Child Custody and Access

Child Custody and Access is an issue for both married and unmarried couples who have children and are not cohabiting. Determining the appropriate arrangement can be difficult for parents to negotiate and a lawyer can help you to arrange the best schedule for your family. Impending changes to Nova Scotia's legislation impact on the rights of spouses who have no biological link to a child. That parent's ability to have access and obligation to pay support after separation from a parent is changing.

There are several forms of custody arrangements:

  1. Custody and Access - Custody and access means that one parent has the child most of the time and the other parent is able visit with (access) the child. In situations of custody and access, the access parent has the right to be given information about the health, education and welfare of the child. The access parent does not have the right to make decisions about these issues. The custodial parent makes these decisions.
  2. Joint Custody - Joint custody means that the parents share major decisions in relation to the child. This includes decisions regarding the child's general welfare, health and education.
  3. Split Custody - Split custody is where each spouse has custody of a least one child.
  4. Shared Custody - Shared custody is where a spouse exercises access in an amount not less that 40% of the time.

When determining custody and access the court considered the best interests of the child. Generally courts find that children have a right to know each parent and that they should have as much contact with each parent as is in their best interests. Access is considered a right of the child, not a right of the parent.

Child Support

A related issue is that of child support. Child support can be granted to married or unmarried parents. Child support is payable for children under the age of majority or children over the age of majority who are unable to support themselves for reasons such as illness, disability, or because are in university.

The Guidelines provide information on how to calculate the appropriate amount of child support. Courts generally look to the Guidelines to determine the amount of child support a parent should pay. The Guidelines include a table that calculates the amount required to support a child in any particular province. This amount is scaled to reflect the income of the payor parent. In cases of split or shared custody, the court looks at how much money each parent would pay under the table amount, and then uses a set-off approach to determine how much money should be paid and to whom. Additional expenses such as childcare, medical or dental expenses, educational expenses, and extra-curricular activities may be added on to the table amount.

Cohabitation Agreements

A cohabitation agreement is a contract between a couple that sets out the rights and obligations that they have each agreed on, typically relating to areas such as childcare and the division of property and debts should the relationship end. Despite their utility, most couples do not have a cohabitation agreement and in the unfortunate event that the relationship breaks down, may find that their partner�s understanding of what had been �agreed� differs from that of their own. A properly drafted cohabitation agreement will help to clarify these issues by clearly setting out the parties understanding in the form of a contract.

Cohabitation agreements are particularly important for couples where one or both of the partners may have children from previous relationships, own businesses or property such as a home, cottage or land, have received or will receive an inheritance, or have existing investments or debts. The agreement should also address how to deal with future events such as children, jointly purchased property, marriage etc.

An open and honest discussion between the parties outlining their assets, liabilities and their expected obligations to each other is a key first step in developing a cohabitation agreement. We can assist you in developing a cohabitation agreement that reflects your wishes and is legally enforceable.

Marriage Contracts

No one enters a marriage expecting it to come to an end but today more than a third of all marriages in Canada end in divorce. When a marriage ends in divorce a variety of federal and provincial statutes come in to play that govern how matrimonial assets such as property, investments and pensions are divided and how much spousal support your partner may be entitled to. These arrangements may not reflect your wishes.

A properly drafted marriage contract lets you decide how assets are divided and how much support your partner is entitled to. Marriage contracts are particularly important for couples where one or both of the partners may have children from previous relationships, own businesses or property such as a home, cottage or land, have received or will receive an inheritance, or have existing investments or debts.

Discussing these issues with your future partner and setting down your agreement in a marriage contract is not an admission that you expect the relationship to fail. Rather, much like an insurance policy, it is something that you will hopefully never need but that can save considerable stress at an already difficult time should it become necessary. We can assist you in developing a marriage contract that reflects your wishes and is legally enforceable.

Separation and Divorce

Parties may become divorced provided there has been a permanent breakdown of the marriage. The permanent breakdown of a marriage is considered grounds for divorce. If the parties have lived separate and apart for one year they are permitted to divorce. This is the most common ground for divorce. If adultery has been committed, or if there has been mental or physical cruelty, the parties are permitted to divorce without having to live separate and apart for one year.

When a couple gets divorced a number of issues will need to be resolved. These include the division of property, custody, access and maintenance of any children, and spousal support.

Whether the parties are in agreement or not, there are numerous forms and paperwork required for divorces. Each party will have to disclose their financial information including their income and expenses. Upon separation, couples are well advised to keep careful track of their finances so that they will have evidence to produce in court. Specifically they should keep copies of statements for any bills, investments, or bank accounts.

In Nova Scotia, the starting position is that martial property is divided equally between the spouses. There are exceptions where marital property is divided unequally. Whether property is to be equally or unequally divided depends on the circumstances of the case and of the property to be divided. Some property owned by spouses is not considered matrimonial property. This includes inheritances that one spouse receives to the extent they are not used by both spouses, a spouse's personal effects, and business assets.

A couple may agree to have a lawyer draft a separation agreement. This can save time and money particularly if the spouses are getting along. A separation agreement can make provisions for the division of assets, parenting related issues, and spousal support. An agreement normally will be upheld in court provided each party has independant legal advice.

If a couple is unable to agree on how to divide their assets, care for their children, or whether spousal support is appropriate, then this is considered a contested divorce. A judge can make a determination of what is fair and just given the circumstances.

Divorces are often complicated and often emotions run high during the proceedings. A lawyer can help give you perspective, advise you of your best interests, and can help negotiate settlements. A lawyer can also help you complete the paperwork necessary for a divorce.

While care has been taken to ensure the information contained herein is accurate, the information provided is based upon the laws of Nova Scotia and is supplied for general interest purposes only. It is not intended, nor should be considered to be specific legal advice or opinion.

Last Revised by Philip Whitehead, January 5, 2017.

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