- Can I get a divorce now, and deal with custody, access, support and division of property and debts later?
- I need spousal or child support. Do I have to wait until I'm divorced to get it?
- Where can I get more information on child custody and access?
- How much child support should I pay/receive?
- What are special expenses?
- Is child support still tax deductible under the Child Support Guidelines?
- Where can I get a copy of the Child Support Guidelines?
- What is spousal support?
- What factors does the court consider in deciding spousal support?
- What are the Spousal Support Advisory Guidelines?
- What is Matrimonial Property?
- What are matrimonial assets?
- Should we divide our property equally?
- What about pensions?
- How do I know what an employment pension is worth?
- My spouse won't agree to give me any information about his or her pension. What do I do?
- Am I responsible for my spouse's debts?
- Where can I get more information about dividing our property?
- What is a separation agreement? Do I need one?
- How do I get a separation agreement?
- What should we put into our separation agreement?
- I already have a separation agreement. What do I do next?
For more comprehensive family law information go to:
Q- Can I get a divorce now, and deal with custody, access (parenting time), support and division of property and debts later?
No. In Nova Scotia, the court cannot grant a divorce until all of these other issues are decided. This means that the divorce process can often take 12-24 months or more, if you have not resolved all the issues.
Q- Where can I get more information on child custody and access (parenting time)?
- Visit the Nova Scotia Family Law website: nsfamilylaw.ca
- Call the Legal Information Society's free & confidential Legal Information Line at 1 800 665-9779 or 902-455-3135
- Contact Nova Scotia Legal Aid for family law help: https://www.nslegalaid.ca/
- Click here for other ways to get legal information or legal advice.
Q- How much child support should I pay/receive?
The Federal Child Support Guidelines, developed by the federal government, are rules for deciding the amount of child support when a couple divorces. The amount of child support varies with income, number of children, and some other factors listed in the Guidelines. Go to justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp to look up child support amounts.
Nova Scotia has almost identical Child Maintenance Guidelines for married couples who separate but are not seeking a divorce, for common law (unmarried) couples who separate, and parents who did not have a common law relationship or marriage. Go to justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp to look up child support amounts.
The Guidelines basically calculate child support as follows:
The starting point is the use of tables that set out how much the parent paying support should pay depending on two factors:
1. the parent's total income; and
2. the number of children.
The income of the parent who has custody is only relevant in limited circumstances.
Each province has its own set of tables because the income tax rates are somewhat different from province to province. The table for the province where the paying parent lives is the table that applies, rather than the table in the province where the child lives. In Nova Scotia the table used under the Child Maintenance Guidelines is published under the Federal Child Support Guidelines, so you can use the federal child support table to figure out child support payable.
The Guidelines set out specific situations where child support may be set higher or lower than the table amount:
* A child has special expenses (see below). These may only be claimed by the parent who has custody or with whom the child lives;
* A child is the age of majority (19 in Nova Scotia) or older but is still dependent;
* The paying parent's income is more than $150,000;
* The paying parent is a step-parent who has acted as a parent to the child;
* Each parent has at least one child living with him or her (split custody) or both parents have the children at least 40% of the time (shared custody);
* The paying parent can prove that paying the table amount of support would cause that parent undue hardship.
If any of these situations applies to you, calculating child support is a bit more complicated and it would be wise to talk to a lawyer.
For more information about child support go to:
- LISNS' child support page: legalinfo.org/family-law/child-support.html
- Nova Scotia Family Law website: nsfamilylaw.ca
- Federal Department of Justice child support pages: justice.gc.ca/eng/fl-df/child-enfant/index.html
Q- What are special or extraordinary expenses?
Courts can order extra child support in addition to the table amount to cover special or extraordinary expenses. Sometimes these are called add-on expenses, or 'section 7' expenses, as section 7 of the Child Support Guidelines covers these expenses.
The basic rule is that the cost of these expenses is shared between the parents in proportion to their incomes.
For example, If John Doe earns $65,000 per year and Jane Doe earns $35,000 per year, they would add their incomes ($65,000 + $35,000 = $100,000) and John would pay 65% of any special expenses, and Jane would pay 35%.
