Who does the Divorce Act apply to?

The federal Divorce Act applies to you if:

• you are married and either you or your spouse has applied to court for a divorce
• you are divorced.

The Divorce Act does not apply to you if you were never married.

Provincial family law, Nova Scotia’s Parenting and Support Act, applies to:

• parents who were not in a relationship
• ‘common-law’ spouses who are separating
• married spouses who are separating but not divorcing or divorced.

New parenting words

The words custody and access are no longer used.

The main parenting words used now are decision-making responsibility, and parenting time. The new words focus on relationships with children, and parents’ responsibilities to their children.

Decision-making responsibility is about who will make significant decisions about the child’s well-being, based on the child’s best interests. For example, this includes decisions about a child’s:

• medical and dental care
• education
• culture, language, religion and spirituality
• significant extra-curricular activities
• other important decisions about the child.

Decision-making responsibility may be

• shared between parents, or
• divided between parents (for example, one parent makes health decisions and the other parent decides about schooling), or
• one parent may be responsible for all significant decisions about the child.

Most parents are expected to talk about important decisions that affect a child, regardless of who has the decision-making authority.

Parenting time means the time a child spends with a parent, or person who has a parenting role. It includes time when a parent is primarily responsible for the child, but the child is not actually with them. For example, when the child is in school or daycare. A parent who has parenting time has the right to make day-to-day decisions, including emergency decisions, about a child during their time with the child.

A person who has decision-making responsibility or parenting time has a right to get information from third parties about the child’s health, education and well-being, unless there are privacy law limits or a court orders something different. Examples of third parties are schools, healthcare or childcare providers.

Contact means time spent with people who are important in the child’s life (grandparents for example), but who are not the child’s parents or who are not in a parenting role.

The words parenting time and contact replace ‘access’.

An agreement or court order that uses ‘custody’ or ‘access’ to describe the parenting arrangements continues until it is changed (‘varied’) with a new agreement or court order. You do not need a new agreement or court order just because parenting language has changed.

Parenting arrangements

The broad term ‘parenting arrangements’ is often used to include decision-making responsibility, parenting time, contact, or a combination of these terms.

Parenting arrangements do not have to be written down. Some parents prefer to have a written agreement. They might do a written Parenting Plan that talks about decision-making responsibility and parenting time. Other parents, who are not able to work together (for reasons such as violence), or who are unable to agree on parenting arrangements, use the court process to get a Parenting Order (court order).

A Parenting Plan or Parenting Order may cover things like:

• where the child will live
• each parent’s decision-making responsibilities
• the time the child will spend time with each parent and other important people in the child’s life
• how the children will communicate with one parent when spending time with the other parent
• how the parents will communicate with each other about the child
• who has the right to ask for and get information about the child’s health, education and well-being
• how disputes will be resolved
• rules about relocating with a child.

Best interests of the child

Judges must only consider the best interests of the child when they make decisions about children. That is not new. What’s new is that the Divorce Act now lists specific factors the judge must look at when deciding what is in a child’s best interests.

The factors include:

• the child’s needs, keeping the child’s age and developmental stage in mind
• the child’s relationship with each parent
• the child’s relationships with siblings, grandparents and other important people in their lives
• the child’s care arrangements before the separation
• future plans for care of the child
• the child’s views and preferences, if appropriate
• the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
• family violence (see more detail below).

Other factors the judge must consider include each parent’s ability and willingness to:

• care for the child
• support the child’s relationship with the other parent
• cooperate and communicate about parenting issues

In every case the court must give priority to the child’s safety, security and well-being. Judges will consider all relevant circumstances. They are not limited to considering only the factors on the list because decisions must be made based on each child’s needs.

Nova Scotia's provincial law (the Parenting and Support Act) has a list of similar factors judges must think about when making decisions about what is best for a child.

Family violence is a factor in deciding about 'best interests of a child'

Before, the Divorce Act did not mention family violence. Now, family violence is defined in the Divorce Act, and includes:

• physical abuse
• sexual abuse
• harassment, stalking
• threats of harm to people, pets and property or actually causing that harm
• coercive and controlling behaviour
• psychological abuse, and
• financial abuse.

The behaviour does not have to be a crime to be considered family violence under family laws.

Before this change to the Divorce Act judges did not have to consider family violence when deciding about parenting arrangements and the child’s best interests. Now, they must.

A judge must think about:

• any family violence and its impact on:
  • the ability and willingness of any person who did the family violence to care for and meet the child’s needs, and
  • whether it would be appropriate to make an order that would require people to cooperate on issues affecting the child
• any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. Examples are a peace bond (or application for one), Emergency Protection Order, or criminal charges or convictions for violent offences.

If there is violence the court must look at

• the type and seriousness of the family violence
• how recent it is
• how often it happened
• whether there is a pattern of coercive and controlling behaviour
• the harm caused, and risk of harm
• whether the violence was directed at the child, or whether the child was exposed to the violence, directly or indirectly
• any steps the person who did the violence has taken to prevent it in future, and to improve their parenting
• anything else the court thinks is relevant.

Nova Scotia's Parenting and Support Act also says family violence must be considered when deciding about parenting arrangements and the child’s best interests.

Go here to learn more about Family Violence laws.

Moving after separation or divorce

The Divorce Act now has rules that apply when someone wants to move, either
(1) with the child, or
(2) on their own (without the child).

The rules about moving are complicated, so it is always a good idea to talk with a lawyer right away if you are planning a move. There could be serious consequences if you move with a child without the consent of the people who have parenting responsibilities, and court ordered contact, with the child.

In family law a move is called a ‘relocation’ if the current parenting schedule or arrangements will no longer work because of the move.   A relocation is a move that is likely to have a significant impact on the child’s relationship with a parent, guardian, or person who has an order for contact with the child. Sometimes even a small move can be a 'relocation', as it might have a considerable impact on the parenting schedule. If this fits your case then you cannot move unless you have a new court order to allow you to move or the written consent of the people who will be affected by the move.

New Duties for Parents, Lawyers and Courts

Solving family law problems out of court

The Divorce Act encourages people to try to solve their family problems out of court. The Divorce Act uses the term “family dispute resolution processes” to describe ways to do that, including:

• negotiation
• court-assisted dispute resolution (‘Conciliation’)
• mediation
• mediation-arbitration
• arbitration
• judge led settlement conference
• collaborative family law
• parent coordination.

Family dispute resolution options may not be appropriate if:

• there is high conflict
• there is a power imbalance
• there is family violence
• there are safety concerns during the process or outside the process
• one party is not able to fully express their voice, wishes, or those of the child
• one party is not able to work with the other as an equal and with respect.

Accredited mediators and other family justice professionals recognize the importance of screening cases to help determine whether a given dispute resolution approach is suitable in the circumstances. Screening tools are often a list of questions or a guided conversation that professionals use to find out what family dispute resolution process may be appropriate, or not, for the people who wish to participate in this process.

Remember some agreements or consent court orders are final and may not be changed (for example a division of family property, or a waiver of the right to receive spousal support). Agreements or court orders that may be changed can only be changed based on a change in circumstances.  That is why it is important to get legal advice and information about how the law applies before you start any family dispute resolution process, and again before a final decision or agreement is reached. Get independent legal advice from your own lawyer before you sign a proposed agreement.

Ways to get more family law information and legal help

• The Department of Justice Canada's website has more information about family law and the changes to the Divorce Act, including fact sheets on:
  • Parenting Arrangements
  • Divorce and Family Violence
  • Child's Views and Preferences
  • Moving after separation or divorce
  • Duties for parents and others
  • Family Dispute Resolution
• www.nsfamilylaw.ca- family law information on many topics, including divorce, parenting arrangements, spousal support and child support
• Contact the Legal Information Society of Nova Scotia to connect with a legal information counsellor and get free legal information
• Contact Nova Scotia Legal Aid for family law legal information and legal advice
• Contact a lawyer in private practice (lawyer you would pay) who does family law
• Free and low-cost legal help in Nova Scotia.

Which law applies to your situation

Parenting and Support Act (provincial law) Nova Scotia's Parenting and Support Act applies to couples who are not married, couples who never lived together, and married couples who are separating but who are not seeking a divorce. It also applies to grandparents and other people connected to the child.

Divorce Act (federal law)
The federal Divorce Act applies if you are divorcing or divorced.  The words for describing parenting arrangements in the Divorce Act changed on March 1 2021.

What the parenting words mean

The words for describing parenting arrangements have changed.   The words custody and access are no longer used.  The main parenting words used now are decision-making responsibility and parenting time. The words focus on relationships with children.

Decision-making responsibility is about who will make significant decisions about the child’s well-being, based on the child’s best interests.  This includes decisions about issues like the child’s:

• medical and dental care
• education
• culture, language, religion and spirituality
• significant extra-curricular activities, and
• other important decisions about the child.

More than one person may have decision-making responsibility.

Parenting time means the time a child spends with a parent or person who has a parenting role, under an agreement or a court order.   It includes time when that parent is primarily responsible for the child, but the child is not actually with them. For example, when the child is in school or daycare.

Contact means time the child spends with people who are important in the child’s life, but who are not the child’s parents or in a parenting role.

Interaction is direct or indirect association with a child.  Interactions cover things outside of parenting or contact time, like

• keeping in touch with a child by email, text, phone, letter, online, etc.
• going to a child's school events, or outside school activities
• giving or getting gifts from the child
• getting information about a child's health, school and overall well-being, including photos.

Go here for more definitions of family law words.

Parenting schedules

Parenting time is the time a child spends with a parent or guardian, under an agreement or a court order. Generally, parenting time is a child's right to visit and have contact with their parents who do not live together.  Parents can make a parenting agreement, or the court can make an order outlining when parenting time will happen.

Children have a right to spend time with each parent, as long as the contact is safe and reasonable. The law does not say that a child’s time should be shared between the parents. Generally, children benefit from a relationship with both parents. Parenting time will only be denied if a judge is satisfied that the child would be harmed if there is contact. This is rare because of the importance of a child’s relationship with each parent.   But judges may order safeguards to make sure a child is safe during the parenting time and that the relationship with that parent may be maintained.

Broadly, a parenting schedule may include:

Flexible time:  There is no set schedule so the parents must be able to agree on the times each parent will spend with the child. As there is no set schedule, it allows the parents to make their own flexible arrangements. This kind of arrangement works best when the parents are getting along reasonably well and have a positive relationship and can work out parenting arrangements between them, or when either parent can't commit to a regular schedule because they work out of province or have a work schedule that frequently changes.

Specified time: Provides regular set times that a parent may have parenting time with the child. The parenting schedule may be set out in a court order, separation agreement or other written agreement between the parents. For example, an arrangement might be that on every second weekend the parent will pick up the child on Friday after work and return the child to the primary parent on Sunday afternoon.  A shared parenting arrangement is when the child’s time is shared equally between the parents.

Supervised time: This type of parenting time provides that time spent by the parent with the child must be in the presence of another adult. The schedule may be set out in a court order, separation agreement or other written agreement between the parents. This type of arrangement is made if the parents agree, or the court believes it is necessary to make sure the child is safe during time with the parent. Examples of times when this may be appropriate include: introducing a parent to a child who has been away for a long time, when a parent has problems with anger management, or has serious mental health or addiction concerns. Some areas of the province offer a supervision service.  Sometimes supervised exchange will address the concern. Contact the court office in your area for more information about supervised parenting or exchange, or see: veithhouse.ns.ca. You'll also find information about supervised time ('access') online at nsfamilylaw.ca

Parenting arrangements must be based on the child's best interests

When a judge makes a decision about a child, the judge must always be guided by what is in the child's best interests. All parties will have an opportunity to provide information on what they feel is in the child's best interests.  Parents or those in a parenting role should also be guided by what is in the child's best interests when working out parenting arrangements.

Both the federal Divorce Act and Nova Scotia's Parenting and Support Act provide a specific list of factors a judge must look at in deciding what is in the child's 'best interests'. 

Some of these factors are:

• Who took care of the child's physical, emotional, social and education needs in the past, and who has done so since separation? Is this arrangement working for the child?
• Is each parent willing to support and maintain the child's relationship with the other parent?
• Each parent's ability to communicate and cooperate on issues affecting the child
• How strong and stable is each parent's relationship with the child?
• What are each parent's future plans for taking care of the child?
• The child's wishes, if the child is old enough and it is appropriate
• The child's cultural, linguistic, religious and spiritual upbringing and heritage
• The impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed to it.

A judge looks at similar factors in deciding what is in the child's best interests under the federal Divorce Act, which applies to divorcing or divorced parents.

Both the Parenting and Support Act and the Divorce Act recognize the importance of hearing from children, providing it is appropriate to do so.

In some cases, if the parties cannot agree, either party may request, or a judge may order, a Decision making Responsibility or Parenting time Assessment, or for older children, a “Voice of the Child Report/wishes assessment.” A trained professional prepares the assessment and makes a recommendation to the court.   The assessment may be considered by the court. Parents are usually expected to contribute to the cost of the assessment based on their income and number of dependents.  You will find information about assessments online at nsfamilylaw.ca

Family violence is a factor in determining parenting arrangements

Both Nova Scotia's Parenting and Support Act and the federal Divorce Act say that a judge must look at the impact of family violence, abuse or intimidation in deciding on a child's best interests. 

Family violence includes:

• physical abuse
• sexual abuse
• harassment, stalking
• threats of harm to people, pets and property or actually causing that harm
• coercive and controlling behaviour
• psychological abuse, and
• financial abuse.

The behaviour does not have to be a crime to be considered family violence under family laws.

The judge must look at factors like:

• the type and seriousness of the family violence
• how recently it happened
• how often it happened
• how it has harmed the child
• any steps the person causing the family violence has taken to stop it from happening again
• if the family violence affected the ability of the person who caused it to care for and meet the child's needs
• whether it is appropriate to require cooperation between parents where there has been family violence
• any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child
• anything else the judge thinks is relevant.

In every case the court must give priority to the child’s safety, security and well-being. Judges will consider all relevant circumstances. They are not limited to considering only the factors on the list because decisions must be made based on each child’s needs.

If the other parent abused the child, a judge may deny them time with the child or order supervised parenting time depending on the circumstances and the risk of further abuse.

If the other parent abused you but not the children, the judge will try to make an order that is safe for you. For example, the judge might order that the other parent have no contact with you, that a third person, such as a relative or neighbour, supervise while your children go with the other parent, or that the other parent remain in the car at the curb while you send the children out. Sometimes this ends the abuse. If the abuse continues, you can ask the court to make an order that the other parent have no time with the children at all. It is harmful to children to see a parent abused, even if the children are not abused themselves.

Go here for more information on family violence, and visit www.nsfamilylaw.ca

When can parenting time be denied?

Generally, it is very rare for a court to deny parenting time to a parent. In very extreme circumstances parenting time will be denied if contact would put the child at serious risk of physical or emotional harm. In these circumstances’ child protection would likely be involved. If they are not a referral may be appropriate if the risk or harm is serious.

The court recognizes that sometimes parents harm their children, or they create situations where serious harm may happen. However, to reduce the risks courts will order the parent’s time with the child be supervised by an adult. Supervision generally stays in place until the difficulty the parent is experiencing, which poses risk to the child, has been addressed.

One parent cannot deny the other parent time with the child unless there are serious concerns that the child may be harmed if visits takes place.

For example, a parent may be justified in refusing parenting time if the parent exercising parenting time appears impaired by alcohol or drugs when the parent arrives to pick up the child, or threatens to immediately take the child out of the county, or is clearly taking the child to a place where the child may be in danger.

A parent cannot deny the other parent time with the child because the parent is not paying child or spousal support. Or because they are angry at the parent for a personal reason. Parenting time, child and spousal support are separate issues, and you cannot use one to bargain for the other. Denying parenting time cannot be seen as revenge.

Denying a child’s time with a parent has a serious impact on a child. It is difficult to protect a child from the conflict that happens from a denial of parenting time. Children identify with both of their parents and when one parent intentionally hurts the other parent the child often experiences that hurt too.

A parent who feels that the other parent should be permanently denied parenting time, and there is an order or agreement in place, must apply to the court to ask that the order be changed.   Or, both parents must agree to change the written agreement.

If you are being denied parenting time then you may apply to court to request court ordered time with your child. You should do that as quickly as possible as the court process is slow and this is a serious issue to address.

Can parents be forced to spend time with their children?

No, but they might lose parenting time as a result. Sometimes a parent who has parenting time will not visit their child. This is called "not exercising parenting time" and it can hurt your child, especially if the child expects to see the other parent at a certain time and the parent does not show up, or cancels at the last minute. If this happens on a regular basis, you should explain to the other parent how a “no show” affects the child.  For example, the child may believe they did something to cause the parent to lose interest in spending time with them. 

Courts will sometimes order that a parent go to counselling or take parenting classes and you can ask for this in court if the other parent has a history of not exercising parenting time. If the parent still fails to exercise parenting time, there is little you can do except try to help your children deal with it. Counselling may help the children to understand that it is not their fault.  Go to nsfamilylaw.ca for information about parenting after separation or divorce, including information about protecting children in difficult situations.

Some parents who fail to exercise parenting time will later claim that parenting time was denied. If you are concerned about this, you should keep a record of  requests for time and visits so that you can show that you did not deny parenting time to the other parent.

If you are being denied parenting time you may wish to file an application with the court to have your parenting time set out in a court order.  If you have an order for parenting time, you can ask the court to help you see your child. 

Where do I go to get a court order dealing with parenting arrangements?

Parenting arrangements like decision-making responsibility and parenting time usually have to be dealt with in the court nearest to where the children are living.  The Nova Scotia Supreme Court (Family Division) deals with all family law matters in the province.   This includes child protection, parenting (decision-making responsibility, parenting time), child support, spousal support, and property division. You'll find more information about which court to go to, and how to apply to court, online at nsfamilylaw.ca

All courts in Nova Scotia have staff who can help you identify what your options are, and the programs and services for parents.

Can an agreement or court order be changed?

Yes. Either parent can apply to have a written agreement or court order changed.

If the parents don't agree the change should happen, the parent applying to court must show that there has been a change in circumstances for the child or one of the parents significant enough to justify a change in the order or agreement. The parent must also show that the proposed change(s) is in the best interests of the child.

As the child grows older, parents may need to review parenting time arrangements. Children outgrow parenting time arrangements the same way they outgrow clothes and toys. An arrangement that works for a toddler may not work for the same child in elementary school. Parenting time that worked well for a child in junior high may not suit a teenager.

Teenagers may want to decide for themselves how often they see each parent. There is no specific age when a child can choose which parent they will live with, or the time they spend with the other parent. Generally speaking, younger children need shorter, more frequent periods of parenting time, while older children and teens can do well with longer periods with each parent and more time between periods. Younger children tend to need more routine (for example, to know that they spend Wednesdays and every other weekend with the other parent), while older children may prefer more flexibility.

More information about changing a parenting arrangement court order is online at nsfamilylaw.ca

For more information

• Tips for parenting after separation
• Resolving family law problems without court
• Families Change: a website to help kids, teens and parents deal with a family break-up
• www.nsfamilylaw.ca- general family law information on many topics, including divorce, separation, parenting arrangements, spousal support and child support
• Contact the Legal Information Society of Nova Scotia to connect with a legal information counsellor and get free legal information
• Contact Nova Scotia Legal Aid for family law legal information and legal advice
• Contact a lawyer in private practice (lawyer you would pay) who does family law
• Free and low-cost legal help in Nova Scotia
• The Department of Justice Canada has more information about family law and the Divorce Act, including fact sheets on:
  • Parenting Arrangements
  • Divorce and Family Violence
  • Child's Views and Preferences
  • Moving after separation or divorce
  • Duties for parents and others
  • Family Dispute Resolution

How much child support must be paid?

The federal and provincial governments have put in place Child Support Guidelines as a way to figure out a proper amount of child support.

The Federal Child Support Guidelines apply to divorcing and divorced couples. The provincial Child Support Guidelines apply to married couples who are not seeking a divorce, and to other parents or guardians seeking child support. Nova Scotia uses the Federal Child Support Tables to determine child support amounts.

Under the Federal Child Support Guidelines, the starting point is the "table amount" of support using the child support tables. Any contribution to special or extraordinary expenses, also called 's.7 expenses',  is added to the table amount of support.

There are several steps when determining child support.  These include:

• determining income for child support purposes
• determining the appropriate table amount of child support
• determining if there are any special or extraordinary expenses to add to the table amount

What is each parent’s income?
If you are an employee use the income you report on Line 15000 (Line 150 for 2018 and prior years) of your income tax return and apply it to the child support tables, along with the number of children and the province where the parent paying child support ('payor') resides.

If you have other income sources such as income from self-employment, dividend income, and or expenses such as union dues you may need to look at other factors determine income. See the Federal Child Support Guidelines: Step-by-Step workbook for more information about calculating income for child support purposes.

What is the appropriate Table Amount of child support?
The parenting time a child spends with each parent affects the amount of child support paid. 

Parenting time arrangement	Child support
Majority of parenting time: Child spends most of their time (more then 60%) with one parent over the course of a year	Parent who does not have majority of parenting time pays support to other parent
Shared parenting time: Child shares their time equally or nearly equally (at least 40% of the time) with both parents	Consider the table amount for each parent, as well as the needs of the child and the financial circumstances of the parents. It is false to assume that no child support will be paid if there is a shared parenting time arrangement.
Split parenting time: two or more children and each parent has majority of parenting time with at least one of the children	Consider the table amount payable for each parent, and number of children.  Parent who has the higher table amount pays the difference to the parent with the lower table amount.

In situations where there is a child 19 or over who is attending school but living away from each parent the child support tables may not be strictly applied. In this situation you may need to look at each parent's income, other child support obligations, and the child's financial resources. 

You can use Justice Canada's Child Support Online Lookup to help determine how much child support should be paid. 

Use the 2006 Federal Child Support Tables to figure out child support amounts before December 31, 2011. 
Use the 2011 Federal Child Support Tables to figure out child support amounts from December 31, 2011 to November 21, 2017.
Use the 2017 Federal Child Support Tables to figure out child support amounts from November 22, 2017 onward.

Go to the Federal Child Support Guidelines: Step-by-Step workbook for more information about child support.

Are there any special or extraordinary expenses ('section 7' expenses) to add to the basic table amount?
See below.

What are special or 'section 7' expenses?

Special expenses are child related expenses that are necessary because they are in the child's best interests, and reasonable given the parents' means and spending pattern before separation.  These expenses are added to the table amount of child support. The expenses are set out in section 7 of the Federal Child Support Guidelines and may include:

• The net childcare costs for the care of the child while the parent with the majority of parenting time is at work, or is sick, disabled or training for employment. The net cost is determined by taking the actual amount paid and deducting any subsidies and tax credits.
• Medical and dental insurance premiums and health related expenses over $100 per illness or event, if the cost is not covered by insurance
• Extraordinary expenses for education programs that meet the child's particular needs, extra-curricular activities, and
• Expenses for post-secondary education.  In this case the court will consider the money the child has available to help offset this expense. 

As a general rule, the actual cost of these expenses will be shared by the parents in proportion to their incomes, unless a subsidy or a tax credit may be applied against the total expense.  Parents may agree to share the expenses in a different way.

If you have a child who is over the age of majority and is eligible for support then the child’s line 15000 income reported on their tax return may be relevant when considering the table child support or contribution towards post secondary section 7 expenses that should be paid by each parent.

Go to the Federal Child Support Guidelines: Step-by-Step workbook for more information about special and extraordinary expenses.

How can I make child support arrangements?

To make child support arrangements:

• you can work out an agreement with the child's other parent.  It could just be a verbal agreement, but it is generally better to have a written agreement or consent court order (an order a judge makes if both parents agree), as having it in writing makes enforcement easier
• if you cannot agree or if you want to have your agreement put into a court order, either or both of you can apply to go to court to get a child support order.

Here is information about applying to court if the other parent lives in Nova Scotia.

If the other parent is in another province or another country you will probably have to use what is called an 'ISO' process.  It is called ISO because it comes from a law called the Interjurisdictional Support Orders Act (ISO). The ISO process may also be used when the parent is in a country that has signed on to use the ISO process to determine child support.

How long does a child support order last?

A child support order stays in force until it is changed (varied) with a new court order or a written agreement. A court order does not end when a child turns 19.

In some cases, when a child no longer meets the definition of a dependent child under the law, parents may agree that child support may end. If your order is registered with the Maintenance Enforcement Program (MEP) you may be asked to get a court order to confirm that support will no longer be paid. And, both the person paying child support (payor) and the person receiving the support (recipient) will need to sign a notice to end child support for the MEP.   The MEP has a fact sheet on this topic, called 'Child Support Orders with No Terminating Events'.

If you are a person who is obligated to pay support it is best to get a written agreement or court order to confirm that child support will end on a particular day.

Remember, child support is the child's right.  If a child is still dependent or becomes dependent while meeting the legal definition of a child, support may be requested for another period of time.

In rare cases a judge will place a time limit or put an end date for the payment of child support. This generally happens when a child is a postsecondary student and it is predictable how long they will continue to be dependent.

What is undue hardship?

In some circumstances, a parent may claim the amount of child support determined under the Federal Child Support Guidelines creates an undue hardship for the parent or the child.  Either parent may make an undue hardship claim, saying that a higher or lower amount of child support would be more appropriate in their situation.

Reasons for claiming undue hardship are very limited.   They are:

• A high level of debt incurred before separation or incurred to earn a living, and the person who is obligated to pay child support is making regular payments on those debts
• Extraordinarily high costs related to spending parenting time with the child. For example, the child lives in Vancouver with one parent and the other parent lives in Nova Scotia
• A legal responsibility to support another person or child, confirmed in a written agreement or court order, or
• A legal responsibility to support a person who cannot meet their basic needs on their own.

To prove undue hardship you must show that your household’s standard of living is lower than the other parent’s household’s standard of living. The income of a new partner or other people living in either household will be looked at when an undue hardship claim is made. The income of these household members will not affect the amount of support. Their income information is only used by the court to apply the test to calculate the standard of living of each household and compare them. There is more information about how to compare household standards of living in the Federal Child Support Guidelines: Step-by-Step.

If the household of the parent claiming undue hardship has a higher standard of living than the other parent’s household, the undue hardship claim cannot be accepted and the child support amount should not be changed.

However, if the standard of living is lower in the household of the parent claiming undue hardship, then the undue hardship claim might be accepted and the child support amount could be changed.

Can parents claim or deduct child support payments for income tax purposes?

This depends when the child support order was made.

The Income Tax Act was amended in 1997. Before the amendments the rules were that the paying parent could claim child support payments as a tax deduction, and the receiving parent had to claim the support as income. If your child support order or agreement was made before May 1, 1997, the old tax rules continue to apply, unless you have a new order or agreement or varied the order after May 1,1997.

