Things to Think About

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Business Assets and Valuation

Under section 4.1 of Nova Scotia’s Matrimonial Property Act, business assets are excluded from the definition of Matrimonial Property. As such, they are not subject to the same presumption of equal division as a matrimonial home, or pensions.

“Business assets may be classified as matrimonial depending on the primary purpose of the asset, including whether the asset is generating income in a entrepreneurial sense, whether the asset is a capital asset acting passively, or whether the asset was acquired from funds diverted from the family.” (See Wolfson v. Wolfson [2021] N. S. J. No. 358)

Some decisions of the Nova Scotia Supreme Court render a portion of a business asset as matrimonial and subject to division,while leaving other portions as business assets exempt from division.

We recommend that persons with business assets get legal advise before getting married or divorced so that they are able to make informed decisions and informed choices about how they may want to structure their business and life.

Posted by Philip Whitehead

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Best Interest of the Child

On June 3, 2022 the Supreme Court of Canada issued its decision in B.J.T v. J.D. The decision surrounded a custody dispute between a grandmother and the father of a child. In its decision that the child should remain in the custody of the grandmother, The decision written by Justice Martin included a determination that,

“It is not an error, in my view, for a court to consider a biological tie in itself in evaluating a child’s best interests under this act, even though courts should be reluctant to superimpose the factor onto a statute when a legislature has omitted it, since courts and legislatures have progressively moved away from biological ties. Nevertheless, courts have considerable discretion in identifying and weighing the factors that are relevant in a given case (Van de Perre, at paras. 11‑13, citing Hickey, at paras. 10 and 12). As a result, a court may conclude the evidence supports assigning weight to a biological tie if it can make the link to a child’s best interests. That said, a biological tie in itself should generally carry minimal weight for several reasons.”. The decision is available to read at B.J.T. v. J.D. – SCC Cases (scc-csc.ca)

Although the decision is based on the particular facts of the case, it confirms the Court’s focus on the best interests of the child and not the rights of the parents.

If you are looking for advice or representation on Family Law Issues in Nova Scotia, call or email our office at 902-429-7272 or Philip@whiteheadlawyers.com.

Posted by Philip Whitehead

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Relocating a child

In Nova Scotia there are differences in the test Nova Scotia Courts apply to married versus unmarried parents of a child when one parent wants to relocate with the child.

Married parents who are no separated or divorced continue to be governed by the Divorce Act (recently amended) while parents who were not married are governed by the Parenting and Support Act.

Under the Divorce Act, a person who has parenting time or decision-making responsibility in respect of a child and who intends to relocate must provide notice to any other person who has parenting time or decision making responsibility, or contact under a contact order. The Justice Canada provides a form for the notice required at https://www.justice.gc.ca/eng/fl-df/divorce/nrf-fad.html.

Section 16.92 of the Divorce Act sets out factors to be considered for relocation applications. It also establishes that “the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate“.

This factor which is prohibited from consideration is a change from the way Nova Scotia handles relocations previously under the Divorce Act and the Parenting and Support Act.

The Divorce Act can be reviewed at https://laws.justice.gc.ca/eng/acts/D-3.4/rpdc.html while the Parenting Support Act is available at https://nslegislature.ca/sites/default/files/legc/statutes/parenting%20and%20support.pdf

If you or someone you know is considering a relocation it is important to understand the burden’s, tests and timelines under the applicable legislation. We would be happy to provide advice.

Sincerely,

Philip Whitehead

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Changes to the Divorce Act

On March 1, 2021 changes to the Divorce Act came into effect which addressed the need to recognize, codify and provide remedy for family violence.

“Family Violence means any conduct, whether or not the conduct constitutes an 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 -”

Family violence is recognized as including:

(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.

The changes also include changes in terminology and approach from “Custody and Access” to refer to parenting time and and decision making, and include provisions for contact time by a non-parent (grandparent or other involved person).

For more information about how these changes may affect your situation, give us a call, or review the changes at https://www.justice.gc.ca/eng/fl-df/cfl-mdf/dace-clde/index.html

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Estate Planning

As the world continues to struggle with wave after wave of Covid 19 deaths, we are seeing increased numbers of our clients moving forward to update, or create a Last Will and Testament, appoint a Power of Attorney or consider other Estate Planning.

Drafting a Will is more than simply leaving your possessions to loved ones, it is an opportunity to examine ways to minimize taxes, reduce delays, and facilitate conversations with family members.

If you would like to get advice and assistance to complete your Will, do estate planning, or appoint someone as your power of attorney we would be happy to help.

