You may have a court order or agreement that uses terms that are no longer used in the Divorce Act or Parenting and Support Act. You do not need a new agreement or court order just because parenting language has changed. Your court order or agreement continues until it is varied (changed) with a new agreement or court order.
An old term that is no longer used family law legislation (Parenting and Support Act or Divorce Act). Terms like ‘parenting time’, 'contact’ and ‘interaction’ are used instead. You may still see the term ‘access’ used in older court orders and agreements. An agreement or court order that uses ‘custody’ or ‘access’ to describe the parenting arrangements will continue until it is varied/changed with a new agreement or court order. You do not need a new agreement or court order just because the language of parenting has changed.
A law passed by the federal or provincial governments. Another name for an Act is a statute. (STAT-shoot).
You and the other parent (or all parties) come to an understanding about your parenting arrangements for a child. The agreement may be informal and not written down. The agreement may become legally binding, which means the agreement must be followed, if it is written down and each person who signs the agreement has their signature witnessed by an independent person (someone other than the other person(s) who is named in the agreement). An agreement may be registered with the court. A registered agreement becomes a court order.
(Aff-uh-DAVE-it) is a sworn, written statement of a person that summarizes their personal observations. Affidavits are sworn or affirmed before a lawyer or commissioner of oaths.
Affidavit of Service
A sworn written statement proving that someone was given legal documents (such as a Petition for Divorce) in person. It is proof that the person received the documents and had notice of the divorce (or other) proceeding.
A way to take an oath to tell the truth without swearing on a holy book. Indigenous witnesses, accused individuals, victims and others appearing in the Nova Scotia Courts also have the option to take legal affirmations with a sacred eagle feather.
Age of majority
Nineteen (19) years of age in Nova Scotia and may be the same or different in other provinces.
(Al-eh-MOAN-ee) — See Support.
A document that lets the Court and the spouse who filed for divorce know that the other spouse wants to take part in the divorce process, and wants to contest parenting arrangements, support, or division of property and debts. If the parties do not have a formal written agreement between them then an Answer is filed. This means the other spouse may want other issues looked at that the petitioning spouse did not request, such as parenting arrangements, support, or division of property and debts. When an Answer is not filed the court may assume that there is an agreement or no relief (parenting arrangements, support or property division) is requested by the other spouse. There is a time deadline for filing an Answer. Answer and Counter-Petition is an Answer where the spouse disagrees with the grounds for divorce and wants to Petition for Divorce, in addition to contesting parenting arrangements, support, or division of property and debts.
A person who starts a legal proceeding. If an application is made under the Divorce Act then the applicant is called the Petitioner (Petition for Divorce) or Applicant (Application for Divorce by Agreement) or Applicant and Co-Applicant or 'Joint Applicants' (Joint Application for Divorce). See also ‘Respondent’
Applying to court to ask the court to make an order.
Assets are anything valuable a person owns, such as a house, car, furniture, stocks and bonds, pensions, and money. When spouses divorce, the Court puts their assets into one of two groups: matrimonial assets and non-matrimonial assets. Matrimonial assets are generally divided equally. Each spouse generally keeps their own non-matrimonial assets, but there are exceptions. Debts incurred by the family are looked at differently by the court. (See debts)
Test that courts apply when making decisions about children. The court will try to do what is best for the children, not what is best for the parents. The federal or provincial law that applies to your case about your child includes a definition that sets out factors the court must look at when determining what is in the child’s best interest.
Certificate of Divorce
Certificate of Divorce is the court document that proves a divorce is final and the spouses are free to remarry.
Copy of a document that is certified to be a true copy of the original by a government official or a notary. If you need a certified copy of a document, a photocopy is not acceptable.
Child of the marriage
Child of two spouses or former spouses who is under the age of majority (19 years) and has not ‘withdrawn from their charge.’ This means the child is still dependent on the parents. The law includes a child born outside the marriage, an adopted child, and may include a step-child, but does not include a foster child. A child who is older than 19 years of age may also be a child of the marriage if the child is still dependent — for example, due to an illness or disability, or if the child attends college or university.
