Family Law

Adoption in Nova Scotia

In Nova Scotia adoptions are governed by the Child and Family Services Act. This law governs all types of adoptions including:

• Public Adoption Agency
• Private Interprovincial Agency
• Private Relative Adoption (adoption by a relative or step-parent)
• International Adoption

Types of Adoption

Agency Placements: Children placed with adopting parents by a Child Placement Agency are either children apprehended from their parents or guardians or children voluntarily given up by their parents or guardians to the agency to be placed for adoption.

Private Placements: Private Placement describes adoption placements within a child’s family. A child may be placed by a parent with another member of his or her family. One of the most common private placements is step-parent adoptions.

Rights of the Child and Parent

Under the Child and Family Services Act the adoptee (if twelve or older), adoptee’s spouse if married and adoptee’s parent must consent to a non-agency adoption:

A birthparent does not retain the ability to seek an Order for Custody or Access to a child after adoption, except as a “third-party”, under the Maintenance and Custody Act or by means of a consensual “Openness Agreement” under the Child and Family Services Act.

Why You Should Retain a Lawyer

When an individual or couple is going through the adoption process, they will need to file a number of legal documents. This process can be simplified by using an experienced adoption legal team. During an adoption a lawyer advises you on the process, prepares the legal documents, arranges a date for an adoption hearing and presents information at the hearing.

For more detailed information, click here to visit our resource page on Adoption.

Child Support in Nova Scotia

Child support is a monthly payment provided by a non-custodial parent to the primary care parent, to help financially support his or her child or children after a separation or divorce. The amount of child support to be paid is determined by the Child Support Guidelines.

How is Child Support Calculated?

The first step in determining the appropriate amount of child support is to determine the payor parent’s total gross annual income, before taxes. Annual income is the money a person earns from employment and self-employment and income from investments. This includes income from all sources, including but not limited to wages, commission, self-employment income, investment and rental income, etc.

Each province has their own separate tables and the appropriate table is the province where the payor parent resides. If the payor parent resides outside Canada, then the appropriate table is the provincial table for the province in which the recipient parent resides.

Obtaining Child Support

To obtain child support, a person may apply to the court. The court will issue a “Direction to Disclose” to the non-custodial parent, which will require him/her to file a Statement of Income which includes their last three years income tax returns and Notices of Assessment, as well as their most recent pay statements. If the parties agree on the monthly amount of child support, the parties may enter into a “Consent Order”. If the matter is contested, it may proceed to a hearing before a judge. Orders of the court may be registered with the Maintenance Enforcement Program.

Why You Should Retain a Lawyer

A Family Law Lawyer can help you understand which child support guidelines apply to you, and assist with calculating a child support amount. We will advise you on the process, prepare legal documents, and help you understand your and your child’s rights and obligations.

For more detailed information, click here to visit our resource page on Child Support Guidelines.

Separation Law in Nova Scotia

Upon the separation of a couple, many parties enter into what is known as a separation agreement.  A separation agreement is typically negotiated and drafted, within it are agreed to terms for division of property, child support, custody and access.

Separation agreements often address issues of custody and access of the parties’ children as well as property issues, child support and spousal support. In some cases the Courts may disregard terms of a separation agreement with regards to child support if the support is inadequate regardless of whether the parents believe that their agreements were final, binding and not to be valid.

Divorce Law in Nova Scotia

If you and your spouse want for file for divorce in Nova Scotia you must separate for at least one year. Some couples resolve their divorce issues without a lawyer or any other professional for that matter. Others engage in drawn-out courtroom battles that add to the emotional and financial costs of divorce.  Most can find their needs met between the two ends of this spectrum.

A Divorce Proceeding is commenced under the Divorce Act in the Supreme Court of Nova Scotia or Supreme Court, Family Division.

Grounds for Divorce

Under the Divorce Act most Divorces are granted and finalized on the grounds that there has been a permanent breakdown of the marriage. Permanent breakdown of the marriage is established where one of the following circumstances is present:

• Spouses have lived separate and apart for at least one year; or
• The spouse against whom the petition is issued has committed adultery; or
• The Respondent has treated the petitioning spouse with mental or physical cruelty that has rendered continued cohabitation intolerable.

Why You Should Retain a Lawyer

The breakup of a relationship is extraordinarily difficult on you, both emotionally and financially, but grownups and children alike can and do survive separation and divorce.  The legal issues that arise at this time are complex and important, involving choices and decisions. Regardless of your selected approach, our legal team can help prepare appropriate documents, represent you and your wishes in matters of divorce.

For more detailed information, click here to visit our resource page on Divorce & Separation Law.

Assisted Reproduction

Many couples who are facing fertility issues, and same-sex couples, are turning to alternative reproductive techniques, such as surrogacy and sperm donation, in order to have a child or children.

Surrogacy

Surrogacy really covers a wide range of reproductive possibilities.  On one hand, the off-spring could be a genetic match of both the intended parents, just one of the intended parents, or neither in some circumstances. Two general categories of surrogacy are “traditional” (the surrogate is biologically related to the child) and “gestational” (the surrogate is not biologically related to the child). This area of the law is governed by the Federal Assisted Human Reproduction Act, passed in March of 2004.