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Nova Scotia Unified Family Courts

For years, Nova Scotia has operated with Family Courts for Custody and Access for non-married parties and with Supreme Court for all matters related to a Divorce. The distinction related to whether the legislation being applied was federal like the Divorce Act, or Provincial like the Parenting and Support Act.

Halifax and Sydney moved to a unified court years ago where the same court (Supreme Court Family Division) could deal with all matters together as it had authority to provide remedies under provincial and federal legislation. These counties also operate with a different set of Civil Procedure Rules (the Family Court Rules found in Rule 59)

As of January 1, 2020 Nova Scotia has begun the move to a unified system in all Counties by assigning a Supreme Court Justice to sit in the various the Family Courts thereby having a judge with jurisdiction under all applicable legislation.

Although Halifax and Sydney remain the only Supreme Court Family Division Courts the province has moved to a unified court in all court jurisdictions except Kentville and Bridgewater. These counties are now switching to the same Civil Procedure Rules as are in Halifax and Sydney.

This posses additional challenges for people who have started proceedings before January 1, 2020 in a county under Civil Procedure Rule 62 because of the changes related to Rule 59. The Rules can be found at https://www.courts.ns.ca/civil_procedure_rules/cpr_home.htm

If you have questions, we would be happy help you.

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Division of Overseas property in a Canadian Divorce

Canada is lucky enough to be the chosen home of many immigrants.  Some retain and or purchase property in their original country during marriage.  When those people divorce in Canada, dealing with their Foreign Property (including Real Estate) poses additional challenges.

In Nova Scotia there is a distinction made by the Court between Movable and Immovable Property in a foreign jurisdiction.   That distinction impacts on the law applied to the division.

The first step in dealing with Immovable Property (Real Estate) in a foreign jurisdiction, is often proving or agreeing on a valuation.

If you or someone you know needs advice or representation for these issues, we would be happy to help.  Give us me call at 902-404-3622 or email Philip Whitehead at philip@whiteheadlawyers.com

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Family Law and Covid19

As Nova Scotia moves forward in a return to normal life, many of us want to move forward in our personal lives. Currently, the Nova Scotia Supreme Court (Family Division) is scheduling Settlement Conferences by telephone, and having hearings for only the most serious matters. Those matters being scheduled for hearings are effectively only Child and Family Services matters.

The delays are likely to last for months and the back-up of the system will take even longer to clear. With this in mind, we encourage clients and potential clients to complete what they can complete now rather than wait. Settlement discussions (either through counsel or with the assistance of the Court) typically result in Agreements/Consent Orders, Custody and Access Agreements/Orders or Partial Agreement/Order dealing with specific assets.

For those people looking to start a Divorce, the proceeding can be started and all of the disclosure done so that things are read to go when the Courts get back to normal.

If settlement discussions are successful, they can be incorporated into a consent divorce.

If you or someone you know has been waiting to finalize their divorce, to formalize the terms of a separation, or formalize parenting arrangements, we would be happy to help with advice and drafting.

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Resumption of in person meetings June 8, 2020

In light of the changes to Covid19 restrictions and the reduced risk to our clients, we will resume in person meetings when required. This provides us the opportunity to assist clients with Wills, Powers of Attorney, Notarization of documents.

In order to help maintain our client’s health and safety we will continue video and telephone contact/meetings when possible. We will implement and maintain the recommendations and guidelines of the government of Canada and of Nova Scotia. These recommendations include social distancing, regular cleaning/disinfecting and more. Information can be found at https://novascotia.ca/coronavirus/COVID-19-Fact-Sheet-Business.pdf.

We look forward to working with you through these challenging times.

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Child and Spousal Support in a Covid World

Many parents pay Child Support or Spousal Support to an ex-spouse. Existing payments were calculated based on the paying person’s income for child support. Spousal Support if payable, was calculated on the respective incomes of both parties, the length of the relationship and other factors.

Common to both payments is the determination of the paying person’s income.

If you or someone you know has been laid off, or had a substantial change to income it may be impossible for you to continue to pay Child Support or Spousal Support at the same level. Depending on how long you anticipate being off work, or having reduced income, you may want to simply use savings to make up the gap, or you may want to look at changing/varying the current payment amounts.

If both the payor and receiver are in agreement to a temporary or extended change, it may be possible to do a consent order ensuring that Maintenance Enforcement adjusts the amounts due and does not take steps to enforce the payments. We would be happy to helps draft the required documents.

If both the payor and receiver are not in agreement, we would be happy to discuss options and provide advice.

As a starting point, the payor should notify the receiver of the loss or change in income immediately.