The Guidelines recognize the following expenses:
* child care expenses while the parent who has custody is at work, school (employment training), or as a result of illness or disability
* health insurance premiums for the children
* other health related expenses for the child that exceed insurance coverage by $100 per year
* post-secondary educational expenses
* extraordinary educational expenses (primary, secondary or post-secondary) that meet your child's particular needs; and
* extraordinary expenses for extracurricular activities.
Special expenses must be reasonable and necessary for the child's benefit, considering both parents' incomes and spending patterns before separation.
Where either parent has medical or dental coverage available at a reasonable rate, the Court may order that coverage be acquired or continued for any children.
For more information about special expenses go to:
- Nova Scotia Family Law website: nsfamilylaw.ca
- Federal Department of Justice child support pages: justice.gc.ca/eng/fl-df/
Q- Is child support still tax deductible under the Child Support Guidelines?
No. Income tax laws changed at the same time as the federal Guidelines came into effect (May 1, 1997). In any orders or agreements made after May 1, 1997, the parent paying child support does not deduct the payments from his or her taxable income. The parent receiving child support does not declare the child support received as part of his or her taxable income. Spousal support payments continue to be tax-deductible in most cases.
If you and your spouse had a written child support agreement or court order dating from before May 1, 1997, the parent paying support may be able to continue deducting child support from his or her taxable income and the parent receiving support can continue declaring the child support as income, at least until the agreement or order is varied in some way.
Contact the Canada Revenue Agency for more information, or talk to a lawyer or accountant for details.
Q- Where can I get a copy of the Child Support Guidelines?
The Child Support Guidelines are available on the federal Department of Justice family law pages - justice.gc.ca/eng/fl-df/. To figure out how much child support applies in your case, you should look at the Federal Child Support Guidelines: Step-by-Step publication from the federal Department of Justice, which is available online at www.justice.gc.ca . You can also call the federal government at 1 888-373-2222 to get a copy, and for more information about the Guidelines and free family law publications. Go to justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp to look up child support amounts.
Q- What is spousal support?
Married spouses have a legal duty to provide for each other. Spousal support (also known as maintenance) is financial support provided by one spouse to the other after separation according to a written agreement or court order. Support can be periodic (usually monthly), lump sum, or both. If support is periodic, it can be time-limited or have no set ending. Support orders can be made on an interim basis - a temporary order before a divorce or separation agreement, or on a final basis. Even final spousal support orders can sometimes be varied (changed) if there is a significant change in circumstances.
For more information about spousal support go to:
Q- What factors does the court consider in deciding spousal support?
The court will not make a spousal support order unless the spouse seeking support proves they need support. The other spouse must have the ability to pay support.
The court will also look at whether there are any economic advantages or disadvantages to either spouse arising from the marriage or separation, the financial consequences of caring for children, relieving economic hardship caused by the separation, and promoting the economic self-sufficiency of each spouse within a reasonable amount of time. Spousal support is a complicated area of law, so it is a good idea to see a lawyer. You'll find more information at nsfamilylaw.ca
Q- What are the Spousal Support Advisory Guidelines?
The federal Department of Justice published Spousal Support Advisory Guidelines in an effort to make calculation of spousal support more predictable. Unlike the Child Support Guidelines, spouses, lawyers, and judges are not required by law to follow the Spousal Support Advisory Guidelines, but may choose to do so. The Guidelines do not deal with the question of whether a spouse is entitled to support. Once it is determined whether there is an entitlement to spousal support (legal obligation to pay), the Guidelines can help to determine how much support should be paid, and for how long.
There are two formulas in the Spousal Support Advisory Guidelines, one for spouses with dependent children and one for spouses without dependent children. Support for spouses with dependent children is based on the difference in the spouses' net (after tax) incomes and the amount of child support paid. Support for spouses without dependent children is based on the gross (before tax) difference in the spouses' incomes and the length of their marriage. The formulas are quite complicated and you will probably require the assistance of a lawyer to use them.
For more spousal support information go to nsfamilylaw.ca
Q- What is Matrimonial Property?
Each province has its own laws setting out how divorcing spouses should divide their property. In Nova Scotia, this law is called the Matrimonial Property Act. It allows married spouses and registered domestic partners to divide property equally after separation, unless it would be unfair to do so. The Matrimonial Property Act applies to married spouses and registered domestic partners. It does not apply to common law couples.
