What is Undue Hardship?

What is Undue hardship? A term used in family law to describe a situation where a payor parent cannot pay the full table amount of child support. Claims for Undue Hardship are made under s. 10 of the Federal Child Support Guidelines. In making an Undue Hardship claim, a payor parent must establish to the Court that there is a reason why they cannot pay the full table amount of support. These claims are very complex and require certain evidence to be successful.

Factors Considered in Undue Hardship Claims

Income

The Court will consider the payor's parent's income when determining whether an Undue Hardship claim is valid.

Expenses

The Court will also consider certain expenses of the payor parent' when determining whether an Undue Hardship claim is valid. This may include exercising parenting time with their child/children.

Other Financial Obligations

The Court will consider any other financial obligations, such as debts, that the payor parent may have when determining whether an Undue Hardship claim is valid.

How to Make an Undue Hardship Claim

Evidence Required

Making an Undue Hardship claim requires certain evidence to be successful. This includes financial statements, tax returns, and other documentation that supports the payor's parent's claim.

The burden of Proof

The burden of proof remains with the payor parent to establish why they should not be required to pay the full table amount of child support. The Court does not look at these claims lightly, and the payor parent must provide compelling evidence to support their claim.

Legal Representation

Given the complexity of Undue Hardship claims, it is highly recommended that payor parents seek legal representation when making such a claim. An experienced family law lawyer can help navigate the complexities of the law and ensure that the payor's parent's rights are protected.

Deviation From Federal Child Support Guidelines

Unique Circumstances

Claims for Undue Hardship allow the Court to deviate from the Federal Child Support Guidelines and the Federal Child Support Tables. This can give rise to some unique circumstances when the child they pay support for lives in another province or when a payor parent has another child they are supporting.

Court Discretion

The Court has discretion when making decisions about Undue Hardship claims. They will consider a variety of factors when determining whether to grant a claim, including the payor's parent's income, expenses, and other financial obligations.

Legal Representation

Given the complexity of Undue Hardship claims, it is highly recommended that payor parents seek legal representation when making such a claim. An experienced family law lawyer can help navigate the complexities of the law and ensure that the payor's parent's rights are protected.

What Circumstances Can Lead To an Undue Hardship Claim?

But what happens when a payor parent has another child they are supporting? Or when the child they pay support for lives in another province? This can give rise to some unique circumstances when the Court can deviate from the Federal Child Support Guidelines and the Federal Child Support Tables. This concept is referred to as “Undue Hardship”.

Claims for Undue Hardship are made under s. 10 of the Federal Child Support Guidelines. In making such a claim, a payor parent must establish to the Court there is a reason why they cannot pay the full table amount of support. These claims are very complex and require certain evidence to be successful. The Court does not look at these claims lightly, and the burden remains with the payor parent to establish why they should not be required to pay the full table amount of child support. It is not as simple as fitting in one of the categories outlined in s. 10 of the Federal Child Support Guidelines, you must also establish that these circumstances are causing you undue hardship.

If you are interested in pursuing a claim for Undue Hardship, a consultation with one of our family lawyers can assist you in navigating this process. Contact us or fill out the form below to book a consultation.

Cohabitation Agreements in Nova Scotia - What You Need To Know

Many people contact our legal practice to ask: “What is a cohabitation agreement?”. Cohabitation Agreements in Nova Scotia, or anywhere in Canada, are agreements entered into between a couple who wish to live together and determine issues with regard to property and obligations. Couples can enter into a Cohabitation Agreement in advance of a marriage if they plan to live together and subsequently marry. If the parties plan to marry or enter into an agreement after marriage, the agreement is then referred to as a Marriage Contract and must specifically mention that it is a contract to be taken into consideration under the Matrimonial Property Act – which applies to all married couples. 

Do I Need a Cohabitation Agreement? 

The purpose of these agreements is to set out agreed terms regarding assets. Generally, these agreements deal with ownership in homes, pensions, investments and potential inheritances. When parties are entering into a relationship with assets, these agreements can set out how these assets will be treated; how future assets will be shared; and, what the obligations of the parties will be to each other.  

Cohabitation Agreements cannot set out obligations for future children and the support of these children. These are issues that cannot be agreed to in advance of the obligation. It is not uncommon for these agreements to set out, in advance, obligations of the parties to one another with regard to potential claims for spousal support, especially if the parties do not want to be obligated to support each other in the event of a breakdown in the relationship. 

