Important Notice:

Understanding the Law: A Guide for Women in Nova Scotia
was last updated in the summer of 2002,
and there have been changes in the law since that time.
In addition, the Guide contains only general information,
so it is not intended to replace professional legal or other advice.
Finally, it is important to remember that the details of the law
are different in each of Canada's provinces and territories,
so the information contained in the Guide may not apply to you
if you live outside Nova Scotia.

The botton line is that, wherever you live,
you should not rely on the information contained in the Guide
without first consulting a lawyer to learn how the law applies
to the facts of your case.

NSAWL disclaims any and all liability
arising directly or indirectly
from the use or application
of any information contained in the Guide.

Nova Scotia Association of Women and the Law

NSAWL

NAWL

Understanding the Law
A Guide for Women in Nova Scotia
4th edition

Edited by
Cynthia L. Chewter and Renée Hartleib

A Note To Readers

While NSAWL made every attempt to ensure that the information in this Guide was accurate as of the publication date, laws frequently change and different circumstances can lead to different legal outcomes. This Guide contains general legal information only and is not intended to serve as a replacement for professional legal or other advice. NSAWL specifically disclaims any and all liability arising directly or indirectly from the use or application of any information contained in this Guide. Do not rely on this information without first consulting a lawyer to learn how the law applies to your situation.

To obtain a referral for a low cost ($20+HST) half hour consultation with a lawyer, contact the Legal Information Society of Nova Scotia at 455-3135 or toll free at 1-800-665-9779.

ISBN 0-9731928-0-1

All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means, or stored in a retrieval system of any kind, without the prior written permission of the copyright holder, except that extracts from the text of this publication may be used for educational or other informational purposes provided that written acknowledgment is given to the Nova Scotia Association of Women and the Law. Applications may be sent to:

Nova Scotia Association of Women and the Law
P.O. Box 34040 Scotia Square
Halifax, Nova Scotia B3J 3S1

NSAWL is a provincial caucus of the National Association of Women and the Law (NAWL). For more information about NAWL, visit www.nawl.ca.

Production Credits

Editing: Cynthia L. Chewter and Renée Hartleib
Layout: Brenda Conroy
Printing: Transcontinental Printing Web Atlantic Ltd.
Printed and bound in Canada

Dedication

This edition of Understanding the Law: A Guide for Women in Nova Scotia is dedicated to the memory of Pattie Snow-Parker (1943-1990), who was instrumental in the creation of the first edition of this Guide in 1981.

Patricia Anne Snow was born on November 17, 1943, and grew up in the orange groves of Orange County just south of Los Angeles in Santa Ana, California. She attended California State Teachers College and graduated with a Bachelor of Education. Pattie taught high school in California and New York. In 1967, she joined the Peace Corps and lived in Nigeria, where she helped set up educational programs and taught English in rural communities.

In 1970, Pattie moved to Nova Scotia, where she lived for the remainder of her life. She took a position with the Nova Scotia College of Art and Design in the mid-1970s, where she was administrator for the Off Campus Studies Program and World Encounter Program and Coordinator of NSCAD's Loft Studies Program in New York City. She was a tireless helpmate and advisor to many students over her 15 years in this position and a long-time friend to many.

Pattie was a member of the Nova Scotia Council of Women and many other community organizations, including NSAWL and the Community Planning Association of Canada. She served on a number of boards in Nova Scotia over the years.

In 1989, Pattie began her Masters degree in Women's Studies and Education at Dalhousie University, with a thesis directed toward health and the environment for women.

Pattie always felt that the position of women in society could be improved through education and the sharing of knowledge. The three principal involvements in her professional and community life were education, health, and the environment. She embraced her friends, loved her family, and cared for the earth.

Pattie Snow-Parker died on March 11, 1990, at the age of 46.

The fourth edition of Understanding the Law: A Guide for Women in Nova Scotia is a project of the Nova Scotia Association of Women and the Law (NSAWL), a provincial caucus of the National Association of Women and the Law (NAWL). The NSAWL project committee members were: Janice Brown, Maria Franks, Darlene Jamieson, Brenda Pate, Diane Rowe, and Vicki Stokoe.

Cynthia L. Chewter and Renée Hartleib did project coordination, writing, and editing, Cari Patterson coordinated and edited an earlier draft of the manuscript, Monica McQueen updated research and Robbie Rudnicki reviewed a draft of the manuscript for clear language.