Q- What are matrimonial assets?
The Matrimonial Property Act states that the matrimonial home and all assets brought into the marriage and acquired after the marriage are presumed to be matrimonial assets that should be divided equally after separation. Here are some examples:
* your family home and cottage;
* furniture and appliances;
* cars, trucks and campers;
* cash in the bank;
* investment accounts, stocks and mutual funds;
* Pensions, including employment pensions and Canada Pension Plan contributions.
Some types of property are not matrimonial assets. The law presumes that these types of property will remain with the person who owns them:
* gifts, inheritances or trusts received from someone other than your spouse, except to the extent they are used for the benefit of the family;
* money awarded to one spouse after a trial, unless it is in relation to a matrimonial asset;
* money paid under an insurance policy, but not in relation to a matrimonial asset;
* reasonable personal possessions, such as clothing and jewelry;
* business assets;
* property acquired after separation, unless the spouses reconcile;
* property excluded under a marriage contract or separation agreement.
The law does not require that each asset be divided; rather, the value of all the assets is calculated and the property is divided so each spouse receives assets with the same overall value.
Q- Should we divide our property equally?
The Matrimonial Property Act provides that all "matrimonial assets" should be divided between the spouses equally, unless an equal division would be unfair. An equal division might be unfair if:
* the marriage was short and one spouse brought in significantly more assets than the other;
* one spouse wasted or destroyed assets belonging to both spouses;
* one spouse built a successful business while the other spouse looked after the home or children;
* one spouse contributed to the education or career development of the other spouse; or
* one spouse would have to pay a lot of taxes because of the division of assets.
These are just a few common examples.
If an equal division of property would be unfair, the court can divide matrimonial assets unequally, or divide property that is not a matrimonial asset, in order to make things fair to both spouses.
See the page on matrimonial property for more information.
Q- What about pensions?
Employment pensions and Canada Pension Plan contributions are matrimonial property and are divided after separation. The general rule is that only the portion of the pension earned during the marriage is divided. If you lived together before you married, this time is counted as time during the marriage. Pension earned after separation is not counted. Contact Canada Pension (Service Canada) at 1 800 277 9914 or go to the Canada Pension Plan's credit splitting web page for information about Canada Pension credit splitting. The Nova Scotia Family Law website - nsfamilylaw.ca, also has helpful information about pensions.
Q- How do I know what an employment pension is worth?
Pensions are valuable assets. For many spouses, an employment pension is worth as much, or more, than the matrimonial home. If one spouse is keeping his or her pension, you will need to have the pension valued to know how much the other spouse should receive to keep things equal.
To value a pension, you will need to get information from the employer's pension plan administrator. He or she can provide you with some basic information about the type of pension, contributions, and interest. You will then need to take this information to an actuary, a type of statistician. The actuary performs some very complicated math and then gives an opinion as to the value of the pension. A pension valuation from an actuary costs a few hundred dollars.
The other option is to divide the pension, with each spouse receiving a share. If this is done, the pension does not need to be valued separately. To divide a pension you will need a court order called a Corollary Relief Order (or Corollary Relief Judgment), which is then given to the pension plan administrator. The pension plan administrator can tell you how much each spouse will receive after the pension is divided.
Pension law can be complicated. If you or your spouse has a pension, you should speak with a lawyer.
Q- My spouse won't agree to give me any information about his or her pension. What do I do?
You should send a written request for information to your spouse's pension plan administrator. He or she is required by law to give you information about your spouse's pension.
Q- Am I responsible for my spouse's debts?
It depends on whether you co-signed for the debt or your spouse took on the debt him or herself. If you co-signed for the debt, you are equally responsible for it and the creditor can choose to pursue either or both of you for the money. If you did not co-sign the debt, you are not responsible to pay it unless a court orders you to do so.
Matrimonial debts can be divided just like matrimonial assets, but there is no law that matrimonial debts must be shared equally. Courts look at many factors in deciding how to divide matrimonial debts.
