Adoption in Nova Scotia: A Brief Overview

Adoption in Nova Scotia is governed by the Children Family Services Act and requires both the approval of the Court and the provincial Department of Family Services.  

Types of Adoption

There are different types of adoptions, which can include, but are not limited to:

●     Private Adoptions (Stepparents adopting step children, family members adopting children, etc.);

●     International Adoptions (adopting a child who is living outside of Canada); and

●     Public Adoptions (children in the care and custody of the Department of Community Services).

In all circumstances, adoptions must first have the approval of the Department of Community Services, and depending on the type of adoption, the approval requires that a home study be completed, which can take several months.

The Adoption Procedure in Nova Scotia

Once the approval is provided by the Department of Community Services, the parents can then begin the process of filing with the Court to have an Order of Adoption. 

In private adoptions and with international adoptions, several consents must be obtained before a court will grant an adoption.  First, the parents of the child must consent to the adoption. “Parent”  under the Children Family Services Act  can include:

●     The mother of the child

●     The father of the child by marriage or relationship

●     An individual having custody of the child, not including a foster parent

●     An individual with access or support obligations to the child

●     An individual who has acknowledged the parentage of the child

In addition to the parent or guardian’s consent, if the child to be adopted is over the age of 12, their consent must be obtained. In the case of adult adoptions, if the person being adopted is married, their spouse must also consent to the adoption.

Consent and Legal Implications

In some cases, it may not be appropriate, or possible, to obtain one of the consents needed. In those cases, you can apply to the court to dispense with that person’s consent ;– if successful, you can move forward without the consent.

Adoptions have permanent and long-lasting effects on many different rights and responsibilities as they relate to the person being adopted. Once an adoption has been processed, the person who has applied for the adoption becomes the child’s legal parent. This can have effects on your estate, and a separation (if the adoptive parents separate).

Legal Guidance

It is important to consult with a lawyer if you are intending to pursue an adoption. The knowledgeable lawyers at Lenehan Musgrave Law can assist you navigate the complex requirements of completing an adoption in Nova Scotia.

The Legal Implications of Void and Voidable Marriages

When a marriage is declared void, it is as if the marriage never existed in the first place. A marriage can also be voidable, which is a type of marriage that valid until a party asks the court to declare them void, and that request is granted. This is sometimes referred to as an annulment. Annulments are very rare, and few marriages qualify for this relief.

Often people confuse the concept with short marriages. Many believe they can obtain an annulment after having been married for only a short period– sometimes as short as even a few days or weeks. But this is not the case. A short marriage is not always a void or voidable marriage. Unless your marriage is declared void, you are required to follow the regular divorce process.

Property Division in Void Marriages

A void marriage has different implications on property division than a valid marriage. As noted above, a void marriage is as if the marriage never took place. Therefore, the Matrimonial Property Act (“MPA”), would not apply, and the presumption of the equal division of property between married couples would not occur.

The only exception to this is noted under s. 2(g)(iii), which indicates the MPA will apply to a couple who has gone through a form of marriage in good faith that is void, and are living together, or have lived together, within the preceding year. To qualify for relief under the MPA by this section, the person seeking relief needs to establish that the marriage occurred in “good faith” – that is, they married the other person with the belief that they had the capacity to marry. You cannot deceive someone into marrying you knowing you do not have the capacity to marry and then seek the protections and advantages the MPA offers.

Capacity to Marry and Legal Considerations

It is also worth noting that when we say “capacity to marry,” we generally mean a person who is the required age to marry, of sound mind, not currently married, marrying of their own free will, and not blood-related to a certain degree.

Factors Considered by the Court for Void Marriages

In determining whether a marriage is void, the Court can consider (but is not limited to) the following factors:

●     Whether the parties are related to each other by blood;

●     Whether one or both parties had the capacity to marry, which includes being too intoxicated to understand the vows;

●     Whether one or both parties were under the age of majority (19) at the time of the marriage and did not have a parent’s permission to marry;

●     Whether one or both parties consented to the marriage;

●     Whether one or both parties were married to another person at the time of marriage—not divorced, or seeking to be married to more than one person.

Different factors may be considered when determining whether the marriage is voidable.

Void and voidable marriages can be complicated to navigate. We encourage anyone with questions about whether this form of relief is right for their case to contact the lawyers at Lenehan Musgrave Law  to discuss this, or complete the form below to book a consultation.