Child support orders made or varied since May 1, 1997, cannot be claimed as a deduction by the paying parent and the receiving parent does not have to claim the support as income.

Can support be reviewed or changed if my income changes?

You should review child support and any special or extraordinary expenses at least once a year. Parents are required to keep their financial information up to date. It is a good plan to exchange income tax returns every June 1^st and determine the amount of child support using the tables and, if applicable, any formula that may be agreed to based on your parenting circumstances. The new amount could begin, based on agreement, July 1^st.

If you have a court order that is registered with the Maintenance Enforcement Program you will need a new court order to change the amount the Maintenance Enforcement Program will collect.

You may get a new court order by agreement with the other parent and then register it with the court for approval by a judge.  If there is a registered agreement or a court order for child support and you and the other parent cannot agree to change it based on a change in income, the person paying or receiving support can apply to the court to ask for a change.

If your registered agreement or a court order specifically allows for it, you may be able to use Nova Scotia's Administrative Recalculation of Child Support Program without having to make a court application, pay a court filing fee, or negotiate with each other.  

What is the Maintenance (Support) Enforcement Program?

The Maintenance Enforcement Program (MEP) is a service provided by the provincial government to help parents collect child support. MEP has a 24-hour automated voice system called the Infoline, and MEP Online services.  To get information about MEP and more information go to mep.novascotia.ca/

After you log into the website you may be able to confirm:

• enrollment status
• amount of last payment
• present account balance
• last six enforcement actions.

The MEP has general information fact sheets on various topics, including Payor Responsibilities, Recipient Responsibilities, Special Expenses, Child Support Orders with No Terminating Events.

What can I do if support payments are not paid, or are late?

If you have a child support order, and you are having trouble getting your money, you should contact the Maintenance Enforcement Program (MEP).

If you have a written agreement with your spouse but not a court order you must register it with the court first before the MEP will accept it.

Once your order is registered with MEP, the person paying child support (payor) makes payments through the program. The MEP then sends the payment to the parent receiving payments (recipient). If the payor fails to make payments, MEP may take action. Enforcement officers may garnish (deduct money from) wages or other payments due to the payor such as income tax refunds, Workers' Compensation Benefits, Canada Pension Plan benefits and employment insurance benefits. They may also seize bank accounts, revoke passports,  and can require the Registrar of Motor Vehicles to suspend the payor's driving privileges.

All support orders made by either the Supreme Court including the Supreme Court (Family Division) or Family Court since January 1, 1996 are automatically registered with MEP. Once your order is registered or enrolled with MEP, only MEP can enforce the order. If you do not wish to be enrolled in MEP, you may request to "opt out." Both the payor and recipient must agree to opt out and must submit an opt out form to MEP within 10 days of receiving a notice of enrollment. This applies to new orders only.

If you have been in MEP for a while and no longer wish to be, you may submit a Request for Withdrawal form asking to withdraw from the program. This request may or may not be approved, and you will be notified of the decision.

If your order or agreement is not registered with the MEP, you can apply to the courts for enforcement of your order under the Maintenance Enforcement Act, but you will be responsible for taking any action required to enforce the court order made. If you have an order for support from the Supreme Court, you can file an application in court for an execution order. You will also need to file a sworn statement saying that the support is in arrears. You can also apply to the Nova Scotia Supreme Court for a contempt order. It is best to speak with a lawyer first.

Can court orders be enforced outside Nova Scotia?

Yes. Court orders can be enforced in all the provinces, the United States and also in several other countries. Orders made in these places can be enforced in Nova Scotia. Sometimes people ordered to pay support will disappear and you may not know where to find them. The provincial and federal governments have sources that may help to locate persons who are not paying court-ordered support. If you are registered with MEP, they will use these sources to try to find the payor.  Changes are coming to that law that will allow for the release of information from the federal government to disclose where a payor is.

Updating your child support amount—recalculation

The Administrative Recalculation of Child Support program makes it easier for parents to update child support amounts in a court order or registered agreement.

The Administrative Recalculation of Child Support Program recalculates the table amount of child support where a court order or registered agreement allows for this to happen.The recalculation happens once a year at the time of the anniversary of the court order. The Program recalculates certain child support orders based on updated income information provided by the parent paying support. The person paying support is called the ‘payor.’

Only orders that have a section in them saying that they are a part of this Program can be considered for recalculation. There are other requirements for using this Program as well, like what the payor’s income source is. The Program allows parents to update the table amount of child support without having to file a court application, pay a filing fee or negotiate with each other to make the child support update.

Go here for more information about the Administrative Recalculation Program.

What if I have not updated child support in several years and the payor's income has changed a lot?

If you do not update the child support agreement or order regularly you may find that when you do the payor's income has changed significantly, or that there are section 7 expenses that are not included in the original order.

There is no automatic retroactive (back-dated) adjustment to a child support order.  This can be complicated and there are a number of legal factors that must be looked at.  It best to get legal advice and apply to court right away if you cannot reach an agreement with the payor.

For more information

Here is information about ways to get more family law legal information and legal advice.

• For more information on the Federal Child Support Guidelines you can contact the Department of Justice Canada toll-free at 1-888-373-2222, or visit their website at justice.gc.ca.
• For information on the tax treatment of child support, contact the Canada Revenue Agency at 1-800-959-8281.
• Go to nsfamilylaw.ca for further child support information, including about the Administrative Recalculation of Child Support Program.

What if my child's other parent refuses to consent to travel?

If your child is under 16 years of age then you may need to apply the Supreme Court Family Division to ask for a court order permitting  travel with your child. Sometimes these orders are related to one travel event (such as a trip to Florida).  Other times the order relates to the ability to visit family who live in another country on a more regular basis.

A family court worker can help you fill out the necessary forms to ask a judge for an order for permission to travel. Remember that family court is quite busy so you should make your application many months before your planned travel dates.

Children over 16 years do not need their parents’ permission to travel outside of Canada. The country where they are travelling may have restrictions so it is best to research the rules and age requirements to enter the country to make sure the youth does not experience difficulty when travelling abroad.

More information

• go to the federal government's website on Children and Travel
• go to nsfamilylaw.ca
• International Child Abductions: A Manual for Parents
• the Hague Convention on International Child Abduction
• Travel and COVID-19
• contact a lawyer.

What is a common law relationship?

A common law relationship is one in which two people live together but are not legally married to each other. For the relationship to be common law the couple must live together in a 'marriage-like' relationship, for example, by sharing finances, and publicly referring to themselves as partners or spouses.

How long must a couple live together before they are common law spouses?

There is no set time period.  

It is complicated, as it really depends on the issue you are dealing with.  For example, the Nova Scotia Parenting and Support Act gives you some rights for spousal support after you have lived together for two years or have a child together. Employers and insurance companies may have their own policies for defining a common law spouse for the purpose of deciding who qualifies for company or medical benefits. A number of other laws like the federal income uax rules (Canada Revenue Agency), immigration law (Immigration Canada) and Canada Pension consider a cohabiting couple to be common law if they have lived together in a conjugal (marriage-like) relationship for at least 1 year.  The rules about property and pension division for separating common law couples are particularly complicated, so it is best to see a lawyer.  

Can common law couples register their relationship with the provincial government?

Yes.  Couples can choose to register a domestic partnership with Vital Statistics at Service Nova Scotia. For information contact Vital Statistics at 902-424-4381 or 1-877-848-2578 (toll free) or through their website at beta.novascotia.ca/register-your-domestic-partnership.  Once a domestic partnership is registered, the partners will have many of the same rights, benefits and obligations as a married couple, such as pension benefits and the division of assets at separation or death. For specific information on these rights and benefits, you should talk to a lawyer.

Can common law couples put the terms of their relationship in a written agreement?

Yes, you can have a cohabitation agreement. A cohabitation agreement is a document that says what has been agreed on by the common law partners. It can cover things like whether one partner will take the other’s name, their financial arrangements, and how property and debts will be divided if the relationship ends. 

Agreements make sure both partners are thinking the same way about all their major financial matters. You cannot assume that you both feel the same way, nor can you assume that your partner will keep verbal promises made during the relationship if it ends.

All common law partners should think about having a cohabitation agreement, but it is especially important to think about a cohabitation agreement:

• when one partner has significantly more assets or debts than the other,
• if one partner owns a home but the other does not,
• if one partner has a special type of property they want to protect, such as a family cottage,
• if the partners have (or will have) very different incomes,
• if one partner plans to stay home full or part time with children,
• if there are children from an earlier relationship. 

Unlike married couples or registered domestic partners, common law partners do not have an automatic right to share property when they separate.  So, you might want to change this by agreeing to share property in a cohabitation agreement. For example, you might want to share property as if you were married even if you don't actually want to get married.

You and your common law partner can enter into a cohabitation agreement before you start living together or at any time during the relationship.

A lawyer can help write a cohabitation agreement, or you and your partner can write it yourselves. The agreement should be in writing, dated, and signed by both partners and by an adult witness (age 19 or over) who watched the partners sign the agreement. 

It is best if you both get separate legal advice before you sign any agreement. This is sometimes called independent legal advice. The advice is independent because each lawyer is working for only one of you.

It is important to get independent legal advice because:

• it helps you understand what you’re agreeing to
• your agreement is less likely to be challenged in court later
• a court is more likely to order you and your partner to do what you agreed to in your agreement.

Can I change a cohabitation agreement?

You can change your cohabitation agreement if your partner agrees to the changes. You should both get independent legal advice first if possible.

The new agreement should be in writing, dated, and signed by both partners and an adult witness (19 or older) who watched the partners sign the agreement. If your partner does not agree to change the agreement, then you will likely have to follow the original agreement.

A court may change or not apply a cohabitation agreement if it is very unfair to one partner and that partner did not get independent legal advice before signing it. A court may also change or not apply an agreement if one partner was dishonest about their assets, debts, income, or other circumstances. You should speak to a lawyer if you feel your cohabitation agreement is unfair.

It is especially important for common law partners to have wills

If a person dies in Nova Scotia without a valid will, their property will go to family members under a law called the Intestate Succession Act. This law recognizes married spouses and registered domestic partners, but not common law partners.

Go here for information about what happens if a person dies without a will, and go here for information about making a will.

To make sure that property goes to a common law partner, both partners must have a will. Common law partners can also make sure their partner inherits by creating a trust, owning property jointly with their partner, and naming their partner as beneficiary on RRSPs, life insurance, and other benefits. These are things partners should do in addition to each having a will, not instead of having a will.

Lawyers, accountants, and estate planners can help with estate planning. 

If my common law partner dies who gets their property?

Your common law partner may provide for you in their will.

If there is no will and you have a Registered Domestic Partnership, you will have the same rights as a married spouse under Nova Scotia provincial laws. If you do not have a Registered Domestic Partnership, you may have a claim against your common law spouse’s estate depending on the circumstances. If there are dependent children from the relationship, they may also have a claim against the estate. 

If you own property jointly with your common law spouse, you may have a claim against the property even if there is no will.

If you think that you or your children may have a claim against your spouse’s estate, you should talk with a lawyer as soon as possible.

If you want your common law spouse to inherit all or part of your property, you should make a will (see 'It is especially important for common law partners to have wills').

Go here for more information about making a will and estate planning.

How does a common law relationship end?

The relationship ends when you stop living together. You do not have to go through a divorce to end a common law relationship. Although the relationship ends, some rights and responsibilities may continue.

At the end of the relationship, you and your common law partner may be able to agree on parenting arrangements for the children, how the property will be divided and how you will deal with debts. You may already have set out the terms of the separation in a cohabitation agreement. If you do not have a cohabitation agreement and you cannot agree on the terms of the separation, you can go to court and have a judge decide.

If you have a Registered Domestic Partnership, you must formally end the partnership by:

• Filing a joint “Statement of Termination” with the office of Vital Statistics; or
• Registering a signed written separation agreement with the Supreme Court (Family Division)and then file proof of the registration with the office of Vital Statistics; or
• Filing, with the office of Vital Statistics, a sworn written statement (affidavit) by one or both spouses that you have been separated for at least a year; or
• One partner marrying someone else. A copy of the marriage certificate must be filed with the office of Vital Statistics.

Who has decision-making responsbility and parenting time with the children at the end of a common law relationship?

Both parents have joint responsiblity for their children. If they separate, they may agree on parenting arrangements and put the agreement in a written separation agreement if they wish. If they cannot agree, either can apply to the Supreme Court (Family Division) for a court order dealing with issues like parenting arrangements and financial support. For more information go to nsfamilylaw.ca

Can I get financial support from my common law spouse?

Spousal support — In Nova Scotia, common law partners who have lived together for at least two years or have a child together may have responsibilities to provide financial support for each other. If you have a Registered Domestic Partnership there is no two year waiting period.

If the relationship ends, either common law spouse can apply to the Supreme Court (Family Division) for a spousal support order. If you are applying for support for yourself or your children, you should talk with a lawyer. For more information go to nsfamilylaw.ca on spousal support.

Child support — All parents (birth, adoptive, or step-parents) are legally required to support their children even when the parents are not married to each other or never lived together. For more information go to the section on Child Support and see the  information on nsfamilylaw.ca about child support.

Am I responsible for my spouse’s debts?

If you co-sign for loans with your spouse, you are each responsible for repaying the loan. You are not generally responsible for your spouse’s debts unless you co-sign for them. However, if the debt is for something that is used for the benefit of the family such as fuel oil or food, you may be responsible along with your spouse.

How is property divided between common law partners who separate?

Nova Scotia's Matrimonial Property Act, which is the law that says 50/50 for assets between married spouses, does not apply to common law couples unless they have a registered domestic partnership.  Most common law couples do not have a registered domestic partnership. 



What mainly applies to common law couples on property issues is the 'common law', which in this context is law from past court decisions about things like 'unjust enrichment' and 'joint family ventures'.  These are complicated legal words that we explain a bit below, but you should speak with a lawyer about your particular situation.

Generally if a common law relationship ends the legal starting point for property division is that each person takes whatever they brought into the relationship, whatever they acquired during the relationship, whatever is in their name.  Any jointly owned property would generally be shared - because it is jointly owned, not because of the common law relationship. 

The separating couple may agree that each person keeps their own stuff,  or they may agree to split things up equally or in some other way.  They can get help to come to an agreement - through lawyers for example. If they do reach an agreement it is a good idea (but not required) to put the terms of the deal in a separation agreement, and to get independent legal advice (2 separate lawyers) before the agreement is signed, to make sure the agreement is fair to both common law partners.  For division of private workplace pensions there generally must be a written separation agreement or court order addressing the pension(s) in order for the division to happen.
 
If they don't agree though about how to divide their assets and debts, then the common law spouse who does not have their name on an asset or assets might be able to make a claim for compensation if they can show they contributed to the increased value of the asset(s)/property and that the other person benefited from that increased value. That's called an "unjust enrichment" claim. The idea is that it would be unjust, or unfair, for one person to be enriched by the contributions of the other, and that therefore the person who contributed to the increase in the value of the asset(s), but who is not the owner on paper, should get some compensation, assuming they weren't already compensated in some way, such as by living in a residence without having to pay mortgage, insurance, taxes. "Contributions" means things like money (eg. downpayments, paying a mortgage, insurance, taxes, payments on a loan) and/or unpaid or underpaid work contributions (eg. maintenance and general upkeep, improvements to an asset or assets). 
 
As part of a claim for common law property division there is most often another legal argument made that the couple had a "joint family venture".  It is complicated, but basically it boils down to this: because of what they did, said, or put in writing during the relationship it is clear the plan was to share whatever wealth or assets accumulated during the relationship, regardless of whose name is on what, and that therefore the accumulated assets should be shared.
 
As you can see, property division for common law couples is complicated.   It is best to talk with a lawyer to get advice about your specific situation.

For more information

• ww.nsfamilylaw.ca- family law information on many topics, including common law relationships, divorce, separation, parenting arrangements, spousal support and child support
• Contact the Legal Information Society of Nova Scotia to connect with a legal information counsellor and get free legal information
• Contact Nova Scotia Legal Aid for family law legal information and legal advice
• Contact a lawyer in private practice (lawyer you would pay) who does family law
• Free and low-cost legal help in Nova Scotia.

You may qualify for Nova Scotia Legal Aid

Contact your local Nova Scotia Legal Aid office for information about Legal Aid's services: nslegalaid.ca/legal-aid-offices/, and ways to apply for Nova Scotia Legal Aid: http://www.nslegalaid.ca/apply.php .  You can also apply for Legal Aid online: nslegalaid.ca/onlineapplication.php. Check your local directory for the addresses and telephone numbers of legal aid offices across Nova Scotia, listed under 'Legal Aid' in the white pages and government section of the telephone book, or visit Nova Scotia Legal Aid's website at: www.nslegalaid.ca

Free brief legal advice for family law issues

You can make an appointment with a Nova Scotia Legal Aid Summary Advice Lawyer.  You do not have to qualify for Nova Scotia Legal Aid to use this service.  Go to nsfamilylaw.ca/legal-advice-information , (under question 21), for contact information.

More about the Summary Advice Counsel at Family Courts
This service is available throughout Nova Scotia. Your case or issue must be somehow related to the court where the Summary Advice lawyer is located. For example, if you are making an application to the court in Halifax, you should book an appointment with Summary Advice lawyer in Halifax.

The Summary Advice Counsel is a lawyer who assists people who need legal advice on a family law matter, but who do not have a lawyer. The Summary Advice lawyer provides basic legal advice, free of charge, regardless of how much you make or where you get your income.

The purpose of the Summary Advice Counsel service is to give people a better understanding of their legal rights and responsibilities. The Summary Advice lawyer can give basic information about legal terms, how to start or respond to a court application, court processes, legal documents, and other aspects of family law.

The Summary Advice lawyer can give advice on parenting arrangements, child support and spousal support, property division, divorce, and most other family law matters and court processes.

The Summary Advice lawyer does not provide advice to parents involved in child protection matters, or for matters involving Mi’kmaw Family Services. The Summary Advice lawyer may provide advice to a non-party to a child protection matter. For example, if you are not directly involved with a child protection proceeding and are applying for decision-making responsibility for, or contact with, the children involved.

The Summary Advice lawyer does not go to court with you. For more information about this service, click here.

You can contact your local Summary Advice lawyer to book an appointment by calling the appropriate number below:

Annapolis	902-742-0500	Pictou	902-485-7350
Antigonish	902-863-7312	Port Hawkesbury	902-625-2665
Amherst	902-667-2256	Sydney	902-563-2085
Bridgewater	902-543-4679	Truro	902-893-5840
Halifax	902-424-5616	Windsor	902-679-6075
Kentville	902-679-6075	Yarmouth	902-742-0500

Lower cost options

Your lawyer may accept alternate billing arrangements, or may be willing to just work on part of your case.

If you have no extra money, but you and your spouse own property, such as a home, investments, or RRSPs, some lawyers may agree to be paid at the end of your case, when you receive your share of the family property. 

Also, some lawyers may consider helping you with just part of your legal issue - for example, preparing an affidavit or cross-examining a witness in court.  Helping with just part of a case is sometimes called providing 'unbundled'  or "Limited Scope Retainer" legal services.  Go here for more information about how lawyers charge for their work.

You can represent yourself

If you decide to or must represent yourself, you should still ask a lawyer to review court forms before you file them with the court, if possible.  You should always get independent legal advice from your own lawyer before you sign a written agreement or enter into a consent court order.

What is a healthy relationship?

Healthy relationships are respectful, trusting and supportive. You feel comfortable around the other person and know they will not hurt you. You like being around the other person. You feel like you can talk openly with them. Both people treat each other equally and share in decisions. One person does not make all the decisions.

People in healthy relationships are not violent or abusive with each other. No one has the right to be violent or abusive with other people.

What is abuse?

Abuse is behaviour used to intimidate, isolate, dominate or control another person. Abuse can be acts, words or neglect. It may happen once or over a period of time. Family violence includes many different forms of abuse, neglect, mistreatment or harm that may happen in a close, personal relationship. Family violence is also sometimes called intimate partner violence, partner abuse, domestic violence, dating violence or gender-based violence. 

Family violence is complex and often crosses over the examples of abuse listed below. If you feel that something in ‘wrong’ in your relationship speak with a trusted friend or professional to help you identify why this is so and how to keep safe.

Examples of Abuse:

Physical Abuse: when your partner hits, chokes, kicks, burns, punches, or pushes you, or throws objects at you. This does not include acts to protect yourself or someone else from harm or abuse.

Sexual Abuse: when your partner forces, threatens, or manipulates you into sexual acts you don't want to do, uses force, weapons, or objects in sexual acts without your consent, involves other people in sexual acts without your consent.  It includes forcing you to watch violent pornography.  Sexual abuse also includes sex trafficking — where a person forces another person to perform sex acts.  Sex trafficking includes kidnapping, aggravated assault, aggravated sexual assault or death. This can happen against an adult (19 or over) or a child. It can include other behaviours such as stealing or destroying identification documents (for example, a passport) with the aim of committing or facilitating trafficking of that person.

Threats to Kill or Cause Bodily Harm: this includes threats directed at you, your children, your pets.  It includes threatening to do harm or actually doing that harm.

Harassment, including stalking: any unwanted physical or verbal behaviour that offends, threatens or humiliates you. It may also include following you and not leaving you alone, sometimes called ‘stalking’

Psychological or Emotional Abuse:
Includes when your partner

• uses words to hurt you.  This includes name calling, put-downs, blaming, bullying, humiliation, threats and teasing. 
• cuts off your contact with friends and family, makes hurtful or cruel comments; constantly criticizes, insults or belittles you; frightens you, or threatens to harm or take your children or pets.
• uses your friends or relationships to harm you. This includes spreading rumours, gossiping, excluding others from a group or making someone look foolish or unintelligent.

Financial Abuse: when your partner controls your finances, steals your money, refuses to share money so you can buy food or other basic needs, or prevents you from working or going to school.

Killing or harming an animal: when your partner kills or harms an animal, or threatens to do those things.

Online Abuse: when your partner uses the internet, social media, email, texting, instant messaging or other technologies to intimidate or harass you or others. This includes sharing intimate images of you without your consent, or invading your privacy by trying to keep track of your electronic communications. Sometimes also called cyber-abuse or cyber-bullying.

Damage to property: when your partner threatens to damage property, or damages property.

Neglect is also abuse. Your partner neglects you if they intentionally do not provide what you need to survive, such as food, clothing, medical care, or shelter, or prevents you from getting medical care you or a family member need.

Coercive and controlling family violence: a pattern of abusive behaviour aimed at controlling or dominating another family member. The controlling family member might use emotional, psychological, sexual, financial or other forms of abuse, such as choosing a partner’s clothing, controlling their money, or preventing them from working or seeing friends.  This abuse often happens together with physical abuse.

Coercive and controlling family violence is a very dangerous form of violence.  This is because it is part of an ongoing pattern, tends to be more serious and is more likely to affect parenting. For example, a controlling partner often tries to use the children to control their former spouse. They might refuse to comply with parenting orders, or threaten their former spouse with the loss of parenting time.

Those who commit coercive and controlling family violence are more likely than those who commit situational couple violence to continue the family violence in the future. Perpetrators of coercive and controlling violence are less capable of separating their role as a spouse from their role as a parent, and therefore are more likely to abuse their children after divorce.

Is family violence a crime?

A crime is a violation of the Criminal Code of Canada. The Criminal Code applies to all of Canada. Some acts of family violence are a crime.

Examples are:

• murder
• attempted murder
• human trafficking
• physical assault
• sexual assault
• threats to harm
• theft
• criminal harassment (also called ‘stalking’)
• property damage (also called ‘mischief’).

The behaviour does not have to be a crime to be considered family violence under family laws.

What is physical assault?

Assault is when one person applies force to another person, or attempts or threatens to apply force to them without their consent. There are different levels of physical assault. Depending on what happened, your partner might be charged with:

Assault: when someone slaps, pushes or threatens, for example. There may not be any physical injuries. It includes an attempt to assault.

Assault with a weapon or causing bodily harm: when your body is hurt and there are physical injuries, and/or when someone carries, uses or threatens to use a weapon. A weapon can be anything used, or intended to be used, to cause death or injury, or to threaten or intimidate. Examples are a knife, a bat, a belt, a coat hanger or a toy/imitation gun.

Aggravated assault: when a person’s life is put in danger and/or the person is badly hurt.

What is sexual assault?

Sexual assault is a sexual act or touch that you do not consent to. This includes kissing you or touching you without your consent, forcing you to have sex (also called rape), torturing you in a sexual way, threats to force you to do any of these things. All the facts are important, including the type of contact, words and gestures. It is sexual assault if sexual gratification is the goal of the assault. Sexual assault is a crime even if you are not physically hurt. Sexual activity without consent is against the law.

What is human trafficking?

Human trafficking is a crime. It is about exploitation of another person.  It can take many forms, but often is about being made to provide sexual services or labour through force, coercion, deception and/or abuse of trust, power or authority.   It can happen to adults or young people, especially young girls. Sex trafficking happens when you are forced into sex acts without your consent and you believe that you have no other option but to stay in the situation. The abuser may be your intimate partner. You may have a child together. Your abuser may control your money and carry out other abusive behaviours or acts against you. It is important that you reach out for help.

You, your child and important people in your life can be protected and stay safe. Anyone who is a victim of human trafficking or knows a victim can contact the confidential Canadian Human Trafficking Hotline at any time at 1-833-900-1010 (toll-free) or https://www.canadianhumantraffickinghotline.ca/

What is consent?

Consent means freely and voluntarily agreeing to take part in sexual activity, like touching, kissing, or having sex. Consent must be ongoing.  You can change your mind at any time during a sexual activity.

There is no consent when someone:

• says or does something to show they are not consenting to a sexual activity
• says or does something to show they are not agreeing to continue a sexual activity that has already started
• is not capable of consenting to the sexual activity because, for example, they are unconscious, even if they consented when they were conscious. 
• abuses a position of trust, power or authority to get consent. A person in a position of trust or authority includes people like a teacher, coach, police officer, babysitter, religious leader or healthcare worker
• claims to consent on someone else’s behalf
• lies to get consent.

You can find out more about consent at breakthesilencens.ca

Depending on what happened, your partner might be charged with a crime. This could be crimes such as:

• sexual assault
• sexual assault with a weapon
• threats to a third party or causing bodily harm
• aggravated sexual assault
• human trafficking.

Can the police charge my partner with sexual assault?

Yes, a partner can be charged with sexual assault. Being married or in a close or intimate relationship does not give your partner the right to sexually assault you. There does not have to be a witness other than the survivor for a judge to convict a person of sexual assault.

If you have been sexually assaulted, you may want to visit a nurse through the Sexual Assault Nurse Examiner Program (SANE) to do a medical exam and/or collect evidence within five days of the sexual assault. Medical evidence can help if you decide to report what happened to the police and the person is charged with sexual assault. Sexual assault survivors can get services and support by calling SANE at 1-877-880-7263 or by contacting the police, a healthcare professional, or local transition house or shelter.