Children must be protected from harm by their parents or caregivers. In Nova Scotia the Children and Family Services Act sets out what kinds of behaviours or actions cause a child harm or place a child at risk of harm. If you are concerned that a child is being harmed by their parents or caregivers or at risk of harm then you have a duty to report your concern to the Department of Community Services. If you have contact with a child protection worker because someone reported concern about you or your children it is important to meet with the worker to understand the concern. It is also important to get legal advice to understand your duties as a parent, your rights and the rights of your child.
Money paid by one parent to the other parent for the children. It is usually paid monthly and adjusted yearly based on the paying parent’s income.
Child Support Guidelines
Rules that determine the amount of child support to be paid by parent(s) for their children’s needs. These rules apply to divorced or divorcing spouses under the Divorce Act, and those who are not married or who are not divorcing under the provincial Parenting and Support Act. In most cases, support is based on the paying parent’s income, the province where the payor resides, and the number of children. When children share their time equally, or nearly equally, between each parent’s home a more complex analysis of what amount of child support should be paid takes place. Remember there is no automatic rule that no support will be paid.
There are special rules that allow for extra child support to cover certain expenses, such as child care, health care, education, and activities like sports and music lessons. These expenses are called section 7 expenses because this is the section of the Child Support Guidelines that sets out what is an appropriate additional expense and how that may be shared between the parents. If any of these add-on expenses apply, both parent’s incomes are relevant. There are also rules that allow a parent to reduce the amount of support if it would cause undue hardship to pay the full amount. An example is when one parent has to pay child support to two different households. The table amount would be too high to pay to each home so the amount of support may be adjusted.
(Cuh-LOSE-shun) is when spouses agree to lie to get a divorce or to deceive the Court in some way, such as telling the Court they separated on January 1, 2019 when they actually separated on January 1, 2021. It also includes committing adultery in order to get a faster divorce. If the Court finds out what the spouses have done, the divorce process will be stopped and the Court will not grant a divorce until the proper grounds exist.
Common law relationship
Where two people live together as spouses but are not married. Different laws set out different amounts of time before two people become common law spouses. Some laws treat people as spouses from the day they begin to live together. Others require that the spouses live together for one or two years. It is possible to be separated (but still married) to one spouse and be in a common law relationship with another spouse. This is not considered to be adultery. When common law spouses separate they may have their parenting and child support arrangements addressed under the Parenting and Support Act (NS). They may request or have to pay spousal support depending on the length of the relationship and other factors. Common law spouses do not have the same rights as married spouses to share each other’s property when the relationship ends. The Nova Scotia Matrimonial Property Act does not apply to common law spouses. However, spouses may agree to divide most or all of their property between them as if they were a married couple. This may also include an agreement to divide a pension.
Conciliation (Con-SILL-ee-ay-shun) is a process in the Supreme Court (Family Division) where the spouses meet (together or separately) with a court officer called a conciliator. The conciliator helps them to identify the issues they disagree on as it relates to parenting and child support (and section 7 expenses such as childcare). The conciliator can make a basic child support order and order the spouses to provide financial information to the court and the other spouse. The conciliator can also refer the spouses to mediation or schedule a meeting with a judge called a conference.
Condonation (Con-DON-a-shun) is when the spouse who files for divorce forgives the other spouse’s adultery and takes him or her back for more than 90 days. If a spouse condones adultery, he or she cannot later use that adultery as grounds to petition for divorce.
Connivance (Con-EYE-vance) is when the spouse who files for divorce agrees, aids, or encourages the other spouse to commit adultery.
Contested divorce See divorce: contested or defended.
A court order. The parties have agreed to the terms of an order and it has been approved by a judge. A consent order may be changed based on a scheduled review or a change in circumstances to either party or their children. All court orders remain in force until changed or varied with a new court order.
The time a child spends with anyone other than a parent or guardian under a court order or agreement. This will often include grandparents. If the person also wants interaction, this must be pleaded separately. Used to be called ‘access’ - a term that is no longer used.