Family Violence in Canada's Divorce Act

With the amendments to the Divorce Act in 2021, we saw a legislative emphasis on the concept of family violence for legally married couples. Family violence was previously known as “domestic violence.” It has now been defined under the Divorce Act as:

Family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct and includes:

• Physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person.

• Sexual abuse.

• Threats to kill or cause bodily harm to any person.

• Harassment, including stalking.

• The failure to provide the necessaries of life.

• Psychological abuse.

• Financial abuse.

• Threats to kill or harm an animal or damage property.

• The killing or harming of an animal or the damaging of property; (violence familiale)

How Family Violence Impacts Parenting Decisions

With this definition, the Court is tasked with considering the impact of family violence in relation to the “best interests of the child” test under s. 16(3)(j) of the Divorce Act. It is this test that the Court considers when making determinations on the decision-making and parenting of a child. The Divorce Act goes even further with the concept of family violence, outlining at s. 16(4) several factors relating to it that the Court may consider, including:

• The nature, seriousness and frequency of the family violence and when it occurred.

• Whether there is a pattern of coercive and controlling behaviour in relation to a family member.

• Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence.

• The physical, emotional and psychological harm or risk of harm to the child.

• Any compromise to the safety of the child or other family member.

• Whether the family violence causes the child or other family members to fear for their own safety or for that of another person.

• Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

• Any other relevant factor.

The inclusion of these provisions in the Divorce Act outlines the seriousness that the federal government wants the Court to take regarding family violence and the impact it has on children. Our provincial legislation, the Parenting and Support Act, has also adopted a definition of family violence that applies to families that are not legally married.  The best interests of the children are now required to be considered based on the impact of family violence, regardless of the family structure.

The idea that family violence has no impact on children, and no impact on the ability to parent, is no longer a reasonable assumption.

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Accordingly, family violence can be a significant concern in the best interests test and is something the Court takes very seriously. If your matter involves family violence, please contact our office to discuss the options available to you in addressing parenting and decision-making.

Voice of the Child Report

The focus of the Supreme Court (Family Division) in matters involving children will always be, “What is in the child’s best interests?” It is generally accepted that it is not in the child’s best interests to testify in matters involving their parents. As such, it is extremely rare for children to be called as witnesses.

This presents a unique challenge to the Court, and to parents, when a child is old enough, or mature enough, to tell their preferences in parenting arrangements or on parenting issues. Under both the Divorce Act and the Parenting and Support Act, the child’s views and preferences can be a consideration in determining their best interests. So how has the Court adapted to this unique challenge?

There is a process available through litigation known as a “Voice of the Child Report.” When conducted, a third-party professional will interview the child and will advance their views and preferences in a written report to be filed with the Court. This allows the professional to be called as a witness instead of the child.

When Should a Voice of the Child Report Be Ordered?

A Voice of the Child Report is not a mandatory step to take, and is is not automatic. Parents may disagree as to whether one should be ordered for a variety of reasons – maybe the child, although older, is not as mature as their age, maybe the child has been coached or is the subject of parental alienation (link to blog on parental alienation). In cases where parents disagree as to whether a Voice of the Child Report should be ordered, the presiding justice will need to make that determination based on a variety of factors and considerations. These can include, but are not limited to:

1. The nature of the contentious issues

2. The age and stage of development of the child

3. Maturity of the child

4. Whether the views can be reliably ascertained

E.P. v. S. P., 2016 NSSC 173, para 27

A Voice of the Child Report can be helpful in litigation, but they are not always appropriate in the circumstances. Our lawyers at Lenehan Musgrave can assist you in determining whether this is something that would be of help to your case, and whether or not it would be reasonable to pursue one. Contact us today at (902) 466-2200 or submit the form below to book your family law consultation.

Understanding Parental Alienation

Parental alienation is a concept that the Court does not take lightly and is a label that is not easily achieved. It involves a finding of fact and will depend on the unique circumstances of each case. It is more than just name-calling by a parent. The Honourable Justice Chiasson, in Her Ladyship’s decision of Williams v Power, 2022 NSSC 156, at paragraph 72 adopts a definition of parental alienation which includes:

“One parent systematically, through a variety of physical, emotional, verbal, contextual, relational set of maneuvers systematically reduces the value, love, commitment, relationship, involvement of the other parent by minimizing, criticizing, devaluing that parent’s role. It can involve children having their sense of history being “re-written” by a parent’s redefinition of history, reframing things, repetitively talking about things. It can involve sometimes very subtle and sometimes not so subtle suasion, coercion, direction, misrepresentation and so on.”