Go here for more information on SANE.

Other examples of crimes that are considered family violence:

• If your partner forced you to stay somewhere by threatening you or physically stopping you from leaving, they might be charged with 'forcible confinement'
• If your partner threatened to harm you, your child, pets or property, they might be charged with 'uttering threats'.   Threats might be made to you in person, or in another way like text messages, on social media posts, or by telephone
• If your partner damaged your property they might be charged with 'mischief'.  This is when someone damages property such as keying your car or punching a hole in the wall during an argument.
• If your partner took your property (for example, your pet or vehicle) without your consent they might be charged with theft.
• 'Criminal harassment' is also a common charge in partner abuse cases. Criminal harassment includes things like stalking, harassing phone calls, or unwanted visits to your home or workplace. Stalking is when you have a reasonable fear for your safety because your partner does one or more of the following:
  
  • watches and follows you
  • damages your property
  • tries to contact you when you don't want them to
  • sends you lots of messages that you don't want by mail, voicemail, text, email, social media posts, or through other people.

When do the police get involved?

You can call the police if your partner assaults or threatens you. A family member, neighbour, friend or someone else might call the police if they hear or see the assault and are worried about you or your children.

The police enforce the law and look into crimes. Police are allowed to come into your home when they get a report of abuse or family violence.

When they come to your home, the police will talk with you, your partner and any other family members or witnesses who saw or heard what happened. They will do this before deciding if they should charge either or both of you with a crime.

The police decide what happens. You do not decide. Your partner does not decide.

Could I be charged with a crime?

The police will talk to both you and your partner, and look for evidence to decide if they will charge anyone involved with a crime. There is always a chance that you will be charged with a crime, even if you are the person who was abused.

Sometimes an abused partner could be charged with a crime because:

• your partner lied to the police about what happened
• the police might not have a good understanding of family violence or abusive relationships and may not know what is really going on
• language and/or cultural barriers make it difficult for you to explain what happened to the police.

If the police think there is a good legal reason (called reasonable grounds) to believe that someone committed a crime, they must charge that person with a crime. This means the police may charge your partner, you, or both of you with a crime.

The police must also make a referral to Child Protection Services if they think your child or children have been harmed or are at risk of being harmed. Child protection law says everyone must keep children safe from harm. If a child protection worker contacts you then it is important for you to understand the reason why there has been a referral and anything you can do to make sure your child is safe.  You can get legal advice about child protection from a lawyer you would pay, or from Nova Scotia Legal Aid. You can get more information about child protection at nsfamilylaw.ca.

If your partner is charged, the police can connect you with Victim Services. They can help support you. See the RESOURCES section below for more information.

Will the police take my partner from our home?

If your partner is charged with a crime the police will most likely take your partner from your home to the police station. Your partner might be released by the police or by the court if your partner agrees to follow certain conditions, which could include:

• not contacting you
• not going to the family home
• having limited or no contact with your children
• not having a gun or any kind of weapon
• handing in their passport
• showing up in court on the date ordered.

These conditions will be written in a legal form called an 'undertaking' (a written promise to a police officer) or a 'recognizance' (a court order from a judge).  These forms are also sometimes called a 'no contact' order.

If your partner was released and contacts you, or does not follow other conditions, you should call the police. Your partner may be arrested, charged with a new crime, and/or kept in custody until the matter goes to court.

Conditions can be changed by the court at any time during the court process. They end when the case is over.  If your partner is found guilty then the sentence they get may have similar or new conditions they must follow.

Your partner might try to force or scare you into asking the Crown Attorney (a government lawyer) or the court to change or remove the conditions. If your partner threatens you or your children, you should tell the police. Your partner can be charged for making this type of threat.

If you also have a family court case, you need to tell your family law lawyer or the family court about any conditions of release. It is important that your family court orders and criminal court orders say the same things.

Divorce law says judges must make sure they know about cases happening in other courts, such as criminal court or a child protection case.  You have a legal duty to tell the court about other criminal or non-criminal cases.  In all family law cases the judge must consider family violence so be prepared to answer questions about other cases. 

If I call the police will I have to go to court?

You may have to go to court if the police charge your partner with a crime. If you need one the police and the courts must provide an interpreter free of charge for you and any other witnesses. You will have to go to court if you are charged with a crime.

Can the charges be dropped?

Only the Crown Attorney can change or withdraw criminal charges.

My partner is abusing me. Can my partner be ordered to stay away from me?

Police or court conditions for someone charged with a crime:
If the police were called and the person is arrested, the police can require them to sign an undertaking. This is a written promise to follow conditions. This can include a promise to not contact the person being abused until it goes before the court. A judge can also order them to stay away as part of their release from custody.

If you want to keep your partner away, but you do not want to call the police, or the police do not charge your partner with a crime, you can apply for:

• an Emergency Protection Order, or
• a Peace Bond
• a Cyber-Protection Order to stop cyberbullying.

What is an Emergency Protection Order?

An Emergency Protection Order (EPO) is a temporary court order made by a Justice of the Peace to protect a victim of family violence when the situation is serious and urgent.  An Emergency Protection Order may be made under Nova Scotia's Domestic Violence Intervention Act.

If you live on reserve, go to nsfamilylaw.ca for specific information about Emergency Protection Orders on reserve.

You can apply for an EPO if you are 16 or older, and:

• live with, or lived with, your partner as a couple; and/or
• you have a child or children together, even if you have never lived with each other.

If granted, an EPO:

• can order that your partner have no contact with you
• can give temporary care of a child to you or to another person
• can order your partner not to take, sell or damage property
• can give police power to remove your partner from the place where you live (owned or rented), and/or, go with you or your partner to the home to oversee getting personal items
• can give you temporary possession of personal property like a car, bank card or other important things you need
• is put in place right away and lasts up to 30 days.

An EPO gives immediate, short-term help. It gives you time to look at longer-term options like applying for a peace bond, making a report to the police to see about possible criminal charges, or applying to family court.

If your partner disagrees with the EPO, your partner may challenge it at the Supreme Court of Nova Scotia.

An EPO is not a parenting order. While care of a child can be granted in an application for an EPO, it is not common. Talk to a family lawyer about parenting arrangements like decision-making responsibility and parenting time, and other family law issues like child and spousal support, and dividing family assets and debts.  If an EPO that covers care of a child is put in place, the EPO will temporarily replace any other court order that covers parenting arrangements.  When the EPO runs out the other court order will be in place.

An EPO can last up to 30 days. It may be extended for up to another 30 days. If you want an extension you must apply to court at least one week before the EPO runs out. Or, if you have new evidence, you could apply for a new EPO.

You apply for an EPO over the phone by calling the Justice of the Peace Centre at 902-424-8888 or 1-866-816-6555 or by contacting the nearest transition house or police services for help applying.

You can apply any day of the week from 9:00 a.m. until 9:00 p.m. A police officer or other designated person (such as someone working at a transition house) can apply on your behalf after regular business hours.

When you call, a Justice of the Peace will speak with you to decide if an EPO should be made.

If you need an interpreter to help you apply for an EPO, you must arrange one. The interpreter cannot be your family member or friend. They must be a professional interpreter. Nova Scotia Victim Services and/or Nova Scotia Interpreting Services can help you find a professional interpreter (see the RESOURCES section below for more information).

If your partner does not follow the EPO and is charged and found guilty of that offence they face a fine or up to 3 months in jail for a first offence. Failing to follow an EPO will not result in criminal charges.

If you have an EPO and you think you might want to apply for a peace bond in the future, it is a good idea to talk with a lawyer.

What is a peace bond?

A peace bond is a criminal court order. You can apply to court for a peace bond if you fear that your partner or ex-partner will harm you, your family, or your property. A peace bond can require that your partner or ex-partner stay away from you.

You can apply for a peace bond at the Provincial Court or Family Court. 

The court will give you the forms you need to apply. Once you fill out the forms you will speak with a Justice of the Peace who will decide if the application will go to court. Only a judge can order a peace bond.

Applying for a Peace Bond can take a long time. Tell court staff before your court date if you need an interpreter. The court may arrange one depending on the language and interpreter’s availability. You do not have to pay for the interpreter. You can go to court with a lawyer or on your own. It is always a good idea to talk with a lawyer if you have to go to court, even if you go to court without a lawyer.

If a peace bond is granted it is a court order. It will include a condition that your partner not break the law ('keep the peace and be of good behaviour') for a period of up to 12 months. It may also have conditions saying your partner must:

• have no contact with you (except with your written consent)
• have no weapons, and/or
• stay away from certain places like where you live or work.

If your partner does not follow the conditions of the peace bond they may be charged with a crime. If found guilty your partner could be fined, sentenced to probation for up to three years with conditions, or jail. Depending on the terms of the sentence your partner could get a criminal record if they break the peace bond.

Here is more information about applying for a peace bond.

What is a Cyber-protection order?

The Intimate Images and Cyber-protection Act aims to protect people from being bullied online, or from having intimate images of themselves shared without their consent. Cyber-bullying is when someone uses electronic communication, like email, text messaging or social media communication, to harm your health or well-being. They might be doing this on purpose to hurt you or they might not care about hurting you.

Examples of cyber-bullying:

• creating a website, blog or profile that takes your identity
• sharing sensitive personal information or breaking your confidence
• posting or sharing private intimate images online without your consent
• threatening, intimidating, harassing or scaring you online
• making false statements about you
• communications that are grossly offensive, indecent, or obscene
• encouraging you to commit suicide.

Cyber-bullying can also include encouraging or forcing someone else to do these things.

The law also protects you if someone distributes a private intimate image of you, such as a photograph, film, or video, without your consent. An intimate image is one that is private, shows sexual activity or nudity or partial nudity. It is an image you have good reason to think will stay private.

For example, without asking you and to try to hurt you, your former partner posts a private, sexually explicit, intimate picture of you on Facebook that you had good reason to think was going to stay private.

A cyber-protection order can order the person to stop the bullying and/or sharing of images, and do things like:

• stop the person from contacting you
• order that they take down or disable access to an intimate image or communication about you; and/or
• award damages to the victim.

You apply to the Supreme Court of Nova Scotia for a cyber-protection order. You can apply with a lawyer’s help or on your own. A parent or guardian of a victim under the age of 19 can also apply to Supreme Court for a cyber-protection order. You can get information about applying to the Supreme Court of Nova Scotia for a cyber-protection order at courts.ns.ca.

Cases under this law have been heard at the Supreme Court of Nova Scotia. When the court finds that cyberbullying happened, the court may order the offender(s) to pay money to the victim. The amount of money could be significant.

Nova Scotia’s CyberScan Unit oversees Nova Scotia’s Intimate Images and Cyber-protection Act and can give you help and information, including about applying to court for a cyber-protection order. Contact CyberScan at novascotia.ca/cyberscan/ or call 902-424- 6990 or 1-855-702-8324.

What happens with my children?

The law says that anyone who has reason to believe that a child has been harmed, or might be harmed, must report this to Child Protection Services. Harm can include the child being exposed to family violence, even if the child is not being physically hurt.  You can get more information about child protection at nsfamilylaw.ca, and read the Child Protection Booklet - What you need to know when child protection takes your children into care, also available in Mi'kmaq: Ta'n nuta'q +kjijitun ta'n tujiw lkalkewaq wesua'la'tiji kinijink anko'tasinu

Child Protection Services will contact you if a report is made. They will suggest services and resources to help you. They may tell you to prevent a person from having contact with your child, or if there is contact that it must be supervised. If supervised contact has been directed then consider who is best to supervise the contact because in most cases it would not be appropriate for you to provide the supervision. Child Protection Services can remove your child from the home if they believe it is necessary in order to protect your child. Therefore, it is important for you to get legal advice so you can make good choices to protect your children and keep them safe and connected with you.

Get legal advice right away if you or your child has any contact with Child Protection Services.

If you are asked to sign anything, or your child is removed from your home, you should contact a lawyer right away. You have the right to know where your child is and to have contact with your child, unless there is an undertaking to a police officer or a court order preventing you from contact with your child. For help you should contact Nova Scotia Legal Aid or a lawyer you would pay who does family law, including child protection law to obtain legal advice on your rights and the rights of your child in this situation.

See the RESOURCES section below for support services.

Children and violence

Remember that children love their parents and other important people in their life. If there is abuse then children experience that abuse too – sometimes they see the abuse, other times they hear the abuse or see the impact of abuse.

You have a duty to protect your children from abuse and abusive situations. You also have a duty to make sure that your child is not placed in the middle of a separation. Children need to be informed in a child centered way about what is happening. They need to know where they will live, when will they see the other parent and other important people in their life, what school they will be going to, whether they will still be able to take part in their favourite extracurricular activities, etc. Helping to remove some of the anxiety your child will experience at the time of separation will help create resilience and acceptance that their new circumstances will be okay. It is important to reassure your child or children that you recognize their feelings and needs.

Child Protection
if a child experiences or is at risk of experiencing family violence by their parents or other important caregivers or people in their lives then there is a duty to report to child protection. If a child protection worker determines the child is at risk of harm, then depending on the level of risk, the parent may be asked to place the child outside of the home with the other parent or relatives. If there is a child protection process the child may be placed in the care of the Minister of Community Services. If child protection is involved then it is important to get legal advice. It is important that each parent take steps to address the protection concerns, such as registering for a family violence awareness program or personal counselling as soon as possible.

If there is family violence, parents, lawyers, and anyone who works with the family must focus on keeping the child safe. Everyone must work together to create a legal response to support healthy relationships, minimize exposure to violence and improve the child’s or youth’s overall safety. It is also important to make sure the child’s voice is heard and considered.

Children have a right to be safe. Family laws, including the Divorce Act (federal) and the Parenting and Support Act (Nova Scotia) recognize the impact of family violence on children and their caregivers. Family laws say a judge must look at family violence as a factor in deciding what is best for a child. This includes whether family violence was directed at the child or whether the child is directly or indirectly exposed to family violence.  Parents should:

• always make decisions in the best interests of their child (listening to them will help), and
• not involve their children in their disputes (for example, parents should not record their conversations with the child for possible use in family court proceedings, or ask the child to carry messages to the other parent)

Go here to learn more about family violence and the best interests of the child.

Abuse and immigration status

If you are a Canadian citizen born abroad or a permanent resident, you can stay in Canada if your partner is arrested or if you leave the relationship. You will not be deported.

Speak with a lawyer who does immigration law as soon as possible if:

• you have temporary status or no immigration status
• you are sponsoring your partner
• your sponsor is trying to force you out of Canada
• your partner or someone else is threatening to hurt your family back home.

A lawyer can also tell you if you are able to get government income support like income assistance and the child tax benefit.

If your spouse has been charged with a crime, your spouse may try to use threats to keep you from leaving or to try to scare you into dropping the charges, but charges can only be changed or dropped by the Crown Attorney (a government lawyer). The complainant or victim does not have the power to change or drop the charges.

Conditional Permanent Residence
Conditional permanent residence no longer applies to anyone. This means there is no conditional period (set amount of time) where you must live together with your sponsor to keep your permanent residence status in Canada.

What can I do?

Abuse is a community issue—not a private family matter. Everyone has a part to play in helping to stop abuse and foster healthy relationships. You can get help and support if you are in an unhealthy or abusive relationship, or if you want to help someone who is experiencing abuse. 

If it is an emergency or someone is in danger, call 9-1-1. They can connect you with the police or medical help.

You can go to:

• nsdomesticviolence.ca for information and resources about family violence
• nsfamilylaw.ca for more information on the law and family violence
• breakthesilencens.ca for information and resources about sexual violence
• Talk to a lawyer. A lawyer can help with legal problems like separation, custody, child and spousal support, criminal charges, applying for a no contact order, and immigration concerns. Go here or see the RESOURCES section below for ways to get legal advice.

If you think someone is being abused

Call the police or let the person know that they can talk to you. You can also offer to take them to a safe place if they decide to leave the abusive situation, or you can provide information about what services are available. Go to nsdomesticviolence.ca for information about other ways you can help.

If you are being abused

Call 9-1-1 if you and/or your children are in danger right now.

You can also:

• see a doctor, nurse or psychologist
• leave your partner and/or the abusive situation
• get counselling, support, help with safety planning and shelter from a transition house or community organization
• talk with someone you trust.

If you have been hurt

If you have been physically hurt and it is an emergency, call 9-1-1 for medical help. If you have been sexually assaulted in the past 5 days (120 hours), you can call the police and ask for an ambulance to take you to the health centre. You have the option to ask for a female nurse at the health centre.

Sexual Assault Nurse Examiners Program

 If your community has a Sexual Assault Nurse Examiners Program (SANE), you can ask the hospital or health centre staff to call SANE for you. SANE is a 24 hour, 7 day a week program that serves people of all genders (including trans-identified people) and all ages who have experienced a sexual assault in the past 5 days (120 hours).

SANE’s 24 hour response line (1-833-577- 7263) offers non-judgemental, confidential support and information about options after an immediate sexual assault. SANE also offers supportive care and follow-up for sexual assault survivors. The response line can also connect you with a nurse, who can meet you at a hospital to provide medical care and/or collect evidence. More information on this program is at nshealth.ca/sane.

You decide if you want to get a medical exam and/or have evidence collected.

A medical exam includes:

• taking a medical history
• documenting the details of the sexual assault
• taking blood and urine samples to test for pregnancy and/or infections
• doing an internal exam (vaginal) and general physical exam
• providing follow-up treatment.

To collect evidence (or do a forensic examination), nurses prefer that you do not shower, bathe, douche, use the washroom, change your clothes, eat/drink or clean your teeth until the exam is completed. This could destroy evidence. Nurses could also ask to collect your clothing for evidence, do a headto- toe visual exam looking for injuries and/or take photographs of the injuries. Police are not present during the exam. If you decide to immediately report the sexual assault to the police, SANE nurses can help notify the police and send over the evidence collected. If you decide not to file a report with the police, they can still collect evidence and keep it for a period of time. If during this time you decide to report the sexual assault, SANE can give the evidence to the police. The evidence will not be destroyed without your consent.

Go to nshealth.ca/sane for SANE contact information in communities across the province.

If you are being bullied online

If you have been bullied or harassed online, or by text or email, or had intimate pictures of you shared without your consent, you can speak with the police, or contact Nova Scotia’s CyberScan Unit. CyberScan oversees Nova Scotia’s Intimate Images and Cyber-protection Act. Contact CyberScan at novascotia.ca/cyberscan/ or call 902-424-6990 or 1-855-702- 8324. You can also speak with a lawyer. And, see the information on cyber-protection orders above.

If an abusive partner needs help

There are community programs that give education and counselling to people who have abused their partners and/or children. There are gender based programs and couple based programs. They programs teach about how to have healthy and respectful relationships. If you have abused or been in an abusive relationship these programs may help improve communication and safety if you have children with the abuser. Children are harmed when they fear, witness or experience family violence. If you are a parent it is important to find a program or service that helps you find and maintain a safe relationship with the other parent.

See the RESOURCES section below for more information on how to contact these programs.

Do I need a lawyer?

You may need to talk to a family lawyer for help with parenting arrangements, child and spousal support or property division, or help if you are trying to get an Emergency Protection Order (EPO) or other court order. You can speak to a criminal lawyer if you have a criminal charge or need help to get a peace bond. It is a good idea to talk with a lawyer if you want to apply to Supreme Court for a cyber-protection order. You can speak with an immigration lawyer if you have immigration concerns.

A trusted family member or friend may be able to help you find a lawyer. You can also contact Legal Info Nova Scotia’s Lawyer Referral Service (902-455-3135 in Halifax or 1-800-665-9779 for the rest of Nova Scotia, or email [email protected]) for a referral to a lawyer you would pay. Go here for other ways to find a lawyer.  Before hiring a lawyer, ask the lawyer how they charge for their work and how much the lawyer thinks the process will cost.

If you cannot afford a lawyer, contact Nova Scotia Legal Aid (NSLA). You can apply for Legal Aid online at www.nslegalaid.ca/onlineapplication, or by calling or visiting your local NSLA office (see the RESOURCES section below for more information).

If you need an interpreter for meetings with your lawyer, you will be responsible for the cost if the lawyer is not a Legal Aid lawyer. You do not have to agree to have your children or friend interpret for you.

Where will I live if I leave my partner?

If the police are called during or after an assault, you can ask them to take you to a transition house or shelter. Transition houses and shelters give women and their children a short-term safe place to live, and can give you information and support.  

Help is still available during the COVID-19  pandemic.  Transition houses throughout Nova Scotia are providing shelter with government support, while still following public health advice.  

You can contact a transition house or shelter yourself. Contact the shelter nearest you or contact the Transition House Association of Nova Scotia (THANS)  - 902- 429-7287, or call 1-855-225-0220 toll free, day or night. THANS is a network of shelters and transition houses with locations across the province. Or, you can contact Nova Scotia 2-1-1 to find your closest transition house or shelter.

After leaving an abusive situation, second stage housing provides safe and affordable housing for women and their children for six months to one year.

You can also choose to rent an apartment or stay with a family member or friend. Shelters and crisis services are also available for men. For more information, see the RESOURCES section below.

Can I take the children with me?

It is best to take your children with you if you are concerned about their safety or you think that your partner will try to stop you from seeing them.

As long as it is safe, you have a duty to tell the other parent about how the children are doing and, when it is safe to do so, arrange for the parent to spend time with the children. Often parents work with a neutral person to help maintain a child’s connection with the other parent after separation where there has been abuse and/or risk of abuse. You should contact a family law lawyer to get legal advice about your situation as soon as possible.

If the other parent has taken the children and refuses to let you see them, then see if there is a neutral friend or relative who can reach out to the parent and arrange your time with the children. If contact is refused then you should seek out legal advice. You may make an emergency application at family court for parenting time with your children.

Whether or not you take the children with you, you can apply immediately to family court for interim (temporary) parenting order for care of your children, and child and spousal support orders for you and your children. You can ask the court to limit your partner’s time with your children, and to make it against the law for your partner to take the children from you.

You can ask the court to set a schedule for the other parent’s time with the children. When appropriate you may ask the court to require the parent’s parenting time to be supervised or that the exchange of the children take place in a public or supervised setting.

You should not try to take the children out of the province or the country as your partner could accuse you of kidnapping the children. If you plan to visit with family in a nearby community then you should inform the other parent of your plan to visit so they do not worry about the children. Your lawyer will explain what you can and cannot do. You can get legal information, about family law at nsfamilylaw.ca, including information about family law rules around relocating with a child after separation or divorce.  See the RESOURCES section for ways to get family law advice.

Can I get income assistance?

If you leave your partner and have no income, you may also be able to get income assistance from Nova Scotia’s Department of Community Services, if you are a Canadian citizen, permanent resident, refugee claimant, or a Temporary Resident Permit holder (not the same as a Temporary Resident Visa for school, work, or visits). You can apply for income assistance over the phone by calling 1-877-424-1177, or go to your local Nova Scotia Community Services office. You will be asked for your bank statements, Social Insurance Number (SIN), Nova Scotia Health Card number, and other documents to help the intake person understand your financial and/or family situation. You may find out on the first call whether you are eligible. Or you may get a meeting with a worker or be asked to wait for someone to return your call.

Ending your lease early

You might be able to end your lease for your rented apartment or home early, without a financial penalty, if you are leaving an abusive situation.

Year-to-year or fixed-term lease: Contact the Department of Justice Victim Services (902- 424-3309 or 1-888-470-0773) to see if you can end your lease with one month’s notice to the landlord. If you are a survivor of domestic violence, Victim Services can help you file an application to end the lease.

Month-to-month or week-to-week lease: You can end your lease using Nova Scotia Residential Tenancies Form C (“Tenant’s Notice to Quit”). You must give one month’s written notice to end a month-to-month tenancy, or one week’s written notice to end a week-to-week tenancy. Contact Nova Scotia Residential Tenancies (Access Nova Scotia) at 902-424-5400 or 1-800-670-4357 for more information about Residential Tenancies. Nova Scotia Legal Aid or Dalhousie Legal Aid can also help.

Taking time off work

After at least three months in a job, you might be able to take time off work if you and/or your child experience abuse. This is called domestic violence leave. It gives employees the right to take time off work to move or to get medical, legal and/or psychological support or other professional counselling for you and/or your children.

Domestic violence leave allows an employee to take:

• up to 16 weeks in a row of unpaid leave, and
• up to 10 days of protected leave in a calendar year, taken all in a row or broken up. Protected leave means that after the leave you must be allowed to return to the same job or, if that job is no longer available, to a comparable one with no loss of seniority or benefits. Employers must pay for up to three days of domestic violence leave.

This leave applies to employees in provincially regulated workplaces, and to unionized employees. You can combine domestic violence leave with other types of leave. Contact Nova Scotia Labour Standards (902-424-4311 or toll-free at 1-888-315-0110) for more information about domestic violence leave and other leaves from work.

General information and resources

211 Nova Scotia
2-1-1 or text 21167 
ns.211.ca
Finds services in your community any time. Expanded supports are available for women, and people of all genders, including trans, non-binary, two-spirited, and gender-diverse folks. No matter where Nova Scotians live or how they identify, if they have concerns about their well-being, safety, and/or the safety of others, services are available any time of day or night and any day of the year. Supports include information, navigation, referrals, and brief intervention counselling. All Genders Helpline, Women's Helpline, Men's Helpline: call 2-1-1.  Free and confidential.

2-1-1 can help you find:

• a safe place away from an abuser
• information or advice about the law
• victim services to help when you need it.

Healthlink 8-1-1
811.novascotia.ca
Information or advice about your health. It can help you find a health care service in your area. Nurses can help you in French or English. They can also help through an interpreter in many languages.

Adult Protection Services - Nova Scotia Department of Health and Wellness
1-800-225-7225 toll-free
Adult Protection Services can help if you are worried that an adult is being neglected, abused or harmed. You can call between 8:30 a.m. and 4:30 p.m., Monday through Friday.

Child Protection Services (Department of Community Services)
2-1-1 to find Child Protection Services near you.
Call Child Protection Services if you believe that a child is being abused or neglected or could be abused or neglected, you can call Child Protection Services. During the day, contact the district office of the Department of Community Services near you. After 4:30 p.m., call 1-866- 922-2434. 

Canadian Human Trafficking Hotline
Anyone who is a victim of human trafficking or knows a victim can contact the confidential Canadian Human Trafficking Hotline at any time at 1-833-900-1010 (toll-free) or https://www.canadianhumantraffickinghotline.ca/

Neighbours, Friends and Families Program
A campaign to help people learn signs of violence against women. To learn more, visit nsdomesticviolence.ca/nff

General information on family violence and resources
women.novascotia.ca/resource-map and
nsdomesticviolence.ca

Women’s Centres
womenconnect.ca
Help with information, support, advocacy and referrals across Nova Scotia

Making Changes
women.gov.ns.ca
Making Changes: a book for women experiencing intimate partner abuse, with information that is also relevant to men and nonbinary people who have experienced abuse. A Nova Scotia Advisory Council on the Status of Women publication.