We would like to thank the following people who offered advice on updating the text, suggested improvements, and reviewed the content for legal accuracy: Janice Beaton, Terry Bartlett-Visser, Janice Brown, Lynn Carey Hartwell, Clare Christie, Helen Foote, Krista Forbes, Maria Franks, Andrea Gillis, Diana Ginn, Darlene Jamieson, Mona Lynch, Brenda MacDonald, Francine McIntyre, Mary McLennan, Monica McQueen, Lara J. Morris, Martina Munden, Tanya Nicholson, Brenda Pate, Lynn Reierson, Viola Robinson, Diane Rowe, Heather Sanford, Maureen Shebib, Ann Marie Simmons, Jane Spurr, Vicki Stokoe and David Thompson.

Special thanks go to the following women's advocates and community members who reviewed draft sections of the Guide for user-friendliness: Carol Charlebois (Metro Nonprofit Housing), Elsie Cholette (Nova Scotia League for Equal Opportunity), Gloria Christmas (Mi'kmaq Justice Institute), Christine Corston (Nova Scotia Advisory Council on the Status of Women), Tim Crooks (Phoenix Youth Programs), Mary DeWolfe (Chrysalis House), Lesley Frank (Great Beginnings Annapolis Valley-Hants Community Action Program for Children), Yvonne Hanson (Youth Alternative Society), Kathleen Jennex (Coverdale Courtwork Services), Lois LeBlanc (Yarmouth Anti-Poverty Group), Meredith Matthews (Small Options), Debbie Reimer (Annapolis Valley-Hants Community Action Program for Children), Myrna Slater (Canadian Pensioners Concerned), Irene Smith (Avalon Sexual Assault Centre), Jackie Stevens (Avalon Sexual Assault Centre), Rollie Thomson (Dalhousie Law School), Lisa Tobin (Planned Parenthood Metro Clinic), Kim Vance (Women's Employment Outreach), Jo-Anne White (Metro Immigrant Settlement Association), and Cheryl Clarke (Elizabeth Fry Society of Cape Breton).

NSAWL would also like to thank Robert Parker for his assistance with our dedication of this edition to Pattie Snow-Parker.

NSAWL gratefully acknowledges financial support from the Nova Scotia legal community, from those who contributed to this edition in memory of Pattie Snow-Parker, and from the Court Challenges Program of Canada.

