Separation is when two people are no longer considered to be together as a couple. You do not need your spouse’s permission to separate, and you do not need to file any documents with the government or the court to be separated. Leaving or ending a relationship is a decision either you or your spouse may make on your own. You do not need to do anything else to make your separation legal.

Separation can be overwhelming but try to take it step-by-step. 

Learn about your legal rights and responsibilities and get help from experts when you can. If possible, get a lawyer’s advice to help you understand your legal rights and responsibilities. You may need counselling on how to help yourself and your children deal with the break-up. You may need help with safety planning. You may need help from a credit counsellor or financial planner. 

Eventually you and your spouse may need to work out the terms of your separation. The terms of your separation might be described in a written agreement, parenting plan, or a court order. Or the terms of your separation might be informal and what works for your family and your situation. However, it can be hard to enforce an unwritten agreement as often there is only your word against your spouse’s about what you agreed to.

Some people choose to write up the terms of their separation in a separation agreement. A separation agreement is a written, signed agreement that spouses can make after they separate. It says what they agree to about issues such as parenting arrangements, child support, spousal support, and how they will divide their property. It can deal with some or all issues that the parties need to work out.

You can ask the court to make your signed, written agreement into a court order. This is called registering an agreement. Registering an agreement with the court makes it enforceable, for example, by the Maintenance Enforcement Program to collect child and spousal support, 

Some people choose to file for a divorce at the Supreme Court (Family division) to have some or all of the issues arising from their separation addressed. The court in Nova Scotia is designed to help people resolve their issues through conciliation (for parenting and child support) and at a judge led settlement conference for all of the issues – parenting, support and dividing property. If people cannot agree then there is a trial and a decision is made by the judge.

Choose the process that best works for you. If you are feeling bullied or you are unsure of your rights, then we recommend that you go to court to have someone else make sure that your rights are protected and that you are safe during the process. There is nothing wrong with going to court.

If you want a divorce you will have to file a court application to get one. If you have a separation agreement then it will be used to complete your divorce. If you don’t have a separation agreement then you will work out the terms of your court order, which is called a corollary relief order. When the divorce is processed you will also get a divorce order and, later, a certificate of divorce.

The law does not say a lawyer must write your separation agreement. While you can make your own agreement, it is best to have a lawyer give you advice and write your agreement if you can. 

Even if you do not have a lawyer write your agreement, you should not sign any agreement without having a lawyer review it with you. You and your spouse cannot use the same lawyer. The same lawyer cannot look after the rights of two people who have different legal rights. Your own lawyer can give you advice about what is best for you. This is called independent legal advice. Your lawyer can make sure that the agreement is fair for you and covers all the necessary issues. 

If you have an informal verbal agreement, you can change it if you both agree 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 signed, written separation agreement:

You can change these things

• Parenting arrangements, child support, including special expenses, if there is a big change in a parent’s or child’s situation. The court or lawyers may call this a material change in circumstances.
• The terms of spousal support, except in the situation below. The court might change how much is paid, how long the payments will continue, or how often payments will be made.

You can’t change these things

• How you divide your assets, debts, and pensions
• Any agreement that neither of you will pay spousal support to the other.

Keep in mind that once the agreement is signed it is a binding contract – just like a lease or a mortgage. Judges are reluctant to change agreements. The judge will need to be convinced that both spouses agree to the changes. If you want an agreement changed and you and your spouse do not agree, you will need to convince the judge that:

• the terms of the agreement are unduly harsh or unfair
• you didn’t know about an asset or a debt because the other person hid that information from you
• the other person committed fraud when working out the agreement with you
• you did not have legal advice before you signed the agreement, or
• you were forced to sign it. 

Court is the usual way to enforce a written agreement. Registering the agreement with the court, if approved, means it can be enforced like a court order. For example, registering the agreement to make it a court order would give you access to the Maintenance Enforcement Program (MEP) for help collecting child support and spousal support. Go to the Nova Scotia Maintenance Enforcement Program website at mep.novascotia.ca for more information.

If you cannot agree likely you will have to ask the court for help to settle the issues. 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 arrangements must be worked out, 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 across Nova Scotia. There are court processes such as conciliation, and settlement conferences led by a judge to help spouses reach an agreement.

