is a claim that is found in the common law – that is – it is not contained in law. It is a concept which seeks to address the inequality which can occur when one spouse/owner vacates the parties’ home before the home is sold, or the equity in the home is divided. The claim is not limited to spouses, it can be claimed by common law partners and co-owners.
Because both parties/owners are equally entitled to be in the home, neither should be excluded from the benefits of living in the home. Parties often decide to leave the home and need to incur costs to live elsewhere, while waiting for the ownership of the home to be resolved.
Occupation rent is a claim against the party living in the home, seeking that they pay rent to the party who has left. Typically, this is awarded at the time of trial, as the party living in the home does not automatically pay rent to the party who has left in the interim.
Occupation rent can be a complicated claim to make, and it is not a claim every litigant will be successful in establishing it. The claim for occupation rent is very fact specific. Some circumstances where the Court has awarded occupation rent include:
Where there is no mortgage on the home, and the occupying spouse is not required to make monthly mortgage payments;
Where the occupying spouse has frustrated the sale of the home;
Where the occupying spouse does not have care of the children.
The Court considers all of the relevant circumstances of the parties before determining whether to grant an occupation rent claim.
Given the very fact specific nature of the claim, and that these claims involve an understanding of all the relevant legal factors, we encourage anyone who feels they may have a claim in this regard to book a consultation with one of our family law lawyers to discuss the options that may be available to you. You can also submit the form below to request a consultation.
When tax season is near, and if you are seeking to deduct legal fees as part of your tax return, it is essential to be aware of the eligible expenses. It's important to know which legal expenses can be considered tax deductions. If you have incurred legal fees to collect, receive, or secure child support or spousal support, you have the option to deduct those fees on line 221 of your income tax return. However, it's crucial to remember that only the parent or spouse receiving the support can claim their legal fees as a deduction.
The tax-deductible legal fees may relate to collecting late support payments, establishing an amount for support payments, or efforts to vary support to a higher amount. Unfortunately, legal fees paid to get a separation or divorce, or to establish custody of or visitation arrangements for a child cannot be claimed at line 221.
Every January we review our clients’ accounts and determine the percentage of time and effort spent on their file relating to their child and/or spousal support claims. We then send our clients who qualify for the deduction, letters outlining our opinion of the percentage of their legal fees they are entitled to deduct. The client can provide their letter to CRA as a receipt.
We offer these letters free of charge to our clients because we believe that individuals and families should enjoy the maximum income and benefits available to them by law.
To gain further insights into tax and family law, we recommend consulting the "Tax Matters Toolkit for Clients," a publication by the Canadian Bar Association. It offers valuable information on these subjects and is accessible here. If you require assistance with family law services in Nova Scotia, feel free to reach out to us. We are here to help. Remember, you may be eligible to deduct legal fees related to these matters.
Family violence is a concept which is known by many names: abuse, intimate partner violence, etc. It is also one that, unfortunately, does appear in family law litigation, and can have an impact on claims for parenting time. With the recent amendments to the Divorce Act and the Parenting and Support Act, we now have more expansive definitions to identify situations, or circumstances, which may be found to be “family violence.”
family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property; (violence familiale)
“family violence, abuse or intimidation” means deliberate and purposeful violence, abuse or intimidation perpetrated by a person against another member of that person’s family in a single act or a series of acts forming a pattern of abuse, and includes
(i) causing or attempting to cause physical or sexual abuse, including forced confinement or deprivation of the necessities of life, or
(ii) causing or attempting to cause psychological or emotional abuse that constitutes a pattern of coercive or controlling behaviour including, but not limited to,
(A) engaging in intimidation, harassment or threats, including threats to harm a family member, other persons, pets or property,
(B) placing unreasonable restrictions on, or preventing the exercise of, a family member’s financial or personal autonomy,
(C) stalking, or
(D) intentionally damaging property, but does not include acts of self-protection or protection of another person;
Both the Divorce Act, and the Parenting and Support Act ask the Court to consider whether there has been any family violence, and if there has been, what impact that may have had. This is one of the factors to consider, as noted, in determining what is in the children’s best interests. As a child’s best interests are determinative of what parenting arrangements should be ordered by the Court, the issue of family violence can have a significant impact on this determination. Such an analysis can be highly contextual, and fact driven. An experienced family law lawyer can help you navigate how to best approach these kinds of circumstances.