Preface to the Fourth Edition

Families and Relationships
Introduction
The Terms Used in this Guide
Contracts and Relationships
Cohabitation Agreements
Separation Agreements
Independent Legal Advice
Marriage
Taxation
Inheritance
Survivor Benefits
Spousal Support
Custody, Access, and Child Support
Property Division
Debts
The Marriage Licence and Ceremony
Changing your Name or Not
Common Law Relationships
Name Change
Taxation
Inheritance
Survivor Benefits
Spousal Support
Custody, Access, and Child Support
Property Division
Registered Domestic Partnerships
Establishing a Registered Domestic Partnership
Name Change
Taxation
Inheritance
Survivor Benefits
Spousal Support
Custody, Access, and Child Support
Property Division
Ending a Registered Domestic Partnership
Lesbian Relationships
Homophobia and Discrimination
Spousal Relationships
Children
Challenging Discriminatory Laws
Separation
Reaching a Separation Agreement or Going to Court
Hiring a Lawyer or Mediator or Both?
The Lawyer's Role
Collaborative Family Law
The Mediator's Role
Courts
Divorce
Grounds for Divorce
Who Can Apply for Divorce?
Do You Need a Lawyer?
If You Can't Afford a Lawyer
Reconciliation and Counselling
Filing for Divorce
Uncontested Divorce
Contested Divorce
Annulment
Division of Property
The Matrimonial Property Act
The Matrimonial Home
Business Assets
Debts
How the Division of Property Works
Equal Division of Matrimonial Assets
Unequal Division of Matrimonial Assets
Pension Division
Valuing a Pension
Canada Pension Plan (CPP) and Registered Retirement Savings Plans (RRSPs)
Division of Property for Common Law Couples
Protecting Yourself and Your Property
Status Indians and their Families
Indian Status
Division of Property on a Reserve
Spousal Support
What Factors Does the Court Consider?
Married Spouses Who Have Petitioned for Divorce
Married Spouses Who Have Not Petitioned for Divorce, Registered Domestic Partners, and Common Law Spouses
If You Are on Social Assistance
Variation of Spousal Support Orders
Children of Separated Parents
Custody
The Best Interests of the Children
Types of Custody
Sole Custody
Joint Custody
Shared Custody
Split Custody
Variation of Custody
If You Plan to Move Away
Access
Problems with Access
If You Were Abused
If the Non-Custodial Parent Fails to Exercise Access
Denying Access
Variation of Access
When Others Apply for Custody or Access
Guardianship of Your Children if You Die
Child Support
The Child Support Guidelines
Add-On Expenses
Undue Hardship
Variation of Child Support
Paternity Suits
Enforcement of Child and Spousal Support
Children
Your Child's Name
Child Care
Adoption
How to Adopt
Private Adoptions
Agency Adoptions
International Adoptions
If You Place Your Child for Adoption
Consent to Adoption
Dispensing with Consent
Finding Your Family Members After Adoption
Children in Need of Protection
What is Child Abuse?
Child Protection Agencies
The Duty to Inform Authorities
Protective Services
If You go to Jail
Voluntary Temporary Care
Children Taken into Care
The Stages of a Child Protection Hearing
The Interim Hearing
The Protection Hearing
The Disposition Hearing
Orders for Temporary Care
Orders for Permanent Care
Parents' Rights
Family Violence
What Is Abuse?
Signs of Abuse
The Cycle of Violence
Spousal Abuse affects Children
Assault and the Criminal Law
If You or Your Children Have Been Assaulted or Threatened
After Your Spouse Is Arrested
Being a Witness in Court
Victim Impact Statements
Sentences for Spousal Assaults
Peace Bonds
How to Apply for a Peace Bond
The Peace Bond Hearings
Drawbacks of Peace Bonds
Emergency Protection Orders
Getting Help From Shelters or Other Organizations
Stalking and Harassment
Sexual Assault
Where To Get Help and Support
Making a Complaint to Police
The Medical-Legal Examination
The Sexual Assault Nurse Examiner Program
Who Represents You in Court?
A Sexual Assault Trial
Consent or No Consent
Counselling and Therapy Records
The Outcome of the Trial
Suing the Person Who Assaulted You
Women in Conflict with the Law
Your Rights
If You Are Arrested
Getting a Lawyer
Support for Women Going to Court
Aboriginal Women
Types of Offences
Your First Court Appearance
The Bail Hearing
If You Are Arrested on the Weekend
Entering Your Plea
Plea Bargaining
If You Plead Guilty
If You Plead Not Guilty
The Trial
A Criminal Record
Adult Diversion
A Discharge
A Pardon
Types of Sentences
Absolute or Conditional Discharge
Fine or Restitution
Probation
Suspended Sentence
Conditional Sentence
Intermittent Sentence
Provincial Jail Sentence
Federal Jail Sentence
Prostitution
Shoplifting
Money Matters
Taxes
Spousal Support and Child Support
Child Care Expenses
Personal Tax Credits
Child Tax Benefit
HST Credit
Income Tax Changes
Status Indians
Credit, Debts and Loans
Getting Credit
Your Credit History
Discrimination
Co-Signing a Loan
Shared Financial Arrangements
Small Claims Court
Borrowing Money
Buying on "Time"
Collection Agencies
If You Owe More Than You Can Pay
Debtor Assistance Program
Debt Consolidation
Consolidation Order
Consumer Proposal
Orderly Payment of Debts Program
Bankruptcy
Poverty and the Law
Introduction
Social Assistance
Are you Eligible?
What Can Make You Ineligible?
Housing
Renting an Apartment
Being Accepted as a Tenant
The Landlord-Tenant Relationship
Notice to Quit
Security of Tenure
Rent Increases
Filing a Complaint
Co-op Housing
Buying a Home
Public Housing
Non-Profit Housing
Emergency Housing
Employment
Federal and Provincial Labour Standards Codes
Nova Scotia Labour Standards Code
Minimum Wage
Pay Equity
Vacations
Paid Holidays
Pregnancy and Parental Leave
Losing Your Job
Complaint Procedure
Bringing a Civil Lawsuit
Employment Insurance
Appealing an EI decision
Workers' Compensation
Canada Pension Plan Disability Pensions
Employment Counselling for Women
Self-Employment
Sexual Harassment
What Can You Do About Sexual Harassment?
Retirement
Human Rights
Introduction
Direct or Indirect Discrimination
Exceptions
The Nova Scotia Human Rights Act
Complaint Procedure
The Canadian Human Rights Act
Complaint Procedure
Employment Equity
The Charter
The Court Challenges Program of Canada
The Right to Vote

