Upon the separation of a couple, many parties enter into what is known as a separation agreement. A separation agreement is typically negotiated and drafted, within it are agreed to terms for division of property, child support, custody and access.
Separation agreements often address issues of custody and access of the parties’ children as well as property issues, child support and spousal support. In some cases the Courts may disregard terms of a separation agreement with regards to child support if the support is inadequate regardless of whether the parents believe that their agreements were final, binding and not to be valid.
The Maintenance and Custody Act states that a court “may” consider the terms of any agreement with respect to custody of or access to a child, but the court is not bound by the agreement if the court is of the opinion that the terms of the agreement are not in the best interest of a party or child.
S.52 of the Maintenance and Custody Act also allows an agreement to be registered with the court with results in the agreement having the effect of an Order. However, the court is entitled to inquire into the merits of an agreement at the time it is registered and can vary the terms before registering it.
The Court does have the jurisdiction to set aside a marriage contract or a separation agreement where the Court is satisfied that any term of the contract or agreement is unduly harsh, unconscionable or fraudulent in any way.
The breakup of a relationship is extraordinarily difficult on you, both emotionally and financially, but grown ups and children alike can and do survive separation and divorce. The legal issues that arise at this time are complex and important, involving choices and decisions. Some couples resolve their divorce issues without a lawyer or any other professional for that matter. Others engage in drawn-out courtroom battles that add to the emotional and financial costs of divorce. Most can find their needs met between the two ends of this spectrum.
A Divorce Proceeding is commenced under the Divorce Act in the Supreme Court of Nova Scotia or Supreme Court, Family Division. The order in which the court adjudicates matters is to begin with the Divorce and parenting of the children, then division of assets and child-support, and finally, spousal-support.
The Divorce Act provides that a court in a province has jurisdiction to hear and determine a Divorce if either spouse has been an ordinary resident in the province for at least one year immediately preceding the commencement proceeding.
Grounds for Divorce
Under the Divorce Act most Divorces are granted and finalized on the grounds that there has been a permanent breakdown of the marriage. Permanent breakdown of the marriage is established where one of the following circumstances is present:
- Spouses have lived separate and apart for at least one year; or
- The spouse against whom the petition is issued has committed adultery; or
- The Respondent has treated the petitioning spouse with mental or physical cruelty that has rendered continued cohabitation intolerable.
Proving the breakdown of a marriage with evidence of adultery or cruelty means there is no requirement to wait one year after the separation to finalize Divorce. However, it is much less common for parties to proceed with the Divorce proven by adultery or cruelty, as the evidence required is normally more extensive and parties are often separated for one year by the time the Divorce hearing occurs.
A Petition seeking Divorce on the basis of separation for one year may be commenced immediately upon separation, but cannot be completed until the one year has passed. This allows the parties to obtain Interim Relief in matters such as the support of children of the marriage.
Divorce Resolution Options
- Minimum legal involvement – You manage your divorce making use of a lawyer on an "as needed" basis for help in drafting agreements and other documents;
- Mediation – A mediator is someone who remains neutral and meets with both parties to assist them in reaching their own agreement. Mediators can be lawyers, mental health professionals or anyone else with an interest in mediation. Mediators do not give legal advice, and consequently, retaining your own lawyer is advisable;
- Collaborative Law – Several lawyers in Nova Scotia have been specially trained to advise and assist in negotiating an agreement on all issues. Each party retains his or her own trained collaborative lawyer to look after his or her interests. In this process, the lawyers cannot go to court. Settlement is the only agenda. All decisions are made by the parties. The lawyers facilitate the process and generally prepare the necessary documents;
- Adversarial Approach – Each party hires a lawyer. The lawyer represents you and takes instructions from you. The lawyer's job is to give you sound legal advice. The lawyer advocates for you and you alone, whether it be to negotiate a settlement on your behalf or to litigate at trial;
- Arbitration or binding Settlement Pre-Trials – Arbitration or binding Settlement Pre-Trials - Parties may choose a private arbitrator who will be given the power to make certain decisions for them as an alternative to taking their case into the public court system. Some judges will agree to make a decision without the necessity of a trial if both parties agree to participate in a binding Settlement Pre-Trial.
Common Hurdles for Getting Divorced
In our experience, most couples focus on two issues:
1. Children; and
Generally speaking on the issue of children, the law is clear that the children's best interests are paramount. Children have a right to have maximum contact with each of their parents.
On the issue of spousal support, the law requires full disclosure with respect to the marital background and the financial roles played throughout the marriage. For example, if one spouse was the breadwinner and the other spouse was a stay-at-home parent, it is likely that spousal support will be an issue. Spousal support is based on entitlement. Once entitlement has been established, there are two remaining issues, duration and quantum. Spousal support is based on ability to pay, on the one hand, and need on the other hand.
On the issue of child support, the Federal Child Support Guidelines set out the criteria in determining both the base amount of child support and contribution to extraordinary expenses. Child support may be straightforward in situations where the payor spouse is an employee. It may be quite complex, if the payor spouse is a shareholder in a company.
On the issue of the division of assets and debts, generally the law is clear that assets are divided equally, unless the party claiming an unequal division in his or her favour proves that an equal division would be unfair and unconscionable.
The foregoing sets out the primary issues separating spouses must resolve, however, there can be a multitude of other issues from interim suit costs to a valuation of business assets. You will want to ensure that you have been properly advised on all of the issues and know all of your choices before committing and making a decision.
The first step in determining the appropriate amount of child support is to determine the payor parent’s total annual income, before taxes. Annual income is the money a person earns from employment and self-employment and income from investments. This includes all sources of income in the payor parent’s tax return (for example: salary, wages, commissions, Employment Insurance, Social Assistance).
Each province has their own separate tables and the appropriate table is the province where the payor parent resides. If the payor parent resides outside Canada, then the appropriate table is that provincial table for the province in which the recipient parent resides.
How is child support calculated in a shared parenting situation?
The determination of child support in a shared parenting situation can be complicated. The Supreme Court of Canada has set out the principles in the Contino v. Leonelli-Contino case. There are many factors to consider in determining an appropriate amount of child support in a shared parenting situation: table amount of child support, child care expenses and tax deduction for child care expenses, extra curricular activity expenses and tax deduction for extra curricular activities, dependent tax deduction, Child Tax Credit, Universal Child Care Benefit, etc. You should consult with an experienced family law lawyer.
How We Can Help
Regardless of your selected approach, our legal team can help prepare appropriate documents, represent you and your wishes in matters of divorce. Connect with a member of our team today to schedule your free half hour consultation. To contact a member of our team call us at 902-469-9500 or 1-866-339-3400 or contact us online to make an appointment.