Nova Scotia Rainbow Action Project
nsrap.ca
Seeks equity, justice, and human rights for 2SLGBTQIA+ people in Nova Scotia pdf

Healthy Family Relationships: What newcomers need to know (1.52 MB)

pdf Leaving an abusive relationship: 12 tips (452 KB)

Legal Help

Independent Legal Advice for Sexual Assault Survivors Program
2-1-1
novascotia.ca/SexualAssaultLegalAdvice
Up to 4 hours of free legal advice if you have been sexually assaulted and are 16 years old or older. You do not have to report to police or go to court if you use this service. They can help in English or French, or use a free interpreter for other languages.

Halifax Refugee Clinic
902-422-6736
halifaxrefugeeclinic.org
Gives immigration legal services to refugee claimants and people in need of protection who cannot afford a private lawyer. They offer legal advice to survivors of domestic violence only about their immigration status.

Nova Scotia Legal Aid
nslegalaid.ca or look under Legal Aid in the telephone book
Free legal information, advice and representation for adults and youth. Legal Aid might help with criminal or family law, employment insurance, income assistance, or a problem with your landlord. Some services are based on financial need. Apply online at nslegalaid.ca or contact your local Legal Aid office. Legal Aid can help if you are accepted into Domestic Violence Court in Sydney or Halifax.

Dalhousie Legal Aid Service
902-423-8105
Free legal information, advice, and advocacy if you have low income. They can help with issues like income assistance and tenant rights and housing. They do not do immigration issues or adult criminal matters.

Legal Information Society of Nova Scotia
1-800-665-9779 (toll-free) or 902-455-3135
legalinfo.org
Email: [email protected] (English or French)
Free legal information on any legal topic, or help to find a lawyer and other legal help, provided by telephone, email and live chat.  You do not have to give your name.

Accès Justice Access
902-433-2085 or 1-844-250-8471 (English or French)
Free legal information and legal form-filling help. You must make an appointment. In-person in Halifax.

Mi’kmaq Legal Support Network
1-877-379-2042
mlsn.ca

Support services and victim support services to Aboriginal people in Nova Scotia, particularly through the Mi'kmaw Court Worker Program and the Mi'kmaw Customary Law Program.

reachAbility
902-429-5878 or 1-866-429-5878
reachability.org

Legal referral service for people with disabilities.

nsfamilylaw.ca
Nova Scotia legal information about parenting arrangements, separation, divorce, child and spousal support, and domestic violence.

Emergency Protection Order—Justice of the Peace Centre
1-866-816-6555 toll-free or 902-424-8888
Call the Justice of the Peace Centre to apply for an emergency protection order. A justice of the peace will hear your story and decide right away whether to give you an emergency protection order.

Online Abuse (CyberScan Unit)
902-424-6990 in Halifax or 1-855-702-8324 toll-free
novascotia.ca/cyberscan/

CyberScan helps if someone has shared private pictures of you without your consent or is bullying you online, or by text or email. They might also help you apply to the Supreme Court of Nova Scotia for a cyber-protection order.

Domestic Violence Courts
courts.ns.ca (under Domestic Violence Court)
902-563-3510 (Sydney) 902-424-7404 or [email protected] (Halifax)

Special court that helps protect survivors of domestic violence and their families from future abuse. Programs to help people who commit abuse change behaviour and prevent future abuse. Connects family members to
services and supports near where they live

Transition Houses and Crisis Help

Transition House Association of Nova Scotia
902-429-7287 or 1-855-225-0220 (day or night) or call 2-1-1
thans.ca
They can help you find a shelter near you if you want to leave an abusive relationship. Shelters can also help with information, crisis support and safety planning, even if you do not want to live at a shelter. You do not have to give your name.   

Bryony House (Transition House Association of Halifax)
902-422-7650 (crisis number)
902-423-7183 (shelter main number)
bryonyhouse.ca
Women in Halifax who are leaving domestic violence or abusive relationships can call any time of the day or night and any day of the year.

Autumn House Support Line
902-667-1200 any time of day or night.
autumnhouse.ca
Contact for women and men in abusive relationships. Men who abuse their partners who want help to change can also call this number, or 902-667-4500 during the day.

NS Mi'kmaq Crisis and Referral Line
902-379-2099 1-855- 379-2099 any time of day or night
eskasonimentalhealth.org
Province-wide support to Mi’kmaq people, provided by Eskasoni Mental Health.

Mental Health Mobile Crisis
1 888-429-8167, any time of day or night.
Help for anyone experiencing a mental health crisis.

Victim Services

Provincial Victim Services Program
Information, support, and help if you are a victim of crime, or the spouse or relative of a victim. Information about your case, help to write a victim impact statement, help to apply for money or counselling and get special help for child victims or a witness of a crime. 

Halifax or Dartmouth or the South Shore: 902-424-3309
Annapolis Valley: 902-679-6201 or 1-800-565-1805 toll-free
Northern Nova Scotia: 902-755-7110 or 1-800-565-7912 toll-free
Cape Breton: 902-563-3655 or 1-800-565-0071 toll-free

Halifax Regional Police Victim Services
902-490-5300
Helps you in a crisis and after a crisis. Emotional support and help to find services. Help applying for a peace bond in the Halifax area.

Mi’kmaw Victim Support Services
1-877- 379-2042 (Cape Breton)
902-895-1141 (Mainland NS)
Victim support for aboriginal people dealing with the criminal justice system. Provided by Mi’kmaq Legal Support Network

RCMP Victim Services
1-888-995-2929
Information or emotional support after a crime. Call and leave a message. They call you back in 24 hours.

Sexual Assault Centres and Programs

Sexual Assault Nurse Examiner (SANE) Program

If you have been assaulted in the past five days, call and leave a message. A nurse will call you back right away. You can also go to an emergency department for medical help or go to the police to report the assault. You can also tell your family doctor or nurse practitioner.

Halifax: 1-877-880-7263
Guysborough, Antigonish, Pictou and Richmond Counties: 1-877-880-SANE (7263)
Sydney area: 1-844-858-8036
Yarmouth area: 1-833-577-SANE (7263)

Antigonish Women’s Resource Centre and Sexual Assault Services Association
awrcsasa.ca
902-863-6221
Counselling for all genders

Avalon Sexual Assault Centre
avaloncentre.ca
902-422-4240
Counselling for women, trans and non-binary individuals

Colchester Sexual Assault Centre
colchestersac.ca
902-897-4366
Counselling for all genders

New Start Counselling - Healing Narratives (Dartmouth)
newstartcounselling.ca
902-423-4675 or [email protected]
Free counselling for men who have
experienced sexual assault

Sexual Violence information and Training
breakthesilencens.ca
Nova Scotia information, resources, and training about sexual violence

Independent Legal Advice for Sexual Assault Survivors Program
see Legal Help above.

A Survivor’s Guide to Sexual Assault Prosecution
novascotia.ca/pps/publications/survivorsguide-to-sexual-assault-prosecution.pdfto-sexual-assault-prosecution.pdf
Nova Scotia Public Prosecution Service publication for sexual assault survivors that explains each step of a sexual assault prosecution, and what the survivor can expect to happen in court.

Services for men who want to stop hurting their partner

New Start Counselling (Dartmouth)
newstartcounselling.ca
902-423-4675 or [email protected]

CornerStone Cape Breton (Sydney)
cornerstonecb.ca
902-567-0979 or [email protected]

New Directions (Amherst)
autumnhouse.ca
902-667-4500 or [email protected]

Freeman House's Alternatives Program (Bridgewater)
902-543-7444 or 1-877-882-7722 toll-free, or [email protected]

New Leaf (Pictou County)
902-396-2440

Bridges (Truro)
bridgesinstitute.org
902-897-6665 or [email protected]

Immigrant Services

African Diaspora Association of the Maritimes
adamns.com
Focuses on the needs of immigrants of African Diaspora descent

Salvation Army Atlantic Refugee and Immigrant Services Project
902-477-5393, extension 224
Helps you fill out immigration forms and travel papers.

Immigrant Services Association of Nova Scotia
902-423-3607
isans.ca
Helps newcomers settle in Nova Scotia. Also helps permanent residents who have a crisis, like abuse in a relationship. Free interpretation is available.

Nova Scotia Interpreting Services
902-425-6604
902-425-5532 if you need help now
interpretingservices.ca
Interpretation services for 39 languages. Open 24 hours a day, 7 days a week.

Rainbow Refugee Association of Nova Scotia
rainbowrefugeens.com
Privately sponsors, resettles, and advocates for LGBTQI+ refugees in Nova Scotia.

YMCA Centre For Immigrant Programs
ymcahfx.ca
Programs and outreach services for newcomers.

Applying for a divorce in Nova Scotia

There are three ways to apply for a divorce in Nova Scotia:

1. Petition for Divorce:  There is no agreement — there are outstanding issues between you and your spouse that you cannot work out. 
2. Joint Application for Divorce:  You and your spouse have an agreement on everything, and you are filing the paperwork together. 
3. Application for Divorce by Written Agreement: You and your spouse have an agreement on everything, but only one of you is filing the paperwork. 

Go here for a Guide to Filing for Divorce in Nova Scotia.

A Petition for Divorce and an Application for Divorce by Written Agreement both require that the other spouse be personally served with the divorce documents.  Here is information about Personal Service.  A Joint Application for Divorce does not require personal service of the documents, as you are filing together.

The spouse who files a Petition for Divorce is called the petitioner. The other spouse is called the respondent. 

Spouses who apply for a Divorce by Written Agreement are called the applicant and respondent. 

Spouses who make a Joint Application for Divorce are both called applicants (applicant and co-applicant, or 'joint applicants').

You can apply for a divorce:

• with a lawyer's help , or
• without a lawyer.

What court deals with divorce?

The Supreme Court (Family Division) deals with divorce and all other family law issues in the province.  You'll find court contact information online at courts.ns.ca/Courthouse_Locations/Courthouse_Locations_Map.htm

Recently the Family Courts in Nova Scotia combined with the Supreme Court of Nova Scotia in each part of the province to offer family law services as a 'unified' court, called the Supreme Court (Family Division).  It is the Supreme Court and Family Courts combined.  Before this change the Supreme Court (Family Division) was only in the Halifax Regional Municipality and in Cape Breton.  Now the Supreme Court (Family Division) deals with all family law issues everywhere in the province, including divorce, dividing assets (property division), child protection, parenting arrangements, child support and spousal support.

What is an uncontested or desk divorce?

An uncontested divorce or 'desk' divorce is one where the spouses agree on the basis for the divorce (usually one year's separation) as well as other issues related to divorce —  parenting arrangements , child support, spousal support (if any will be paid) , division of property and debts. The agreement is confirmed in a Corollary Relief Order — a court order that covers things like parenting arrangements, support, and asset and debt division.    The Corollary Relief Order is approved by a judge as part of the divorce process. The spouses file the necessary forms with the court and a judge reviews the forms in their office - that's why an uncontested divorce is sometimes called a 'desk' divorce. It is rare for the spouses to be asked to appear in court for an uncontested divorce. If there is missing information the court will send a letter to each spouse to ask for missing information or to clarify a term of the Corollary Relief Order.

Even for an uncontested divorce there are many steps involved and the process can be complicated. You should consider hiring a lawyer to do this for you. If you cannot afford a lawyer, it is possible to prepare the necessary documents yourself, but representing yourself in any court proceeding, even an uncontested proceeding, has its risks. Your divorce will have a permanent impact on your life, including your rights and obligations. For example, a division of property and waiving a right to get spousal support are final. It is very rare for a spouse to be able to go back to court in the future to successfully get a different division of property or to ask the other spouse to pay spousal support.

Judges and court officers cannot give you legal advice. Make sure you understand the risks involved before you decide to do-it-yourself.

If you do decide to do-it-yourself, an uncontested divorce may be started by filing:

1)    Uncontested Motion for Divorce.  This is used when a divorce petition was filed, the respondent did not file an Answer to the Petition, and now the spouses want an uncontested divorce; or
2)    Application for Divorce by Agreement; or
3)    Joint Application for Divorce.

You should try to speak with a lawyer if you are not sure which of these ways to choose.  For more information about applying for an uncontested divorce, go to nsfamilylaw.ca

Can my spouse and I apply for a divorce together?

Yes. If you have a written agreement on everything relating to your divorce you can apply fo an uncontested divorce together as 'joint applicants'.  This is called a Joint Application for Divorce.  A written agreement may be a Separation Agreement, Minutes of Settlement, or a draft court order about the terms of your divorce (a Corollary Relief Order).  You must both agree to the terms of the divorce.

If you decide to apply for a divorce as joint applicants, you do not have to serve (have it delivered to your spouse in person) the Joint Application for Divorce on your spouse, since your spouse is co-signing the application.

How do I get a separation agreement?

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 help you and your spouse reach an agreement
• file an application with the court.  If your application is about parenting or child support a court conciliator may be able to help you. A court conciliator is a court officer who can help you identify the issues involved in your case, make sure that you and your spouse exchange full financial disclosure, help you reach an agreement, and refer your case to a mediator or judge if you and your spouse are not successful 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 should we put into our separation agreement?

Some of the matters you and your spouse will want to deal with in a separation agreement include:

• what type of parenting 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)
• other expenses for your children such as childcare (called s.7 expenses)
• whether either spouse will receive spousal support, and if so how much, and for how long
• how the family's property (assets) and debts will be divided or have been divided.

What is a contested divorce?

A divorce is contested if one spouse disagrees with the other on the basis for the divorce (one year separation, adultery or cruelty), or parenting arrangements, child or spousal support, or division of property and debts. A contested divorce requires a trial before a judge, who will decide whatever issues the spouses cannot agree on, unless the spouses are able to work things out before getting to a trial.  A contested divorce, or one that might be contested, must be started using a Petition for Divorce.

Grounds for divorce

The only ground for divorce in Canada is a 'breakdown of the marriage'.  You can prove the marriage has broken down in one of three ways:

1. You and your spouse have been separated for at least one year (one year's separation)
2. Your spouse committed adultery; or
3. Your spouse treated you with intolerable physical or mental cruelty.

Almost all divorces in Nova Scotia are granted based on a one year's separation.

You cannot ask for a divorce based on your own adultery or cruelty, only your spouse's adultery or cruelty.

Another requirement is that at the time the divorce is granted, one spouse must believe, and state under oath or affirmation, that there is no possibility of reconciliation (getting back together).

You should only consider using a do-it-yourself divorce kit  if you are seeking a divorce based on one year's separation or if your spouse has admitted adultery. If your spouse abused you in any way, you should speak to a lawyer about your divorce.

Can either spouse apply for or petition for a divorce?

Either spouse may apply for a divorce. You do not need your spouse's permission or consent.

You can file for divorce in Nova Scotia if either you or your spouse has lived in Nova Scotia for at least a year immediately before you file for divorce.

Either spouse can petition or apply for divorce based on one year's separation. Only a spouse who did not commit adultery or cruelty can seek a divorce on the basis of adultery or cruelty. You can file for divorce in Nova Scotia if either you or your spouse has lived in Nova Scotia for at least a year immediately before you file for divorce.

Go to nsfamilylaw.ca for information about the difference between applying or petitioning for divorce.

Where can I get a do-it-yourself divorce kit and divorce forms?

• Do-it-yourself divorce kit:  The forms are available from the Supreme Court (Family Division) with a brief instruction book. There is a small fee for this kit (about $25).  Visit www.courts.ns.ca for court contact information

• Online Guide to Filing for Divorce in Nova Scotia - step-by-step information and forms for filing for divorce

The divorce forms come from Nova Scotia's Civil Procedure Rules, which are court rules, forms and process created by judges.  The Civil Procedure Rules are on the Nova Scotia Courts' website at: courts.ns.ca/Civil_Procedure_Rules/cpr_home.htm.  You can fill the forms out on your computer and then print out a hard copy to file with the court in person.  The forms also have helpful tips about what to put in the blanks. 

You can hire a lawyer to prepare the forms for you. If you already have a signed separation agreement, this should not be very expensive.

If you decide to complete the documents yourself, you should  still try to have a lawyer review them before you file them with the court.  Check out the lawyers and legal help page for further sources of help, including ways to see a lawyer.

File the necessary documents with the court and wait for the court to grant your divorce. This usually takes at least a number of months, so do not schedule a wedding until you have your Certificate of Divorce!  When the court grants your divorce, you must wait 31 days from the date on your Divorce Order.  This is the appeal period.  If neither spouse appeals, you will then get a Certificate of Divorce from the court - it will  be mailed to you after the appeal period is over. You will need the Certificate of Divorce to remarry.

I need help with the forms. Where can I go?

• You can make an appointment with a Nova Scotia Legal Aid Summary Advice Lawyer.  You do not have to qualify for Nova Scotia Legal Aid to use this service.  The Summary Advice Lawyers provide brief, basic legal advice free of charge.  Go to nsfamilylaw.ca/services/getting-legal-advice-finding-lawyer for contact information.
  
  
• Contact your local Nova Scotia Legal Aid office at: http://www.nslegalaid.ca/contact.php

• The Family Law Information Centres (FLICs) at the courts in Halifax and Sydney offer free Do-it-Yourself divorce workshops.   Contact the FLIC in Sydney at 902-563-5761 or in Halifax at 902-424-5232 for further information, or go to: nsfamilylaw.ca/services/court/family-law-information-centre.
  
  
• Check out the Lawyers and Legal Help page of this website for other possible sources of help.  Remember: only a lawyer can give you legal advice.
  
  
• A private lawyer (lawyer you would pay).

How long will it take to get an uncontested divorce?

It depends. Either spouse may file for divorce as soon as you separate, but a court will only grant a divorce after you have been separated for one year, unless the spouse seeking the divorce can prove the other spouse committed adultery or intolerable cruelty.

It often takes 12-18 months for spouses to reach agreement on all of the issues relating to their separation, such as parenting, child and spousal support, and division of their property and debts. Some spouses reach agreement sooner than this; others take longer.

Once you and your spouse have been separated for a year, and have reached agreement on all issues, you can apply for an uncontested divorce. Even if you fill out all the forms correctly and provide all of the necessary information, it may still take months for the court to process the forms and grant an uncontested divorce.  You should contact the court to find out how quickly uncontested divorces might be processed, and do not make wedding plans until you have your Certificate of Divorce.

Once the divorce is granted, it does not become final until another 31 days have passed. The court will then issue a Certificate of Divorce.  You will need a Certificate of Divorce if you want to remarry. The total amount of time is usually around 18-24 months.

How much does it cost to get an uncontested divorce in Nova Scotia?

If you and your spouse have already agreed on everything and you decide to hire a lawyer to provide independent legal advice and prepare a separation agreement and the necessary forms, you can expect to spend about $1,500.00 - $3,000.00 for legal fees plus HST and the court filing fee. As of January 2021 the court filing fee for an Application for Divorce by Written Agreement or Joint Application for Divorce was $218.05 plus $25 (law stamp) and HST.  Here is more information about court filing fees. There may also be some office expenses (photocopies, postage, couriers, etc.), and there may be a fee for having your spouse served with the divorce documents. These expenses are called disbursements.

Generally, it costs more to hire a senior lawyer than a junior one. If you are concerned about the cost, ask about the lawyer's hourly rate, and whether there is a junior lawyer at the firm who can help with the paperwork to save money.  Some lawyers may also be willing to just help with part of the work.  If a lawyer just helps with part of a case it is sometimes called a "Limited Scope Retainer".

In addition, the other spouse should get independent legal advice from a different lawyer. It is unethical for the same lawyer to provide legal advice to both spouses. This is because each spouse may have different legal needs and it is impossible for one family lawyer to act ethically for each client in this way.

I can't afford the court filing fee. Is there a program to help me?

Yes. Nova Scotians who have a low income can ask the court for a Waiver of Fees application: courts.ns.ca/Fees_Of_Courts/court_fees.htm. You will need to provide proof of your income. 

Can I get my spouse to help me pay for an uncontested divorce?

In an uncontested divorce, usually each spouse pays their own legal costs. The person who applies for the divorce pays the court filing fees and other court-related costs. Sometimes spouses agree to share these costs.

How long will it take if my divorce is contested?

Most spouses are able to eventually settle their divorces without the need of a trial, but even where spouses are able to settle all of the issues arising from their separation, it can take 12-18 months to do so. If a divorce trial is necessary, it will probably take two or three years to finalize your divorce.

How much does a contested divorce cost?

The overall cost is entirely dependent on how reasonable the spouses are with each other and how complicated the issues are. If both sides hire lawyers and reach agreement quickly, it may only cost a few thousand dollars each for legal fees. If one or both spouses are unreasonable, or if there are complicated issues to resolve, it may cost each spouse $5,000 or more in legal fees even if the spouses eventually reach agreement. If the spouses cannot reach agreement and a divorce trial is necessary, it will probably cost each spouse a minimum of $5,000 and can cost $20,000 or even $40,000 or more in complicated cases. These are general figures. You should ask your lawyer for an estimate as to how much your divorce will cost.

I was married outside of Canada. Can I get divorced in Canada?

Yes. You can file for divorce in a province if either you or your spouse has lived in that province for at least a year immediately before you file for divorce. You will need to get an original marriage certificate from the place you married. 

If you were married in a country where a marriage certificate is not issued then there are steps you may take to prove your marriage and to get a divorce in Canada. You should speak with a lawyer or a court worker for help on this process.

I just moved to Nova Scotia. Can I file for divorce here?

You can file for divorce in Nova Scotia if you or your spouse has lived in Nova Scotia for at least a year. If you just moved to Nova Scotia from another province, and your spouse has lived in their province for at least a year, you can ask your spouse to file for divorce in the other province instead.  This 'residency' rule applies across Canada, as it is part of the federal Divorce Act, which is Canadian law.

I don't know where my spouse is. Can I still get a divorce?

Yes. First you should do everything you can to find your spouse.   For example, you might:

• contact friends or relatives to try to find your spouse
• do internet searches
• look on social media
• ask at your spouse's recent residence(s) or place(s) of work
• hire a private investigator to help locate your spouse.

Go to nsfamilylaw.ca for more tips.

Keep records of the steps you take to locate your spouse.  If you still cannot locate your spouse, you can apply to a judge to ask for an order for substituted service, which would allow you to notify your spouse in a way other than personal service. This is a court order that tells you what you must do to make sure your spouse is aware that you have filed for divorce, such as having the divorce documents delivered to someone (for example, your spouse's parents) you know is likely to be in touch with your spouse. The judge will want to know that you have made every reasonable effort to find your spouse before the judge will grant an order for substituted service.

Go to nsfamilylaw.ca for more information about service (notifying your spouse of the divorce) or applying for substituted service.  You will also find information in Nova Scotia's Civil Procedure Rules (court rules and processes made by judges).

You should try to speak with a lawyer to get legal advice about how to apply for an order for substituted service.

My spouse and I want to try to make our marriage work. Can I put the divorce on hold?

Yes. Divorce law encourages spouses to reconcile (get back together) if at all possible.

An application or petition for divorce expires six months after the day it is filed with the court, unless the respondent is notified of the divorce petition or application within that time, or the court extends the time for notification.

You can get back together any number of times without affecting your date of separation as long as the total number of days that you live together as spouses does not exceed 90 days. If you get back together for more than 90 days and then file for divorce again, your separation date changes to the date your last reconciliation ended. A change in your separation date may affect your division of property as well.

My spouse and I just got back together. Can we cancel the divorce?

If your divorce was finalized you cannot cancel or revoke it, but you can re-marry.

If the divorce is not final, in most cases the petitioner or applicant can stop the divorce by filing a notice of discontinuance with the court, and delivering the notice of discontinuance to the respondent. If you discontinue the divorce and later decide to restart it, you will need to do a new petition or application for divorce and pay the court filing fee again.

Can I ask the court to change my name?

Yes. Your petition for divorce or affidavit supporting a joint application for a divorce or a divorce by agreement should say that you are seeking a name change and the new name you want to use. Your Divorce Order should contain a paragraph relating to the name change. See the specific forms for more details.

You can go back to using your unmarried name or a previous married name at any time, without waiting for a court order.

After you change your name, you will need to change your identification and inform all of the government offices, agencies, and businesses you deal with. You should provide notice in writing (some places have specific forms to use). If you changed your name in your Divorce Order, you can show a copy of the Divorce Order as proof. If you changed your name informally by just going back to using your unmarried name or a previous married name,  you can use your birth certificate or previous marriage certificate as proof of your previous name.

For more information about name changes go to  nsfamilylaw.ca

I want to change my childrens names too. How do I do that?

In an uncontested divorce, the court will only change your children's names with the consent of both spouses. You will need to get written consent from your spouse and file it with the court. You should also include a paragraph in your divorce documents indicating what the children's names are, what you want the names changed to, and confirming that both spouses consent to the name change.

If the court orders the children's names changed, you should inform the children's schools, doctors, and other organizations of the change. This should be done in writing.

For more information about name changes go to nsfamilylaw.ca

For more family law information and ways to get legal advice

Can't find what you're looking for? For all your Questions & Answers about divorce, including divorce forms, go to:

To find a lawyer, you can

• ask a friend or family member for a referral
• contact your local Nova Scotia Legal Aid office at: http://www.nslegalaid.ca/contact.php
• contact law firms in your community that do family law
• contact your Employee Assistance Program or union if you have one
• go to nsfamilylaw.ca - the page on getting legal advice;
• contact a women's centre and ask if they can suggest a referral
• go to Lawyers and Legal Help for more ways to find a lawyer.

If you cannot pay a lawyer

Your lawyer may accept alternate billing arrangements, or may be willing to just work on part of your case.

If you have no extra money, but you and your spouse own property, such as a home, investments, or RRSPs, some lawyers may agree to be paid at the end of your case, when you receive your share of the family property. 

Also, some lawyers may consider helping you with just part of your legal issue - for example, preparing an affidavit or examining a witness in court.  This is sometimes called providing 'unbundled'  or "Limited Scope Retainer" legal services.  Go here for more information about how lawyers charge for their work.

You may qualify for Nova Scotia Legal Aid.

Contact your local Nova Scotia Legal Aid office for information about Legal Aid's services: nslegalaid.ca/legal-aid-offices/, and ways to apply for Nova Scotia Legal Aid: http://www.nslegalaid.ca/apply.php .  You can also apply for Legal Aid online: nslegalaid.ca/onlineapplication.php. Check your local directory for the addresses and telephone numbers of legal aid offices across Nova Scotia, listed under 'Legal Aid' in the white pages and government section of the telephone book, or visit Nova Scotia Legal Aid's website at: www.nslegalaid.ca

Summary Advice Lawyer for Family Law issues.