Generally, contact between a child and others such as grandparents, a stepparent, or other extended family members will take place during parenting time.
A court can make a contact order where it is not possible for contact to take place during a parent’s parenting time, and it is the child’s best interest to have contact with another person.
Applications under the Parenting and Support Act (NS) allow a grandparent to directly apply for contact time. Other important people to the child must ask the court for permission to make an application. This means that the person seeking a contact order would have to explain their connection with the child, and why it is in the child’s best interest to have a contact order in place to maintain the connection. An order for contact time under the Parenting and Support Act may include in person time as well as other forms of contact such as telephone calls, texts or video chats.
Other than a parent, any person (including grandparents), who wish to have a contact order under the Divorce Act must ask the court for permission to make an application. This means that the person seeking a contact order would have to explain their connection with the child, and why it is in the child’s best interest to have a contact order in place to maintain the connection. The Divorce Act directs judges to consider if contact with the child could otherwise occur during one of the parent’s time with the child.
A contact order under the Divorce Act may be in place for a specific event, or continue until changed, and include in person time as well as other forms of contact such as telephone calls, texts or video chats.
Corollary Relief Order
Corollary Relief Order (CORE-uh-lair-ee) is either the result of an order by a judge, or may reflect an agreement between the parties that is approved by a judge in the form of an order. This order sets out the parenting arrangements, child and/or spousal support, and division of property and debts.
Costs are the legal expenses of a court proceeding including lawyers fees, court filing fees, and other expenses. In a contested case, the losing spouse is often ordered to pay some of the winning spouse’s costs. In uncontested cases, the spouses usually agree to pay their own costs or share the costs of the divorce proceeding.
An order made by a judge. An order may be changed based on a scheduled review or a change in circumstances to either party or their children. All court orders stay in force until changed or varied with a new court order. See also ‘interim order’.
Custodial (non-custodial) parent (cuss-TOE-dee-al) is the parent the children live with most often. The other parent is the non-custodial parent. Parenting laws are moving away from this language. For example the Divorce Act changed on March 1 2021 and no longer uses the word custody. Instead, it speaks about how parents will make decisions for their children (called decision making responsibility) and when the children will spend time with each parents (called parenting time). Older agreements and court orders may still use 'custody'. You do not need a new agreement or court order just because the legal language of parenting has changed.
The responsibility to care for and make decisions for and about child. Parenting laws are moving away from this language and instead focus on parents' relationships with children, setting out who will make decisions for children called decision-making responsibility, and when the child will spend time with important people in the child's life, called parenting time or contact.
There are four main types of custody:
- Sole Custody — the child lives with one parent and visits with the other. The custodial parent is responsible for all major decisions affecting the child. The other parent should be consulted about major decisions and normally has the right to receive information about the child’s health, education, and welfare.
- Joint Custody — the parents share decision-making about the child, though one parent may have the final say if they disagree. The child may live mostly with one parent, spend equal time with both parents, or anything in between.
- Shared Custody — the child spends at least 40% of their time with each parent over the course of a year.
- Split Custody — each parent has at least one child living with them.
The term ‘custody’ is no longer used in the Divorce Act (federal law). It is still used in the Parenting and Support Act (provincial law). You do not need a new agreement or court order just because the legal language of parenting has changed. See also Decision-making responsibility, Parenting Time, Contact.
Date of separation
Date of Separation is the date when one or both spouses decide they will no longer live together as spouses. Sometimes this is also the date that one of the spouses moves out, but spouses can be separated and still live together. See also ‘separate and apart.’
A general term under the Divorce Act describing who is responsible to make significant decisions for a child, and/or how decisions will be made. For example, this includes decisions about a child’s: health, education, culture, language, religion, spirituality, and significant extra-curricular activities. This has traditionally been called ‘custody’. The Divorce Act no longer uses the word custody.
Who can apply for decision-making responsibilities for a child of the marriage?
- Either spouse (divorcing or divorced from the other spouse)
- Both spouses (divorcing or divorced from the other spouse)
- A parent of the child
- A person who stands in the place of a parent (taken on a parenting role)
- A person who intends to stand in the place of a parent
- Any combination of the above.