Cohabitation Agreements can also resolve ownership of homes and how that interest will be treated when one party moves into a home held by the other. The agreements can state who is responsible for daily expenses, renovations, property taxes, mortgage payments and how any increase in value in a home will be shared in the event that the relationship does not last. 

Agreements are always recommended for individuals who have assets and pre-existing obligations, such as children or spouses from prior relationships, so that there is clarity between the parties as to what obligation each party has agreed to assume and the consequences of it. Contact our team of family lawyers in Nova Scotia for more information about cohabitation agreements. If you’ve got questions about family law, we encourage you to contact us ior fill out the form below to book a consultation.

Dartmouth Family Lawyers Discuss Financial Disclosure Rules And More

Financial disclosure is unfortunately often a prominent issue in family law. The Honourable Justice Brown, writing for the majority, in Michel v Graydon, 2020 SCC 24, quoted Cunha v Cunha, 99 BCLR (2d) 93 (SC) at paragraph 33: “Failure to disclose material information is the cancer of family law litigation.” This sentiment has been quoted many times over by the Nova Scotia Courts, other provincial courts, and even the Supreme Court of Canada. Contained within this sentiment is the frustration the Court systems face with the lack of disclosure by litigants. 

What Are You Required to Disclose in a Family Law Case?

Disclosure refers to the relevant documents that are required for litigation. In the family law context, when we consider disclosure, we often think of financial disclosure. Financial disclosure is required in any claims involving child support, spousal support, and property division (whether it is matrimonial property division, or common law property division). 

For claims of child support and spousal support, income information is required. This involves the filing of a Statement of Income. A Statement of Income most often includes your three (3) most recent Income Tax Returns and Notices of Assessment. It also must include confirmation of your current income. If you are self-employed, a member of a partnership, control a corporation, or receive income from a trust, you may have additional disclosure requirements. 

For claims of property division, a Statement of Property is often required. A Statement of Property requires you to list all assets and debts you hold. The nature of the asset, and the nature of the claim, will inform by which date you will be required to value the asset or debt. 

Failing to Provide Full and Proper Financial Disclosure Can Cost You

Full and proper disclosure is required to properly assess claims of child support, spousal support and property division. Failure to disclose this relevant information can have serious consequences, including costs being awarded against you, delayed court scheduling, and in some circumstances, can even result in your case being dismissed. 

The family lawyers at Lenehan Musgrave LLP can help you understand your disclosure obligations, and can help you prepare the necessary documents to meet them. Please contact us for a consultation today or submit the form below to meet with our team of experienced Dartmouth lawyers. 

Family Lawyers Discuss Changing Custody Arrangements for Summer Parenting Time

As family lawyers in Nova Scotia, we understand how parenting arrangements may be subject to change in the summer months. During the school year, many families follow a regular parenting arrangement that has been formulated with their children’s schooling in mind. During the week, children may require routine and consistency, while on the weekends they have more freedom and down time. When the warmer weather hits in March and April, however, many parents wonder how the freedom of summer will impact their parenting arrangements. 

Week on Week Off, Block Parenting and Other Shared Parenting Schedules

During the summer months, when children are not in school, this is often an opportunity for parents to spend more quality time with their children. In considering what arrangement is most appropriate for the summer months, the Courts will always be concerned with “what is in the children’s best interests.” 

Each family’s circumstances will be different. For some families, the summer brings an opportunity for parents to share care of their children equally where this was previously unavailable due to work commitments, or distance from the children’s schooling. This can be a transition towards a “week on, week off” arrangement, or any other kind of shared parenting. 

For other families, the regular parenting schedule will continue throughout the summer. In these circumstances, there can be opportunities for parents to take special extended “block parenting” time with their children for the purposes of vacation. Other families prefer to keep the schedule consistent throughout the summer without these “blocks” of parenting time. 

What if the other parent won’t agree to changing a custody arrangement?

As noted above, each family’s situation is different, and what is most appropriate will always depend on what is in the children’s best interests. It is important to remember that if both parents cannot reach agreement on how to share care of the children during the summer months, an Application or Motion to court are options for a determination on summer parenting time. These Applications/Motions should be made as soon as reasonably possible, to ensure you are able to secure court time before the summer months. 

The lawyers at Lenehan Musgrave LLP can help you navigate what is most appropriate for your situation. We encourage you to contact us if you’ve got questions about family law or fill out the form below to book a consultation.  

Child Support in Shared Parenting Arrangements

A shared parenting arrangement is one wherein the child spends at least 40% of their time with each parent. A common family law misconception about shared custody arrangements is that no child support is payable by one parent to the other. In actuality, this is incorrect. Child support may still be payable by one parent to the other, and it can, at times, be a very involved process to determine.