Proving Parental Alienation in Custody Disputes

The person alleging alienation bears the burden to prove it has occurred, and it is a high burden to prove. It is notable that parental alienation will not always be found in every situation where children resist contact with a parent. It is also not found in every high-conflict situation. Individuals must therefore be careful in advancing this claim.

The Impact of Parental Alienation: Legal Guidance and Support

Because of its very nature, parental alienation can be severe and destructive. It can have significant, long-lasting, damaging effects. Families experiencing parental alienation may be wondering what their options are, and how to best navigate the challenges it can present. Contact our lawyers at Lenehan Musgrave LLP to assist you in preparing to move forward in addressing parental alienation issues. You can book a family law consultation by completing the form below or giving us a call at (902) 466-2200.

Separation Under One Roof: Legal Implications

Spouses can be separated as defined in the Divorce Act, or the Parenting and Support Act, even while still living under the same roof. Our family lawyers know that this is a fairly common situation, especially immediately after separation when individuals need time to figure out the logistics of their separation. However, whether this the case in your circumstances will depend on the facts of your specific situation.

Separation vs. Divorce: Determining the Date of Separation in Marriage or common law relationships

The Divorce Act requires that a couple be separated for one year before they can apply for a divorce. The Parenting and Support Act requires the parties be separated at the time of commencing an application. Separation begins when one party decides that they want to permanently end the spousal relationship.

Sometimes there is a specific conversation or incident that allows for a precise date of separation. Other times separation is a more gradual process, where it is more difficult to determine a precise date of separation. The date of separation can be very important if the spouses are dividing property, because many types of property are valued as of the date of separation.

Factors to Consider When Determining Separation Under Shared Residence

Separation under s. 8(2) of the Divorce Act requires that the parties be living “separate and apart”, however there is substantial case law deciding that spouses can be separate and apart while living under the same roof. The case law also is applicable to common law couples. Often this means that one spouse is sleeping in a separate room, and that their routines are distinct.

If there is disagreement over when the parties separated, the courts have laid out a number of factors to consider in determining if a couple has genuinely separated. These include:

●       Having meals together

●       Attending social events together

●       Having sexual relations

●       Representations to the outside world

●       Vacations together

●       Exchanging gifts

●       Continuing to attend family functions together

●       Separation of finances

This is not a definitive list and no one factor is conclusive of whether spouses living together are separated or not. However, if a court must determine when spouses living under the same roof separated, these are the types of specific facts they will use to make that determination.

The consequence is that two spouses could be living under the same roof, but meet the legal definition of separated. The date of separation impacts how property of the marriage is valued, and when the parties are able to file for divorce. As with all family law issues, the date of separation is very specific to your individual circumstances, and an experienced family lawyer at Lenehan Musgrave can help you determine your situation and options. Contact our office or submit the form below to schedule a consutlation

Family Lawyers Discuss Spousal Support – Amount and Duration

Definition of Spousal Support

As family lawyers in Nova Scotia, we often get asked about spousal support. Spousal support, or spousal maintenance, is a monthly payment that one spouse pays to another when their relationship ends. You may be familiar with this concept through the American term “alimony”. Spousal support is the Canadian term used. 

Entitlement to Spousal Support

You can refer to our previous blog post for a more depth explanation of entitlement, but there are three basic reasons why a court may award spousal support. The first is compensatory support, where spousal support is awarded to compensate a spouse for some sacrifice or burden they have taken on for the sake of the family. Often this is when one parent was a stay-at-home parent or made a major career sacrifice for the family. 

The second reason is non-compensatory spousal support, which is a needs-based award. It is awarded not to compensate a party for the roles adopted during the relationship. It can also be awarded to ensure a party does not suffer an immediate and major decrease in their standard of living upon separation. The court may award non-compensatory spousal support to give the spouse some time to become financially independent. 

The third reason is the court can also find that an entitlement to spousal support based on a prior contract or agreement between the parties.