You can make an appointment to meet with a Nova Scotia Legal Aid Summary Advice Lawyer at the court.  You do not have to qualify for Nova Scotia Legal Aid to use this service.  The Summary Advice Lawyers provide brief, basic legal advice free of charge.  Go to nsfamilylaw.ca/services/getting-legal-advice-finding-lawyer for contact information.

You can represent yourself.

You can represent yourself and complete the required forms to obtain a divorce. You will find more information about forms required for a divorce in Nova Scotia online at http://www.nsfamilylaw.ca/separation-divorce/married/divorce. 

If you decide to represent yourself, you should still ask a lawyer to review the forms before you file them with the court, if possible. 

More information about family law in Nova Scotia

• Contact us by telephone (Legal Information Line), email, or live chat to connect with a legal information counsellor and get free family law information
• Nova Scotia Legal Aid offers family law live chat on its website on Tuesdays from 3 pm to 5 pm
• Justice Canada Family Law Information
• The Court Services Division of Nova Scotia's Department of Justice operates Family Law Information Centres at the Supreme Court-Family Division in both Halifax and Sydney.  Visit nsfamilylaw.ca for more information
• A website called CANLII offers free access to Canadian laws and court decisions. You can also find Nova Scotia laws on the Nova Scotia legislature website - nslegislature.ca and court information and procedures on the Nova Scotia Court website - www.courts.ns.ca
• Francophone Nova Scotians can get help from l'Association des juristes d'expression française de la Nouvelle-Écosse.

• The Department of Justice Canada has more information about family law and the Divorce Act, including fact sheets on:
  • Parenting Arrangements
  • Divorce and Family Violence
  • Child's Views and Preferences
  • Moving after separation or divorce
  • Duties for parents and others
  • Family Dispute Resolution

When can I remarry?

Unless it is appealed, a Divorce Order usually becomes final on the 31st day after the date it is issued. Anytime after the 31st day, you can ask for a Certificate of Divorce from the court. If you decide to remarry, you will need the Certificate of Divorce to get a marriage licence. If you misplace your Certificate of Divorce, you can get another from the court.

It may take several days to get a marriage license from the Vital Statistics division of Service Nova Scotia, from the date that you apply, so keep that in mind when scheduling your wedding!

How long do I have to pay child support?

The Divorce Act requires child support to be paid until the child reaches the age of majority, which is 19 in Nova Scotia, unless the child is no longer dependent. You may be required to pay child support for children 19 or older if they are still in school or are still dependent because of an illness, disability, or some other cause.

If you pay child support under a court order, you must continue to pay child support unless the other parent (recipient of child support) agrees that you can stop paying it or you get a court order terminating child support.  If the other parent agrees to end child support, make sure you get that agreement in writing as an agreed on ('consent') change to your court order.

For more information about child support, go to:

• LISNS' page on child support: legalinfo.org/family-law/child-support.html
• Nova Scotia Family Law website: nsfamilylaw.ca/child-support/general-information-child-support
• Maintenance Enforcement Program (NS) - Child Support Orders with no Terminating Events (factsheet)

Is there anything else I should do now that the divorce is final?

Yes. Here is a list of some of the things you should do:

• Review your separation agreement (confirmed in your Corollary Relief Order) and make sure that you have divided all of your property and done everything that is required by the agreement
• If you have not already done it, contact the Canada Revenue Agency to update your marital status. Find out about the different tax deductions, exemptions, benefits and changes available to you as a result of your separation and divorce.  You could see an accountant to help you with this.  
• If you and your spouse agreed to divide a pension from employment, contact the pension plan administrator to find out what to do next, and send them a copy of your agreement or court order
• Contact the Canada Pension Plan about CPP credit splitting or call them at 1-800-277-9914
• Review your will and update it after your divorce.  In Nova Scotia, divorce revokes the parts of a will that give a gift to a spouse, provide a benefit to a spouse or appoint the spouse as executor. There are exceptions: the will, a separation agreement, or marriage contract may say that these parts of your will are not affected by a divorce
• Review your insurance policies and change the beneficiary if necessary or apply for more insurance if necessary. Make sure you have insurance coverage as required in your separation agreement or court order
• Review your RRSP, TFSA and other instruments where you named a beneficiary.  Change the beneficiary if necessary, but make sure you do what is required in your Corollary Relief Order.
• If you have gave your former spouse power of attorney to deal with financial and property matters on your behalf, and/or power to make personal care decisions and consent to medical treatment on your behalf under a personal directive or the Medical Consent Act , review these documents and decide whether you want to revoke (cancel) this power or give it to someone else.

What is the Maintenance Enforcement Program?

Nova Scotia has a Maintenance Enforcement Program (MEP) to help get support payments from payor spouses or parents. The Program can help you get support payments owed (called arrears) and help to make sure you get your support payments the month that they are due.

The Director of Maintenance Enforcement has the power to issue garnishments to income sources (take part of your spouse's pay cheque or government cheque before your former spouse gets it), put a lien on a home or land, seize bank accounts, revoke or suspend driving privileges in Nova Scotia, and the power to require your former spouse to answer questions about finances. The MEP has more information about steps MEP can take to enforce child support and spousal support.

All support orders are automatically signed up for the Maintenance Enforcement Program unless the spouses agree in writing to leave the program. If you are on income assistance, you may not be permitted to leave the program.

If you are enrolled in the Maintenance Enforcement Program, your spouse sends payments to the Program and the Program forwards them to you. If you accept any support payments directly from your spouse, it is your responsibility to let the Program know so they can properly credit your spouse with the payments.

If you pay support and your income changes then you may consider talking with your spouse about changing the order to reflect your current income. If there is an agreement and the current order is registered with MEP you will need to register your new agreement with the court. MEP will then update its records and collect the new amount.

MEP cannot negotiate a new support agreement between spouses. They are only able to operate under the terms of the most recent court order that is registered for enforcement.   If you are the payor and there has been a change in your income and you cannot reach a new agreement with your former spouse, you may need to look at applying to court to ask the court to vary (change) the court order.  The MEP cannot change it for you.  It is a good idea to get legal advice if possible.

You are not allowed to enforce the support order yourself while you are enrolled in the Program.

My former spouse has not paid support as required. What can I do?

If you are not in the Maintenance Enforcement Program and you want to join, call 902-424-0934 in the Halifax Regional Municipality, or 1-855-322-0934 (toll free), or go to mep.novascotia.ca/en/enrol-and-get-started to enrol.  You can join the program without your ex-spouse's consent.

You'll find more information about the Maintenance Enforcement Program online at mep.novascotia.ca

If you are not enrolled the Maintenance Enforcement Program, you may enforce the support order yourself. It is a good idea to speak to a lawyer if you are considering this option.  You'll also find information about enforcing a court order at nsfamilylaw.ca

My support order is from another province or country. Can I join the MEP?

Nova Scotia has agreements with every province and territory in Canada and with the United States, and some other countries, for the enforcement of support orders. You can register your support order with Nova Scotia's Maintenance Enforcement Program. They will not be able to enforce your order but will register your support order where your spouse lives, so the Maintenance Enforcement Program where your spouse lives can enforce the support order.

To register your support order, you will need an enrollment kit, including a completed declaration of arrears, and three certified copies of your support order (do not use photocopies - you can get certified copies from the court that issued the order). Contact the Maintenance Enforcement Program for more information.

Can I opt out of the Maintenance Enforcement Program?

Yes. You and your spouse can agree in writing to leave the program (both the payor and recipient must agree). If you are on income assistance, you may be required to remain enrolled in the program.  Other times MEP may require a new order before you will be permitted to leave the program.

If you are comfortable dealing directly with your former spouse and your spouse pays the full amount of support on time each month, you may not need the Maintenance Enforcement Program.

How can I enforce my court order for a division of property?

You will need to apply to the court that granted the order to have the order enforced.

There are some things you can do on your own. For example, if the order gives you ownership of a vehicle, you can take the order to the Registry of Motor Vehicles to ask that they register the vehicle in your name. If your former spouse will not give up the vehicle, you can ask the police or sheriff's office to assist you. If you are having trouble enforcing the order though it is best to get legal advice about steps you can take to enforce it.

My ex is not letting me see our children as court ordered. What can I do?

First, you should keep detailed records of each time you are supposed to have parenting time and write down whether you had parenting time that day and what happened. Include as much detail as you can. If your spouse gave a reason for denying parenting time, you should make a note of it. If the problem is ongoing, you may apply to the court to enforce the parenting order or to add provisions to make the other spouse accountable for seeing that the parenting time takes place. For example, requiring exchange of care to take place at a court, school or daycare facility, or as supervised by a neutral third party. This creates a neutral location to pick up the child. It also ensures accountability.

If your parenting order does not provide for time with your child on specific dates and at specific times, the court can spell this out to help you enforce it. For example, instead of "reasonable parenting time at reasonable times on reasonable notice," the court could order that you have parenting time every Tuesday and Thursday from 5:30 - 7:30p.m. and alternate weekends from Friday at 5:30p.m. to Sunday at 5:30p.m. The court can also set out a summer and holiday parenting schedule. This type of parenting order creates certainty because it confirms when you will have parenting time, predictability for the child because they will know when they will see you again, and accountability because the time is specific.

If you already have a specified parenting time order and you are still having problems, you can call police to help you but this is a last resort. You should speak to a lawyer before calling police. Most often the police will attend at the home to confirm your child is well and safe. They will not get involved in the actual enforcement of a parenting order, unless there is a very directed order from the court to do so. If you are concerned about the safety of your children you may also contact your local child protection office.

If your spouse still denies parenting time, the court can find that your spouse is in contempt of court. Contempt of court means that your spouse has purposely disobeyed a court order without good cause. If the judge finds that this is the case, the judge can impose a fine or imprisonment on your spouse, though this is rare. In extreme cases, a judge may consider changing which parent the child lives with to resolve parenting time problems.

For more information about contempt of court, go to nsfamilylaw.ca.  You should speak with a lawyer if you are considering a contempt application.

My ex threatened to take our children out of the province or country. What should I do?

Children are most vulnerable to abduction (being taken away) by a parent when the relationship between the parents is broken or troubled and the parent has ties to another country or province. It is easier to prevent a child abduction than it is to recover a child that has been taken.

You should speak to police, your lawyer, and the Consular Affairs Bureau at Foreign Affairs Canada as soon as possible. Foreign Affairs Canada publishes a detailed free booklet called International Child Abductions:  A manual for parents.

How do I change a parenting order, child support, or spousal support?

The Divorce Act allows spouses or former spouses to vary (change) parenting arrangements, child support, and spousal support if there is a significant change in circumstances. Your first step should be to approach your former spouse and try to reach agreement. If you can agree on a change, you should put the change in writing. Review your separation agreement as some agreements have a section dealing with how to make changes. If there is nothing like that in your separation agreement, you will need to put what you have agreed to in writing. The people who agree to the new terms should then sign it, date it, and have an adult witness each person’s signature and sign to show that they witnessed it. You should both get your own legal advice before signing anything.

If you are having trouble reaching agreement, a family mediator may be able to help.

If you and your former spouse cannot agree, you can apply to the court to vary parenting arrangements, child support, or spousal support. A court officer may refer your case to a conciliator who works at the courthouse. Conciliation is available for child support issues. If conciliation is unsuccessful, or if your issue is not covered by a conciliator then a referral will be made to a judge. The judge will likely offer the parties an opportunity to participate in a judge led settlement conference. This is an opportunity for a judge to assist the parties to come to a resolution they can live with. If the parties cannot agree then a trial will be scheduled.

For information about applying to court to vary a court order, go to nsfamilylaw.ca

How long will it take to vary my court order?

It depends on how complicated your application is. An application to increase or reduce child support, or to decide on parenting time over summer holidays may only take a few months from start to finish. An application to change decision-making responsibility and parenting time from one parent to the other may take a year or longer.

If your situation is an emergency, explain this to a court officer. The court has special procedures for dealing with emergencies.

I gave up spousal support in my separation agreement but now need it. Is it too late to apply?

It may be too late, but you should speak to a lawyer. The law relating to spousal support is changing rapidly. If the terms of your separation agreement were unreasonable when you agreed to them, or have become unreasonable because of changed circumstances, you may be able to apply for spousal support. Another factor the court will consider is whether you had legal advice before signing the separation agreement.

Can I change the division of property in my separation agreement?

Probably not. Property is only divided once, and the division is usually final. Courts will only change the division of property in a separation agreement if the agreement was invalid or very unfair. If you now feel that your division of property is unfair, you should speak to a lawyer.

For more family law information and ways to get legal advice

Can't find what you're looking for? For all your Questions & Answers about divorce go to:

To find a lawyer, you can

• ask a friend or family member for a referral
• contact your local Nova Scotia Legal Aid office at: http://www.nslegalaid.ca/contact.php
• contact law firms in your community that do family law
• contact your Employee Assistance Program or union if you have one
• go to nsfamilylaw.ca
• contact a women's centre and ask if they can suggest a referral
• go to Lawyers and Legal Help for more ways to find a lawyer.

If you cannot pay a lawyer

Your lawyer may accept alternate billing arrangements, or may be willing to just work on part of your case.

Some lawyers may consider helping you with just part of your legal issue - for example, preparing an affidavit or examining a witness in court.  This is sometimes called providing 'unbundled'  or "Limited Scope Retainer" legal services.  Go here for more information about how lawyers charge for their work.

You may qualify for Nova Scotia Legal Aid.

Contact your local Nova Scotia Legal Aid office for information about Legal Aid's services: nslegalaid.ca/legal-aid-offices/, and ways to apply for Nova Scotia Legal Aid: http://www.nslegalaid.ca/apply.php .  You can also apply for Legal Aid online: nslegalaid.ca/onlineapplication.php. Check your local directory for the addresses and telephone numbers of legal aid offices across Nova Scotia, listed under 'Legal Aid' in the white pages and government section of the telephone book, or visit Nova Scotia Legal Aid's website at: www.nslegalaid.ca

Summary Advice Lawyer for Family Law issues.

You can make an appointment to meet with a Nova Scotia Legal Aid Summary Advice Lawyer at the court.  You do not have to qualify for Nova Scotia Legal Aid to use this service.  The Summary Advice Lawyers provide brief, basic legal advice free of charge.  Go to nsfamilylaw.ca/services/getting-legal-advice-finding-lawyer for contact information.

You can represent yourself.

If you decide to represent yourself, you should still try to get some legal advice if possible.  Here is information about representing yourself at the Supreme Court Family Division.

More information about family law in Nova Scotia

• Contact us by telephone (Legal Information Line), email, or live chat to connect with a legal information counsellor and get free family law information
• Nova Scotia Legal Aid offers family law live chat on its website on Tuesdays from 3 pm to 5 pm.
• Justice Canada Family Law Information
• The Court Services Division of Nova Scotia's Department of Justice operates Family Law Information Centres at the Supreme Court-Family Division in both Halifax and Sydney.  Visit nsfamilylaw.ca for more information
• A website called CANLII offers free access to Canadian laws and court decisions. You can also find Nova Scotia laws on the Nova Scotia legislature website - nslegislature.ca and court information and procedures on the Nova Scotia Court website - www.courts.ns.ca

You may qualify for Nova Scotia Legal Aid

Contact your local Nova Scotia Legal Aid office for information about Legal Aid's services: nslegalaid.ca/legal-aid-offices/, and ways to apply for Nova Scotia Legal Aid: http://www.nslegalaid.ca/apply.php .  You can also apply for Legal Aid online: nslegalaid.ca/onlineapplication.php. Check your local directory for the addresses and telephone numbers of legal aid offices across Nova Scotia, listed under 'Legal Aid' in the white pages and government section of the telephone book, or visit Nova Scotia Legal Aid's website at: www.nslegalaid.ca

Free brief legal advice for family law issues

You can make an appointment with a Nova Scotia Legal Aid Summary Advice Lawyer.  You do not have to qualify for Nova Scotia Legal Aid to use this service.  Go to nsfamilylaw.ca/legal-advice-information , (under question 21), for contact information.

More about the Summary Advice Counsel at Family Courts
This service is available throughout Nova Scotia. Your case or issue must be somehow related to the court where the Summary Advice lawyer is located. For example, if you are making an application to the court in Halifax, you should book an appointment with Summary Advice lawyer in Halifax.

The Summary Advice Counsel is a lawyer who assists people who need legal advice on a family law matter, but who do not have a lawyer. The Summary Advice lawyer provides basic legal advice, free of charge, regardless of how much you make or where you get your income.

The purpose of the Summary Advice Counsel service is to give people a better understanding of their legal rights and responsibilities. The Summary Advice lawyer can give basic information about legal terms, how to start or respond to a court application, court processes, legal documents, and other aspects of family law.

The Summary Advice lawyer can give advice on parenting arrangements, child support and spousal support, property division, divorce, and most other family law matters and court processes.

The Summary Advice lawyer does not provide advice to parents involved in child protection matters, or for matters involving Mi’kmaw Family Services. The Summary Advice lawyer may provide advice to a non-party to a child protection matter. For example, if you are not directly involved with a child protection proceeding and are applying for decision-making responsibility for, or contact with, the children involved.

The Summary Advice lawyer does not go to court with you. For more information about this service, click here.

You can contact your local Summary Advice lawyer to book an appointment by calling the appropriate number below:

Annapolis	902-742-0500	Pictou	902-485-7350
Antigonish	902-863-7312	Port Hawkesbury	902-625-2665
Amherst	902-667-2256	Sydney	902-563-2085
Bridgewater	902-543-4679	Truro	902-893-5840
Halifax	902-424-5616	Windsor	902-679-6075
Kentville	902-679-6075	Yarmouth	902-742-0500

Lower cost options

Your lawyer may accept alternate billing arrangements, or may be willing to just work on part of your case.

If you have no extra money, but you and your spouse own property, such as a home, investments, or RRSPs, some lawyers may agree to be paid at the end of your case, when you receive your share of the family property. 

Also, some lawyers may consider helping you with just part of your legal issue - for example, preparing an affidavit or cross-examining a witness in court.  Helping with just part of a case is sometimes called providing 'unbundled'  or "Limited Scope Retainer" legal services.  Go here for more information about how lawyers charge for their work.

You can represent yourself

If you decide to or must represent yourself, you should still ask a lawyer to review court forms before you file them with the court, if possible.  You should always get independent legal advice from your own lawyer before you sign a written agreement or enter into a consent court order.

Do I have a right to see my grandchild?

Most of the time, grandparents have a good relationship with their family and can spend time with their grandchildren through one or both parents. But the law does not say parents must allow their child to spend time with their grandparents.

What are the terms used to describe parenting and spending time with a child?

Decision-making responsibility
Decision-making responsibility is a general term describing who is responsible to make significant decisions for and about a child. 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 (federal) and Parenting and Support Act (NS) no longer use the word custody.

Parenting time
Time a child spends with a parent or guardian because of a court order or agreement. It is a term used in both the Parenting and Support Act (NS) and the Divorce Act (federal).  The term 'access' is no longer used. 

Custody (now Decision-making responsibility)
An old term that was about having the responsibility to care for the child, and to make the major decisions about the child’s health, well-being, and upbringing.  This term custody is no longer used and has been replaced with the terms 'decision making responsibility' and 'parenting time'.

Contact
Time a child spends with someone other than their parent or guardian because of a court order or agreement. This can be a grandparent, or anyone else who is close to the child. It is a term used in both the Parenting and Support Act (NS) and Divorce Act (federal). Contact may sometimes also be called access although the term 'access'  is no longer used in the legislation.

Interaction (in the Parenting and Support Act)
Communicating with a child outside of parenting time or contact. It includes:

• phone calls, emails, or letters
• sending gifts or cards
• attending the child’s school activities or other activities
• receiving copies of report cards or school photos
• video chats with the child.
  
  

An agreement or court order that uses the terms ‘custody’ or ‘access’  continues until it is changed (‘varied’) with a new agreement or court order. You do not need a new agreement or court order just because the language used in the law has changed.

Do I have decision-making responsibility over my grandchild if my teenage child becomes a parent?

No. The person who gives birth is the parent of the child, regardless of the birth parent's age.

If your child in under the age of 19 and still lives at home, you have a legal duty to support your child.

If your child is struggling to parent as a young person and wishes to give you authority over their child then you can raise your grandchild without any formal agreement or court orders in place.

If you want to have a formal agreement or court order in place to confirm your decision making responsibility ("custody") regarding your grandchild, you may apply to court. To make an application to court you first need to ask for the court's permission to go ahead with your application.  This is called asking for the court's ‘leave’. You would have to provide a reason(s) why it is in the best interests of your grandchild to proceed. You would also have to provide notice of your court application to the child’s other parent. That person would be able to request decision-making authority (custody) of your grandchild and would be considered first in line to raise the child, unless there are reasons why that would not be in the child’s best interests.

Can I apply to court for decision-making responsiblity or to spend time with my grandchild?

You should avoid court if possible. It is important to look at other options first to resolve the dispute, such as mediation or negotiation or family counselling. If this is not possible, you can apply to court.

If you wish to apply to have the decision making authority ('custody') of your grandchild, or parenting time, you must ask for the court’s leave under the Parenting and Support Act or the Divorce Act.

Leave is permission from the court to make an application. When you ask for leave, you must explain to the court why you are asking to have decision making responsibility (custody) of your grandchild, and what role you play or have played in your grandchild’s life.

Grandparents applying for contact or interaction under the Parenting and Support Act do not need to ask for leave.

Grandparents applying for contact (time with a grandchild) under the Divorce Act must ask for leave.

It is always a good idea to talk to a lawyer if you are thinking about going to court.

What are some ways to reach an agreement without court?

Negotiation. A less formal process of discussing the issues the child’s parents and grandparents do not agree on to try to reach an agreement. You can try to negotiate with your grandchild’s parents on your own or with someone else’s help, such as a lawyer.

Mediation. An alternative or assisted dispute resolution (ADR) process where a mediator helps parties reach an agreement. A mediator is a neutral, independent, and objective third party who is trained in ADR.

If the child’s parents and grandparents cannot reach an agreement on decision-making responsibility, contact, or interactions, mediation is an option. A mediator will meet with the people involved, discuss the issues, and help them come to an agreement. Mediation is voluntary, and everyone must feel comfortable with the process.

Private mediation services are listed online or in the telephone book. You can also find a mediator through Family Mediation Canada. You might be referred to a mediator through the family court process.

Collaborative law. A process where lawyers trained in collaborative law help participants work together to reach an agreement. Everyone must agree at the beginning to work together without going to court. You can find a trained collaborative family lawyer and get more information about collaborative family law online at collaborativefamilylawyers.ca.

Joint family counselling. May be an alternative to a court or negotiated settlement. This gives both sides an opportunity to air out their differences and to help each other understand why a relationship between a grandparent and a child is being blocked.

No matter what approach you take, it is always a good idea to get legal advice if you are trying to reach an agreement. If you reach an agreement, it is important to get independent legal advice from your own lawyer before you sign the agreement.

How do I apply for decision making responsibility, contact, or interaction?

You can start an application for decision-making responsibility (custody), contact, or interaction with a lawyer’s help, or on your own. If you cannot afford a lawyer, you can apply to Nova Scotia Legal Aid on their website, nslegalaid.ca, or contact your nearest Legal Aid office. It is listed under Legal Aid in the telephone book.

Or, you can hire a lawyer in private practice who does family law.

If you do not have a lawyer, you can ask court staff for information about the documents you must file, or go online to nsfamilylaw.ca for information about where to start. You can find an online guide to making a court application at https:nsfamilylaw.ca/court-forms/application-guides/guide-applying-order. You can also make an appointment to see the Summary Advice Lawyer. The Summary Advice Lawyer provides free, brief legal advice to anyone who has a family law issue but does not have a lawyer. There are no income criteria. Call the family court for contact information, or go to nsfamilylaw.ca

Intake is a session at family law courts where you will get information about starting a court application or settling a family law matter outside of court. Intake can happen at the court or online.You must do an intake session before court staff will look at your application.

Once you give the court your application and have had an intake session, you may take part in conciliation. This is a form of dispute resolution. A court officer will help decide what issues you need to sort out. They will make sure everyone gives the court the needed documents. And they will help negotiate a settlement if they can. The conciliator may speak with both sides together or separately.

If you cannot settle your matter, you can ask the court for a formal hearing.

How does the court decide what is in the child's best interests?

To decide what is in the child’s best interests, a judge will think about:

• the child’s needs
• the parents’ or guardians’ ability to care for the child
• how the parents or guardians care for the child
• the plan proposed for care of the child
• the child’s cultural, linguistic, religious, and spiritual heritage
• what the child wants, if appropriate
• the relationship between the child and their parents or guardian
• the relationship between the child and their grandparent(s)
• how well the adults in the child’s life talk with each other
• whether there is family violence and its effects on the child.

In cases about contact or interaction with grandparents, a judge will also think about:

• whether the child’s parents or guardians are willing to support contact
• whether an order for contact is needed to allow the child to see their grandparent(s)
• if there is family violence and its effects on the child.

Where do I apply to court?

Generally you must apply to the family law court closest to where the child lives.

Is there financial support for grandparents with decision-making responsibility or care of a child?

Anyone, including a grandparent, who has decision-making responsibility (custody) of a child can apply to court for child support.

Grandparents who care for their grandchildren in the grandparents home may also qualify for government tax benefits, like the Canada Child Benefit. You can get information about the Canada Child Benefit from the Canada Revenue Agency, at canada.ca/en/revenue-agency.html or by calling 1-800-387-1193.

What if the person with care of my grandchild will not follow a court order for contact?

If the person with care of your grandchild prevents your court ordered contact or interaction, you should first try to work out an arrangement with them. You should avoid involving police or the court if possible. If this is not possible, you can apply to court to take steps to enforce the order. It is best to speak with a lawyer before you do that. You can ask a lawyer about section 41 of Nova Scotia’s Parenting and Support Act, which is a part of that law that may help with enforcement.  You may also wish to try family counselling to find out why the parent is preventing your contact with the child.

Can I apply to change a court order?

You can apply to court to ask the court to vary, or change, a court order if there has been an important change in circumstances since the court order was made.

This could include:

• a change in parenting arrangements
• an address change affecting your ability to visit your grandchild
• a change in your grandchild’s schedule that affects contact or interactions.

What should I do if I suspect a child is being neglected or abused?

If you believe that any child is being neglected or abused, you have a legal duty to report it to the Nova Scotia Department of Community Services.

Contact the department by getting in touch with the office nearest you, or use these toll-free numbers:

• Weekdays, 8:30 a.m.–4:30 p.m.: 1-877-424-1177
• Weekends or holidays: 1-866-922-2434

If my grandchild is taken into care by child protection, what will happen next?

If a child is abused or neglected, the Department of Community Services will try to keep them in their home and offer services to the parents and child. However, this is only if the child is safe. If a child is in serious risk of harm, the Department may remove a child from the home and take the child into care.