How Is Child Support Calculated In Shared Custody Arrangements?

The Federal Child Support Guidelines, at paragraph 9, outline how child support is calculated in shared parenting arrangements. This is a three-step analysis, which requires the Court to consider: 

(a) the amounts set out in the applicable tables for each of the spouses; 

(b) the increased costs of shared parenting time arrangements; and 

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

The Supreme Court of Canada, in the case of Contino v Leonelli-Contino, 2005 SCC 63, discusses this analysis in depth, and provides a framework in which the Court is able to undertake it. Accordingly, the calculation of child support in shared parenting arrangements has become known as a “Contino Analysis.” 

A “Contino analysis” requires that the Court look deeper into each parties’ household, the family members living within it, and the expenses undertaken by both parties with respect to the children for whom child support is sought. Financial disclosure is often required of other household members earning an income and a “child expense budget” is completed by both parents. 

Considering The Increased Costs of Shared Parenting Arrangements

Following a Contino analysis, first, the child support payable by each parent is calculated. Second, the Court considers the increased costs of shared parenting. For example, will one parent’s monthly food bill be higher, if the child is living with them half of the time? Will the monthly gas bill increase? Third, the Court will look at the conditions, means, needs, and other circumstances of each spouse for who child support is sought. It is under this part of the analysis where household incomes become relevant, and the Court is tasked at considering the household standard of living. 

Child support in shared parenting arrangements can be very tricky to calculate. It is a complex analysis, and one that is very fact specific with various disclosure obligations. The family law team at Lenehan Musgrave can help navigate these claims and put your best case forward. Contact us for more information today, or submit the form below. 

What are Section 7 Child Support Expenses?

In February 2021, we posted the blog, “What is child support?” In this blog, we canvassed what child support is, how it is calculated, and what is included in child support. As noted in that blog, there are times when a parent may be required to contribute towards expenses above and beyond the regular “table amount” of child support. These are called “section 7” expenses and they are outlined under section 7 of the Federal Child Support Guidelines. 

Under section 7 of the Federal Child Support Guidelines, there are several categories of expenses that a parent may be required to contribute towards. One of the most commonly ordered by the Court is contribution towards the cost of childcare required because of employment, illness, disability, or education of the spouse who has the majority of parenting time. However, there are other categories of expenses a parent may claim, including medical and dental insurance premiums, health related expenses, and extracurricular activities. 

Extraordinary Section 7 Expenses

Some of the categories of section 7 expenses require a parent to prove that the expense meets the threshold of “extraordinary”. These expenses include extraordinary expenses for primary or secondary school (section 7(1)(d)) and extraordinary expenses for extracurricular activities (section 7(1)(f)). This can be a high threshold to meet and is very fact specific. 

In all cases involving section 7 expenses, a parent will be required to establish first that the expense fits within one of the enumerated categories. Then, it must be established whether the expense is necessary in relation to the child’s best interests, and the reasonableness of the expense. 

Section 7 expenses can be difficult to navigate and are not always guaranteed to be ordered by the Court. The knowledgeable family law lawyers at Lenehan Musgrave can help you navigate these claims, to assist you in determining what is and is not section 7 child support expenses, and how to best put forward your Section 7 claim. Contact us for a consultation today or submit the form below.  

Family Lawyers Discuss the Voice of the Child Report

In the midst of custody disputes, parents often wonder if and when their child’s wishes will be considered in the Court’s determination of parenting issues.  Depending on the circumstances, our team of family lawyers may advise clients to have a Voice of the Child Report completed by a mental health professional who is trained to complete these assessments.  These assessments are typically ordered by the Court, when one or both parties request the completion of the assessment.  In the event both parties do not consent to the assessment being completed, a Motion can be heard before the presiding Justice to have it ordered.  In determining whether or not to order the assessment, the Justice will consider the child’s best interest and if the report is necessary to provide further information to the Court regarding the child’s circumstances. 

While there is no precise age when a child can participate in a Voice of the Child assessment, the Court is more likely to order an assessment when the child is twelve or older.  In addition to the child’s age, the Court will consider the child’s maturity level, mental health, and ability to understand what is being asked of them.  The Court will also consider the emotional toll the assessment may have on the child, as they may feel as though they are being placed in the middle of the parental conflict.  The child can also refuse to participate in the assessment. 