If you are not a spouse (divorcing or divorced from the other spouse) then you must seek permission (leave) of the court to make the application.
Both parents may share responsibility for making all of the significant decisions about their child. Sometimes one person alone may have decision-making authority. Other times each parent may be responsible for making specific decisions about the child. For example, one parent may make all of the medical decisions, and the other parent may make all of the education decisions. Most parents will be expected to talk about important decisions that affect a child, regardless of who has been given the decision-making authority.
Every person who has decision-making responsibility is able to ask for and get information about the child from third parties subject to any applicable laws (for example, privacy laws) and unless there is an order limiting disclosure of information about a child. Examples of third parties are childcare providers, healthcare providers, schools.
Default is where one of the spouses does not do something that the court requires, such as paying child support. Default of Answer is where one spouse files for divorce and the other spouse chooses not to contest the divorce or the custody, access, support, and division of property and debts the other spouse asks for. Also see divorce: uncontested or undefended.
Division of Property
How the spouses divide what they own (assets) and includes division of their debts. Each province has its own laws governing property division on separation. In Nova Scotia the law is called the Matrimonial Property Act. It applies to married spouses and registered domestic partners, but does not apply to common law spouses. Married spouses who cannot agree can apply to the court to divide their property after separation or death of one spouse under the Matrimonial Property Act.
Unless the property or debt is joint (in the name of both spouses) or the common law spouses agree on how their assets and debts should be divided, common law spouses have to make a court claim for a division of assets that are in the other person’s name. The claim is based on the ‘common law’, which is law made by judges in past court decisions, using principles of 'unjust enrichment' or quantum meruit. This means that one person has benefited from the money or unpaid or underpaid work by the other, without compensating them for this money or work. Another principle that may be used is called a joint family venture. This may be used as a way to divide the property or a remedy for the person who leaves the relationship with little or less than the other. A division of property for common law couples is complicated. In Nova Scotia the Matrimonial Property Act may change in the future to include common law couples, but as of March 2021 it does not include common law couples. If you are leaving a common law relationship it is important to get legal advice on your rights to assets or help to pay debts from the other spouse.
The legal end of a marriage.
- A contested or defended divorce is where the spouses do not agree on the grounds for the divorce, or cannot settle issues like parenting arrangements (decision-making responsibility, parenting time), support or division of their property and debts. A judge can decide these issues in a divorce trial if the spouses cannot agree.
- An uncontested or undefended divorce is where the spouses agree on the grounds for the divorce and on how to deal with parenting arrangements, support and the division of their property and debts. Spouses must file paperwork with the court, but do not need to go before a judge to get an uncontested divorce. It is sometimes also called a 'desk' divorce. Where spouses have an agreement or order in place to address the issues of parenting, support and a division of property they may apply jointly for a divorce, or one spouse may apply to court based on the agreement or order.
Divorce Order confirms that the spouses are divorced and ends the marriage. A Divorce Order normally becomes final after 31 days. When it is final, either spouse may apply for a Certificate of Divorce. The Certificate of Divorce allows the spouses to remarry. In Nova Scotia the Divorce Order includes a provision for a formal change of name, if requested, and confirmation that either spouse may apply for a division of the Canada Pension Plan Credits.
Duty to Report
If you are concerned that a child is being harmed by a parent or caregiver or is at risk of harm then you have a legal duty to report your concern to the local child protection office in Nova Scotia. See also ‘child protection’.
Information given to the court by someone who has sworn to tell the truth, or documents or things brought to the court to support a statement or conclusion. The judge decides if someone is being truthful, also called credible. The judge decides if a document or other thing may be considered and if so, how much weight the judge may give it and how reliable or relevant it is.
When the spouses agree, or a court orders, that one of them is entitled to live in the family home and the other has to move out. If you have exclusive possession you have a duty to keep the house in good condition and, unless otherwise agreed or ordered by the court, to pay the bills for the home until there is an agreement or court order. Exclusive possession does not affect ownership, value or any claims that may be made against the home.