Health
Choice, Consent, Confidentiality
Minors
Birth Control
Pregnancy
If You Are Considering an Abortion
If You Are Considering Adoption
Reproductive Technology
Home Births and Midwifery
Sexually Transmitted Infections
HIV/AIDS
Living Wills and Powers of Attorney
Medical Consent Appointment
Living Wills
Powers of Attorney
Disability
Grant Programs and Financial Assistance
Children with Disabilities and Access to Schools
Disability, Access and Discrimination
Dependence and Abuse
Aboriginal Women
The Indian Act, Property and Wills
Aboriginal Rights and the Constitution
Other Laws
Immigration
Refugees
Skilled Workers
Members of the Family Class
Business Class
Live-In Caregiver Program
Inadmissibility
Immigrant Women and Domestic Violence
Seniors
Housing and Living Independently
Community Home Care
Changing Your Living Situation
Renting a Room out to a Boarder
Hiring a Live-In or Full-Time Caregiver
Residential Care and Nursing Homes
Elder Abuse
Financial Concerns
Pensions
Old Age Security
Monthly Spouse's Allowance
Guaranteed Income Supplement
Canada Pension Plan
Disability Pension
Divorce/Separation
Pension Sharing
Survivor Benefits
Death Benefits
Private Pensions
Registered Retirement Savings Plans (RRSPs)
Special Social Assistance
Wills
Should You Make a Will with a Kit?
Revoking or Changing a Will
Naming an Executor
Care and Custody of Children
Other Laws That Affect Property After Death
Resources
Aboriginal Women
Adoption
Child Support
Children's Aid Services
Women in Conflict with the Law
Courts
Culturally Sensitive Services (Aboriginal Women, Immigrant Women, and Lesbians)
Women and Disability
Divorce
Employment
Family Issues
Financial Matters
Government
Health
Housing
Public Non-Profit Housing Authorities
Human Rights
Immigrant Women
Legal Aid
Legal Assistance
Lesbian Rights
Maintenance Enforcement Program
Mediation
Men Making Change
Seniors
Sexual Assault
Shelters
Help for Girls under 19
Victims' Services
The Right to Vote
Other

Preface to the Fourth Edition

Understanding the Law: A Guide for Women in Nova Scotia was prepared by the Nova Scotia Association of Women and the Law (NSAWL). Its purpose is to provide women of all ages and from all walks of life with information about the laws that affect them. Often, it is difficult for women to access basic legal information. The need for this Guide was made clear to NSAWL and other women's groups by the many letters and phone calls received from women seeking information about the law. Men will also find this Guide useful, since most of the laws discussed affect both women and men.

The fourth edition of Understanding the Law: A Guide for Women in Nova Scotia is the most comprehensive yet. It includes new information reflecting recent developments in the law pertaining to common law and same sex couples, particularly the introduction of registered domestic partnerships in 2001. This edition was also expanded to include information on collaborative family law, international adoptions, victim impact statements, suing sexual assault perpetrators, and the Domestic Violence Intervention Act. The Resources section at the back of the Guide was updated to include fax numbers and website information wherever possible. We hope that these additions will make the Guide even more useful to women and to those who work in organizations that assist women.

Please remember that this Guide provides general information only. Changes in the law can occur rapidly and the information in this Guide will go out of date. If you have a specific legal problem you should talk to a lawyer, your local legal aid office, or one of the agencies or organizations listed in the Resources section of this Guide.

Back to The Table of Contents

Families and Relationships

Introduction

There are three types of spousal relationships: marriages, registered domestic partnerships, and common law relationships. Marriages continue to enjoy the most legal protection. Marriages are created in a religious ceremony by a clergyperson, such as a priest, rabbi, or minister, or by a judge or justice of the peace in a civil ceremony. The law treats civil and religious marriages the same.

A registered domestic partnership is created when two people of the same or opposite gender who wish to enter a spousal relationship sign a declaration in front of a witness and register it with Nova Scotia's Vital Statistics office.

A common law relationship is created when two people of the same or opposite gender cohabit (live together) as a couple for one to three years or more, depending on the particular rights involved.

Over the last ten years, many laws relating to employment benefits, taxes, parenting and rights on separation have been changed to give common law couples and registered domestic partners the same rights and responsibilities as married couples.

