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Child Decision-Making Responsibility and Parenting time (formerly Child Custody and Access) is an issue for both married and unmarried couples who have children and are not cohabiting. Determining the appropriate arrangem
ent can be difficult for parents to negotiate and a lawyer can help you to arrange the best schedule for your family. Recent 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 typical forms of custody arrangements:
Sole Decision-Making Responsibility (formerly Sole Custody) means that one parent has the child most of the time and the other parent is able visit with (access) the child(ren). In situations of Sole Decision-Making Responsibility the other parent typically has the right to be given information about the health, education and welfare of the child but not the right to make decisions about these issues. The primary care parent makes these decisions.
Shared Decision-Making Responsibility (formerly Joint Custody) means that the parents share major decisions or in relation to the child. Divided Decision-Making Responsibility means that each parent has certain areas where they make the decision(s) in relation to the child. This includes decisions regarding the child’s general welfare, health and education and have the independent right to get information directly from any care or service provider for the children.
Shared Parenting (Shared Custody ) is when both parents have the child(ren) not less that 40% of the time. They typically share decision making on all major issues.
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 education.
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he Federal Child Support 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 starts by examining 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 in proportion to the incomes of the parents.
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. Agreements are intended to meets the goals, objectives and particular situation of clients.
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. After that, we can assist our clients developing a cohabitation agreement that reflects their wishes and is legally enforceable.
No one moves in together or enters a marriage expecting it to come to an end but today more than a third of all marriages in Canada end in divorce. In Nova Scotia, 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. Currently, Nova Scotia is in the process of changing the laws of property division for people who live together.
Parties may become Separated or 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. Canada has Spousal Support and Child Support Guidelines which are applicable.
In Nova Scotia, the starting position is that Matrimonial Property is divided equally between the spouses. There are exceptions where matrimonial 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.
Most separated couples are able to avoid going to court by working out an agreement. Most often each party will work with a lawyer to negotiate and formalize 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, child support and spousal support. An agreement normally will be upheld in court provided each party has independent legal advice.
If a couple is unable to agree on how to divide their assets, care for their children, or whether support is appropriate, then this is considered a contested divorce. A judge can make a determination of what is fair, just and in accordance with the laws of Nova Scotia in the given circumstances.
Divorces and Separations are often complicated and frequently emotions run high during the proceedings. We can help give you perspective, advise you of your options, recommend what we believe is in your best interests, and help negotiate settlements. We can also help you complete the paperwork necessary for a divorce.