Amount or Quantum of Spousal Support That Is Awarded

The amount that a court will award for spousal support is up to the discretion of the court, and typically less predictable than child support. With spousal support, the court can reference the Spousal Support Advisory Guidelines, which are a tool to determine the relevant ranges for spousal support. However, the court is not required to follow these guidelines.

In determining both quantum and duration, the court will consider the factors listed in s. 15.2 (4) of the Divorce Act. These include:

• length of the relationship;

• Functions performed by each party;

• Any order or agreement relating to the support of either spouse.

The Parenting and Support Act also offers guidance on this issue at s. 4.

Duration of Spousal Support

Usually, the longer the relationship between the spouses, the longer the duration for spousal support. In cases of longer relationships, the court can award spousal support for an indefinite time and reassess the situation after a period. For medium to short length relationships, a common rule of thumb is that the duration of support is usually awarded for a period between half the length of the relationship to the full length of the marriage. For example, an award for spousal support for a 12-year relationship may be for anywhere from 6 years to 12 years, depending on the surrounding factors. If the relationship was short, and there was no economic disadvantage to either spouse, the court may determine that no spousal support should be paid.

Spousal support is extremely fact specific and requires clear advocacy of your position. Our experienced family lawyers at Lenehan Musgrave are more than happy to help determine if there is an entitlement to spousal support, and if so, what amount and time period are fair. We encourage anyone who may have issues with spousal support to contact our office or submit the form below to arrange for an initial consultation to explore the options that may be available to you.

Property Division in Common Law Relationships in Nova Scotia

At Lenehan Musgrave LLP, our family lawyers in Nova Scotia often deal with property division between separated couples. When it comes to married couples and registered domestic partners, the Matrimonial Property Act dictates how property is divided. The Matrimonial Property Act does not apply to common law relationships; in fact, there is no applicable legislation that governs property division for common law couples in Nova Scotia. For more information on the difference between common law and married couples, see our Difference Between Common Law and Marriage blog.  

What is Unjust Enrichment in Common Law Relationships?

Because the Matrimonial Property Act is not applicable to common law couples, to be able to establish whether an asset or assets should be divided upon separation, common law couples must look to the common law for remedy. One such remedy is the concept of “unjust enrichment.” Unjust enrichment requires the person making the claim to prove: 

• Their former partner received a benefit; 

• They suffered a loss corresponding in some way to the benefit; and 

• There was no juristic reason for the benefit and the loss 

The spouse alleging unjust enrichment may also be successful in their claim if they can successfully demonstrate that a ‘joint family venture’ existed, as the basis for their unjust enrichment claim. 

A joint family venture can exist when both spouses contribute to the family wealth during their relationship. The Court will determine the existence of a joint family venture by examining certain aspects of the relationship, such as economic integration, the intention of the spouses, the mutual efforts of the parties, and the priority of the family.   

We recognize that property division in any form of a relationship can be complicated. Should you require assistance with dividing property after a common law separation, contact us today, or complete the form below to schedule a consultation with one of our family law lawyers to discuss your options. 

Family Lawyers Discuss Grounds for Divorce in Canada

Exploring Grounds for Divorce in Canada is essential when considering a complex and emotional process. Lenehan Musgrave's family lawyers are here to assist you through this journey, offering guidance on the various grounds for divorce, and helping you decide if it's the right time to initiate the process.

Establishing a Marriage Breakdown

It is important to understand that all grounds prove one issue, marriage breakdown.  There is no finding of fault in granting a divorce. 

In Canada, the Court can grant a divorce if they are satisfied that there has been a breakdown of the marriage.  Under section 8(2) of the Divorce Act, a breakdown of a marriage is established only if: 

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding; or 

(b) one spouse has committed adultery or treated the other spouse with physical or mental cruelty so that the other spouse has left the marriage.  

Ground 1: Separation

Separation is the most commonly cited reason for divorce; it requires the spouses to establish that they have been living separately and apart for one year before finalizing the divorce.  Spouses do not need to be living physically in different homes to be considered living “separate and apart;” however, they must demonstrate to the Court that even though they continue to live under the same roof, they remain separated. 

There are several factors the Court may take into consideration to determine whether spouses residing together have separated.  This can include whether the spouses sleep in the same bed, file their taxes together, attend social events together, have communicated to others their separated status, or participate in family events together. 

The ground of separation is the most commonly pled in divorce proceedings. 