At present, lesbian and gay couples cannot marry in Canada. A number of gay and lesbian couples successfully challenged this law in an Ontario case called Halpern v. Canada (Attorney General). Other lesbian and gay couples challenged the law in British Columbia and Quebec. When this Guide was published, these cases were working their way through the Courts towards the Supreme Court of Canada.

The Terms Used in this Guide

In this Guide, we refer to your partner in any intimate relationship as your "spouse." The terms "spouse" or "former spouse" will be used to describe your partner after you are separated or divorced. When we refer to common law couples, we are referring to both same sex and opposite sex couples unless otherwise noted. When we refer to registered domestic partners, this includes both opposite sex and same sex couples. Because a woman may now have a male or female spouse through a common law relationship or a registered domestic partnership, we will refer to your spouse as "she or he." When we are talking only about legally married couples we will use the words "husband" and "wife" as they are usually understood. When we refer to "children," we are including one child.

Contracts and Relationships

All relationship contracts should be in writing. Oral (spoken) or tacit (unspoken) agreements may not be enforceable in court. Putting an agreement in writing ensures that there is a record of the exact terms agreed upon between the spouses.

There are two main types of contracts or agreements that spouses may make regarding their relationship:

Cohabitation Agreements

A cohabitation agreement is a contract made before or during cohabitation (living together) that sets out the rights and responsibilities of the spouses during the relationship and establishes, in advance, what will happen in relation to support, division of property, and other issues if the relationship ends. This type of contract is called a "cohabitation agreement" when made between common law spouses or registered domestic partners. It is called a "marriage contract" when made before or during a marriage. If the contract is made before the marriage, it is sometimes also called a "pre-nuptial contract."

Separation Agreements

A separation agreement is a contract made after a relationship ends in which the former spouses set out what will happen in relation to custody, access, child support, spousal support, and division of property. It is called a "separation agreement" for all couples, whether they are married, common law, or registered domestic partners.

Independent Legal Advice

Each spouse should review the contract with her or his own lawyer before signing it, even if you agree on everything in the contract. This is called getting "independent legal advice." If one or both spouses do not get independent legal advice before signing the contract and a problem arises, the court may not enforce the contract.

Back to The Table of Contents

Marriage

There are about 5,000 marriages in Nova Scotia each year. Here is a list of some of the ways in which your legal status is affected by marriage. All of these rights arise immediately after the marriage ceremony. Married couples can modify some of these rights and obligations in a marriage contract or pre-nuptial agreement.

Taxation

When you and your husband complete your tax returns, you must provide all required information about each other, including social insurance numbers and any other information requested on the return and on any Schedules that you complete.

You and your husband can make tax-free contributions to each other's RRSPs. If you separate, the Canada Customs and Revenue Agency (CCRA), formerly known as Revenue Canada, permits you and your husband to transfer funds from one RRSP to the other tax-free, as part of your division of property.

Inheritance

You and your husband obtain rights of inheritance to each other's property. If you marry, you should make a new will. Marriage automatically revokes (cancels) any will made before the marriage except if the will specifically mentions the marriage and is made "in contemplation of" the marriage. Separation or divorce do not revoke a will, so you will probably want to make a new will if you separate. If your husband dies without a will, you will inherit his property, although it may be shared with the children if the value of the property is more than $50,000.

Survivor Benefits

You become eligible for "survivor benefits" if your husband dies. Survivor benefits include pension benefits, a Workers' Compensation settlement if your husband died in a work accident, and the right to sue under the Fatal Injuries Act if he died in any other type of accident that was caused by the negligence of someone else.

Spousal Support

You and your husband become responsible to support each other during your marriage, and after separation, if necessary. If you need spousal support after separation, you can apply to the appropriate court. For more information, see the section of this Guide on Spousal Support.

Custody, Access, and Child Support

The Maintenance and Custody Act allows married couples that have children to apply to the Supreme Court (Family Division), or Family Court, if there is no Supreme Court (Family Division) in your area, to determine custody, access, and child support issues.

If you or your husband has petitioned for divorce, the Divorce Act applies and your custody, access, and support issues are heard in the Supreme Court or Supreme Court (Family Division).

In deciding which parent should have custody and what access is appropriate, the court looks at what is in the best interests of the children. Child support is set using the Federal or Provincial Child Support Guidelines, which are virtually identical. For more information, see the section of this Guide on Children of Separated Parents.

