Separation: The Issues To Consider when your marriage breaks down
When a marriage breaks down, it often becomes impossible for a husband and wife to go on living under the same roof. If you are in that situation you may be wondering what your rights and obligations are with respect to the custody, access and support of your children, your property, and maintenance and support from or to your spouse.
Custody and Access
As long as both parents are living together, they share the custody of the children and neither has a greater right to custody than the other. Once parents separate, there are three different ways that the issue of custody might be determined.
First, it may just happen. For example, where one spouse simply packs up and moves out, leaving the other with the children, or moves out taking the children along. In both cases, the spouse who has the children, has custody of them, as long as the other spouse does nothing about it. In other words, the spouse who does nothing consents to the other spouse having custody.
Secondly, custody might be determined by a written agreement between the spouses. For instance, the mother remains in the home with the children. She might later negotiate a written separation agreement with her husband, which provides that she will continue to have custody of the children. Then she has legal custody by virtue of the agreement.
Thirdly, custody can be determined by a court order. In the example mentioned, if the husband did not agree, he might go to court and get an order giving him custody. Then the mother's custody would no longer be legal. She would be required to transfer the children to the husband and he would have legal custody, by virtue of the order.
Joint custody is a concept that has received some publicity lately. Some couples are attempting to continue sharing the parenting of the children even after separation. Custody orders are sometimes made as part of a divorce proceeding or they may be made quite apart from any divorce, either in the Supreme Court, where you will need a lawyer, or in Family Court, where you may or may not. Whichever court is making the decision though, it will come down to one thing: What is in the best interests of the child? The judge will consider many factors relating to the child's physical and emotional well-being and the ability of each of the parents to meet the child's needs.
Financial means are in no way the deciding factor. If the child is old enough - generally around 12 - the judge will consider the child's wishes too, although the child does not have the right to make the decision for himself. In some cases a lawyer may be appointed to act for the children in custody cases.
Access, or visiting rights, are settled in the same ways; either by court order, by written agreement or simply by the way the family arranges it. As far as access is concerned, it is far better if the parents can work out these arrangements themselves. They require flexibility and respect for each other and the children. But if that cannot be done, the court will usually make an order spelling out specific terms of access.
Access is usually viewed by the court as the child's right to visit with the non-custodial parent. Access orders may be very broad, such as "reasonable access at reasonable times upon reasonable notice" or they can be very specific - setting out in detail the specific day, hour and duration of the visit. Generally access will only be denied if the child or his or her upbringing would be endangered by allowing access. Parents often believe that access and maintenance go hand in hand. Such is not the case. Access cannot be denied because the parent with access has not paid maintenance.
An agreement or a court order is never final. It may be altered whenever it is justified by a material change in circumstances. If you have an agreement or order for custody or access which your spouse is refusing to abide by, get legal advice. If you have reason to fear that your spouse is about to take your children out of the province or country and not bring them back, see a lawyer immediately.
The Criminal Code now allows for criminal charges to be laid when a parent takes a child with the intention of depriving the other parent of custody.
To summarize: custody and access can be deter¬mined either by a court order, by a written agreement, or just by an informal understanding. But a court order will always take precedence. Judges award custody to one parent or another on the basis of what is best for the child. Cus¬tody and access can always be varied.
When parents decide to separate, very often one of them will be obliged to pay maintenance to the other for the support of the children.
Parents have a joint obligation to support their children. Any agreement or court order should accordingly apportion that obligation according to the relative abilities to pay.
Under the Divorce Act an order for child sup¬port will usually continue until the child reaches the age of 16. Under the Maintenance and Custody Act an order for child support can continue until the child is 19. In either case, a judge may order that child support continue for a longer period if necessary. For example, the child may be con¬tinuing his/her education at college or university or the child may be disabled and unable to support himself/herself.