Most recently, in February of 2022, the Ontario Superior Court of Justice, in the decision of Ahluwalia v Ahluwalia, 2022 ONSC 1303, made a groundbreaking finding of the “tort of domestic violence” in the context of a family law proceeding. This allowed the mother to receive a monetary remedy from the father for the abuse she had endured over the years. While this concept does not yet have any reported decisions in Nova Scotia, it is an interesting new development that may warrant consideration in certain circumstances.
Our team of family lawyers in Nova Scotia are here to discuss your family law litigation case. Contact us for a consultation today.
As family lawyers, we know there are often many questions regarding hybrid parenting arrangements and child support. When people think about parenting arrangements post-separation, often times they envision a primary care arrangement (wherein the children reside primarily with one parent), a shared parenting arrangement (wherein the children reside with both parents at least 40% of the time), or a split parenting arrangement (wherein one child lives with one parent and a second child lives with the other parent). All of these parenting arrangements can employ any number of different schedules to arrive at their designation.
But did you know, for families with more than one child, it is possible to employ both a primary care arrangement and a shared parenting arrangement, within the same family? These are known as “hybrid” parenting arrangements. Under these circumstances, separated parents must have at least two children, with at least one child operating under a primary care arrangement and at least one child operating under shared custody or a shared parenting arrangement. In essence, different children in the same family would have different parenting arrangements. To determine whether a hybrid parenting arrangement is in play, a very fact specific analysis will be required.
Hybrid parenting arrangements present a unique challenge for the court in determining child support. Although the Federal Child Support Guidelines provide guidance on how to calculate child support for a primary care parenting arrangement, a shared parenting arrangement, and a split parenting arrangement, the Guidelines do not address how to calculate child support in a hybrid parenting arrangement.
Child support in a hybrid parenting arrangement has been canvassed throughout the provinces, with each taking their own approach to the calculation. In general, there are two primary ways in which child support can be calculated in a hybrid parenting arrangement. The first approach is a two-staged approach, which would have the court calculate child support for a primary care parenting arrangement for the first child, and then calculate child support for the second child using the Contino analysis. The second approach utilizes the economies of scale approach. This approach would have the court off-set the child support payable by each parent for the number of children and their respective parenting arrangements, and then engage in a Contino analysis.
For example, if the parties have two children, and Parent A has primary care of Child 1, and Child 2 shares their time equally between Parent A and Parent B, child support would be calculated as follows:
Parent A would pay child support for one child
Parent B would pay child support for two children
The child support payable by Parent A is offset against the child support payable by Parent B
Of the two-staged approach and the economies of scale approach, Courts in Nova Scotia have typically approved the economies of scale approach. Calculating child support in hybrid parenting arrangements can be complicated. We would encourage anyone looking to determine the child support payable in arrangements such as these to please contact one of our family law lawyers or complete the form below to book a consultation.
In Nova Scotia, the justices of the Supreme Court (Family Division) make decisions at trials and hearings based on the evidence that is presented to them by the parties. Most often, this includes financial information, and affidavit evidence, which outlines for the judge the facts of the case. However, there are certain circumstances where the information a party may feel is relevant to the overall determination of the file is not within their own knowledge or possession. When this occurs, litigants may seek out what is known as an “Order for Production.”
An Order for Production compels a third party, who is most often not a party to the proceeding, to release specific documents requested by the litigant. Some of the more common third party records sought in family law proceedings are the records of the RCMP/police or the Department of Community Services (Child Welfare).
There are two primary ways in which an Order for Production is obtained; by consent or by Motion through the Court.
In the event both parties consent to the release of specific records, an Order is drafted and signed by a judge. The Order is then provided to the third-party record holder who provides the information to the litigant.
In the event one party does not agree that the records should be produced, the party seeking the release of specific records must file a Motion for an Order for Production. When this happens, both parties present their evidence as to why they believe the records should or should not be released. The presiding justice then makes the determination as to whether the records should be released. One of the primary concerns the justice will concern him or herself with is whether the records are relevant to the proceeding at hand.