Spouses may agree that one of them will be responsible for a joint debt but unless the creditor also agrees, and takes the other spouse's name off the debt, if the debt isn't paid the creditor can still seek payment from both spouses.
If you are concerned about being responsible for joint debts after separation, you should call each creditor and explain that you are separated and ask about your options. If you decide to cancel any credit arrangements, you should do so in writing and keep a copy of the letter.
Q- Where can I get more information about dividing our property, including debts?
- Call the Legal Information Line at the Legal Information Society of Nova Scotia at (902) 455-3135 in the Halifax Regional Municipality or toll free at 1-800-665-9779 elsewhere in Nova Scotia.
- Read the matrimonial property page on the Legal Information Society's website.
The best way to obtain information specific to your situation is to talk to a lawyer.
Q- What is a separation agreement? Do I need one?
A separation agreement is a type of contract setting out how spouses have decided to deal with custody, access, support, and a division of property. It should be in writing, signed by both spouses, with each signature witnessed. The witness should be another adult.
Both spouses should get legal advice from a lawyer before deciding whether to sign a separation agreement. This is called getting independent legal advice. When you get independent legal advice about a separation agreement, your lawyer will sign a page at the back of the agreement called a certificate of independent legal advice, to prove you spoke to a lawyer before signing it. You and your spouse each need your own lawyer.
Most separating spouses have a separation agreement, which is then used to set the terms when one spouse applies for an uncontested divorce.
It is possible to get an uncontested divorce without a separation agreement but you will still need to agree on everything with your spouse and put this agreement into a court order called a Corollary Relief Order.
You and your spouse can try to reach agreement in several ways. You can:
* negotiate the terms of an agreement directly with your spouse;
* hire a lawyer to negotiate for you;
* hire a mediator to assist you and your spouse in reaching agreement;
* file for divorce and ask a court conciliator to assist you in reaching agreement. A court conciliator is a court officer who can help you identify the issues involved in your case, ensure that you and your spouse exchange full financial disclosure, assist you in reaching an agreement, and refer your case to a mediator or judge if you and your spouse are unsuccessful in reaching agreement.
Mediators and conciliators cannot give legal advice. They do not decide issues for you and will not force you to reach an agreement. Conciliators can order a spouse to provide full financial disclosure and make limited orders for child support.
There are significant risks involved in trying to negotiate and sign a separation agreement without hiring a lawyer. If you do not have legal advice about your rights and obligations, you may forget to deal with an important issue or agree to something that is very unfair to you or your spouse without realizing it. If you make a mistake it can permanently affect your rights.
At minimum, both spouses should talk to a lawyer before signing any separation agreement. This is called getting independent legal advice. The lawyer will review the agreement with you and make sure you understand what it means and how it will affect you. A lawyer can explain your rights and obligations and may be able to give you an opinion as to whether the agreement is fair or not.
Once you agree to the terms of a separation agreement, it is very difficult to change unless you and your spouse both agree to change it.
* what type of custody and access arrangements you will have for your child(ren);
* child support (the minimum amount allowed by law is set out in the Federal Child Support Guidelines;
* whether either spouse will receive spousal support, how much, and for how long;
* how the family's property and debts will be divided;
* what procedure you will follow if either spouse wants to change something in the agreement later.
You will also want to think about any tax issues that arise as a result of your separation.
Q- I already have a separation agreement. What do I do next?
If you and your spouse have already signed a separation agreement, you can proceed to ask the court to grant an uncontested divorce if you have been separated for more than a year.
If you signed your separation agreement some time ago, you should re-read it to make sure that the custody, parenting time (access), and support arrangements in it are still up to date. If you and your spouse can agree on the new arrangements, you can put them in your uncontested divorce. If you cannot agree, you will need to settle the new issue(s) or apply to court for a variation before you apply for an uncontested divorce. If you get an uncontested divorce based on out of date parenting or support arrangements that are no longer followed, this can make it difficult to update them later, unless both spouses agree. You are required to give the court the most up to date information you have.
For more information on separation go to:
- LISNS separation page: legalinfo.org/family-law/separation.html
- Nova Scotia Family Law website: nsfamilylaw.ca
- Federal Department of Justice family law pages: justice.gc.ca/eng/fl-df/
Last updated May 2017