Ground 2: Adultery

Adultery includes voluntary sexual conduct between a married person and someone other than their spouse.  The spouse who has committed adultery cannot file for a divorce based on their actions – only the spouse can. This ground can be complex and is very fact-specific. 

Ground 3: Physical or Mental Cruelty

For cruelty to be used as a ground for divorce, the cruelty must be “physical or mental cruelty of such kind as to render intolerable the continued cohabitation of the spouses.” This means that the spouse who is relying on this must provide sufficient evidence to establish for the Court that the level of cruelty is so serious that they are unable to continue living with their spouse and often requires evidence from a professional.    

If you are seeking to move forward with a divorce, we encourage you to contact one of our family law lawyers to discuss which ground is most appropriate to your circumstances. 

Lawyers Discuss Denial of Parenting Time

As family lawyers in Nova Scotia, we are often approached about denial of visitation rights and parental gatekeeping. Upon separation, parents often will work together to create a parenting plan that suits the needs of their children. When parents cannot agree, they look to the Court for assistance and a judge can court order a parenting plan each party is required to follow. But what happens when one parent begins withholding parenting time? 

What to Do if Parenting Time is Being Denied

If this occurs, and the parties do not have a court order, they may choose to apply to the Supreme Court (Family Division) for relief. One such option is through a Notice of Motion for Interim Relief. More information about this can be found in our Interim Motions blog. 

Violation of Court-ordered Parenting Time

But what do you do if you have a court order that already outlines parenting arrangements? If your court order was issued pursuant to the Parenting and Support Act, there are a number of different options available to you. This can include a “Denial of Time” application pursuant to paragraph 40(1) of the Parenting and Support Act. This asks the Court to find that a parent has been wrongfully denied parenting time, and offers a number of remedies to resolve the denial.  This may include, but is not limited to, make up parenting time, attendance at counselling, payment of costs, or a fine. 

Another option available to parties is the “Power to Require an Appearance”, pursuant to paragraph 41 of the Parenting and Support Act. Under this provision, any person can be compelled to attend Court to explain why they are not complying with a court order. The Court then has the power to make any additional order deemed necessary to ensure compliance with the original order. 

Contempt of Court Regarding Visitation

Unfortunately, these provisions are only available to those parties who have an Order issued pursuant to the Parenting and Support Act. If you are a parent who has an Order pursuant to the Divorce Act, you may choose to make an application for contempt. Those who have Orders pursuant to the Parenting and Support Act may also make a contempt application. Contempt applications are quasi-criminal in nature, and carry with them very serious consequences. 

We encourage anyone who may have issues exercising their parenting time with the children to contact our office or submit the form below to arrange for an initial consultation to explore the options that may be available to you. Our family law attorneys specialise in child custody disputes and parenting time enforcement - we’re here to help you. 

Family Lawyers Explain Interim Motions

As family lawyers in Nova Scotia, As family lawyers in Nova Scotia, we are intimately familiar with the nuances of obtaining interim orders Legal proceedings about family matters can extend over a lengthy period, sometimes months or years, before a final Order is issued by the Court. Such durations pose challenges for individuals requiring more immediate relief through an Order, to address critical issues such as decision-making, parenting, child support, interim spousal support, and property division.

How to Apply for an Interim Order

To secure an interim order from the Court, parties can file an interim Order that has received consent from both parties or their legal representatives, along with all necessary supporting documents. If the Court finds the materials satisfactory, the interim order will likely be approved.

Urgent or Emergency Interim Orders

Sometimes, interim relief may be urgently required. The Notice of Motion for Interim Relief might be designated as urgent or emergency; however, the final determination of urgency lies with the Court. This designation can expedite the hearing process before the Court, crucial in situations requiring immediate attention.

The Role of Supporting Documents in Interim Motions

When the parties are at an impasse regarding the terms of an Interim Order, the seeking party must file a Notice of Motion for Interim Relief with the Court. This includes citing the applicable legislation that permits the Court to issue such an Order. An Affidavit must accompany the motion, detailing the interim relief sought and the reasons for it, a pivotal step in the interim application process.

The Impact of Existing Orders on New Interim Motions

Existing orders can significantly impact the ability to move forward with new interim motions. However, exceptions exist, such as when a current interim order for parenting or decision-making may no longer be in the best interest of the children, necessitating immediate modification for their safety.