Orders for Production can be tricky, and there is procedure that must be followed if a litigant seeks the production of third-party records. The lawyers at Lenehan Musgrave LLP can help you determine whether an Order for Production is something that should be pursued as part of the overall process of litigation. If you have any questions, we encourage you to contact one of our family law lawyers or complete the form below to book a consultation.
Clients often ask us how to enforce Court Orders or Court Registered Agreements for child support, or spousal support. In particular, when the payor parent stops paying or the payor spouse stops paying. In Nova Scotia, one option available to you is the Maintenance Enforcement Program. The Maintenance Enforcement Program is an organization that is tasked with enforcing Court Orders for support. They are governed by the Maintenance Enforcement Act.
The Maintenance Enforcement Program has a broad range of powers available to enforce Court Orders. This can include garnishing a payor’s wages, suspending a payor’s license and even suspending a payor’s passport. They also provide an ongoing record of support payments made and received, so that both parties are assured that payments are up to date.
The Maintenance Enforcement Program can enforce Court Orders for child support, spousal support, and in some circumstances, section 7 expenses. However, the language required in a Court Order for enforcement is very specific. It is important that the language requirements are met to ensure the Maintenance Enforcement Program is able to enforce the financial obligations contained within the Order properly.
The family law lawyers at Lenehan Musgrave LLP are experienced in ensuring Court Orders meet the requirements of the Maintenance Enforcement Program for enforcement. If you have any questions regarding the enforcement of your Order, we encourage you to contact one of our lawyers or complete the form below to book a consultation.
Following a separation, some parents may wonder what options are available to them if they feel their children will not be safe in the other parent’s care. One option available in these cases is supervised parenting time.
There are many different forms of supervised parenting time, which range in levels of restriction. In most instances, a third party attends parenting time with a parent to observe the interactions between parent and child. Sometimes this involves a third party simply being present in the home with the parent, but not necessarily in the same room. Other times, it is expected that the third party have “eyes on and ears on” the parent in need of supervision, which means that the supervisor must be able to see and hear the interactions between parent and child at all times.
Supervised parenting time is a restrictive form of parenting time that is not ordered lightly. In most cases, supervision is temporary, and is not meant to be used for long-term parenting arrangements. The parent seeking supervised parenting time bears the burden of proving it is in the child’s best interests. Supervised parenting time is not ordered to provide comfort to the other parent, but rather, to address real concerns that may impact a child’s safety or comfort. Some examples of situations that have warranted supervised parenting time in the past have included:
1. Substance abuse;
2. Severe and untreated mental health issues; and
3. Abuse of the child by one parent.
Supervised parenting time has also been ordered by the Courts when one parent is experiencing a reintroduction to a child after a period of absence from their lives.
Lenehan Musgrave LLP is a firm of family lawyers in Dartmouth, Nova Scotia. Whether or not supervised parenting time is appropriate is very fact specific and must be grounded in evidence. The lawyers at Lenehan Musgrave LLP appreciate your child’s safety is the paramount consideration in determining parenting arrangements, and the experienced divorce lawyers at our office are available to assist you in navigating whether this form of parenting arrangement would be appropriate in your circumstances. If you need help with your parenting arrangements, complete the form below to book a consultation.
The calculation of child support obligations is not a straightforward procedure when one of the parents has a controlling interest in a business. When both spouses are employed by others, a review of the T4 issued by their employers is often used to determine employment income.
This is not the process however when one of the parents has a controlling interest, or is or sole owner of a company. When a parent can control what his/her income is and the form in which this income is taken, a number of issues must be examined to determine the true income of the parent. The Child Support Guidelines, both Federal and Provincial, address what needs to be examined to determine income in this situation. There is not an assumption that a parent who owns or controls a business is not disclosing their income, there is simply a requirement to examine additional information to determine what is the actual income available to the parent.
For example, if a parent takes a salary from the company they control and the company provides benefits such as a cell phone and vehicles, these are all examined for inclusion to determine the total income for purposes of child support. Depending on the business, the parent can have different incomes from year to year, and it may be necessary to look at a number of years income to determine the parent’s average income.