You do not have to go to court to obtain child support. You and your spouse may agree on the amount and other specifics of child support. It is advisable to have the agreement in writing. The Federal Child Support Guidelines provide for the calculation of child support. Child support is no longer a tax deduction. The recipient does not have to include child support in income. (For more information on Child Support please refer to our Lawletters: “Child Support Guidelines” and “Special Circumstances: The Child Support Guidelines”.
Division of Assets
Upon marriage breakdown, spouses usually want to determine their rights to property and their obligations with respect to debts. The general rule under the Matrimonial Property Act is that matrimonial property should be equally divided between the spouses unless that equal division would be unfair or unconscionable in the circumstances.
Matrimonial home is defined in the Matrimonial Property Act as the dwelling and the real prop¬erty occupied by a person and that person's spouse, as their family residence, in which either or both of them have a property interest other than a leasehold interest. It does not matter in whose name the home may be registered (similarly with regard to the other assets), it does not matter in whose name, for example, the vehicle is registered. If the assets are used by the spouses during their marriage then, by defin¬ition, they are matrimonial assets. However all property owned by the spouses is not necessarily a matrimonial asset.
Excluded from matrimonial assets would be, for example, gifts, inheritances which were not used for the benefit of the spouse or children, an award or settlement of damages, money paid or payable to one spouse under an insurance policy, reasonable personal effects of one spouse (for example, the jewellery of one spouse may be exempt), business assets, property exempted under a marriage contract or separ¬ation agreement, and real and personal property acquired after separation, unless the spouses resume cohabitation.
Under the Matrimonial Property Act of Nova Scotia, either spouse is entitled to apply to the Supreme Court to have the matrimonial assets divided in equal shares, regardless of who owns the assets. The Court may order such a division. There is also a provision under the Act where the Court may consider making an unequal division of assets, when the person applying for the unequal division can show that an equal division would be unfair or unconscionable, taking into account several factors. It goes without saying that there are many things to consider in determining the division of assets. In most cases, you will be well advised to have a lawyer assist you. A lawyer cannot act for both spouses. Obviously, your interests are not the same. Each of you should have independent advice, so that each of you is protected.
Very often when a husband and wife decide to separate, one of them will be obliged to pay maintenance for the support of the other. Maintenance is based on need, on the one hand, and ability to pay on the other.
In most marriages, one spouse is financially dependent to some extent. The idea is that when they separate, the dependent spouse may need some assistance for a time, but should become self-sufficient as soon as possible. Obviously this is easier in some cases than others. If a wife has taken on the responsibilities of homemaker-mother for many years, a judge will realize her problems in stepping back into the job market. On the other hand, two young people who separ¬ate after a brief marriage should be financially independent of each other rather quickly. Of course the court also looks at the financial posi¬tion of the spouse who is expected to pay.
If you apply for a maintenance order against your spouse, you are entitled to receive certain finan¬cial information from him or her, including income tax returns, and itemized statements of income, expenses, assets and liabilities. By the same token, if your spouse asks you for this information you must be prepared to give it.
If you are now paying maintenance to your spouse, voluntarily, without any written agree¬ment or court order, you should consider apply¬ing to the court for a maintenance order against yourself. The reason is that you will then be able to deduct your payments on your income tax return. Of course, if you are allowed to claim a deduction, your spouse will have to declare it as income. In that case, the two of you may have to negotiate a higher monthly figure, to compensate for the income tax. The foregoing sets out the usual issues involved when spouses separate. If you are separating or have separated from your spouse, you are encouraged to obtain legal advice on the rights and duties you have as a separated person.
For more information contact your lawyer or go to the website www.collaborativefamilylaw.ca. CFL is a further alternative to going to court. Both clients and lawyers enter into an agreement to exchange all relevant information and to settle issues without going to court.
Copyright: August 2010
This Lawletter has been provided for general reference only. For advice on an actual matter, you should consult a lawyer.
For further information please contact a Family Lawyer:
Terrance G. Sheppard
Tel: (902) 460-3401
Deborah I. Conrad
Tel: (902) 460-3416
Peter D. Crowther
Tel: (902) 460-340156
Bryen E. Mooney
Tel: (902) 460-3441