 Legal Strategy for Interim Relief: A Lawyer's Perspective

At Lenehan Musgrave LLP, our expertise extends to strategizing for interim relief in family law, including interim spousal support and interim custody. We guide our clients through the complexities of making a Motion to the Court, ensuring the best presentation of their case.

The Court's Decision-Making Process for Interim Orders

Following the submission of the Motion to the Court, a 30-minute organizational conference with a Justice is arranged to discuss the Motion's direction—whether through consent, a Judicial Settlement Conference, or an interim Hearing. 

Preparing for an Organizational Conference

Preparation for the organizational conference involves a detailed review of the Motion and supporting documents, ensuring a comprehensive presentation of the need for interim relief.  It is important to carefully analyze the Motion and all supporting documents to fully understand the legal arguments and evidence presented. This may involve consulting with legal counsel or other experts to ensure a strong and persuasive argument for interim relief.

Preparation should also involve gathering any additional evidence or information that may support the request for interim relief. This could include witness statements, financial documents, or any other relevant materials that help to strengthen the case for relief.

Additionally, it is important to anticipate and prepare for any potential arguments or challenges that may be raised by the opposing party. This may involve conducting research, consulting with experts, or preparing counterarguments to address any potential obstacles.

Overall, thorough preparation is essential to effectively presenting the case for interim relief at the organizational conference. By carefully reviewing the Motion and supporting documents, gathering additional evidence, and anticipating potential challenges, you can increase the likelihood of successfully obtaining the relief sought. 

The Significance of Interim Orders for Family Stability

Interim orders are pivotal in providing stability and structure for families, particularly children, during the interim period. These orders offer a semblance of normalcy and security as the parties work towards resolving their long-term arrangements, highlighting the critical role of interim orders in maintaining family stability. 

Interim orders for decision-making and parenting help ensure that children have a consistent schedule and routine while their parents navigate the legal process of determining a permanent custody arrangement. This can help alleviate some of the stress and uncertainty that children may experience during a time of family transition. By establishing a temporary custody arrangement, interim orders provide clear guidelines for both parents to follow, reducing potential conflict and confusion.

Additionally, interim orders can address important issues such as parenting schedules, communication between parents, and financial support for the children. This allows families to maintain some level of normalcy and routine, even as they navigate the challenges of separation or divorce. By providing structure and stability during a time of uncertainty, interim custody orders can help minimize the impact of the family breakdown on children's well-being.

Legal Assistance for Interim Motions: How Lawyers Can Help

Our team at Lenehan Musgrave LLP is ready to assist you with your interim motions, offering expert legal guidance to navigate the intricacies of interim orders in family law. Contact us today to schedule a consultation and learn how we can support your needs during interim occupancy and beyond.

A Family Lawyer Explains Imputed Income

The Nova Scotia Supreme Court (Family Division) has been clear that child support is the right of the child, and not the parent. As such, parents have an obligation to support their children commensurate with their earning potential and capacity. Upon separation, this gives rise to a child support obligation. More information on the concept of child support can be found in our previous child support blog. 

However, clients often wonder what happens if a parent quits their job to avoid paying child support. Or what happens when a parent chooses to go back to school? Or quit their high-earning job to start their own business? How does this affect child support? Our family law lawyers explain. 

Advancing a Claim to Impute an Income

Because child support is based on the payor’s income, changes to employment and income may create concern that a payor is not supporting their children to the fullest extent they would ordinarily have been able to. In some of these circumstances, the recipient parent may wish to advance a claim to “impute” an income to the payor parent. In these kinds of applications, a parent can ask the Court to attribute to the other parent an income they are not actually earning. The payor parent would then pay child support based on the imputed income – not their actual income. 

Circumstances in Which Income Can Be Imputed

This is only one example of an “imputed income.” Under s. 19(1) of the Federal Child Support Guidelines, there are many different circumstances in which incomes can be imputed. Section 19(1) states: 

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: 

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;  

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; 

(d) it appears that income has been diverted, which would affect the level of child support to be determined under these Guidelines; 

(e) the spouse’s property is not reasonably utilized to generate income; 

(f) the spouse has failed to provide income information when under a legal obligation to do so; 

(g) the spouse unreasonably deducts expenses from income; 

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and 

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. 

