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.

How an Order for Production Can Help You With a Family Law Case

In Nova Scotia, the justices of the Supreme Court (Family Division) make decisions at trials and hearings based on the evidence that is presented to them by the parties. Most often, this includes financial information, and affidavit evidence, which outlines for the judge the facts of the case. However, there are certain circumstances where the information a party may feel is relevant to the overall determination of the file is not within their own knowledge or possession. When this occurs, litigants may seek out what is known as an “Order for Production.”

An Order for Production compels a third party, who is most often not a party to the proceeding, to release specific documents requested by the litigant. Some of the more common third party records sought in family law proceedings are the records of the RCMP/police or the Department of Community Services (Child Welfare). 

Obtaining an Order for Production

There are two primary ways in which an Order for Production is obtained; by consent or by Motion through the Court.

In the event both parties consent to the release of specific records, an Order is drafted and signed by a judge. The Order is then provided to the third-party record holder who provides the information to the litigant.

In the event one party does not agree that the records should be produced, the party seeking the release of specific records must file a Motion for an Order for Production. When this happens, both parties present their evidence as to why they believe the records should or should not be released. The presiding justice then makes the determination as to whether the records should be released. One of the primary concerns the justice will concern him or herself with is whether the records are relevant to the proceeding at hand.

Orders for Production can be tricky, and there is procedure that must be followed if a litigant seeks the production of third-party records. The lawyers at Lenehan Musgrave LLP can help you determine whether an Order for Production is something that should be pursued as part of the overall process of litigation. If you have any questions, we encourage you to contact one of our family law lawyers or complete the form below to book a consultation. 

Maintenance Enforcement Program

Clients often ask us how to enforce Court Orders or Court Registered Agreements for child support, or spousal support. In particular, when the payor parent stops paying or the payor spouse stops paying. In Nova Scotia, one option available to you is the Maintenance Enforcement Program. The Maintenance Enforcement Program is an organization that is tasked with enforcing Court Orders for support. They are governed by the Maintenance Enforcement Act.

What Can The Maintenance Enforcement Program Do?

The Maintenance Enforcement Program has a broad range of powers available to enforce Court Orders. This can include garnishing a payor’s wages, suspending a payor’s license and even suspending a payor’s passport. They also provide an ongoing record of support payments made and received, so that both parties are assured that payments are up to date.

The Maintenance Enforcement Program can enforce Court Orders for child support, spousal support, and in some circumstances, section 7 expenses. However, the language required in a Court Order for enforcement is very specific. It is important that the language requirements are met to ensure the Maintenance Enforcement Program is able to enforce the financial obligations contained within the Order properly.

The family law lawyers at Lenehan Musgrave LLP are experienced in ensuring Court Orders meet the requirements of the Maintenance Enforcement Program for enforcement. If you have any questions regarding the enforcement of your Order, we encourage you to contact one of our lawyers or complete the form below to book a consultation.  

Supervised Parenting Time

Following a separation, some parents may wonder what options are available to them if they feel their children will not be safe in the other parent’s care. One option available in these cases is supervised parenting time.

Forms of Supervised Parenting

There are many different forms of supervised parenting time, which range in levels of restriction. In most instances, a third party attends parenting time with a parent to observe the interactions between parent and child. Sometimes this involves a third party simply being present in the home with the parent, but not necessarily in the same room. Other times, it is expected that the third party have “eyes on and ears on” the parent in need of supervision, which means that the supervisor must be able to see and hear the interactions between parent and child at all times.

Supervised Parenting Time Orders

Supervised parenting time is a restrictive form of parenting time that is not ordered lightly. In most cases, supervision is temporary, and is not meant to be used for long-term parenting arrangements. The parent seeking supervised parenting time bears the burden of proving it is in the child’s best interests. Supervised parenting time is not ordered to provide comfort to the other parent, but rather, to address real concerns that may impact a child’s safety or comfort. Some examples of situations that have warranted supervised parenting time in the past have included:

1. Substance abuse;

2. Severe and untreated mental health issues; and

3. Abuse of the child by one parent.

Supervised parenting time has also been ordered by the Courts when one parent is experiencing a reintroduction to a child after a period of absence from their lives.

Lenehan Musgrave LLP is a firm of family lawyers in Dartmouth, Nova Scotia. Whether or not supervised parenting time is appropriate is very fact specific and must be grounded in evidence. The lawyers at Lenehan Musgrave LLP appreciate your child’s safety is the paramount consideration in determining parenting arrangements, and the experienced divorce lawyers at our office are available to assist you in navigating whether this form of parenting arrangement would be appropriate in your circumstances. If you need help with your parenting arrangements, complete the form below to book a consultation. 

Corporate Income In The Context Of Child Support

The calculation of child support obligations is not a straightforward procedure when one of the parents has a controlling interest in a business. When both spouses are employed by others, a review of the T4 issued by their employers is often used to determine employment income. 

How Child Support is Calculated in Regard to Corporate Income

This is not the process however when one of the parents has a controlling interest, or is or sole owner of a company. When a parent can control what his/her income is and the form in which this income is taken, a number of issues must be examined to determine the true income of the parent. The Child Support Guidelines, both Federal and Provincial, address what needs to be examined to determine income in this situation. There is not an assumption that a parent who owns or controls a business is not disclosing their income, there is simply a requirement to examine additional information to determine what is the actual income available to the parent. 

For example, if a parent takes a salary from the company they control and the company provides benefits such as a cell phone and vehicles, these are all examined for inclusion to determine the total income for purposes of child support. Depending on the business, the parent can have different incomes from year to year, and it may be necessary to look at a number of years income to determine the parent’s average income. 

When a parent owns or controls a company, the requirement for disclosure is much greater as their personal income tax return and notice of assessment do not provide a complete picture of all their sources of income. Copies of corporate tax returns, notices of assessment and financial statements are often required to determine the true income of the parent. These calculations and the treatment of various benefits a parent may have by owning or controlling a company, can only be done through a review of the company’s tax returns and financial statements. 

At Lenehan Musgrave, a family law practice based in Dartmouth, NS, we are pleased to assist parents in the understanding of the sources of income when a parent owns or controls a corporation and the calculation of child support in those circumstances.

If you need help with your divorce and child support negotiations, contact us to book a consultation with a family lawyer.

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. 

Lenehan Musgrave LLP Announces Change to Practice Areas to Focus on Family Law and Litigation

Lenehan Musgrave LLP prides itself on our long history of providing exceptional service and representation of our clients.  From assisting clients understand the complexities of the legal system, to advocating on their behalf before all levels of Court, the lawyers at Lenehan Musgrave have shown commitment to a client focused approach to practice.

Moving in to 2022, one thing is for certain: this has not changed. Lenehan Musgrave LLP continues to offer high quality representation to all of our clients. While historically, this has included the areas of family law, litigation, and personal injury, the team at Lenehan Musgrave LLP is pleased to announce that the firm will now be focusing primarily on the areas of family law and litigation.

The lawyers at Lenehan Musgrave LLP will continue to offer the same high-quality services in the areas of family law and litigation that have always been available. This includes personalized consultations, full-service representation, and other simplified and tailored legal services. For more information, please visit our website: https://www.lenehanmusgravelaw.ca/

Should you find yourself in need of a family law or litigation lawyer, please contact the team at Lenehan Musgrave LLP to discuss your situation and the options available to you.

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.