In Nova Scotia all of the provincial family courts and supreme courts have been combined into one court called the Supreme Court (Family Division). The Supreme Court (Family Division) deals with all of the family law issues including: child protection, parenting and decision-making, child support, spousal support, a division of property (including claims made by common law couples for a division of property), and divorce. This court may also hear an application for a peace bond, maintenance enforcement proceedings, applications under the Testator’s Family Maintenance Act.
Money paid to the court to start a legal proceeding, file a document, or provide a service. People with a low income may apply to the court for permission to file an application or other court process without paying the fee.
Folder containing all the material relating to a case. Each party to a court process should keep a file with copies of all documents filed with the court and all other paperwork relating to the divorce or other family law matter. To file a document means to send or submit the document to the court, and may involve paying a fee and having the court date stamp the document to confirm when the document was filed with the court.
(GAR-nuh-she) is a court order requiring an employer or government department to pay money owed to one spouse to the Court instead, where it is put towards a support order or judgment. If you register a support order for enforcement with the Maintenance Enforcement Program (MEP), and the payor does not pay, the Director of MEP may issue a notice of garnishee and collect the support directly from an employer, or payments made to the payor by the Federal Government.
Ground for divorce
The legal reason for a divorce. The only ground for divorce in Canada is a marriage breakdown — when one of the spouses decides they wish to end the marriage. A marriage breakdown can be proved in one of three ways: (a) the spouses have been separated for at least one year; (b) one spouse committed adultery; or (c) one spouse was intolerably cruel to the other spouse, mentally or physically. The spouse who committed the adultery or cruelty is not permitted to apply for a divorce based on their own misconduct, only based on the other spouse's misconduct.
A court process when the parties present evidence to a judge and a decision is made. An example of a hearing is an interim hearing on parenting arrangements. For other cases the hearing is called a trial. This is when part of the case is, for example, about a divorce, or a division of property.
An interaction order under the Parenting and Support Act covers things like being able to:
- go to specified activities of the child, like school events or extracurricular activities
- send gifts to and get gifts from the child
- get in touch with the child - such as by telephone, letter, email, text, video chat
- get from a person named in the order, photographs of the child and information regarding the health, education and well-being of the child.
Important people in a child’s life can apply to court to ask for an interaction order under the Parenting and Support Act. An interested person (other than a parent or grandparent) must ask the court for permission (leave) to make an application. This means that the person seeking an interaction order would have to explain their connection with the child, and why it is in the child’s best interest to have an interaction order in place to maintain the connection.
A court order intended to address a single issue or that is temporary. An example of an interim order is one that makes temporary parenting arrangements or support arrangements. This order may be changed at the final hearing, or in a final order that is agreed to between the parties.
Joint Application for Divorce
When the spouses apply for a divorce together, as they agree in writing for a divorce and the terms of any corollary relief. Spouses who do this are called joint applicants, or co-applicants. A Joint Application is only for uncontested divorces.
Decision of a judge. The terms of the decision become a court order and may be appealed if the judge made a legal or factual error.
Leave of the Court
Permission of the court, which may be granted on application. This may be necessary, for example, if you have missed your filing date for an appeal. You may seek permission of the court to file late. It is also necessary for some other types of court applications.
(Lit-uh-GAY-shun) is a legal proceeding.
Maintenance Enforcement Program
A Nova Scotia government program that helps people with with an order or written agreement that has been registered with the court to collect child or spousal support. The program also allows people to receive support without having to contact the person paying support. All support orders granted in Nova Scotia are automatically enrolled in the Maintenance Enforcement Program unless both spouses or parents agree in writing to opt out of the program. If you have opted out and would like to enrol you can do so without the other person’s consent. There are similar government enforcement programs in other Canadian jurisdictions.
Matrimonial Home (mat-ruh-MOAN-ee-al) is the spouses’ home before a separation. Married spouses or registered domestic partners, not common law spouses.