“Taken into care” means the child is removed from the home and is cared for in a foster family’s home or in another place. A “plan of care” is the Nova Scotia government’s term for arrangements that are made about the child. If a child is taken into care, the Department must take the matter to court for a judge to review. This must happen within five days or the child will be returned to their home.

When the Department decides that a child will be placed in care, the law about child protection (Children and Family Services Act) says that the child must be placed with a relative if possible. Grandparents are often asked to care for children while their parents work to address parenting concerns. Sometimes this is for a short period of time, other times it may become a permanent situation.

If there are significant concerns then the child protection case may continue for between 18 months and 2 years to allow enough time for parents to address the parenting concerns. If the parents are unable to address the concerns within this timeline then the court must place the child into permanent care, unless there is another plan to consider. Often that plan includes a grandparent permanently caring for a child.

A child who has been placed by court order in the permanent care of the “Minister of Community Services” may be adopted if the court agrees that is in their best interests. Generally the Department of Community Services would have to approve your proposal to adopt your grandchild. Once a child is adopted, the Department of Community Services is no longer involved, and the parents who adopt the child will make decisions about contact with the child’s birth family.

Here is more information about child protection.

 

Where can I find more information about grandparents and family law?

Nova Scotia Legal Aid. Your local Legal Aid office is listed under Legal Aid in the telephone book or you can find them online at nslegalaid.ca.

A lawyer in private practice who does family law. You can go to legalinfo.org, under Lawyers and Legal Help, for ways to find a lawyer.

Family Law Nova Scotia. The website at nsfamilylaw.ca offers information for grandparents.

Legal Information Society of Nova Scotia (LISNS). Contact LISNS for free legal information.

NS Child Welfare Services
Online: novascotia.ca/coms/department/contact/ChildWelfareServices.html

You can also find information about grandparents’ advocacy and support groups online or by contacting NS 211.

Who takes care of my children if I die?

Usually, if a minor (under 19) child's other parent is alive, that parent takes care of them. The surviving parent becomes sole guardian if you have been living together or if you have joint or shared decision-making responsibility. However, the two of you may want to appoint each other in your wills or in a separate guardianship document, and also in your separation agreement if you are separated. This backs up your wishes in case someone (a grandparent, for example) should apply to be made guardian instead.

If you are a single parent with primary decision-making responsibility, the situation is much the same. Generally speaking, the child's other parent still has the right to become guardian if something happens to you. However, as a single parent it is more important that you appoint the other parent in writing. It could make things more straightforward if the time should come when a child needs a guardian.

If you are a single parent with primary decision-making responsibility and don't want the other parent to be guardian, you can name someone else as guardian. You should see a lawyer about this. The child's other parent may contest your choice in court and will probably be appointed guardian, unless the judge decides that parent is unsuitable.

A lawyer can help you write a statement of your wishes and concerns, and can make sure that your reasons for choosing someone else are clearly documented. Your statement can be critical to the court's decision.

What happens if parents die without appointing a guardian?

The Court will choose a guardian from those who step forward to take on the role.  The court will decide based on what is in the child's best interests. If no one steps forward, the child will be placed with Child Protection services.

How long does a child need a guardian?

Until age 19, the legal 'age of majority' in Nova Scotia.

How do I appoint a guardian for my child?

There are two types of guardianship under Nova Scotia's Guardianship Act:

1) the first is care of the child, where a "guardian" is appointed;
2) the second is management of the child's property and money, such as an inheritance/share of an estate, where a "trustee" is appointed.

You can appoint a guardian either in your will or in a separate guardianship document (a separate paper signed and witnessed with the same formalities as a will). A separate guardianship document is often recommended because it can be used if you are alive but can't communicate and are unable to care for your child - for example, if you are in a coma.

You can hire a lawyer to do the paperwork and be present at the signing, or you can do it on your own. However, it is a good idea to check with a lawyer to make sure your wording is clear and that you have followed correct procedures.

You will need two adults to sign and witness your signing of the document. They must be at least 19. Neither they nor their spouses can stand to gain any money from the document they are signing. For example, if you are appointing the guardian in your will, the witnesses cannot be your beneficiaries (people who are entitled to receive something under your will).

Are there any rules about who can be a guardian or a trustee?

They must be 19 years or older, and mentally competent. This means that they must have capacity to make decisions and understand the consequences of their actions. You should also make sure that they are willing and feel able to take on the responsibility of caring for your child.

Must the court approve my choice of guardian?

There is no process of registration or approval. If something happens to you, the person you have appointed will automatically become guardian. Your choice will stand unless someone appears before the Court and successfully contests it, such as the other parent if you haven't named that person as guardian.

Does the guardian also automatically become responsible for the money or property I leave to my child?

No. Under Nova Scotia's Guardianship Act, a "guardian" is appointed to have care of the child and a "trustee" is appointed to manage the child's money and property/share of your estate.

You can also appoint someone to look after the financial side of things by naming them as 'trustee' in your will, stating that they will hold the child's share of your estate in trust. If named in your will, the trustee will manage the funds or property until your child is an adult (age 19). Also, the trustee will provide your child's guardian with funds from your estate to cover, or help with, the costs of raising your child. In your will, you can set out terms and instructions for the trustee to follow.

Can I name the same person as guardian and trustee?

Yes, and this is what often happens. However, if you are not sure whether the person you want to name as guardian can handle both tasks, you should talk with your lawyer.

Does a trustee have to be bonded?

The trustee may have to be bonded if the trustee is also the executor of your will or administrator of your estate (if there is no will), or if the trustee does not live in Nova Scotia.

If guardianship is contested, how will the Court decide?

If the person contesting your choice is the child's other parent,  they will probably be appointed guardian unless the court has reason to believe that parent is unsuitable.

In all other cases, the court will consider all parties equally and base its decision on what is best for the child. Your wishes will be taken into account and given considerable weight. However, the court may overrule you if the person you have chosen is unsuitable (involved in crime, for example), or if the contesting party presents a strong enough case.

The factors the judge may consider include:

• how well the child knows the person,
• whether there is a blood relationship,
• how much the child's life would be disrupted (for example, by having to move), and
• if there are siblings, whether they would be able to stay together.

Children's wishes may also be considered, and will be given particular weight if they are more mature.

What if I die without appointing a trustee?

In this case, a "guardian of property" will be appointed by the Supreme Court to manage the child's share of your estate. The Court will choose someone who steps forward and is found to be suitable.

Generally, in the case of a court appointment, the person will have to be bonded. This means they will have to provide a personal bond, or arrange for a 'surety bond' through an insurance agent. Bonding can be a complicated process. Generally there are fees involved, which are charged to the estate.

The purpose of bonding is to provide a financial safety net. It protects the child from any financial misconduct by the trustee.

If no one makes an application to be appointed guardian of the finances of the child under the Guardianship Act .  The Public Trustee of Nova Scotia is automatically the guardian of the finances or estate of the child's property, without a court order. The Public Trustee of Nova Scotia is the guardian of the finances/property of every child who resides in Nova Scotia.  No court appointment is required for the Public Trustee to act.  As well, the Public Trustee is authorized to receive funds on behalf of any child if there is a gift or money coming to the child but no guardian or trustee has been named.  For example, if a child is the beneficiary of a life insurance policy but no guardian or trustee has been named to handle the proceeds, the Public Trustee may receive and manage the proceeds of the policy on behalf of the child until the child reaches the age of nineteen.

The Public Trustee will manage and hold the funds in trust for the child until the child reaches the age of nineteen which is the age of majority in Nova Scotia.  When the child reaches the age of majority the funds will be turned over to the child.

What if I have no money or assets to leave for my child?

In this case, the guardian who has care of your child will have to provide financial support. There are some government departments that can help. The guardian can apply to Child Tax Benefits to receive the same assistance that a parent would receive. Also, the Canada Pension Plan provides monthly benefits to children with a parent who has died, provided that the deceased parent paid into Canada Pension. These benefits go to the guardian until the child turns 18. They are then paid directly to the child, if the child is still enrolled in an educational institution, until age 25.

Where can I get more information?

• Supreme Court of Nova Scotia, Family Division - courts.ns.ca
  
• Nova Scotia Family Law website (nsfamilylaw.ca): Frequently asked questions about guardianship
  
  
• The Public Trustee of Nova Scotia: novascotia.ca/just/pto/

• Canada Child Benefit, Government of Canada: www.cra-arc.gc.ca/benefits/
  

• Federal Government Family and Caregiving Benefits: https://www.canada.ca/en/services/benefits/family.html
  

What is marriage?

Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.

Who can marry?

Anyone 19 years of age or older may apply for a marriage licence in Nova Scotia. If you are under 19 years of age generally you must first get the consent of both parents or guardians.  There are some limited exceptions.

You cannot get married in Nova Scotia if you are under the age of 16 years.

You do not have to be a Nova Scotia resident to get married here, but a marriage licence issued in Nova Scotia is only valid in this Province.  The licence is valid for 3 months.

You may apply for a marriage licence through Nova Scotia Vital Statistics. Once you have a licence you may then choose to get married during a religious or civil ceremony.  Either is acceptable as long as the person who performs the ceremony is registered with Vital Statistics.

Who cannot marry?

Individuals who are presently married are not allowed to remarry before their first marriage has legally ended. Separation is not sufficient. If you want to marry and you were previously divorced, you will be asked to provide final proof of divorce (called a Certificate of Divorce or Decree Absolute) when you apply for a marriage licence. If the divorce happened in another country and the final divorce papers are in another language, you will need to provide a copy of the translated document.

You cannot get married in Nova Scotia if you are under 16 years of age.

If you were widowed, you must provide proof of death of your spouse.

In addition, the Marriage (Prohibited Degrees) Act prohibits persons who are closely related by marriage, blood or adoption, or who are brother and sister, half brother and half sister, or adopted as a brother and sister from marrying one another (laws-lois.justice.gc.ca)

Who can perform the ceremony?

In Nova Scotia, couples can choose to have either a religious or a civil ceremony. Every ceremony must be witnessed by two people who are at least 16 years of age. Religious groups can refuse to perform marriages that are not in accordance with their religious beliefs.

The religious representative you choose to perform a religious ceremony must be registered with Nova Scotia Vital Statistics under the Solemnization of Marriage Act.

A Justice of the Peace or a Judge can perform a civil ceremony. The Deputy Issuer of Marriage Licences can provide a list of Justices of the Peace authorized to perform marriages in your area. You can also get this list from the Nova Scotia Department of Justice website: novascotia.ca/just/Court_Services/jplist.asp

The fee for a religious marriage ceremony is set by agreement between the religious representative and couple being married. The fee for a marriage ceremony performed by a Judge or Justice of the Peace is set by the government.

Who do I contact to get married in Nova Scotia?

To be lawfully married in Nova Scotia, you must:

• get a marriage licence from Nova Scotia Vital Statistics
• arrange for a religious representative, judge or justice of the peace, to perform the ceremony.
• Please see additional questions below for more information, or contact Nova Scotia Vital Statistics.

How do I get a marriage licence in Nova Scotia?

You must have a marriage licence before getting married in Nova Scotia. The licence does not mean that you are married, but only that you may get married. The licence will expire 3 months from the date it is issued.

Either you or the person you intend to marry must apply in person to Access Nova Scotia or a Deputy Issuer of Marriage Licences in your community. The person applying will have to provide identification and proof of age for both parties to the intended marriage. Information required with identification will include: full name, including given names, age, marital status, and current address.

In Halifax Regional Municipality, you can purchase a marriage licence by appointment with a Deputy Issuer, or from a Halifax Regional Municipality Customer Service Centre during regular business hours. In all other areas of Nova Scotia, you can purchase the licence by appointment with a Deputy Issuer, or from a Service Nova Scotia Access Centre.

Visit novascotia.ca/sns/access/vitalstats/marriage.asp for a list of the Deputy Issuers in each county and their contact information. The fee for a marriage licence is $132.70.

Do I have to register my marriage?

Yes. All marriages performed in Nova Scotia, must be officially registered by the Vital Statistics Office of the Government of Nova Scotia. This formal documentation is your proof of marriage. Registration is not the same as a marriage licence.

The person who performs the marriage ceremony must complete the marriage registration form which becomes the official record of the marriage. He or she must send the completed Registration form to the Deputy Issuer of Marriage Licenses within 48 hours of the marriage ceremony. The Deputy Issuer forwards the Registration Form to the Office of Vital Statistics which registers the marriage and keeps the legal record.

Registration of the marriage registration form is free.

What is a marriage certificate?

At the time of the ceremony, your religious representative or Justice of the Peace or Judge will provide you with a certificate of marriage. This certificate is a "memento" document, and is not legal proof of marriage. After the marriage, and following the receipt and registration of the Marriage Registration Form, you may apply to Vital Statistics for an official Marriage Certificate, which is legal proof of marriage.

To order an official marriage certificate, visit: novascotia.ca/apply-marriage-certificate

How soon can I marry after divorce?

You can marry anytime after your divorce is final and you have a Certificate of Divorce. This usually means 30 days after the judge grants the divorce and provided there is no appeal from your spouse. However, when planning a date for the wedding, keep in mind that it takes five days to get the marriage licence and you won't be able to apply for a licence until you have proof that the divorce is final.  Do not schedule a wedding before your divorce is final.

Do I have to take my spouse's last name when I marry?

No, you may:

• keep using your current last name if you wish, or
• go back to using your given name if you were previously using a former spouse's last name, or
• use a combination of your name and your spouse's name or
• your spouse could take your name.

If I get married outside of Nova Scotia, or outside of Canada, is there anything special I have to do to have the marriage recognized in Canada?

No. All the licensing and legal requirements will be according to the laws in the province, state or country where the marriage is performed. The marriage will be registered where it took place, outside Nova Scotia.

Canada issues 'Statements in lieu of Certificates of Non-Impediment to Marriage Abroad' for persons who want to get married outside Canada in a country where such a document is needed. For more information visit travel.gc.ca/travelling/documents/marriage-overseas.

How do you annul a marriage?

An annulment is a legal declaration that the marriage between two people never came into existence - as though it never happened. There is a presumption (legal starting point) that a marriage ceremony was properly carried out. This presumption can be rebutted if, for example, there is proof that :

• the marriage ceremony was not performed by an authorized person,
• a marriage licence was not obtained, or
• one or both of the parties to the marriage were minors and did not have parental consent.

A marriage may be void (never came into existence) if:

• one of the parties was still married to someone else when the marriage took place
• the marriage violated the Marriage (Prohibited Degrees) Act which prohibits marriage between certain close relatives
• one or both of the parties was incapable of giving consent at the time of the marriage as a result of insanity, illness or intoxication etc.
• one of the parties was acting under duress, or
• one of the parties was mistaken as to the identity of the other party.

Where a marriage is annulled, property reverts to its original owner as if the marriage did not take place. Children of the marriage are not considered to be illegitimate as long as either parent thought the marriage was valid. The children's rights in relation to care, financial support and inheritance from their parents will not be affected.

A religious annulment is not the same as a legal annulment. If you have a religious annulment and you want to remarry, you may have to get a divorce or a legal annulment as well.

What happens if a marriage breaks down?

Where a marriage breaks down, parties must decide whether they wish just to separate or to divorce and formally end the marriage.

If the separation seems to be permanent it is a good idea to contact a lawyer to learn about your rights and the rights of your children. It is a good idea to have any agreements written down so everyone is clear about the parenting arrangements, the support arrangements and who will cover the bill payments until a final agreement is in place.

On either separation or divorce, a spouse may be entitled to apply for a parenting order, child support, spousal support and a division of matrimonial property. For more information, please refer to the family law pages relating to separation, divorce, child and spousal support, parenting arrangements and matrimonial property, or go to nsfamilylaw.ca

On either separation or divorce, a spouse may be entitled to apply for a parenting order, child support, spousal support and a division of matrimonial property. For more information, please refer to the family law pages about separation, divorce, child and spousal support, parenting arrangements and matrimonial property, or go to nsfamilylaw.ca

 

Do common law couples have the same rights to matrimonial property as married couples?

No. The Matrimonial Property Act does not apply to common law relationships. Common law couples cannot ask for a division of property under the Nova Scotia Matrimonial Property Act unless they have a Registered Domestic Partnership.

For information about common law relationships go to nsfamilylaw.ca.

What is matrimonial property

Matrimonial property is any property or assets either spouse owns or obtains before or during the marriage. It doesn’t matter whose name the property is in. The starting point in law (‘presumption’) is that all matrimonial property should be shared equally (50/50) between the spouses if they separate or divorce.

Matrimonial property includes things like:

• Your family home (‘matrimonial home’) if you and/or your spouse own it;
• Other property you or your spouse own and use as a family, such as a cottage;
• Furniture;
• Cars or other vehicles;
• Pensions from current or past employment;
• RRSPs (Registered Retirement Savings Plans);
• Canada Pension Plan credits;
• Cash and savings, including TFSAs (Tax Free Savings Accounts);
• Income tax refunds;
• Stocks, bonds, GICs and mutual funds; and
• An employment severance package.

There are a few exceptions - see "What is not matrimonial property?" below.

You should talk with a lawyer about how your property, whether owned separately or together with your spouse, may be divided now that you are separated.

What is not matrimonial property?

The following are not usually considered matrimonial property:

• A gift or inheritance you or your spouse received from another person. However, it may be matrimonial property if it was used for the benefit of the family. For example, you inherited a cottage and have used it for family vacations;
• An insurance payout or damages awarded to you by a court. For example, an insurance payment for injuries you received in a car crash;
• Personal possessions such as clothes;
• Business assets (assets that are businesses operated with the intention of making a profit. The business does not have to be incorporated to be considered a business asset. May include the value of a company, and/or property like tools or a factory building used in connection with a commercial business);
• Property that you or your spouse acquired after you separated; or
• Property you agreed to exclude in a pre-nuptial agreement, marriage contract or separation agreement.

The law about business assets in particular is complicated.  It can be hard to determine if the business assets may be divided between spouses, and if so, how. You should get legal advice if you or your spouse own a business.

What about employment pensions?

Employment pensions and Canada Pension Plan contributions are matrimonial property and are divided after separation. There are several types of pensions people may have such as:

• a defined benefit pension (traditional government employee pensions)
• a defined contribution pension (the employee and employer contribute a set amount to the pension but the final pension payable will be determined at retirement),
• LIRAs (Locked In Retirement Account) and locked in RRSPs which often represent investment of pension earned during past employment.

The value of a pension may not be what is on a statement. For example, defined benefit pensions have a future value you may need to hire an actuary to figure out the value for the period of the relationship.

The general rule is that only the portion of the pension earned during the marriage, including any period when a couple lived together before the marriage, is divided.

Other than the Matrimonial Property Act, pension laws also apply when dividing pensions.  For example, in Nova Scotia, and for most federally regulated employers, the maximum transferrable amount of pension between spouses is 50% of the value. This means that you cannot divide more than one half of the value of the pension. The law that applies to the division of pension will be the same as the law that governs the pension. Some pension administrators have particular wording they need in an agreement or court order to divide the pension. It is important to speak directly with the pension administrator to make sure that the wording of your agreement or court order will be accepted.

You should not give up rights to a share in your spouse's pension without getting legal advice.

The Nova Scotia Family Law website - nsfamilylaw.ca, also has helpful information about pensions.

What about CPP?

Canada Pension Plan (CPP) law requires spouses to share the credits earned for the period of their relationship, which includes any period of time the spouses lived together as a common law couple, and the period of the marriage.

You cannot agree in writing or in a court order to give up a division of CPP credits. The right to a division of CPP credits is also confirmed in every divorce order that is issued in Nova Scotia.

You or your spouse must apply to CPP for a CPP credit split to actually happen. If you are entitled but do not want to get a share of your spouse’s CPP credits then you do not need to apply for them.

Contact Canada Pension (Service Canada) at 1 800 277 9914 (TTY: 1-800-255-4786) or go to the Canada Pension Plan's credit splitting web page for information about Canada Pension credit splitting.

What is matrimonial debt?

Matrimonial or family debt is debt that was acquired by both or either spouse during the marriage that was used for ordinary family matters such as household expenses, the mortgage on the family home or debt used to finance a family car. If some debts were acquired after you separated from your spouse they may be considered matrimonial debts if they were used to pay for necessary living expenses or to maintain the house or car or other assets.

How is matrimonial property usually divided?

The general rule is that matrimonial property will be divided equally (50/50) between the spouses.

Each spouse must usually have their assets, and any property they own jointly, valued or appraised. Usually the value is based on the value at the date of separation, although the ‘valuation date’ may be a different date, such as the date when either spouse applies to court for property division.

Once you know the value of your matrimonial property, each spouse should value their matrimonial debts and deduct them from their matrimonial property to get the total or “net” amount of the value of their property.

The spouse with the higher net amount after deducting matrimonial debts from matrimonial property should then pay over 50% of this net amount to the other spouse, either with a transfer of money or property. This ensures that both spouses end up with the same net amount of money and/or property.

For example, the spouses share the $100,000 value of the matrimonial home, meaning each receives $50,000. The amount of matrimonial debt is $10,000 which the spouses agree to share, meaning they each take on $5000 debt and each now has net matrimonial property of $45,000. However, one spouse kept a cottage that was used for family vacations. The cottage is worth $50,000. Therefore, the spouse who kept the cottage now has $95,000 worth of net matrimonial property while the other spouse only has $45,000 of net matrimonial property. The spouse with the higher net matrimonial property must pay over $25,000 to the other spouse so they both end up with the same amount of net matrimonial property (ie., $70,000).

Who decides how matrimonial property is divided?

Spouses can come to an agreement on how to divide their property. You can make this agreement before you enter into the marriage (‘pre-nuptial agreement’), or during the marriage (‘marriage contract’). Or you can agree after you separate. This is called a separation agreement.

Your lawyer and your spouse's lawyer can help you and your spouse work out an acceptable agreement. Coming to an agreement on how to divide your property may be a lot less expensive than going to court to divide your property so you should seriously consider how you may come to a fair agreement with your spouse.

Before you sign any agreement you should get advice from a lawyer. You should not use the same lawyer as your spouse.

If you cannot reach an agreement with your spouse, either of you may apply to court for a division of property under the Matrimonial Property Act. A judge will make an order stating how you are to divide your property. In most cases the judge will order you and your spouse to share your matrimonial assets and debts 50/50. You can apply to court any time after you separate or as part of your divorce.

Can agreements be changed?

Courts are reluctant to change property agreements in a pre-nuptial agreement, marriage contract or separation agreement unless either spouse did not have advice from a lawyer before signing the agreement, or if one spouse hid property and assets from the other spouse at the time of signing the agreement, or if a spouse was pressured into signing the agreement. Courts may also change agreements if the agreement ends up being severely unfair to one spouse.

If you want to try to change an agreement you should get advice from a lawyer.

Can a judge order a division of matrimonial property that is not 50/50?

Yes, but only if a 50/50 division would be unfair. In most situations judges will order a 50/50 division of matrimonial property and will only divide property unequally in limited types of situations. Examples of where this might happen include:

• The marriage or Registered Domestic Partnership was short and one spouse brought most of the property to the relationship;
• One spouse wasted the matrimonial property. For example by gambling away the couple's savings;
• One spouse gave up a career to look after the children so that the other spouse could build his or her business or career;
• One spouse contributed to the education or professional career of the other spouse.

If you feel an equal division of matrimonial property would not be fair, you should talk to a lawyer.

What if our home is only in my spouse's name?

Both spouses have equal rights to live in the family home (‘matrimonial home’) even if only one spouse is on the deed. One spouse is not allowed to sell or mortgage the home without the other spouse's consent. When couples separate or divorce usually one leaves the home. If they cannot agree on who will leave, either may apply to the court for an 'exclusive possession' order. This means that a judge may order one spouse to leave the home. A spouse who is ordered to leave by the court does not lose their ownership interest in the home, just the right to live in the home. A judge will consider which spouse has custody of the children and whether it is in the best interests of the children to stay in the home.

If I leave the home do I give up my rights to share in the matrimonial property?

No. You do not give up rights to share in the matrimonial property by leaving the matrimonial home.

Can I share in my spouse's business assets?

Usually business assets (ie., property and assets like tools or a factory building used in connection with a commercial business) are not considered matrimonial assets. This means that unless they are in the name of both spouses they are not assumed to be divided 50/50.

However, you may be entitled to a share of the business assets that are in your spouse’s name if you worked for or helped build or maintain the business. This is especially so if you were not paid or were only paid a small amount for the work you did for the business.

As well, if a 50/50 division of the matrimonial assets and debts does not give you a fair share of what you and your spouse own at the time of separation then you could be entitled to share in some of the business assets. If you think you have a claim against your spouse's business, you should talk with a lawyer

Am I responsible for my spouse's debts that are not matrimonial debts?

As a general rule both spouses are equally responsible for a debt that is in both names. You may also share responsibility for debts in your spouse’s name only, if the money was used to buy something that benefited you and/or your family. Examples are heating oil or a family vacation.

Usually you are not responsible for your spouse's non-matrimonial debts unless you co-signed or guaranteed them. For example, you would not usually be responsible for debts your spouse acquired to run their business, or debts acquired by your spouse before the marriage.

Debt division can be very complicated, so it is best to talk to a lawyer about your options.

I am concerned that my spouse might borrow money on joint accounts or for debts I co-signed, without my consent

For debts that you guaranteed or co-signed for on behalf of your spouse, you should contact the bank and notify them that you and your spouse are separated and you do not consent to be responsible for any further money borrowed by your spouse.

If your spouse has access to a secondary credit card for which you are the primary card holder (ie., your spouse has a copy of a credit card that is in your name only and for which only you are responsible for paying the bills) you should cancel the secondary credit card if you are concerned that they will abuse it.

You should also consider talking to your bank about any joint accounts. You may consider reducing any overdraft that your spouse also has access to and requesting that a joint account be changed to require two signatures to access money in the account.

What else should I think about on separation?

You should consider removing your spouse as your beneficiary on any assets where you named your spouse as beneficiary.  Examples are RRSPs, RRIFs, pension death benefit policies and insurance policies. As well, you should consider seeing a lawyer and getting a new will, enduring power of attorney and personal directive.

Where can I get more information?

For more information about matrimonial property go to nsfamilylaw.ca.  You can also contact the Legal Information Society of Nova Scotia.

If have a family law problem and need legal advice you should try to see a lawyer. Here are some ways to find a lawyer, including:

• Contact Nova Scotia Legal Aid to see if you qualify for their help. Legal Aid is listed in the telephone book under ‘Legal Aid’, or go to nslegalaid.ca to get contact information for your local Legal Aid office;
• Ways to find a lawyer in private practice (lawyer you would pay)
• Make an appointment with the Summary (brief) Advice Lawyer (under "What is the Summary Advice Counsel service?") for those who do not have a lawyer and are dealing with a family law issue.

Is family dispute resolution right for me?