When a parent owns or controls a company, the requirement for disclosure is much greater as their personal income tax return and notice of assessment do not provide a complete picture of all their sources of income. Copies of corporate tax returns, notices of assessment and financial statements are often required to determine the true income of the parent. These calculations and the treatment of various benefits a parent may have by owning or controlling a company, can only be done through a review of the company’s tax returns and financial statements.
At Lenehan Musgrave, a family law practice based in Dartmouth, NS, we are pleased to assist parents in the understanding of the sources of income when a parent owns or controls a corporation and the calculation of child support in those circumstances.
If you need help with your divorce and child support negotiations, contact us to book a consultation with a family lawyer.
Often you will hear that child support is the right of the child, not the parent. As a result of this, parents are very rarely able to “contract out” of the right to child support. In a situation wherein one parent has primary care of a child, this is usually fairly easy to calculate using the Federal Child Support Guidelines and the Federal Child Support Tables. This creates consistency and predictability for both payor and recipient parents.
But what happens when a payor parent has another child they are supporting? Or when the child they pay support for lives in another province? This can give rise to some unique circumstances when the Court is able to deviate from the Federal Child Support Guidelines and the Federal Child Support Tables. This concept is referred to as “Undue Hardship”.
Claims for Undue Hardship are made under s. 10 of the Federal Child Support Guidelines. In making such a claim, a payor parent must establish to the Court there is a reason why they cannot pay the full table amount of support. These claims are very complex and require certain evidence to be successful. The Court does not look at these claims lightly, and the burden remains with the payor parent to establish why they should not be required to pay the full table amount of child support. It is not as simple as fitting in one of the categories outlined in s. 10 of the Federal Child Support Guidelines, you must also establish that these circumstances are causing you undue hardship.
If you are interested in pursuing a claim for Undue Hardship, a consultation with one of our family lawyers can assist you in navigating this process. Contact us or fill out the form below to book a consultation.
Many people contact our legal practice to ask: “What is a cohabitation agreement?”. Cohabitation Agreements in Nova Scotia, or anywhere in Canada, are agreements entered into between a couple who wish to live together and determine issues with regard to property and obligations. Couples can enter into a Cohabitation Agreement in advance of a marriage if they plan to live together and subsequently marry. If the parties plan to marry or enter into an agreement after marriage, the agreement is then referred to as a Marriage Contract and must specifically mention that it is a contract to be taken into consideration under the Matrimonial Property Act – which applies to all married couples.
The purpose of these agreements is to set out agreed terms regarding assets. Generally, these agreements deal with ownership in homes, pensions, investments and potential inheritances. When parties are entering into a relationship with assets, these agreements can set out how these assets will be treated; how future assets will be shared; and, what the obligations of the parties will be to each other.
Cohabitation Agreements cannot set out obligations for future children and the support of these children. These are issues that cannot be agreed to in advance of the obligation. It is not uncommon for these agreements to set out, in advance, obligations of the parties to one another with regard to potential claims for spousal support, especially if the parties do not want to be obligated to support each other in the event of a breakdown in the relationship.
Cohabitation Agreements can also resolve ownership of homes and how that interest will be treated when one party moves into a home held by the other. The agreements can state who is responsible for daily expenses, renovations, property taxes, mortgage payments and how any increase in value in a home will be shared in the event that the relationship does not last.
Agreements are always recommended for individuals who have assets and pre-existing obligations, such as children or spouses from prior relationships, so that there is clarity between the parties as to what obligation each party has agreed to assume and the consequences of it. Contact our team of family lawyers in Nova Scotia for more information about cohabitation agreements. If you’ve got questions about family law, we encourage you to contact us ior fill out the form below to book a consultation.
As family lawyers in 2024, we know that the composition of a household can take many different forms. When it comes to child custody and biological parents, things can get complex.
As lawyers who often get asked for consultations and to prepare legal documentation, clients often ask us about litigation cost awards in court cases. When a matter is taken to trial, the parties are asking a judge to make a determination of the issues on their behalf.
In many family law cases where there are children, a major objective is developing a parenting plan that meets the needs of the children.