Mediation (me-dee-AY-shun) is a private process to help people resolve differences. It is an opportunity for people who disagree to meet, together or separately, with a person called a mediator who encourages them to communicate in a respectful way. Mediation is always voluntary. This means nobody can be required to participate if they don’t want to. In some cases Mediation may not be appropriate where there is a history of family violence or significant power differences between the parties. Mediation can be particularly effective in resolving parenting issues. The Supreme Court (Family Division) has a mediation program.
Mediator (me-dee-AY-tor) is a person trained to help people resolve differences. Mediators are impartial (meaning they don’t favour one side over the other). Some mediators are lawyers, but mediators do not give legal advice or make decisions for others. Mediators are not regulated in Nova Scotia. When choosing a Mediator it is a good idea to ask about a Mediator’s training and ask about referrals from other people who worked with the Mediator in the past.
Minutes of Settlement
Minutes of Settlement See separation agreement.
Parenting arrangements explain where the child will live, who will be responsible for making major decisions, and when the child will spend time with important people in the child’s life. The parenting arrangements do not have to be written down in a formal agreement. Some parents prefer to have a written agreement in place. Other parents, who are not able to work together (for reasons such as violence), or who are unable to agree to the parenting arrangements, use the court process to get a court order to set out the parenting arrangements.
A court order that sets out details about a parenting arrangement, such as each parent’s decision-making responsibilities, the time the children will spend with each parent, and how the children will communicate with one parent when spending time with the other parent.
A written plan setting out detailed arrangements for a child’s care. It usually covers where the child will live (and with whom), which parent will make decisions relating to the child, what input or decision-making power the other parent will have, what contact the child will have with the parents, and anything else that is important to the child’s welfare. Parenting plans can also set out how the parents will resolve any disagreements they have about the child.
A plan to describe how parents who are not together will care for and make important decisions about their child. Some parents prefer open plans while other parents prefer to have a detailed plan. For parents who want a detailed parenting plan, this is a starting point to identify what are the child’s needs, what decisions have to be made for the child and who will make those decisions, how the child spends their time and with whom. Once a parenting plan is agreed on it becomes the parenting arrangements for the child. If a parenting plan cannot be agreed on the parenting arrangements will be ordered by a judge based on what is in the best interests of the child after looking at each parent’s parenting plan and the child’s best interests. A parenting plan should be based on what is in the best interests of the child and not the best interests of the adults in the child’s life.
Making plans: A guide to parenting arrangements after separation or divorce - How to put your children first
This guide is published by the Department of Justice Canada, and provides information about parenting after separation and divorce, including:
- how to decide on the best parenting arrangement for your children
- what processes you can use to come to a parenting arrangement
- what you (parents) may be feeling
- what your children may be feeling.
The time that a child spends in the care of one of their parents or person who has a parenting role, and includes time when the child is at daycare or in school. Parenting time may be written down in an agreement or court order, and may be changed as the circumstances of the parents change or as the child grows older and their needs or schedule changes.
Unless a court order or agreement says otherwise, a person who has parenting time automatically has the right to ask for and get information about the child’s health, education, and general welfare (for example, from a school or doctor).
Third parties, like schools and medical agencies, may not understand this, so parents may wish to have the right to access information from third parties specifically outlined in their court order or agreement.
The people involved in a legal proceeding. In a divorce, the parties are the spouses. In a contested divorce the spouse who files for divorce is called the Petitioner. The other spouse is called the Respondent. If the divorce is uncontested: spouses who file a Joint Application for Divorce are called joint applicants or co-applicants; a spouse who files an Application for Divorce by written agreement is called the Applicant, and the other spouse is called the Respondent. See also Petitioner and Respondent.
When an application is filed with the court under the Parenting and Support Act the person who makes the application is called the Applicant and the person who responds is called the Respondent.
The person who pays spousal or child support.
Petition for Divorce
(Puh-TISH-un) is a document that sets out the request for a divorce, the grounds for divorce, and information about the spouses, children and basic issues to be resolved, and if there are any agreements, court orders or court cases involving the family. Filing the Petition with the Court is the first step in the divorce process for a contested divorce.