Property Division

Your property becomes shareable with your husband and his property becomes shareable with you. The Matrimonial Property Act creates a legal presumption that after separation, married couples will share equally all of the property each owned before the marriage and all of the property acquired during the marriage, unless an equal division of property would be unfair. (One of the factors that may make an equal division of property unfair is if the marriage lasts for only a short time.) If one of you owns significantly more property or has significantly more debt than the other when you marry, you should consider having a pre-nuptial or cohabitation agreement.

Debts

You may be asked to co-sign your husband's applications for loans or credit cards. Co-signing will make you responsible for the debt if he does not pay. You do not become responsible for your husband's debts just because you are married. You are not responsible to creditors for your husband's debts unless you co-sign for a particular debt. If you separate, your debts and your husband's debts can be divided along with your matrimonial property. The court can order that you be responsible for all or part of your husband's debts even if you were not a co-signer on the original loan or credit card.

The Marriage Licence and Ceremony

You must have a marriage licence to get married in Nova Scotia. Anyone over 19 years of age is eligible to apply for a marriage licence. Anyone under 19 years of age must first obtain the consent of both parents. If your parents will not consent, you can apply to the court for permission to marry. Anyone under 16 years of age cannot marry without the consent of the court, even if her or his parents consent. The court will only grant permission to marry if you show that marriage would be in your best interests.

Either the bride or groom may apply for the marriage licence. Once you apply for the licence, you must wait five days before it is issued. The Deputy Issuer of Marriage Licences will need the following information for the bride and groom: full name, age, marital status (never married, divorced or widowed), and current address. No blood tests are required. If either the bride or groom is divorced or widowed, she or he must also provide proof of the divorce or death, such as a Certificate of Divorce or a Death Certificate, as appropriate.

Marriage ceremonies are performed by a clergyperson (such as a priest, minister, rabbi, or Mi'kmaq elder) registered under the Solemnization of Marriage Act. Judges and most Justices of the Peace are also able to perform marriage ceremonies. For a list of Justices of the Peace who perform marriages, contact your local Deputy Issuer of Marriage Licences or visit the Nova Scotia Department of Justice website at www.gov.ns.ca/just.

Two people who are at least sixteen years of age must witness the marriage ceremony. The person performing the marriage ceremony will help you complete a Marriage Registration form and will file this form with the Vital Statistics office after the marriage ceremony. You will receive a temporary marriage certificate from the person who performed the marriage ceremony. If you later require a marriage certificate, you can apply to the Vital Statistics office in the province, state, or country where you were married. If you marry outside of Nova Scotia, you do not need to do anything to register your marriage here when you return. Your marriage will be registered in the place where it occurred.

Changing your Name or Not

There is no legal requirement that you take your husband's surname (last name) when you marry. After you marry, you have the following choice of surnames:

your birth surname
a previous married surname
your current husband's surname
any combination of the above (with or without a hyphen).

If you choose to change your name, all you need to do is advise businesses, government departments, banks, and others that you will be using a different last name. You do not need to apply for a formal name change. If anyone requires official proof of your name change, show her or him your marriage certificate. If you decide not to change your name, simply sign your own name on your marriage certificate and continue to use your name as you did before your marriage.

If you want to resume using your unmarried name (or a previous married name), you can do so at any time. All you need to do is to advise businesses, government departments, banks, and others of the change and have your identification cards, bank, and credit accounts changed. If proof is required, a copy of your birth certificate or previous marriage certificate should be sufficient. If you are divorcing, your Divorce Judgment can include a paragraph changing your name to any name you wish.

If you want to change your first name, or if you want to change your last name to something other than your husband's name, a previous married name or your birth name, you must make an application using the Change of Name Act.

Back to The Table of Contents

Common Law Relationships

In a common law relationship, two people of the same or opposite sex live together as spouses but are not legally married to each other. No amount of time living together will change a common law relationship into a marriage, but over time, usually one to three years, depending on the particular rights involved, you may acquire many (but not all) of the same rights and responsibilities of a married couple or registered domestic partners.

Common law couples can modify some of these rights and obligations by entering into a cohabitation agreement.