Surrogacy Agreement

Before proceeding with a surrogacy, the Parties should prepare and sign a detailed Agreement.  The Agreement is a legal contract between all the parties and their spouses that will detail all the arrangements between the parties.

Confirming Parentage

Once the child is born, the surrogate must be named on the initial birth certificate as the mother of the child. An application is made to the appropriate court, requesting that the birth certificate be changed and declaring that the intended parents are the parents of the child.

Sperm Donation

Often, sperm is donated by an anonymous sperm donor; however, occasionally the sperm donor is known to the intended parent or parents. It is important, especially where the donor is known to the intended parent/parents, that a donor agreement be signed by both parties with independent legal advice.

For more detailed information, click here to visit our resource page on Assisted Reproduction. 

Why do you need a marriage contract or cohabitation agreement?

Couples may choose to enter into a pre-nuptial agreement to regulate the economic consequences of a future marriage breakdown. These agreements can also come into place when couples are cohabitating. This may be a consideration to ensure that Common-Law status is or is not recognized formally between two individuals.

Click here to read a blog post about why you should have a cohabitation agreement. 

The Law

Marriage contracts may be executed either in anticipation of marriage or during the marriage.  Marriage contracts only deal with issues of property and establish a regime under which the parties intend to govern their relationship in this context. An explicit provision in a marriage contract can exclude provisions of the Matrimonial Property Act which would otherwise apply. Under s. 23 of the Matrimonial Property Act a marriage contract can deal with the parties’ property during the marriage, upon separation, upon annulment, dissolution of the marriage or death. Marriage contracts must be written, signed and witnessed.

Domestic Partnerships

Domestic partners who have registered their domestic partnership declaration have the same rights as spouses under the Matrimonial Property Act and Maintenance and Custody Act which means that domestic partners can enter into marriage contracts.

Collaborative Family Law is a form of private dispute resolution that can be used by spouses upon the breakdown of a marriage as an alternative to proceeding through the courts. The Collaborative Family Law process is highly flexible and is personalized depending on the needs and wishes of the parties, unlike the court system. The parties are more likely to follow a settlement agreement developed using the Collaborative Family Law process. The role of a certified Collaborative Family Law lawyer is to represent the best interests of the client and to work with the other party’s lawyer and any other professionals involved to arrive at an acceptable solution to both parties.

Same Sex Marriage

The Civil Marriage Act extended civil marriage to same sex couples. Previously, marriage conferred on a man and a woman inferred specific legal rights and obligations. Over the past 30 years the law evolved to extend certain legal rights and obligations to cohabiting and same sex relationships. In Nova Scotia spouse means individuals who are married. Nova Scotia recognizes the marriage of opposite sex and same sex individuals.

Domestic Partnerships

Domestic partner means an individual who is cohabiting or intends to cohabit with another individual and has entered into a domestic partner declaration. These declarations must be registered under the Vital Statistics Act. This definition encompasses same sex and opposite sex couples.  Most Nova Scotia legislation related to family law now applies to same sex couples including the Domestic Violence Intervention Act and the Maintenance and Custody Act.

Parental Recognition

Until mid-2007 regulations under the Vital Statistics Act require that the birth of a child in a same sex marriage to be registered only to one parent. The other parent would be required to adopt the child to obtain parental status for this purpose. The provincial government has announced that these regulations are being amended to permit registration of birth to both spouses in same sex couples so these adoptions will no longer be required.

If you are looking for a speaker for a meeting or a special event please email us at marketing@boyneclarke.ca. Click here for a list of presentations we offer.

A Family Law Lawyer can help you understand which child support guidelines apply to you, and assist with calculating a child support amount. We will advise you on the process, prepare legal documents, and help you understand your and your child’s rights and obligations.

Under the Divorce Act, a spouse may only apply for a divorce when the spouses have been separate and apart for at least one year, when there has been adultery or where there has been cruelty.

There are a number of factors that a court will consider when deciding whether it is in children's best interest to move out of province with one parent. Since the Supreme Court of Canada's decision in Gordon v. Goertz, there has been a great deal of litigation on this issue. You need to consult an experienced family law lawyer on this issue.

You may well be able to make a claim for a retoractive claim for child support. The Supreme Court of Canada has put an onus on the payor parent to keep the other parent informed of any increases in their incomes. See the D.B.S. v. S.R.G. decision.

Amendments to the Nova Scotia Vital Statistics Act in September of 2007 make it no longer necessary to adopt a child born through artificial insemination or surrogacy. However, a stream lined court application needs to be made to have the both parties declared to be the child's parents.

Same-sex couples who were married in Canada, but currently reside in jurisdictions that do not recognize their marriage, can now be divorced under Canadian law. On June 26, 2013, Royal Accent was given to Bill C-32, which provided that the Court of a province where a marriage was performed may grant the spouses a divorce if:

(a) There has been a breakdown of the marriage as established by the spouses having lived separate and apart for at least one year before the making of the application;

(b) Neither spouse resides in Canada at the time the application is made;

(c) Each spouse is residing – and for at least one year immediately before the application is made, has resided – in a state where a divorce cannot be granted because that state does not recognize the validity of the marriage.