(Puh-TISH-un-er) —spouse who files Petition for Divorce in a contested divorce proceeding. See also ‘Respondent’.
The steps you take in a court case, including a divorce.
See ‘division of property.’
(Pro-THON-uh-terry) is the head clerk of the Supreme Court. Court documents are said to be filed with the Prothonotary when they are filed with the Court. A newer name for the Prothonotary’s office is the Court Administration Office. In the Supreme Court (Family Division) court officers accept documents for filing with the Court. See ‘file’.
(Re-SIP-ee-ent) is the person who receives spousal or child support.
(Rec-un-silly-a-shun) is any attempt by spouses to get back together. Divorce law encourages spouses to get back together if possible and states that if reconciliation fails, as long as the period or periods of reconciliation did not total more than 90 days, the spouses will not lose whatever grounds for divorce they had before they tried to reconcile.
Another name for the court file containing all the documents filed in a court proceeding. The court record is helpful because it will set out the documents filed with the court and date filed, identify the court dates when the parties appeared before a judge, the reasons for the court date and outcome. The record includes the oral record for all court appearances, hearings and any decisions made by a judge. Finally, the record will show when a consent agreement is made by the parties and when a court order(s) is issued.
'Relief sought' is a term used to describe the type of order requested by you or your spouse, for example; a request for support. It basically means 'what are you asking the court to do?'
A court may make an order to prohibit the removal of a child from a community, city, province or country without the written consent of a specified person or without a court order authorizing the removal..
(Ree-SPON-dent) is someone who has had a legal proceeding filed against them. If the respondent does not file a document with the court to set out a response to the legal proceeding a judge may make a decision without hearing from the Respondent. If you do not agree with the relief sought in a legal proceeding it is important to file the appropriate court documents with the court so your voice may be heard and your evidence considered by the judge before a decision is made. See also Petitioner and Applicant.
Rules of Court
The court procedures that must be followed. Court forms comes from the Civil Procedure Rules. Another name for the court rules is the Civil Procedure Rules. You can find the Civil Procedure Rules online at http://www.courts.ns.ca/Rules/toc.htm. Rules specifically dealing with family law cases in the Supreme Court (Family Division) or Supreme Court are in ‘Part 13-Family Proceedings’ of the Civil Procedure Rules.
An official Court stamp showing a document has been filed with the Court. The original Petition for Divorce will have a large red seal. Separation agreements and property deeds usually have a small, red seal. Most other court documents do not have seals.
Separate and apart
Means that you and your spouse are not living together as spouses. One of the grounds for divorce in Canada is one year’s separation. Usually, living separate and apart means the spouses do not live together any more. It is possible to live separate and apart in the same house but most spouses find it uncomfortable to do this for very long and one spouse eventually moves out. See also ‘date of separation.’
A written contract between two spouses that often deals with the parenting arrangements, child and spousal support, and a division of property and debts. A separation agreement may reflect an agreement that has been reached between the parties after mediation, a court process such as a settlement conference, negotiated with the assistance of lawyers or as set out by the parties to the agreement. It is strongly recommended that you speak with a lawyer before you start to negotiate the terms of a separation agreement and have a lawyer review the language of a separation agreement to make sure it is legally binding, that you are properly informed about your rights and the rights of your children, and the final agreement reflects the terms as you understood them. Each party should see a separate lawyer to get independent legal advice.
To give a legal document to someone in person. It is important to have a person other than yourself serve court documents and to verify the identity of the person who is receiving the documents - called 'being served’. Once this is done, the person who served must swear an affidavit of service which is proof of service. The affidavit is then filed with the court. For example, the spouse who petitions for divorce must arrange to have the Petition for Divorce served on the other spouse by someone else. Once this is done, the person who served the Petition must swear an affidavit of service.
A voluntary process offered at the Supreme Court (Family Division) to parties who wish to work together to resolve their legal case. You do not need a lawyer. The parties agree to meet with a judge to talk about the issues they cannot agree on. The judge tries to help the parties reach an agreement that will be written down and called a consent order. Sometimes parties can reach an agreement on some of the issues but not all. If the case goes to trial neither party may talk about what was said at the settlement conference. Also, the judge who did the settlement conference will not be the trial judge.