Claims for imputed income are very fact specific, and require evidence to advance. The family law lawyers at Lenehan Musgrave LLP can help you navigate whether such a claim would be appropriate in your circumstances, and how best to present this to the Court.  Learn more about booking a family law consultation or complete the form below to book yours today…

Family Lawyers in Nova Scotia Discuss Occupation Rent

As a team of family lawyers in Nova Scotia, we often discuss with our clients the different property claims available to them through the Courts. One such claim is that of occupation rent. Occupation rent is a claim that is found in the common law – that is – it is not contained in law. It is a concept which seeks to address the inequality which can occur when one spouse/owner vacates the parties’ home before the home is sold, or the equity in the home is divided. The claim is not limited to spouses, it can be claimed by common law partners and co-owners.  

Because both parties/owners are equally entitled to be in the home, neither should be excluded from the benefits of living in the home. Parties often decide to leave the home and need to incur costs to live elsewhere, while waiting for the ownership of the home to be resolved. 

Why Occupation Rent Can Be A Complicated Legal Claim To Make

Occupation rent is a claim against the party living in the home, seeking that they pay rent to the party who has left. Typically, this is awarded at the time of trial, as the party living in the home does not automatically pay rent to the party who has left in the interim. 

Occupation rent can be a complicated claim to make, and it is not a claim every litigant will be successful in establishing it.  The claim for occupation rent is very fact specific. Some circumstances where the Court has awarded occupation rent include: 

1. Where there is no mortgage on the home, and the occupying spouse is not required to make monthly mortgage payments; 

2. Where the occupying spouse has frustrated the sale of the home; 

3. Where the occupying spouse does not have care of the children. 

The Court considers all of the relevant circumstances of the parties before determining whether to grant an occupation rent claim.   

Given the very fact specific nature of the claim, and that these claims involve an understanding of all the relevant legal factors, we encourage anyone who feels they may have a claim in this regard to book a consultation with one of our family law lawyers to discuss the options that may be available to you. You can also submit the form below to request a consultation. 

Family Lawyers Explain How You Can Deduct Legal Fees This Tax Season

When tax season is near, and if you are seeking to deduct legal fees as part of your tax return, it is essential to be aware of the eligible expenses. It's important to know which legal expenses can be considered tax deductions. If you have incurred legal fees to collect, receive, or secure child support or spousal support, you have the option to deduct those fees on line 221 of your income tax return. However, it's crucial to remember that only the parent or spouse receiving the support can claim their legal fees as a deduction.

Learn More About Tax-Deductible Legal Fees

The tax-deductible legal fees may relate to collecting late support payments, establishing an amount for support payments, or efforts to vary support to a higher amount. Unfortunately, legal fees paid to get a separation or divorce, or to establish custody of or visitation arrangements for a child cannot be claimed at line 221.

Every January we review our clients’ accounts and determine the percentage of time and effort spent on their file relating to their child and/or spousal support claims. We then send our clients who qualify for the deduction, letters outlining our opinion of the percentage of their legal fees they are entitled to deduct. The client can provide their letter to CRA as a receipt.

We offer these letters free of charge to our clients because we believe that individuals and families should enjoy the maximum income and benefits available to them by law.

To gain further insights into tax and family law, we recommend consulting the "Tax Matters Toolkit for Clients," a publication by the Canadian Bar Association. It offers valuable information on these subjects and is accessible here. If you require assistance with family law services in Nova Scotia, feel free to reach out to us. Our experienced family lawyers at Lenehan Musgrave are here to help! Remember, you may be eligible to deduct legal fees related to these matters.

Family Lawyers Discuss New Amendments To The Divorce Act And Parenting And Support Act

Family violence is a concept which is known by many names: abuse, intimate partner violence, etc. It is also one that, unfortunately, does appear in family law litigation, and can have an impact on claims for parenting time. With the recent amendments to the Divorce Act and the Parenting and Support Act, we now have more expansive definitions to identify situations, or circumstances, which may be found to be “family violence.”