Of course, when necessary a trial is available but spouses are encouraged to work out their differences because it leads to more workable solutions for the family, especially when there are children.

Courts are adversarial, which means that you or your lawyer will argue for your interests, and the other party, or their lawyer, will argue for their interests. Trials do not encourage compromise, and the end result might not be what either party wanted for their family. 

Family dispute resolution process may be better for people who want to work out their own agreement—one that is based on cooperation, and is practical, fair, and balanced. Reaching an agreement out of court is also often less expensive, both financially and emotionally, and will generally better reflect what will work for that family.  

Remember though that family dispute resolution might not be right for you if there is:

• high conflict
• a power imbalance
• family violence.

If there is family violence, you should have a lawyer to protect your interests and your child’s interests.

Before you take part in family dispute resolution, think about your relationship with the other party. Are you concerned about your safety or your child’s? Will the other party try to push you into agreeing to a parenting arrangement you don’t want? Or will they try to push you to give up an entitlement to property? You could end up with an agreement or a consent court order that is not appropriate and that is difficult to change.

It is best to meet with a lawyer to get legal advice and information about how the law applies to your circumstances before you start any of the family dispute resolution processes below, and before you make a final decision or agreement.

Negotiation is a discussion between the parties about what they want and why. In negotiation, they try to solve problems and to reach agreements that work for everyone. Informal negotiations might be discussions over the kitchen table, or at a coffee shop for example. If you reach an agreement this way you may choose to use the Separation Agreement pathway to put your agreement in writing. Formal negotiations involve lawyers who do the talking for the parties. Go here for information on getting legal advice and finding a lawyer.

Mediation 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 has to take part if they do not want to. Both parties must be willing to take part in mediation and must feel comfortable doing so.  Mediation may not be a good fit if there are concerns about family violence or a power imbalance between the participants. 

A mediator is a person trained to help people resolve differences. Mediators are neutral and unbiased—they do not favour one participant over the other. Their role is to stay neutral while helping the participants keep talking about the issues. They do not decide who is to blame, and they do not force agreements. The parties involved in mediation are responsible for making the decisions about each issue. The mediator does not have the power to make a court order or to force you to agree. Some mediators are lawyers, but mediators do not give legal advice or make decisions for others. 

A word of caution: mediators are not regulated in Nova Scotia. This means there are no standards for mediators and no government body you can contact to make any complaints you may have about the ethical practices of your mediator or the mediation process. When you are looking for a mediator, always ask about their training. Ask for referrals from other people you trust. Many mediators are members of professional associations that have standards of practice and routine training opportunities.

You may be able to find a 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 Supreme Court (Family Division) in your area may also be able to refer you to a mediator. Contact your local court for more information.

Because mediation may happen virtually you are not limited to hiring a trained mediator who works in Nova Scotia.

Collaborative family law uses a teamwork approach to resolve family law disputes. The aim is to avoid court by having the parties work together to get to an agreement or consent court order. Each party has their own lawyer, but everyone signs an agreement saying that long as they are working together in the process they will not go to court. Collaborative family law takes open communication and co-operation. The parties and their lawyers have four-way meetings to work out the issues. The parties share all relevant financial and other information, and share the costs of any experts that might be agreed on and hired.  

If either party decides to go to court, the collaborative process ends. Each party must then hire a new lawyer or represent themselves in court.

Lawyers who do collaborative law have special training. To find one, contact family lawyers and ask if they do collaborative law.

Conciliation, sometimes called “court-assisted dispute resolution,” is a court-based process where both parties, either in separate meetings or together, meet with a court officer who will help the parties focus on their situation and consider the appropriate options available to them in their court case. You must apply to court before being able to use conciliation.

Go here to learn more about conciliation.

This is an option for parties who want to negotiate a resolution and make their own decisions about their situation with the help and guidance of a family court judge. It is voluntary—which means the parties must all agree to take part. Neither party needs to have a lawyer. You must apply to court if you want to take part in a judge-led settlement conference. 

Go here to learn more about settlement conferences. 

If you reach an agreement, and depending on which process you followed, your agreement will be put in writing and each party will sign it. Your signed, written agreement may then be registered with the court. If a judge approves the agreement, it will become a court order. Registering an agreement allows enforcement services like the Nova Scotia Maintenance Enforcement Program to help collect child and spousal support.