Term used in the Parenting and Support Act (Nova Scotia Child Maintenance Guidelines) for child support purposes that means the child spends at least 40 percent of the time with each parent over the course of a year. This term does not describe who will make decisions for or about a child, or how decisions will be made. See also, Shared parenting time, Custody, Decision-making responsibility.
Shared parenting time
(formerly referred to as shared custody)
Term used in the Divorce Act (Federal Child Support Guidelines) for child support purposes that means the child spends at least 40 percent of the time with each parent over the course of a year. This term does not describe who will make decisions for or about a child, or how decisions will be made. See also, Custody, Decision-making responsibility.
Split parenting time
(formerly referred to as split custody)
Term used for child support purposes where each parent exercises the majority of parenting time with at least one of the children when there is more than one child. In other words:
- one or more children spend more than 60 percent of the time in a year with one parent; and
- one or more children spend more than 60 percent of the time in a year with the other parent.
Spouse is a husband, wife or partner. A spouse may be a married spouse or common law spouse. In divorce law a spouse is either of two persons who are married to each other.
Standing in the place of a parent
A person who has taken on, or wishes to take on, parenting responsibilities for the care and upbringing of a child.
A way to make sure a person has notice of a court proceeding if the person cannot be found or is trying to avoid getting a legal document. Receiving notice of a court proceeding is very important to a judge. If necessary you can apply to the court for an order that gives you permission to serve someone else (such as a family member, employer, or friend or by way of social media) - or to serve in some way that is likely to connect with the person who has to be served. If you know the person’s address, the court may also order that you send copies of the legal documents by registered mail. If you are applying to court for an order for substituted service it is strongly recommended that you get legal advice.
A parenting agreement or order may say that parent’s or other person’s time with the child, or transfer of the child from one person to another, must be supervised. Sometimes this is referred to as ‘supervised parenting time, and/or supervised exchange’. This is the case when a parent is newly introduced or reunited with a child, or there is an addiction or mental health concern. Generally supervision is in place for a short period of time until the child develops a relationship or the addiction or mental health concern is managed.
Money paid by one spouse or parent to the other spouse or parent for living expenses of the spouse or a child. Support paid for a spouse is called spousal support. Support paid for a child is called child support. Most support is paid monthly but support can also be paid weekly or bi-weekly. Spousal support is sometimes paid in a lump sum. Spousal support can be tax deductible in most cases. Child support is usually not tax deductible. Support is also called ‘maintenance,’ and spousal support is sometimes referred to in the United States as ‘alimony.’
Supreme Court Family Division
In Nova Scotia the Supreme Court (Family Division) deals with family law issues including: child protection, parenting and decision making, child support, spousal support, and a division of property (including claims made by common law couples for a division of property), and divorce. This court may also hear an application for a peace bond, maintenance enforcement proceedings, applications under the Testator’s Family Maintenance Act.
Someone other than a spouse who becomes involved in the divorce process or a court process between two parties. One example of a third party is an employer who is ordered to provide income information.
A court process where the parties present their evidence and a decision is made by the judge. A decision after a trial is considered final unless there is a legal right to appeal or vary (change) the order.
A new agreement or court order to replace an existing court order. The variation order may be made to update child support, and/or the parenting provisions of an existing order. A variation order may be made by an agreement between the parties that, if acceptable, is approved by a judge, or reflect the decision of a judge after a trial.
See Access, Parenting time, Contact, Interaction.
(WAVE-er) is an agreement to give up a right to something or to give up the normal requirement to do something. The Waiver of Financial Statements and the Undertaking not to Appeal are two waivers which may be used in court proceedings. Parents are not permitted to waive income disclosure when there is a child who is dependent and may require child support. Child support is the right of a child and the amount of child support must be consistent with the law.
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Last reviewed: April 2021
Reviewed for legal accuracy by: Lawyer Shelley Hounsell-Gray, QC
Thank you to Justice Canada for funding to help update our legal information on divorce.