Under The Divorce Act, Family Violence Is Now Defined At S. 2(1) As:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

• (a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

• (b) sexual abuse;

• (c) threats to kill or cause bodily harm to any person;

• (d) harassment, including stalking;

• (e) the failure to provide the necessaries of life;

• (f) psychological abuse;

• (g) financial abuse;

• (h) threats to kill or harm an animal or damage property; and

• (i) the killing or harming of an animal or the damaging of property; (violence familiale)

Under The Parenting And Support Act, Family Violence Is Defined At S. 2(Da) As:

“family violence, abuse or intimidation” means deliberate and purposeful violence, abuse or intimidation perpetrated by a person against another member of that person’s family in a single act or a series of acts forming a pattern of abuse, and includes 

• (i) causing or attempting to cause physical or sexual abuse, including forced confinement or deprivation of the necessities of life, or

• (ii) causing or attempting to cause psychological or emotional abuse that constitutes a pattern of coercive or controlling behaviour including, but not limited to,

(A) engaging in intimidation, harassment or threats, including threats to harm a family member, other persons, pets or property,

(B) placing unreasonable restrictions on, or preventing the exercise of, a family member’s financial or personal autonomy,

(C) stalking, or

(D) intentionally damaging property, but does not include acts of self-protection or protection of another person;

Both the Divorce Act, and the Parenting and Support Act ask the Court to consider whether there has been any family violence, and if there has been, what impact that may have had. This is one of the factors to consider, as noted, in determining what is in the children’s best interests. As a child’s best interests are determinative of what parenting arrangements should be ordered by the Court, the issue of family violence can have a significant impact on this determination. Such an analysis can be highly contextual, and fact driven. An experienced family law lawyer can help you navigate how to best approach these kinds of circumstances.

Most recently, in February of 2022, the Ontario Superior Court of Justice, in the decision of Ahluwalia v Ahluwalia, 2022 ONSC 1303, made a groundbreaking finding of the “tort of domestic violence” in the context of a family law proceeding. This allowed the mother to receive a monetary remedy from the father for the abuse she had endured over the years. While this concept does not yet have any reported decisions in Nova Scotia, it is an interesting new development that may warrant consideration in certain circumstances.

Our team of family lawyers in Nova Scotia are here to discuss your family law litigation case. Contact us for a consultation today.

Hybrid Parenting Arrangements

As family lawyers, we know there are often many questions regarding hybrid parenting arrangements and child support. When people think about parenting arrangements post-separation, often times they envision a primary care arrangement (wherein the children reside primarily with one parent), a shared parenting arrangement (wherein the children reside with both parents at least 40% of the time), or a split parenting arrangement (wherein one child lives with one parent and a second child lives with the other parent). All of these parenting arrangements can employ any number of different schedules to arrive at their designation.

But did you know, for families with more than one child, it is possible to employ both a primary care arrangement and a shared parenting arrangement, within the same family? These are known as “hybrid” parenting arrangements. Under these circumstances, separated parents must have at least two children, with at least one child operating under a primary care arrangement and at least one child operating under shared custody or a shared parenting arrangement. In essence, different children in the same family would have different parenting arrangements. To determine whether a hybrid parenting arrangement is in play, a very fact specific analysis will be required.

Hybrid Parenting Arrangements and Child Support

Hybrid parenting arrangements present a unique challenge for the court in determining child support. Although the Federal Child Support Guidelines provide guidance on how to calculate child support for a primary care parenting arrangement, a shared parenting arrangement, and a split parenting arrangement, the Guidelines do not address how to calculate child support in a hybrid parenting arrangement.

Child support in a hybrid parenting arrangement has been canvassed throughout the provinces, with each taking their own approach to the calculation. In general, there are two primary ways in which child support can be calculated in a hybrid parenting arrangement. The first approach is a two-staged approach, which would have the court calculate child support for a primary care parenting arrangement for the first child, and then calculate child support for the second child using the Contino analysis. The second approach utilizes the economies of scale approach. This approach would have the court off-set the child support payable by each parent for the number of children and their respective parenting arrangements, and then engage in a Contino analysis. 

For example, if the parties have two children, and Parent A has primary care of Child 1, and Child 2 shares their time equally between Parent A and Parent B, child support would be calculated as follows:

• Parent A would pay child support for one child

• Parent B would pay child support for two children

• The child support payable by Parent A is offset against the child support payable by Parent B

Of the two-staged approach and the economies of scale approach, Courts in Nova Scotia have typically approved the economies of scale approach. Calculating child support in hybrid parenting arrangements can be complicated. We would encourage anyone looking to determine the child support payable in arrangements such as these to please contact one of our family law lawyers or complete the form below to book a consultation.