Family dispute resolution might not be right for you if there is:

• high conflict
• a power imbalance
• family violence.

Before you take part in a family dispute resolution process think about whether there are any safety concerns, and whether you will be able to have your voice, and your concerns or wishes about your child, heard. Think about whether you will be pushed into agreeing to a parenting arrangement or giving up your entitlement to property because of the nature of your relationship with the other party. You could end up with an agreement or a consent court order that is not appropriate, and difficult to change.

Accredited mediators and other family justice professionals recognize the importance of screening cases to help determine whether a given dispute resolution approach is suitable in the circumstances. Screening tools are often a list of questions or a guided conversation that professionals use to find out what family dispute resolution process may be appropriate, or not, for your case.

Remember to meet with a lawyer to get legal advice and information about how the law applies to your circumstances before starting any family dispute resolution process, and before you make a final decision or agreement.

What is mediation?

Mediation (me-dee-AY-shun) is a private process to help people resolve differences. It is a way of working out legal disputes without going to court.  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. Both parties must be willing to participate in mediation, and feel comfortable doing so. 

Mediation may not be appropriate where there is family violence or significant power differences between the parties. You should speak with a lawyer to learn about your rights before you participate in the mediation and before you sign a final agreement.

Mediator (me-dee-AY-tor) is a person trained to help people resolve differences. Mediators are neutral and unbiased—meaning they don’t favour one participant 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. This means there are no standards for mediators and no government body you can contact to express any concerns you may have about the ethical practices of your mediator or the mediation process. When choosing a Mediator you may want to ask about the Mediator’s training and ask about referrals from other people who worked with the Mediator in the past. Many Mediators are members of professional associations that have standards of practice and routine training opportunities. Because mediation may happen virtually you are not limited to hiring a trained mediator who works in Nova Scotia.

Mediators are not counsellors.  Their role is to stay neutral while facilitating a discussion between the participants who have an issue that they wish to resolve. They will not decide who is to blame or impose an agreement. The mediator helps you plan for the future.

Mediation may be a good fit if there are no concerns about family violence or a power imbalance between the participants. In family law a mediator may help participants reach an agreement on issues such the parenting arrangements, child support, spousal support, and a division of family property and debts. If an agreement can be reached then it is written down and if signed by everyone involved the agreement will be binding. This means the agreement can't be changed except under certain circumstances.   Do not sign an agreement without getting legal advice first!

How does mediation work?

It starts with all the parties involved agreeing to try mediation to resolve their problems.

The mediator will generally first meet with each of the participants before the mediation to gather some information, screen for family violence and power imbalance(s), and to explain to the participants what to expect.  If the mediator determines this process is appropriate for your family’s circumstances then the participants will set a date to start the mediation.  In family law several sessions are often required to share information and discuss the issues and reach an agreement if possible. The mediator will help the participants identify the issues they wish to talk about and hopefully resolve.  The mediator will listen to what is important to each participant and help them come to their own decisions about the future. 

Mediation is a process of compromise and ‘give and take,’ where the aim is that neither participant will be a winner or a loser.  Remember, the mediator does not represent either participant, and is not a decision-maker. If an agreement can't be reached on one or all of the issues, or the process is not a good “fit”, then mediation should end. The participants may wish to try other non-court ways to resolve their issues where there is an advocate present, such as negotiation with the help of lawyers, or collaborative family law.

How do I know if mediation is right for me?

Mediation depends on cooperation and goodwill between the disputing participants, so mediation may not work out if one of the participants is unwilling to cooperate or compromise, or is not prepared to willingly share important information that is needed to reach an agreement. 

Mediation also may not be effective if one of the participants has a significant advantage in power over the other.

Mediation is generally not appropriate if one of the participants perpetrated or experienced family violence directed at the other participant or the children. This includes: physical abuse, sexual abuse, psychological abuse, financial abuse; harassment, stalking; threats of harm to people, pets and property or actually causing that harm; coercive and controlling behaviour.

Mediation is voluntary, and you should feel safe and comfortable throughout the process.  Consider mediation only if you feel confident expressing your views, and feel that you and the other participant will be on an even playing field in discussions, and are likely to reach an agreement. 

If you are not comfortable during the mediation process you should speak up either with the other participant present or ask for a minute alone with the mediator to explain your concern(s). This is a voluntary process and if you are uncomfortable remember that you do not have to continue.

Stages of mediation and important things to know

Pre-Mediation Stage
This is a stage where a mediator prepares for mediation. It is used to assess the dispute and the parties' willingness to negotiate and to arrange the meetings. At this stage the participants get information about the process and how to prepare for the first meeting. This is also an opportunity for the mediator to meet with each participant privately to screen for family violence and power imbalance.

Independent Legal Advice
It is important to get independent legal advice before agreeing to participate in mediation and before an agreement is finalized. It is important to be informed about and to understand your legal rights and responsibilities.

Commitment Stage
This is generally a session where the mediator explains the process and procedures to the participants. The participants explain their issues, priorities and hear those of the other participant(s). This is the first opportunity for everyone to learn if there is a willingness to work through the issues in order to reach a settlement. The participants begin to develop a cooperative relationship and some confidence in the mediation process and the mediator.

Negotiation Stage
The participants develop a mutual understanding of the interests underlying the issues and generate possible options for settlement. Where issues of disagreement exist, objective criteria are used as tools of persuasion. The mediator may meet separately with participants (caucus) and have joint sessions. The parties with authority to settle must be part of the negotiations at this stage.

Settlement Stage
Options for settlement are evaluated based on general principles and specific objective standards. Options are evaluated as possible solutions. Outside advice regarding possible solutions is sought. The processes for reaching and documenting agreement are discussed. When all participants are satisfied with the solutions, an agreement outlining the areas of agreement in clear, specific language is prepared.

Voluntary Participation
Participants who enter into mediation do so freely. They are not forced to negotiate or settle but do so of their own free will.

Timeliness
The participants set their own timelines for the process. It is not controlled by court dates or waiting periods. Normally, the process can be arranged directly, between the participants and a mediator.

Confidentiality
Mediation sessions are held in private and all proceedings are confidential to the mediator and the participants. Mediators usually cannot be called on to give evidence about any matters that were discussed during the mediation in any court action that may follow the mediation.

Supports the Participants
Participants who reach their own decisions through mediation have more influence on the outcome of their dispute as they remain in control of the decision-making process. This is very different from arbitration or going to court where the decision-making authority is with the arbitrator or judge. The mediator has no decision-making authority and is there to help the participants understand each other.

Maintains Relationships
Because mediation addresses the participants’ interests and seeks to achieve a win for all involved, the process is non-adversarial compared to going to court. There is a greater likelihood of participants maintaining relationships through a mediation process.

Stopping the Process
As mediation is voluntary it can be stopped by any participant at any time and it in no way affects pursuing another option for resolving the conflict.

If I hire a mediator, do I also need a lawyer?

Mediators do not give legal advice.  Even if your mediator is also a lawyer, each of you should have your own lawyer.  The mediator will work to find agreement on issues, but you need your own lawyer to make sure that:

• you know what your rights are
• your rights are protected, and
• the law has been followed. 

If the mediation is successful, either the mediator or your lawyer will write a draft agreement.  If the mediator writes the draft, be sure to have your own lawyer review it before you sign.  Once signed, it is a binding contract.  This means the agreement can't be changed except under certain circumstances.

I already have a lawyer, can the lawyer be our mediator?

No. A lawyer who has been retained to represent you cannot take on the role of a mediator. This is a conflict of interest. The lawyer is not able to be both neutral and your advocate in a mediation.

How do I decide which mediator is best for me?

Before you hire a particular mediator, you will want to ask about their qualifications, training, experience and fees.  Be sure to discuss with the mediator their personal mediating style to see if it meets your needs.  Remember to check if your medical plan covers mediation costs.

How do I find a mediator?

You can find a trained mediator through:

• Family Mediation Canada at www.fmc.ca or 1-877-269-2970
• ADR (Alternative Dispute Resolution) Atlantic
• Your lawyer may also be able to suggest a mediator.
• The Family Court or Supreme Court (Family Division) in your area may also be able to refer you to a mediator.  Go to nsfamilylaw.ca or contact your local court (courts.ns.ca) for more information.
• You will also find find further information about family mediation, and other ways of resolving a family law issue without court, online at nsfamilylaw.ca/services/ways-resolve-problem-without-going-court
• or contact us to request a mediator referral and we will try to help. 

What is collaborative family law?

Collaborative family law uses a teamwork approach to resolving family law disputes.  The aim is to avoid court.  Each participant has their own lawyer, but everyone signs an agreement at the outset to show their commitment to the process and the goal of working out an agreement. The participants agree that as long as they are working together in the collaborative process they will not go to court.  The process requires open communication and cooperation, and is private and confidential.  The negotiation process involves four way meetings that both participants and their respective lawyers attend.  The meetings should be respectful, balanced and fair.  Relevant financial and other information are shared, as well as costs of any experts that might be agreed on and hired.  The goal is to reach an agreement or a consent court order.

What happens if I decide to go to court after trying the collaborative process?

If either participant decides to go to court that ends the collaborative process.   At that point each participant will have to hire a new lawyer or represent themselves during the court process.

Why should I consider mediation or collaborative family law instead of court?

Courts are adversarial, which means that your lawyer will argue for your interests and the other party's lawyer will argue for that person's interests.  In court decisions, there are sometimes ‘winners’ and ‘losers.’  Unfortunately, this system doesn’t encourage compromise and your direct input is very limited.  For people who wish to develop their own agreement and avoid the court process, mediation or collaborative family law are good alternatives.  Reaching an agreement out of court is also often less expensive, both financially and emotionally. 

Non-court alternatives are generally not appropriate where there is a history of family violence or a power imbalance.

How do I find a collaborative family law lawyer?

Lawyers who do collaborative law have special training.  To find a collaborative family lawyer contact Collaborative Family Law Nova Scotia at www.collaborativefamilylawyers.ca

Other helpful family law resources

• www.nsfamilylaw.ca- family law information on many topics, including divorce, separation, parenting arrangements, spousal support and child support
• Contact the Legal Information Society of Nova Scotia to connect with a legal information counsellor and get free legal information
• Contact Nova Scotia Legal Aid for family law legal information and legal advice
• Contact a lawyer in private practice (lawyer you would pay) who does family law
• Free and low-cost legal help in Nova Scotia.
• The Department of Justice Canada has more information about family law, including fact sheets on:
  • Parenting Arrangements
  • Divorce and Family Violence
  • Child's Views and Preferences
  • Moving after separation or divorce
  • Duties for parents and others
  • Family Dispute Resolution

New parenting words

Parenting terms have changed. The parenting terms used on this page may be different from the words used in your current order or agreement. See 'What do the family law words mean?' to learn more about parenting terms.

You do not need a new agreement or court order just because parenting language has changed. An agreement or court order that uses words like ‘custody’ or ‘access’ to describe the parenting arrangements continues until it is changed (‘varied’) with a new agreement or court order.

The words custody and access are no longer used. The main parenting words used now are decision-making responsibility (used to be 'custody'), and parenting time (used to be 'access'). The new words focus on relationships with children, and parents’ responsibilities to their children.

Decision-making responsibility is about who will make significant decisions about the child’s well-being, based on the child’s best interests. For example, this includes decisions about a child’s:

• medical and dental care
• education
• culture, language, religion and spirituality
• significant extra-curricular activities
• other important decisions about the child.

Decision-making responsibility may be

• shared between parents, or
• divided between parents (for example, one parent makes health decisions and the other parent decides about schooling), or
• one parent may be responsible for all significant decisions about the child.

Most parents are expected to talk about important decisions that affect a child, regardless of who has the decision-making authority.

Parenting time means the time a child spends with a parent, or person who has a parenting role. It includes time when a parent is primarily responsible for the child, but the child is not actually with them. For example, when the child is in school or daycare. A parent who has parenting time has the right to make day-to-day decisions, including emergency decisions, about a child during their time with the child.

A person who has decision-making responsibility or parenting time has a right to get information from third parties about the child’s health, education and well-being, unless there are privacy law limits or a court orders something different. Examples of third parties are schools, healthcare or childcare providers.

Contact means time spent with people who are important in the child’s life (grandparents for example), but who are not the child’s parents or in a parenting role.

The words parenting time and contact replace ‘access’.

Moving after separation or divorce

In family law there are rules that apply when someone wants to move, either
(1) with the child, or
(2) on their own (without the child).

The rules about moving are complicated, so it is always a good idea to talk with a lawyer right away if you are planning a move. There could be serious consequences if you move with a child without the consent of the people who have parenting responsibilities, or court ordered contact, with the child.

Relocation
In family law a move is called a ‘relocation’ if the current parenting schedule or arrangements will no longer work because of the move.   It is a move that is likely to have a significant impact on the child’s relationship with a parent, guardian, or with a person who has an order for contact with the child. Sometimes even a small move can be a 'relocation', as it might have a considerable impact on the parenting schedule and child's relationship with others.  If this fits your case then you cannot move unless you have a court order to allow you to move or the written consent of the people who will be affected by the move.

Which relocation rules apply to a planned move?

If you have a court order or agreement you must follow it and do what it says to do before you move.  It may talk about things like notice of a planned move or say the geographic area where your child or children must live.

The Divorce Act (federal law) and the Parenting and Support Act (provincial law) both have relocation rules.  

The Divorce Act relocation rules only apply if there is a Divorce Act court order (often called a 'Corollary Relief Order' in Nova Scotia) under the Divorce Act that is about:

• parenting time
• decision-making responsibility
• contact, or
• custody or access (under the old Divorce Act).

In all other cases the provincial Parenting and Support Act relocation rules apply. 

Notice of relocation rules and processes to follow are similar under both laws.

You need permission to relocate when it will have a significant impact on the child’s relationship with others

If the planned relocation will have a significant impact on parenting arrangements or contact time with the child:

• in most cases you will need permission to relocate from the child’s other significant caregiver—anyone who has parenting time or decision-making responsibility
• you must give written notice of the planned relocation to anyone who has parenting time, decision-making responsibility or contact
• you must give notice whether you plan to relocate with the child, or on your own (without the child).

You do not need permission to relocate from a person who has contact time with the child, but you must give them notice of the planned move.

If you have a court order or agreement you must follow it and do what it says to do before you move.

You may face possible criminal charges if you move your child without permission, written agreement, or a court order allowing you to move the child.

Notice of relocation rules and process

If you are afraid about your safety or your child's safety, it is very important to get legal advice about the impact of family violence on a planned relocation. Get legal advice before you relocate. If family violence is a concern then the following notice rules may not apply.  See 'When notice rules might be different' below.

60 days’ notice of a planned relocation
If you plan to relocate - with or without the child - you must give 60 days’ written notice to anyone who has parenting time, decision-making responsibility or contact.  

The written notice must include:

• the date of the planned move
• the new address or location
• any other new contact information for the child or you
• a new proposal for how parenting time, decision-making responsibility or contact could happen if the move goes ahead.

You may use this form to give notice. The form is for cases under the Divorce Act but you can use it if your case is under the Parenting and Support Act too.  The form has all the information you must include in your notice.

Notice gives everyone a chance to discuss the planned move and try to work things out.

30 days to disagree with a planned relocation
A person with parenting time or decision-making responsibility and who gets notice of a planned relocation, has 30 days to  disagree with the planned relocation or the child. This is called 'objecting'.

There are two ways to object:
(1) write to the person and explain why you object to the planned relocation, and
(2) to try to stop a move with a child, apply to court to have the case heard by a judge.

1) You may use this form to explain your objection to a planned relocation.  The form is for cases under the Divorce Act but you can use it if your case is under the Parenting and Support Act too.  The form has all the information you must include in your notice.

The objection should:

• say there is an objection,
• say why you do not agree with the planned move, and
• give your views on the new proposal for parenting time, decision-making or contact in the notice of relocation.

If you do not object, the move may go ahead, unless there is a court order or written and signed agreement that says differently. 

A person with a contact order cannot object to a planned relocation.  If new contact arrangements are needed then the parents and caregivers should try to work it out.  If they cannot, then a court application may be filed to ask the court to make an order about new contact arrangements, but a person with a contact order cannot stop a planned relocation.

2) To try to stop a move with a child, apply to court to have the case heard by a judge.

If you are worried that the other person will move with the child, or if they have already left with the child, then you may file a court application. Explain the issues clearly in your court application and if it is urgent to have your case heard by a judge.

You can only object to a relocation with a child.  The court cannot order the other person not to move if they plan to move without the child or children.  But the court can order that the child or children will not move.

Will the move happen? Factors the court must look at

Is a planned move in the child’s best interests?

If there is no agreement about a planned relocation and the issue goes to court, the court must think about specific factors when deciding whether a planned relocation of a child should happen. These include:

• the reasons for the relocation
• how the relocation would affect the child
• the amount of time the child spends with each person who has parenting time, and their involvement in the child’s life
• whether there is a court order or agreement that says the child must live in a specific geographic area
• whether proposed changes to parenting time, decision-making responsibilities or contact after a planned move are reasonable
• whether the parties have followed their family law obligations (for example, have they followed the current court order?)
• did the person who is planning to move follow the rules for notice.

These specific 'relocation' best interest factors are in addition to the other best interest factors listed in Divorce Act or Parenting and Support Act. No single factor will decide the case.

The court will not look at whether the person who plans to relocate would still move if the child was not allowed to move.

Who must prove a move is in the child's best interests or not?

The rules about who has the job of proving that a move should happen or not, called the ‘burden of proof’, are complicated. It is best to talk with a lawyer.

In general:

Parenting time arrangement	Burden of proof is on
'Subtantially equal' parenting time	Parent who plans to relocate to show why the move is in child's best interests
Relocating parent has 'vast majority' of parenting time	Parent who opposes the relocation to show why the move is not in child's best interests
Any other parenting time arrangement	Each parent to show why the planned move is, or is not, in the child's best interests

When notice rules might be different — safety concerns

In some limited situations a court may order that notice of a planned relocation is not required, or may change the normal notice rules.

For example, if there is family violence and you are scared about your safety or your child's safety, the court might say notice is not required, or might shorten the notice period and say it is not appropriate for the other parent to know the location of the child’s or other parent’s new residence.  You can apply to court to ask the court to change the notice rules in your case.  You can apply to court without telling the other party (the other party is usually the other parent).

It is best to talk with a lawyer right away if you think you have a situation where the notice rules should not apply or should be changed.  Do this before you relocate with your child.

When can a planned relocation go ahead?

1. When the court says the relocation can happen, or
   
   
2. (a) A person who has parenting time or decision-making responsibilities got notice of the move, and has not objected to the relocation within 30 days; and
   (b) There is no court order prohibiting the relocation.

Costs to exercise parenting time

If the move is authorized then the court may consider the costs to exercise parenting time. The costs may be shared between the person relocating with the child, and the person who is not.

Notice is required for every move, even if it is not a relocation

If you have a court order or agreement you must follow it and do what it says to do before you move. 

If there is a court order and you are planning a move that will not have a significant impact on the child’s relationship with a parent or a person with contact, you must still give written notice of the planned move to anyone who has parenting time, decision-making responsibility or contact.

In this case the written notice must give:

• the date of the move
• the new address, and
• new contact information for the child or person who is moving.

Ways to get more family law information and legal help

• The Department of Justice Canada's website has more information about family law and the changes to the Divorce Act, including fact sheets on:
  • Parenting Arrangements
  • Divorce and Family Violence
  • Child's Views and Preferences
  • Moving after separation or divorce
  • Duties for parents and others
  • Family Dispute Resolution
• www.nsfamilylaw.ca- family law information on many topics, including divorce, parenting arrangements, spousal support and child support
• Contact the Legal Information Society of Nova Scotia to connect with a legal information counsellor and get free legal information
• Contact Nova Scotia Legal Aid for family law legal information and legal advice
• Contact a lawyer in private practice (lawyer you would pay) who does family law
• Free and low-cost legal help in Nova Scotia.

Parenting arrangements

The broad term ‘parenting arrangements’ is often used to include decision-making responsibility, parenting time, contact, or a combination of these terms.

Parenting arrangements do not have to be written down. Some parents prefer to have a written agreement. They might do a written Parenting Plan that talks about decision-making responsibility and parenting time. Other parents, who are not able to work together (for reasons such as family violence), or who are unable to agree on parenting arrangements, use the court process to get a Parenting Order (court order).

A Parenting Plan or Parenting Order may cover things like:

• where the child will live
• each parent’s decision-making responsibilities
• the time the child will spend time with each parent and other important people in the child’s life
• how the children will communicate with one parent when spending time with the other parent
• how the parents will communicate with each other about the child
• who has the right to ask for and get information about the child’s health, education and well-being
• how disputes will be resolved
• rules about relocating with a child.

Best interests of the child

Family laws in Canada (Divorce Act) and Nova Scotia (Parenting and Support Act) expect parents to make decisions that are in their child’s “best interests”. Each law lists factors to consider when making a decision about a child. This is called the “best interests test”, and the factors to consider are a bit different depending on the law that applies to your children and your family’s situation.

If a parenting issue goes to court, judges must only consider the best interests of the child when they make decisions about children.

Here are some of the factors a judge must look at when deciding what is in a child’s best interests:

• the child’s needs, keeping the child’s age and developmental stage in mind
• the child’s relationship with each parent
• the child’s relationships with siblings, grandparents and other important people in their lives
• the child’s care arrangements before the separation
• future plans for care of the child
• the child’s views and preferences, if child is mature enough and if it is appropriate
• the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
• the impact of any family violence (see more information on family violence below).

Other factors the judge must look at include each parent’s ability and willingness to:

• care for the child
• support the child’s relationship with the other parent
• cooperate and communicate about parenting issues.

In every case the court must give priority to the child’s safety, security and well-being. Judges will consider all relevant circumstances. They are not limited to considering only the factors on the list because decisions must be made based on each child’s needs.

If there has been family violence, the judge must look at:

• the nature and frequency of the family violence
• how recently it happened
• how it has harmed the child
• any steps the person causing the family violence has taken to stop it from happening again
• has the family violence affected the ability of the person who caused it to care for and meet the child’s needs?
• whether it is appropriate to require cooperation between parents on parenting issues where there has been family violence
• anything else the judge sees as relevant to deciding on the impact of any family violence.

To learn more about the types of family violence people may experience and help that is available see the specific information on Family Violence.

You can learn more about best interests of the child at nsfamilylaw.ca

Separating

If you are thinking about separating from your spouse, or you are in a relationship with someone and it is not healthy for you, get support.

Nova Scotia has a number of helpful resources you can connect with to talk about your relationship, the challenges you are experiencing and the impact on your children. Some couples can work these issues out. Other times they cannot.

Many employee assistance programs (EAP) offer private personal and/or couples’ counselling to help you work through difficult times, including working on your relationship. If you have one, contact your EAP to see what is available for you.  You may also be able to access your spouse’s EAP plan. If you do not have an employee assistance program speak with your health care provider or contact 211, 811, or Nova Scotia Mental Health services near you.

Choosing to stay or leave a relationship is a personal decision. If you are experiencing violence within your family situation then you may need to contact the police or child protection agency for immediate help.

To learn about the types of family violence people may experience and help that is available see the specific information on Family Violence.

You can find out more about separation here, and at nsfamilylaw.ca

After deciding to separate

The law expects parents to think first about their child—to take a child centred approach that focuses on their child’s best interests. Parents are expected to make sure their children’s basic needs for shelter, food and schooling are met. They must also make sure their child has a safe and healthy relationship with the other parent, siblings and other important people in their lives.

If you separate it is important to let your child know this in a healthy way. How you present this information and how you speak about the other parent, or important people, will help the transition go better. 

Remember that the circumstances of the parents and their children change. Sometimes needs change quickly after a separation. Sometimes plans stay the same for a long time. So it is important to think in stages (for example, what will happen when we separate and what may change after a few months) and know that different arrangements may be made as time passes and needs change.

If possible, have a temporary plan worked out with the other parent before you speak with your child about the separation. Being informed about basics such as where they will live, if they will continue at their same school, when they will see important people in their lives, if they can continue with extracurricular activities, etc. are important to a child’s sense of stability and security. Being able to share, in an age-appropriate way, some or most of this kind of information will help with the transition. If you don’t know an answer to a question, be honest and tell the child when you might have more information to share. Remember this is a time of transition so you will not know all of the details. Every family works through this process differently.

First think about what are the most important day-to-day issues that need to be planned, especially for your child, and then move to longer-term arrangements or events later. It generally takes a couple a years or longer to complete the separation process, so do not pressure yourself to have all of the details worked out right away.

Children have better outcomes when their parents and important people in their life are able to work together to make sure their basic needs are met, and their relationship with the other parent and important people is supported. This includes supporting your child in their extracurricular and other important events. These events may take place during ‘your time’ and it may be frustrating that your time is disrupted. Before you react to your child’s activity time, think about your own childhood and how you felt about participating in activities, parties or other events. What will the consequence be for your child if they only participate in half of the classes or practices? If they don’t attend all of the birthday parties they are invited to?

It is important to not say negative things about the other parent or other important people in the child’s life. You child’s day often includes spending time with their parents and other important people, teachers, daycare providers, coaches and friends. They will have good and bad days in their relationships and they will want you to support how they are feeling. They will ask you to help guide how they should respond to situations, and as a parent you need you to guide them appropriately. It is tough being a child. It becomes tougher when they have to hide their feelings or experiences with the other parent from you because you are negative. When you make hurtful comments about the other parent, you are also making hurtful comments about your child, because your child is a part of both of their parents, and arguably other important caregivers in their lives. Supporting the child’s relationship with the other parent will reduce anxiety your child may be feeling. It will also reinforce that you are able to share and support your child’s experiences, relationships and happiness.  

Remember it is not healthy to pass blame on anyone. The old saying ‘if you can’t say anything nice then don’t say anything at all’ is good advice when talking with your children about the other spouse, or extended family. Try not to place your child in the middle. This means don’t ask your child to be a messenger between you and the other spouse. Do not discuss information about your financial circumstances and concerns with your child. If you and the other parent are not getting along, or if it not safe for you to have contact ask a neutral person (such as a family member) to help with transitions and communication until long term arrangements can be made.

Children do poorly when they are exposed to violence. This includes verbal abuse and other behaviours that are directed to or about the other parent or the child. It is important to understand the types of violence people sometimes experience, especially during or upon the breakdown of a relationship.

The law recognizes that family violence is harmful. Parents, legal advisers and judges are required to ask about and consider the impact of family violence that children may be exposed to or are experiencing when giving advice or making a decision for a child, and to reduce family violence when setting up the parenting arrangements.

It is important to establish clear expectations and boundaries around parenting, entering the family home, use of family money etc. It helps to have a way to communicate with each other that is not intrusive or too frequent. Parents who text message often find the other parent is intruding upon their time with their child or their personal time because with text messaging there is an immediate interruption and an expectation of a response right away. Many separating couples use emails to communicate instead of text messaging, as this helps to maintain a healthy boundary between them. They know that their email messages will be seen and responded to once a day. This gives everyone some time to think before an email is sent or a response is given.