Determining the best interest of the child in family law disputes

In the event a Voice of the Child Report is ordered by the Court, a list of possible assessors is sent to the parties.  The parties have the opportunity to select their top three choices of assessors.  If the selections match up, the parties will usually get the chosen assessor, so long as they are available.  If the selections do not match up, or the parties fail to provide a response to the selection survey, the Court will choose an assessor for the parties. 

Mental health professionals are outsourced to complete these assessments and require payment for their services.  The cost of the assessment can vary and is based on a sliding scale, dependent on the parties’ respective incomes.  The Court calculates the contribution each party must make toward the cost of the assessment based on the financial disclosure filed with the Court. 

While Voice of the Child Reports can provide the Court with invaluable information directly from the child, this is only one factor considered in the ultimate “best interest” analysis.  The Court will typically take the child’s wishes into account; however, in the event their wishes conflict with their overall best interest, the Court will rule in favour of the child’s best interest. For more information about how we can help you with your family law case, contact us today or complete the form below and we’ll be in touch. 

Family lawyers discuss: relocation with a child

An area of family law that has garnered a lot of attention in recent years has been the issue of relocation. When one parent wishes to move with a child, should the Court allow this? In Nova Scotia, prior to the introduction of the Parenting and Support Act in 2017 (previously known as the Maintenance and Custody Act) and the amendments to the Divorce Act in March of 2021, the Courts only had case law to rely on. That is – Courts relied on previously reported decisions. There was little legislative direction, which created significant uncertainty in the area.

What the Parenting and Support Act and the Divorce Act says

With the introduction of the Parenting and Support Act and the amendments to the Divorce Act, there is new guidance on this issue. Of particular note, are the notice provisions that now exist when one parent seeks to relocate with a child. Under both pieces of legislation, 60 days’ notice is now required from the moving parent. Failure to provide such notice can have consequences, and so it is important to be mindful of this when considering a relocation. 

When considering any parenting arrangements, the paramount consideration has always been what is in the best interests of the child. The issue of relocation offers unique considerations when contemplating the best interest test. The Parenting and Support Act and the Divorce Act now offer additional factors to consider that have been legislatively defined. Under the Parenting and Support Act, these can be found at s. 18H(4) and under the Divorce Act, these can be found at s. 16.92(1). Perhaps one of the most notable changes is that the Courts are now permitted to consider the reason for the relocation, whereas previously the Courts were directed not to do so. 

Let family lawyers help you navigate your relocation with a child application

Relocation can be a very complex Court application to make. There are specific procedural steps, and evidence that must be provided to the Court. For example, your parenting arrangement will determine which parent has the burden to prove to the court that the relocation should, or should not, be allowed. These can be difficult waters to navigate. The experienced family lawyers here at Lenehan Musgrave can help you navigate your way through. Contact our family lawyers today or book your initial consultation.

Family lawyers explain: Who gets the house in divorce?

As family lawyers, we know that one of the biggest assets you will accumulate throughout your life is your home. For couples, one person may come into the relationship with a home that the other moves in to. In other circumstances, a couple may choose to buy a home together. A separation can have a big impact on home ownership, and it is important to be aware of what these implications may be upon separation.

Splitting the matrimonial home

If a couple is married, a home is presumptively considered matrimonial property under the Matrimonial Property Act. As such, it is subject to division upon separation.

When a common-law couple purchases a home together, and both parties are named on title to the home, this too will require division upon separation.

When only one person is named on title to the home in a common-law relationship, a division of the home becomes trickier. There is no presumption of division and an individual must rely on the principles of “unjust enrichment” to obtain a share of the home.

How to split assets in a divorce

Regardless of the situation you find yourself in, if you, or your partner, are making a claim to a home that was shared during the relationship, there are several important factors to consider. The most important consideration will be whether you and your former partner intend to sell the home, or if one will “buy out” the other.

If you have decided that one person will buy out the other, do you agree on the valuation of the home? If not, it is likely that an appraisal will be required to determine the value. An appraisal will be completed by a trained professional, and oftentimes results in a report being provided to you explaining how the valuation was calculated.

After the valuation is determined, we deduct “deemed” disposition costs of the property. These costs include the costs that would be associated with the sale of the house, if the house was listed for sale. It also includes the legal fees that would be paid upon the sale of the house.

Finally, the balance of the mortgage is further deducted to determine the equity remaining in the home. This is generally the amount that can be divided between the parties. As indicated above, depending on your circumstances, this does not always result in a 50/50 division.

In a real estate market as hot as the Halifax Regional Municipality is currently experiencing, some separating couples may choose to sell their property to maximize their investment. To do so, the parties must work cooperatively to select a real estate agent, and to come to a consensus on all decisions that must be made regarding the sale of the home (sale price, accepting offers, etc.).

