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.

Congratulations and Well Wishes to Amber Penney!

The lawyers and staff at Lenehan Musgrave LLP wish Amber Penney, a partner here at our office, the very best as she leaves for a ten (10) month maternity leave. Amber will be leaving May 1, 2021 and will be moving to “non-practicing” status until she returns to the firm in March 2022.  The Lenehan Musgrave team is ready to assist Amber’s present and former clients during her maternity leave.

Amber is a valued member of the Lenehan Musgrave team, and has a reputation as a skilled negotiator and litigator. She vigorously represents her clients, and has since her call to the Nova Scotia bar in 2012. She has become a familiar face to Court and staff. Amber’s approach to the practice of family law is one that has served her clients well, and she will be missed during her maternity leave.

The Lenehan Musgrave LLP team offer their congratulations to Amber as she embarks on this next chapter of her life, and anxiously await her return to the office in March of 2022.

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.

Thank You Sydney Logan

The lawyers and staff at Lenehan Musgrave LLP wish Associate, Sydney Logan well on her next venture as she moves back to her hometown of Saint John, New Brunswick. Sydney has been with Lenehan Musgrave since June 2018, and during that time has worked in the areas of Family Law and Personal Injury.

We have enjoyed working with Sydney and wish her all the best as she begins her legal career in New Brunswick.

COVID-19 and the effect on Lenehan Musgrave LLP

For our team at Lenehan Musgrave LLP, the well-being and safety of our clients, office, and community is a priority.  

Visiting Our Office

We are suspending all in person meetings where possible.  If you have a scheduled appointment at our office or plan to drop by, please call ahead. The Courts have not suspended operations at this time so filing deadlines will still be met by our offices and we will be contacting any clients affected by filing deadlines. We will happily reschedule appointments and are pleased to offer appointments by phone or video conference instead.  

We ask that all clients who are not feeling well in any way, or have traveled outside of Canada within the past 14 days, or interacted with someone who has been diagnosed with COVID-19 to avoid coming into our offices. We have asked our lawyers and staff who meet these criteria to not come into the office and to follow the directions of local public health authorities.

We anticipate further announcements and guidance from government authorities on their response to COVID-19.   Should it become necessary to close our office, we have plans in place so that our lawyers will remain accessible and responsive to our clients and the Courts.

Court Appearances

We are working with the Courts to determine the status of upcoming matters scheduled for an appearance.  If you have a Court appearance this week, please contact our office with any questions or concerns that you have.  The Courts are scheduling some matters by phone conference and in person appearances at the Court may not be necessary.  

In the event that the status of your Court appearance changes, we will be in touch with you to provide you an update at that time

Happy Holidays - 2019!

For the 6th consecutive year, the lawyers and staff at Lenehan Musgrave coordinated an office donation drive to donate items from the Phoenix House holiday wish list.

This year, personal injury lawyers, Kyle Campbell and Daniel Wood, delivered our donations to Phoenix House’s Administration & Fund Development Office in Halifax.

 At Lenehan Musgrave we feel privileged to have the opportunity to support Phoenix House which plays a vital role supporting youth in our community.

To learn more about the incredible work Phoenix House does all year round visit https://phoenixyouth.ca/