A child's reaction

Some children are immediately comfortable with the transition from one to two homes. Other children need time to adjust. Sometimes a counsellor for the child may help them talk about their feelings to help each parent be supportive and helpful when they talk with their child, and each other.

Sharing toys and clothing between the two homes is important. Children need to have their belongings with them when they travel between homes, especially a soft toy or blanket that provides comfort. Don’t try to control your child’s belongings. Listen to what your child’s needs are at this time, and do your best to support the simple ones.

Some children have a hard time transitioning. Sometimes parents assume this is because the child doesn’t want to see or spend time with the other parent. But there may be other reasons why the child is struggling. For example, maybe they have a hard time with transitions between home and childcare or school. Going to a parent’s house may get a similar reaction. Talk to the child’s care providers to see if there are things you can do to make the transitions easier. Talk to a counsellor to help you and your child if things do not improve.

Children often have views and preferences about the parenting arrangements. In family law there is no specific age when a child may choose where they will live or when they will spend time with the other parent.  Each parent has a duty to make sure the child has a relationship with both parents, as long as it is safe and in their best interests.  It is important to have an open relationship with your child about how they are feeling, including the parenting arrangements. Remember a child should never be told to choose between their parents or important caregivers.

In family law there is no specific age when a child may choose where they will live or when they will spend time with the other parent.  Learn more about a child's voice here, and at nsfamilylaw.ca

Judges will listen to what a child has to say about their parenting arrangements when it is age appropriate. Older children should have more input than younger children. In court, a child’s views about their parenting arrangements or what is important to them may be shared through what is called a voice of the child report. Outside of court a child’s voice is sometimes shared during joint counselling sessions. In child protection cases a child’s voice is often communicated through a guardian ad litem (litigation guardian) who is appointed by the court.

When an older child refuses to see the other parent counselling is the best option for everyone. A counsellor can help the child identify their feelings and help the parent(s) understand why contact is being refused. A counsellor may suggest strategies to help reconnect a parent and child. Parental alienation is very complex. The reasons why a child may refuse to see another parent are not always clear, and there are no easy solutions. Experts in this field strongly recommend counselling.

Parents have a legal obligation to follow court orders.  As a parent, refusing to follow a court order or an agreement could result in a fine or even a change to the parenting arrangement. In some cases, a parent who refuses to permit court ordered parenting time will have their children placed with the other parent.

Talk to a lawyer if your child is refusing parenting time, or if you have concerns about the child’s safety with the other parent. You may need to ask the parent to take a break from exercising parenting time until the reasons for this are sorted. Or, you may need to make an emergency application to the court to ask a judge to make a new order that will keep your child safe.  Go to nsfamilylaw.ca for information about changing a court order (variation application) and emergency applications to court.

Ways to get more family law information and legal help

Canada's Department of Justice has two publications to help parents who are dealing with a separation or divorce.

'Making Plans: A guide to parenting arrangements after separation or divorce', covers a range of topics, from parents' emotions in dealing with separation, to what the kids may be experiencing when their parents split, protecting the kids from conflict, and options for putting together the type of parenting plan that may be best in your situation.

The second publication is a 'Parenting Plan Tool' that, together with 'Making Plans', gives practical guidance, including sample clauses and wording, on specific parenting plan issues such as how and who makes decisions about the kids, scheduling parenting time, vacations, childcare, and relocations.

Both publications are available in English and French, online at:

• Making Plans: canada.justice.gc.ca
• Faire des plans - canada.justice.gc.ca
• Parenting Plan Tool: canada.justice.gc.ca
• Échantillon de clauses pour un plan parental - canada.justice.gc.ca

You will find a list of other parenting resources under "Ways to Help My Kids" at www.nsfamilylaw.ca

Also check out Families Change, a great web resource for kids, teens and parents dealing with a family break up.

Other helpful resources:

• www.nsfamilylaw.ca- family law information on many topics, including divorce, separation, parenting arrangements, spousal support and child support
• Contact the Legal Information Society of Nova Scotia to connect with a legal information counsellor and get free legal information
• Contact Nova Scotia Legal Aid for family law legal information and legal advice
• Contact a lawyer in private practice (lawyer you would pay) who does family law
• Free and low-cost legal help in Nova Scotia.
• The Department of Justice Canada's website has more information about family law and the changes to the Divorce Act, including fact sheets on:
  • Parenting Arrangements
  • Divorce and Family Violence
  • Child's Views and Preferences
  • Moving after separation or divorce
  • Duties for parents and others
  • Family Dispute Resolution

NS Family Law new & improved website!

In Episode 7 host Kiara Gibbons chats with Natasha Matthews, Coordinator, Policy & Compliance, Nova Scotia Department of Justice, Court Services, about the April 1 2022 launch of the refreshed, renewed and improved NS family law information website: nsfamilylaw.ca  Listen to learn about some of the new features of the site & easier ways to find family law information, and then check out the new nsfamilylaw.ca site!

Family law resources mentioned in this episode:

To contact nsfamilylaw.ca

• nsfamilylaw.ca website survey
• Social media: @nsfamilylaw
• Contact Us page on nsfamilylaw.ca
• [email protected]

Other resources talked about in the episode

• Family Law Information Centres at the Supreme Court Family Division in Halifax and Sydney.  Visit nsfamilylaw.ca for more information
• Courts of Nova Scotia
• Getting legal advice
  
  If you cannot pay a lawyer:
  
  Nova Scotia Legal Aid
  Family law Summary Advice Counsel

• For help in French:
  • Email the Legal Information Society of Nova Scotia anytime at [email protected]
  • Call the Legal Information Society of Nova Scotia's Legal Information Telephone Line on Monday mornings or Friday afternoons at 902-455-3135 or 1-800-665-9779

Nova Scotia Legal Aid, family law services & COVID-19

In Episode 5 Nova Scotia Legal Aid lawyer Paul Stordy talks about Nova Scotia Legal Aid's services, challenges and changes in family law services resulting from COVID-19, and gives tips for child-focused parenting during COVID-19 and beyond.


In Episode 6 hosts Meg and Kiara continue their talk with Nova Scotia Legal Aid lawyer Paul Stordy, covering: child or spousal support and steps to consider if the payor's income is reduced for reasons beyond their control, such as due to COVID-19; COVID-19's impact on the divorce process; and options and support for people experiencing intimate partner violence.  Meg and Kiara wrap up by reflecting on their chat with Paul, the general impact of COVID-19 on family law, what resonated with them, and some wise words from Meg's mom!

Understanding recent changes to Canada's Divorce Act

Lawyer Shelley Hounsell-Gray, Q.C. talks about changes to Canada's Divorce Act that became law on March 1, 2021. 

In Episode 3 Shelley covers who the Divorce Act applies to, new parenting language, best interest factors, the impact of family violence, and new duties for parents, legal advisers and courts.

In Episode 4 Shelley covers alternative dispute resolution, including settlement conferences with a judge, moves that significantly affect the child's relationship with the other parent (relocations), and highlights of key practical changes to the law.

Family Law Basics

LISNS Legal Information Counsellor Nicholas LeBlanc talks about family law basics, including parenting language and where to start to get family law help

Find Family Law Information & Help

Can't find what you're looking for? Go to:

More legal information about family law in Nova Scotia

• Contact us by telephone (Legal Information Line), email, or live chat to connect with a legal information counsellor and get free family law information
• Nova Scotia Legal Aid offers family law live chat on its website on Tuesdays from 3 pm to 5 pm
• Justice Canada Family Law Information
• The Court Services Division of Nova Scotia's Department of Justice operates Family Law Information Centres at the Supreme Court-Family Division in both Halifax and Sydney.  Visit nsfamilylaw.ca for more information
• A website called CANLII offers free access to Canadian laws and court decisions. You can also find Nova Scotia laws on the Nova Scotia legislature website - nslegislature.ca and court information and procedures on the Nova Scotia Court website - www.courts.ns.ca
• Francophone Nova Scotians can get help from l'Association des juristes d'expression française de la Nouvelle-Écosse.

To find a lawyer who does family law, you can

• ask a friend or family member for a referral
• contact your local Nova Scotia Legal Aid office at: http://www.nslegalaid.ca/contact.php
• contact law firms in your community that do family law
• contact your Employee Assistance Program or union if you have one
• go to nsfamilylaw.ca - the page on getting legal advice
• contact a women's centre and ask if they can suggest a referral
• go to Lawyers and Legal Help for more ways to find a lawyer.

If you cannot pay a lawyer

Your lawyer may accept alternate billing arrangements, or may be willing to just work on part of your case.

If you have no extra money, but you and your spouse own property, such as a home, investments, or RRSPs, some lawyers may agree to be paid at the end of your case, when you receive your share of the family property. 

Also, some lawyers may consider helping you with just part of your legal issue - for example, preparing an affidavit or examining a witness in court.  This is sometimes called providing 'unbundled'  or "Limited Scope Retainer" legal services.  Go here for more information about how lawyers charge for their work.

You may qualify for Nova Scotia Legal Aid.

Contact your local Nova Scotia Legal Aid office for information about Legal Aid's services: nslegalaid.ca/legal-aid-offices/, and ways to apply for Nova Scotia Legal Aid: http://www.nslegalaid.ca/apply.php .  You can also apply for Legal Aid online: nslegalaid.ca/onlineapplication.php. Check your local directory for the addresses and telephone numbers of legal aid offices across Nova Scotia, listed under 'Legal Aid' in the white pages and government section of the telephone book, or visit Nova Scotia Legal Aid's website at: www.nslegalaid.ca

Summary Advice Lawyer for Family Law issues.

You can make an appointment to meet with a Nova Scotia Legal Aid Summary Advice Lawyer at the court.  You do not have to qualify for Nova Scotia Legal Aid to use this service.  The Summary Advice Lawyers provide brief, basic legal advice free of charge.  Go to nsfamilylaw.ca/services/getting-legal-advice-finding-lawyer for contact information.

You can represent yourself.

You can represent yourself.

If you decide to represent yourself, you should still ask a lawyer to review the forms before you file them with the court, if possible. 

I am not getting along with my spouse, should we separate?

Only you can answer that question. A temporary break can help couples deal with problems in a marriage or relationship or it may be the first step in ending the marriage or relationship that is not working out. There are counselling services that can help couples talk about their problems and come to a decision, or to come to terms with whatever decision you make. 

The law does not say that once you are married or once you are in a long-term relationship you must "stick it out". The law does provide ways of dealing with issues that arise as a result of separation.

You do not need your spouse's permission to separate. Leaving or ending a relationship is a decision either you or your spouse may make on your own.

If you can you should get a lawyer's advice before making a decision, to help you understand your rights and responsibilities.

How do I get a 'legal' separation?

The term separation applies when one or both spouses or partners decide the relationship is over. Once you are no longer living together as a couple you are considered separated.  No further steps are required to make it "legal".  You do not need to file any paperwork with the court to be separated.

Eventually you and your spouse will need to work out the terms of your separation, such as a parenting arrangement (where your child will live, decision-making responsiblity, parenting time), child and spousal support, and division of property . Some people choose to write up the terms of their separation in a separation agreement, although the law does not say you have to do this.  If you do get a separation agreement, some people choose to register the agreement with the court so that it can then be enforced like a court order.

Should I tell the government about our separation?

After you have been separated for more than 90 days, you should tell the Canada Revenue Agency (CRA).  Here is information about changing your family status with the CRA: https://www.canada.ca/en/revenue-agency/services/child-family-benefits/update-your-marital-status-canada-revenue-agency.html

After you have been separated for more than 90 days you may apply to have the child tax benefit assessed based on your new parenting and financial circumstances. Please see the child tax benefit website for more information at canada.ca/en/revenue-agency/services/child-family-benefits/canada-child-benefit-overview.html

Must one of us leave the home before we are considered separated?

Usually when couples separate they no longer live in the same home. However, it is possible to live in the same home and still be considered separated for legal purposes.  Sometimes a separated couple will still live in the same home but will no longer share daily activities together or share each others lives. For example, they may sleep in separate rooms, eat meals separately, and no longer appear to the public and friends as a couple. This can happen because of childcare or money issues. Whether or not you and your spouse are considered separated if you still live in the home will depend on all of the facts of your case.

If I leave the matrimonial home, can I take my things with me?

You have a right to take at least your personal belongings and, if the children are going with you, their personal belongings such as clothes and toys. You may also have a right to take some matrimonial property such as household items to allow you to set up your new home. Each case is different and, if possible, you should get legal advice on your situation before you leave the home. Your lawyer will advise you what you can take with you and what your share of the matrimonial property may be.

You must not give away, sell or destroy household items you take with you.

What if we cannot agree on the terms of separation?

If you cannot agree likely you will have to ask the courts to settle the matter.  Court is an option for spouses who can't reach an agreement or when there is an issue that must be dealt with right away – such as when there has been family violence and parenting needs to be addressed, or when financial supports like child support and spousal support need to be put in place.

The Supreme Court Family Division hears family law cases throughout the province. There are court processes such as conciliation, and settlement conferences led by a judge to help spouses reach an agreement without having a trial.

Of course, when necessary a trial is still available but spouses are encouraged to work out their differences because it leads to more workable solutions for their family, especially when there are children.

Can we get help to reach an agreement on the terms of separation?

Your lawyer acts on your behalf and works to make sure that any agreement is in your best interests, and in the best interests of your children.

There are many options available to you to work out an agreement with your spouse after you separate, without court.  Sometimes these options are called 'family dispute resolution processes'.  Some ways to to solve family law issues without court are:

• negotiation, often with the help of lawyers
• mediation—A mediator is an independent person who will work with both spouses to help you reach an agreement you both can live with. A mediator does not make sure family law is followed. So, before you sign anything, you should take the agreement to your lawyer to make sure that your legal rights are protected and the terms and your legal responsibilities are explained to you.
• collaborative family law—lawyers and spouses agree not to go to court, and work together to reach an agreement.  

You can find out about other ways to solve family law issues without court at nsfamilylaw.ca

What sorts of things should we put in the separation agreement?

A separation agreement usually describes the terms of your separation. Your lawyer will advise you on what terms will best protect your interests and meet your needs.

Following are some things to include in an agreement:

• the parenting arrangements for your children
• who will pay child support and contribute to special expenses such as childcare
• whether one spouse will pay spousal support, and if so, how much and for how long
• will the family home be sold - if not, who will live there?
• who will pay for the mortgage, the repairs, and insurance on the home;
• if the home is sold, how will the profit be divided;
• how will other family property be divided such as pensions, investments, vehicles, furniture, and savings;
• how will family debts be paid;
• who will pay for insurance policies and who will be the beneficiary;
• how will the agreement be changed if circumstances change;
• if you are married, will the separation agreement form the terms of a divorce agreement.

When you are discussing child support, you should keep in mind the child support guidelines. They provide a guide to the level of child support based on the number of children and the income of the paying parent. See the page on child support for more information.

The agreement can also include a term that says you and your spouse agree not to harass or interfere with each other.

The separation agreement does not have to be made as soon as you separate. It can be made at any time before a divorce. However, the sooner you can agree on the terms of the separation, the sooner you will be certain of your and your spouse's rights and responsibilities.

Must the agreement be in writing?

No. You and your spouse can verbally agree to the terms of your separation. However, for your protection you should put the terms into a written agreement. If it is not in writing, it may be harder to prove what you agreed should a dispute arise at a later date. Do not sign any agreement until you have talked with a lawyer.

Can I be forced to sign a separation agreement?

No. A separation agreement is only valid if both spouses voluntarily agree to the terms and sign the document. Once the agreement is signed, it is a legally binding contract and can be enforced through the courts. Before signing a separation agreement you and your spouse should have legal advice. You should not use the same lawyer.

Can an agreement be enforced?

Yes. However, enforcing an unwritten agreement can be difficult since often there is only your word against your spouse's about what you agreed to.

The usual way of enforcing terms of a written agreement is through the court.  Registering the agreement with the court if approved, means it can be enforced like a court order.

Registering the agreement also means you have access to the Maintenance Enforcement Program MEP for help collecting child and spousal support. Visit the Nova Scotia Maintenance Enforcement Program website at mep.novascotia.ca/ for more information.

Is it a good idea to have a separation agreement?

If you and your spouse can agree to the terms of separation and can set them out in a written agreement, you can save time and money.

• The separation will take less of a toll on your emotions and on those of your children. Going to court to fight over child support, spousal support, parenting arrangements or property can be a stressful, drawn-out and unpleasant experience for any family.
• If you have a written separation agreement, your rights and obligations are set out as soon as the agreement is signed. You do not have to wait for court dates and other delays.
• If you later decide to divorce, you can include the terms of the separation agreement in the divorce order.
• If you are making support payments to your spouse under a written agreement, you may be able to claim them on your income tax form. You should talk with a lawyer, an accountant or Canada Revenue Agency about spousal support payments and income tax.
• It can be helpful for establishing dates of your separation for Canada Pension Plan credit splitting. However, administrators of employment pensions may require a court order and not just a separation agreement. You should check with your lawyer or with the pension-plan administrators.

Must a lawyer draw-up the agreement?

While you can draw up your own agreement, it is not wise to do so. A separation agreement is an important legal document that will affect your rights and responsibilities. You should get legal advice on those rights and responsibilities from a lawyer, discuss possible terms with your spouse, and then have your lawyer draw up a formal agreement.

You should not sign any document that may affect your rights until you have spoken with a lawyer. Your lawyer can make sure that the agreement covers all the necessary issues.

If you cannot agree on the terms of separation, a lawyer or mediator may be able to help you work it out. You and your spouse should not use the same lawyer.

Can the agreement be changed once it is signed?

Yes. It is possible to change an agreement.

• If you have a verbal agreement, you can change it by agreeing to the new terms. However, it is difficult to enforce a verbal agreement since it will only be your word against that of your spouse.
• If you have a written agreement, it may have a provision allowing for it to be adjusted to meet changing circumstances. Or, you and your spouse can agree to changes. The changes should be put in writing and witnessed. If the agreement is registered in the court, and you cannot agree on changes, you can apply to the court to settle the matter.

Keep in mind that once the agreement is signed it is a binding contract. Judges are reluctant to change agreements. The judge will have to be convinced that both spouses agree to the changes or that the terms of the agreement are unduly harsh and you did not have legal advice before you signed it or that you were forced into signing it.

Generally only terms of an agreement that relate to parenting or child support may be changed. If spousal support is paid then it may be changed based on the terms of the agreement or based on the general rule that there has been a big change in the circumstance for of one or both parties to the agreement.

Are there other matters to consider when we separate?

Yes, depending on your situation. You should review the terms of your will, power of attorney, personal directive, life and health insurance, RRSPs, TFSAs and other financial instruments where you've named your spouse as beneficiary or substitute decision-maker. A lawyer can advise you on these matters.

More information

Other helpful resources:

• www.nsfamilylaw.ca- family law information on many topics, including common law relationships, divorce, separation, parenting arrangements, spousal support and child support
• Contact the Legal Information Society of Nova Scotia to connect with a legal information counsellor and get free legal information
• Contact Nova Scotia Legal Aid for family law legal information and legal advice
• Contact a lawyer in private practice (lawyer you would pay) who does family law
• Free and low-cost legal help in Nova Scotia.
• The Department of Justice Canada has more information about family law and the changes to the Divorce Act, including fact sheets on:
  • Parenting Arrangements
  • Divorce and Family Violence
  • Child's Views and Preferences
  • Moving after separation or divorce
  • Duties for parents and others
  • Family Dispute Resolution

Access

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.

Act

A law passed by the federal or provincial governments. Another name for an Act is a statute. (STAT-shoot).

Agreement

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.

Affidavit

(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.

Affirm

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.

Alimony

(Al-eh-MOAN-ee) — See Support.

Answer

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.

Applicant

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’

Application

Applying to court to ask the court to make an order.

Assets

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)

Best Interests

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.

Certified Copy

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.

Child Protection

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.

Child support

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.  The amount of child support is based on the Child Support Tables.

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.

Collusion

(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

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

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

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.

Consent order

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.

Contact

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.

Contact order

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

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.

Court order

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 parent

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.

Custody

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) or 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.’

Decision-making responsibility

A general term under the Divorce Act and Parenting and Support 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 (federal) and Parenting and Support Act (provincial) no longer use 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

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.

Divorce

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

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’.
 

Evidence

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.

Exclusive possession

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.

Family Court

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.

Fees

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.
 

File

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.

Garnishee

(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.

Hearing

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.

Interaction order

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.

Interim Order

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.

Judgment

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.
 

Litigation

(Lit-uh-GAY-shun) is a legal proceeding.

Maintenance

See support.

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

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

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

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

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.

Parenting order

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.

Parenting plan

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.

Parenting time

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.

Parties

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.

Payor

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.

Petitioner

(Puh-TISH-un-er) —spouse who files Petition for Divorce in a contested divorce proceeding. See also ‘Respondent’.

Proceedings

The steps you take in a court case, including a divorce.

Property division

See ‘division of property.’

Prothonotary

(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’.

Recipient

(Re-SIP-ee-ent) is the person who receives spousal or child support.

Reconciliation

(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.

Record

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

'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?'

Removal

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..

Respondent

(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.

Seal

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.’

Separation Agreement

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.

Serve

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. 

Settlement Conference

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.

Shared custody

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

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.

Substituted Service

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.

Supervision

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.

Support

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.

Third party

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.

Trial

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.

Variation 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.

Visitation

See Access, Parenting time, Contact, Interaction.

Waiver

(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.

What is spousal support?

Spousal support is financial support provided by one spouse to the other after separation, based on a written agreement or court order.  Spousal support is also sometimes called maintenance or alimony.

What laws apply to spousal support?

The federal Divorce Act applies to married spouses who have applied to court for a divorce, and to former spouses who are divorced.

Nova Scotia's Parenting and Support Act applies to:

• married spouses who have not applied for a divorce
• common law partners who have lived together for at least 2 years (for a spousal support claim), or who have lived together in an intimate relationship and have a child together (if the couple lived together and had a child together, there is no 2 year minimum cohabitation)
• registered domestic partners.

The Divorce Act and Parenting and Support Act outline:

• factors that must be looked at to determine if a spouse is eligible for spousal support
• the objectives of spousal support, and
• the ability of the other spouse to pay spousal support.

If you have a claim for spousal support and your former spouse lives in another province or country you will likely have to use a process that is set out in the Interjurisdictional Support Orders Act (called 'ISO') to have your application for spousal support heard. This process may also be used when the former spouse lives in a country (including many states in the United States) that has signed on to the ISO process to determine spousal support.

Spousal support can be complex. It is helpful to look at case law (decisions by judges) and the Spousal Support Advisory Guidelines. 

The Divorce Act and the Parenting and Support Act both require that child support come first before payment of spousal support.

If you believe you have a claim for spousal support, or you are responding to a claim for spousal support,  it is a best to get legal advice.

Am I eligible to get spousal support?

What are the Spousal Support Advisory Guidelines?

The federal Spousal Support Advisory Guidelines ( SSAG) were developed to help predict:

• a range of spousal support that may be paid, and
• how long spousal support may be paid. 

Unlike the Child Support Guidelines, the Spousal Support Advisory Guidelines are not law.  However, in many provinces the courts have accepted the Spousal Support Advisory Guidelines and use them in decisions about spousal support. In Nova Scotia the Spousal Support Advisory  Guidelines are used as a tool to help determine a spousal support range and duration.

Before you look to see what the Spousal Support Advisory Guidelines predict as a range of spousal support to be paid, remember that the SSAGs do not deal with the question of whether a spouse is entitled to get support under either the Divorce Act or Parenting and Support Act. If it is determined that the spouse is eligible to get support, the Spousal Support Advisory Guidelines can then be used 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 it is best to get help from a lawyer before you finalize any agreement or court order concerning spousal support.

Is a spouse entitled to information about the other spouse's finances?

If you apply for a spousal support order you are entitled to get disclosure of your spouse’s financial information. This information includes income tax returns, pay stubs, itemized statements of income, expenses, assets and liabilities. Both spouses are required to disclose the property and debts they have, and a budget to show their monthly expenses. Both spouses may also have to provide financial information about anyone they are living with, such as a new spouse or partner.

You can learn more about disclosure of financial information at nsfamilylaw.ca, and in the Nova Scotia Civil Procedure Rules, which cover court rules and forms, including statement of income, statement of expenses, and statement of property for financial disclosure in the context of spousal support.

How often is spousal support paid, and for how long?

Sometimes spousal support is paid on a voluntary basis. Sometimes spousal support is paid according to a written agreement or court order.

Spousal support may be periodic (usually monthly), lump sum, or both.

If support is periodic – a set amount each month, it can be time-limited or have no set ending. Support orders can be made on an interim (temporary) basis or final basis. Even final spousal support orders can sometimes be varied (changed) if there is a significant change in circumstances.

Sometimes a lump sum of spousal support is paid. This is an amount of money from one spouse to the other.

Spousal support may be paid for a fixed period of time with a specified end date, such as for two years or until the spouse receiving support retrains for new employment (these are just examples), or spousal support may be paid for an indefinite period of time.

Can spouses deduct spousal support for income tax purposes?

Income tax laws often change so contact the Canada Revenue Agency to make sure you have current and correct information about tax treatment for spousal support in your situation.

Periodic spousal support payments may qualify as an income tax deduction for the paying spouse. The receiving spouse must declare the payments as taxable income. This means that periodical spousal support received will be included as income and tax will be paid on the total annual income.

Generally, lump sum payments of spousal support are not tax deductible and they are not required to be claimed as income.

Contact the Canada Revenue Agency or a lawyer for further information about the tax treatment of spousal support.

I agreed to waive my right to spousal support. Now I need financial support. Can I ask for support now?

It is not likely that you will be able to make a claim for spousal support in the future if you said in an agreement or it has been confirmed in a court order that spousal support will not be paid.

In some circumstances you may be able to convince a judge that the court order or agreement should be overturned. This is an unusual situation and it is best to speak with a lawyer to learn about what evidence is needed to make an application and your chances of success.

What can I do if support payments are not paid, or are late?

If you have a spousal support order and you are having trouble getting your money, you should contact the Maintenance Enforcement Program (MEP).

If you have a separation agreement you will likely be able to register the agreement with the court. Registering your agreement makes it a court order that the MEP can then take steps to enforce and help you get the spousal support.

If your court order is not registered with the MEP , you may register at any time. There is no charge for registering.

More information

• Here is information about ways to get more family law information and legal advice.
• Go to nsfamilylaw.ca for further general spousal support information
• Justice Canada information about spousal support at justice.gc.ca, and the Spousal Support Advisory Guidelines
• Contact the Canada Revenue Agency for information on the tax treatment of spousal support,