It would be impossible to set out here all of the issues and answers to challenges that face individuals and families.  Below we give you some general guidance with respect to particular issues that arise most often.  In doing so, we remind you that you should contact us directly to obtain specific legal advice surrounding your particular circumstances.  This general information is not intended to replace the advice of our lawyers when taking into account your unique situation.

Child Maintenance
One of the most common requests for legal services surrounds the issue of child maintenance.  In Nova Scotia this issue was governed by one of two pieces of legislation.  If the relationship between the parents is common-law or if they are married and have not yet petitioned for a divorce, the Maintenance and Custody Act of Nova Scotia will be used to determine the child maintenance amounts.  If the couple is married and has petitioned for divorce, the Divorce Act will govern.  In either case the law and rules are essentially the same.

Most commonly a child resides with one parent.  That parent is the recipient of child maintenance.  The payor parent must pay a basic amount of child maintenance in accordance with the Child Maintenance Table.  All that is needed is confirmation of the payor parent’s gross income and the number of children for whom maintenance is paid.  That amount is then incorporated into an Agreement or an Order and is normally paid on a monthly basis.

It is important to note that the amount in question is not tax deductible to the payor and does not have to be included into the recipient parent’s income for tax purposes. 

Occasionally, the parent will want the child maintenance directed to a particular expense or will want control over how the money is spent.  Generally speaking, this is not permitted and the recipient parent is responsible for employing the funds in a manner that is consistent with the best interests of the children.

To any basic amount of child support, there is discretion to additional expenses such as child care, medical and dental costs, prescription costs, counseling, school activities or extra-curricular activities.  There are specific rules that apply to determining whether these amounts are payable and what amounts should be paid.  If it is determined that the amounts involved, such as child care, are reasonable and required, the parents will share the amounts proportionately.  Thus, if the father has twice the income of the mother, he will pay two-thirds of that expense and the mother pay one-third.

Custody and Access
Child custody and access are two different issues.  Child custody deals with the issue of who will make the major decisions concerning a child or children.  Such issues include health, dental, educational and religious issues.  There may be others but this is the most common list.  Most children are subject to an Order of joint custody between the parents, meaning that the parents must communicate regarding these major issues and make the decision jointly.  In a sole custody situation, one parent is given the authority to make major decisions though consultation with the other parent is encouraged.

In addition, there are two other types of custody commonly referred to as shared and split.  Neither deals with the issue of who makes major decisions and only deals with where the children live.  In a shared custody arrangement, the child or children spend between 40% and 60% of their time with each parent.  This affects the issue of child maintenance which should be discussed with your lawyer.  In a split custody circumstance, each parent has one or more children living with them on a regular basis.  This likewise affects the issue of child maintenance.

As for access, this deals with how much time the child spends with the non-custodial parent.  For example, if the mother has the children most of the time, the father may have access with the children from Friday evening to Sunday evening and one or two evenings during the week.  This is a common situation of access but by no means required.  The Courts or the parties can arrive at any reasonable solution based on the best interests of the children in determining access.  Creativity is more common these days and the Court is open to any suggestions that are best for those children.

Spousal Maintenance
There are no simple rules with respect to eligibility for spousal maintenance (often called alimony) nor the amounts to be paid.  It is based on the means, needs, and circumstances of the parties including the ability of the party being requested to pay spousal maintenance to afford the cost and the needs of the recipient party.  Factors such as the length of marriage, any disadvantage suffered by other spouse during the marriage, the level of education of each spouse, the work experience and age of each, and many other factors are brought into play. 

In general, it may be helpful to think of a spectrum of marriages from a Traditional marriage to a Modern marriage. Traditional marriage might be recognized as one that many of our parents may have enjoyed when one spouse, usually the wife, stays at home to raise the children, giving up her career and income opportunities. The husband works to provide bread for the table and develops his career, pension and opportunities along the way. In these situations, the longer the marriage the more likely a substantial and long term spousal maintenance arrangement will be put in place.

On the other hand, in what may be described as a Modern marriage, as enjoyed by many of contemporary couples, both spouses work and give up little or nothing by way of career or income over the course of their relationship. In such circumstance, it is less likely that substantial or long term spousal maintenance will be awarded.

There are several models by which the Court assesses whether spousal maintenance entitlement exists as well as assesses whether there is an ability to pay. There are vast array of individual circumstances and the issue of spousal maintenance is a highly personalized one with which the Court will exercise wide discretion. It will attempt, fundamentally, to be as fair as possible to each party. This should be discussed with your lawyer.
 

Property and Debt Division
In Nova Scotia, the Matrimonial Property Act deals with the issue of a division of property on the breakdown of a marriage.  It does not apply to common-law relationships.  The Act presumes a 50/50 division of all assets but gets the Court’s discretion in certain circumstances to provide assets unequally. 

Pensions deserve special attention.  Pensions are matrimonial assets subject to division like any other asset.  In Nova Scotia the entire pension, whether some of it was earned before the marriage or not, is presumed divisible equally under the Matrimonial Property Act.  It is up to one of the parties to argue that it should be divided unequally, usually from the date of marriage to the date of separation.  But a presumption of equal division is made at the outset.

On the other side, debts are not specifically dealt with under the Act. The Courts have generally applied a principle of fairness to debt division. If the parties have roughly equal income, there is no reason why debt should be divided equally. On the other hand, where parties have widely different incomes, the Court may decide that a majority or all of the debt should go with the person who can afford to pay it. To balance this out, the Court will also normally award more of the assets to that party so that the division is roughly equal at the end of the day. As with all other matters in family law, these are highly personalized circumstances that must be reviewed with competent counsel.

One issue of note is that of the matrimonial home.  If this is the principal residence of the family, it does not matter whose name is on the deed.  It is deemed to be owned by both parties in a marriage.  It is normally divisible equally between them under the Matrimonial Property Act but it may be subject to the exceptions for unequal division and this should be discussed with your lawyer.

As well, the Court has the authority to order exclusive possession of the matrimonial home.  This does not affect property rights but does require one spouse to leave the premises in appropriate circumstance until the division of property is fully dealt with.  This often occurs where the wife and children remain in the home and the husband is ordered out to find other accommodation. 

With respect to common-law couples, property division and debt division is a far more complex issue.  Since there is no legislation governing the matter, the common law applies.  Factors such as what the parties brought into the marriage by way of assets and debts and their contribution to the payment on those assets or debts are to be considered.  There are many other factors to be taken into account and if you are exiting a common-law relationship with substantial assets or debts, you would certainly want to have legal advice on the implications.