Our experienced lawyers here at Lenehan Musgrave can help you navigate what to do with your home post-separation. Whether you are married or common-law, it will be important for you to obtain professional advice as to how to get the best return on one of the biggest assets you will own. Contact our family lawyers today or book your initial consultation.

Family lawyers in Nova Scotia discuss the Divorce Act changes

In Canada, the legislation governing a divorce is the Divorce Act, RSC 1985, c. 3 (2nd Supp). This legislation has remained in place, without any significant amendments, since 1985. However, our team of family lawyers in Nova Scotia are excited to report that new amendments have now been made to this piece of legislation, which have taken effect as of March 1, 2021. These will have a significant impact on how the Courts, and counsel, handle your divorce moving forward.

New changes made to the Canadian Divorce Act

One of the changes made to the Divorce Act is actually the language contained within it. The changes move away from the language of custody, and instead, replaces it with more plain language terminology like “parenting time” and “decision-making responsibility.” Orders under the Divorce Act moving forward will now use these terms.

The amendments to the Divorce Act have also included a definition of family violence, and a requirement that the Court consider the impact of family violence in determining the best interests of the child. This is very important as it formally recognizes the impact of family violence. Previously, the Divorce Act was silent on this issue.

New focus on the best interests of the children analysis

Perhaps one of the most noteworthy amendments to the Divorce Act is the new focus on the best interests of the children analysis. Previously, the Divorce Act simply stated that in making an order for custody or parenting, the Court was to consider what was in the best interests of the children. Little guidance was given on how to make this analysis, leaving each province to develop their own case law as to how this would be addressed. With the new amendments, several non-exhaustive factors have been listed under s. 16 (3) of the Divorce Act for consideration by the Court in making this determination. These factors are as follows:

Factors to be considered

16 (3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a)  the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b)  the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c)  each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d)  the history of care of the child;

(e)  the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f)   the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g)  any plans for the child’s care;

(h)  the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

                      i.        the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

                     ii.        the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k)  any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The amendments to the Divorce Act also include new provisions giving the Court guidance and a framework for addressing the issue of relocation. Previously, the Divorce Act remained silent on this issue and as such, the Courts developed case law to address it. Now, there are legislative burdens of proof, mandatory notice provisions, and added best interest factors specific to relocation cases. It is hoped that these provisions will help provide guidance and clarity to an otherwise grey area of the law.

The changes to the Divorce Act apply prospectively, but in some cases, can apply retroactively. Amendments have also been made that are not canvassed in this blog. If you have a matter before the Courts under the Divorce Act, or are thinking about starting an application under the Divorce Act, the family lawyers here at Lenehan Musgrave can help you navigate these changes effectively.  Contact us for a consultation today.

Family Lawyers Explain Spousal Support Entitlement

When two people enter a relationship, whether married or common law, they often find their lives financially intertwined. As family lawyers, we know that this can take many different forms. Both may choose to continue working, creating a dual income household. Other times, one person’s career will take a “back seat” to the other’s, allowing one to succeed and grow in their chosen field. In some circumstances, one person may remain at home to care for the children or household, foregoing a career and/or employment entirely.

Family law and financial consequences

The manner in which couples choose to structure their relationship, household, and careers can be problematic upon separation and may have serious financial consequences for one, or both, of the parties. In these circumstances, spousal support may be appropriate. Spousal support claims are one of many family law services that we help our clients with.

Spousal support is a payment made by one party to the other following separation. It is also sometimes referred to as “alimony”. Married couples are able to apply for spousal support under the Divorce Act, and common law couples are able to apply for spousal support under the Parenting and Support Act. Spousal support differs from child support, as its purpose is not for the benefit of the child. Rather, spousal support is awarded for the benefit of the spouse and can be awarded in circumstances where there are no children of the marriage.

Spousal support entitlement

When looking at a spousal support claim, a party must establish entitlement to spousal support. There are three primary categories under which a person can claim spousal support. Compensatory claims are aimed at exactly that – compensation for the roles adopted during the relationship which have resulted in an economic disadvantage to one party. Non-compensatory claims are claims involving financial “need.” And the final basis on which a person can claim an entitlement to spousal support is a “contractual basis”, involving an agreement or contract between parties.

Spousal support can be a complex issue to navigate and is often very fact specific. If you have questions about whether you are entitled to spousal support, or if you may be held responsible to pay spousal support, please contact one of our family law lawyers to schedule a consultation.