Other times it is better to have the terms of the agreement set out in a court order. This always happens at the end of a conciliation meeting, or a judge-led settlement conference.

Usually the parties hire a lawyer to write an agreement or court order, but this is not required.

If a lawyer or a court officer does not write your agreement, then you should at least have a lawyer look at the agreement before you sign it. This should be a lawyer who will tell you what the agreement means for you, not for anyone else. This is called getting independent legal advice.

If you cannot reach an agreement by using one of the family dispute resolution processes, then you can try another process, or go to court. At the end of a trial, a judge will decide. The decision will become a court order and the parties involved will have to follow the court order until it is changed (varied) with a new order.

When two people live together as if they were married, even though they are not legally married. They share a home or apartment, refer to themselves in public as spouses or partners, and share bills and other finances. A common law couple may or may not have children together. 

Child support is money that one parent pays to the other to support their child financially. The amount of child support is based on the Government of Canada’s Child Support Tables. The judge needs current financial information and proof of income so that they can make sure the child support plan is right for the children. To learn more about child support, go to nsfamilylaw.ca or the Government of Canada’s family law website.

Decision-making responsibility is about who will make major decisions about the child’s wellbeing (see Best interests). These are decisions about the child’s:

• health
• education
• culture, language, religion and spirituality
• activities, and
• other important decisions about the child.

Sometimes one parent will have responsibility for all the major decisions, or all of the major decisions in one area, such as a child’s health.

Sometimes parents will make major decisions for the child together. This is called shared or joint decision-making responsibility.

Day-to-day decisions about bedtime, chores, homework, screentime, friends, birthday parties, etc. are made by the parent who has the child in their care.

Family violence includes abuse, intimidation, or coercive and controlling behaviour. Family violence affects the abused parent’s ability to parent and protect the child. The court may cut or suspend the parenting time of a parent who abuses the other parent or the children. Shared parenting time is not appropriate when there is family violence. Children are hurt by any family violence in their home and experience negative short- and long-term effects. They are hurt when they know that abuse is happening, even if they do not see it themselves. Just because a family separates does not mean that the abuse has stopped. 

It is best when an abuser acknowledges that they have done wrong and takes steps to improve. It is in everyone’s interest to work together, even when there has been abuse, to protect the child’s wellbeing. Go to legalinfo.org/family-law/family-violence and the Government of Canada’s family violence HELP toolkit for more information.

The time a child spends with a parent or person who has a parenting role. The parenting time schedule should be what is best for the child. It includes time when that parent is responsible for the care of the child, but the child is not actually with them. For example, when the child is in school or daycare. One parent may have most of the parenting time. This is called primary care. Or parents may share parenting time about equally. This is called shared parenting. Or the schedule might be something in between. Parenting time may be described in an agreement, parenting plan, or a court order. Or the arrangement can be informal and what works for the parents and their child.

Property includes things like a house or cottage or other real estate. It includes contents of the home, like furniture and appliances. Your vehicles are property. Also, savings and other accounts, investments, insurance, business assets, and debts are considered property. Property includes work pensions. Sometimes, we use the word assets when talking about property people own when they separate, and debts to describe their own debt or debts they are both required to pay.

Separation is when two people are no longer considered to be together as a couple. You do not need your spouse’s permission to separate, and you do not need to have filed any documents with the government or the court to be separated.

The date you separated is the day that one or both of you decided that the relationship is over. It does not have to be the date that one of you moved out of the family home. A couple who separates may also continue living in the same home. Even if you are still living in the same home, you are still separated if you’ve stopped acting as a couple. For example, you may sleep in separate rooms, make and eat meals separately, and no longer go out together or appear to others as a couple.

Money one spouse pays to the other after they separate or divorce. It may be paid for different reasons, and in different ways. It is often paid to help the spouse with the lower income to cover their living expenses. Common law spouses must have lived together as a couple for at least 2 years or have a child together before either spouse can claim spousal support. If a person is eligible for spousal support, it may be paid for a short time or a longer time. Spousal support is sometimes called alimony in other countries.

To learn more about spousal support go to nsfamilylaw.ca or the Government of Canada’s family law website.

A spouse may be:

• one of two people who are legally married to each other
• a registered domestic partner
• a common law spouse – sometimes also called common law partners. See Common law relationship