Name Change

Common law spouses can use the Change of Name Act if they wish to change their names when they become spouses or to return to a previous name if they separate. To change your name under the Change of Name Act, you must be at least 19 years of age and either be born in Nova Scotia or a resident of Nova Scotia for at least one year immediately before the date of your application. If you are under 19, you must have your parents' consent or a court order permitting the name change. If you change your surname using the Change of Name Act, you must advertise the change in a publication called the Royal Gazette, complete a form and pay a fee. For more information, contact the Vital Statistics office of Service Nova Scotia and Municipal Relations at 424-4381 or toll free at 1-877-848-2578.

Taxation

Since 1993, common law spouses have been treated the same as married couples for all income tax purposes. The Canada Customs and Revenue Agency (CCRA) (formerly Revenue Canada) considers two people to be common law spouses if they have lived together for at least 12 months, or if they have lived together for less than 12 months but have a child together. You cannot avoid being considered as spouses by the CCRA if you and your spouse fit within this definition.

When you and your common law spouse fill out your income tax returns, you must provide all required information about your spouse, including her or his social insurance number and any other information requested on the return and on any Schedules that you complete.

If you are in a common law relationship, you can no longer claim a child for the "eligible dependent" (formerly "equivalent to spouse") deduction. This is now reserved for parents who are truly raising their children alone (see the Money Matters section of this Guide for more details).

There are tax benefits associated with being a spouse. You and your spouse can make tax-free contributions to each other's RRSPs. If you separate, tax-free transfers from one spouse's RRSP to the other spouse's RRSP are now available to common law couples as part of their property division.

If you and your spouse separate temporarily, you may still be considered spouses by the CCRA. If your separation was for 90 days or less and you get back together, you will be considered to have been common law spouses during the entire time.

Inheritance

A common law spouse will not automatically inherit from her or his spouse if the spouse dies without a will. If you want your common law spouse to inherit your property, you must make a will.

Even if your common law spouse has a will that benefits you, if one of you is still legally married or in a registered domestic partnership with someone else, that spouse may be able to contest the will, if the spouse or dependent children are left in need. If you are not legally married to anyone or in a registered domestic partnership, your children will benefit from your estate if you die without a will. (For more information, see the section on Wills in this Guide).

You should make a new will if you marry, become a registered domestic partner or common law spouse or if you separate from your spouse.

Survivor Benefits

A "survivor benefit" is a payment or series of payments made to the spouse of a person who died. Many (but not all) survivor benefits now apply to common law spouses as well as married spouses.

To determine whether you are entitled to a particular survivor benefit as a common law spouse, you will need to check the law pertaining to that benefit. A lawyer or a benefits administrator can help you with this.

Spousal Support

Common law spouses who have cohabited (lived together) for more than two years have the right to apply for spousal support and the responsibility to support their spouse financially during the relationship and after separation if one spouse is in need of support and the other has the ability to pay support. If you need financial support from your spouse, you should apply to the appropriate court using the Maintenance and Custody Act.

Custody, Access, and Child Support

The Maintenance and Custody Act allows common law couples that have children to apply to the Supreme Court (Family Division), or Family Court, if there is no Supreme Court (Family Division) in your area, to determine custody, access, and child support issues.

In deciding which parent should have custody and what access is appropriate, the court determines what is in the best interests of the children. Child support is set using Nova Scotia's Child Support Guidelines, which are virtually identical to the Federal Child Support Guidelines that apply to divorcing parents (see the section of this Guide on Children of Separated Parents).

Property Division

The Matrimonial Property Act does not apply to common law spouses. There is no legal presumption that property will be divided equally when common law spouses separate as there is with married couples. Instead of an equal division of property, the general rule is that each spouse will keep all of the property that she or he purchased or that is registered in her or his name.

Where one spouse worked outside the home and purchased property while the other spouse worked inside the home raising children, it would be unfair to give all of the property to the spouse who purchased it and ignore the contribution of the spouse who kept the home and raised the children. The law recognizes this unfairness but requires the spouse who is seeking to divide the property to prove she contributed to it, either in "work, money, or money's worth." For more information about the division of property for common law couples, see the section of this Guide on Division of Property.

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Registered Domestic Partnerships

Registered domestic partners are treated like married couples in some ways and like common law couples in others. Registered domestic partners are only treated like common law spouses if they have lived together for the required amount of time (usually one to three years, depending on the particular law involved).

Establishing a Registered Domestic Partnership

Anyone over 19 years of age who has been a resident of Nova Scotia for at least three months or who owns a home or land in Nova Scotia may enter into a registered domestic partnership as long as she or he is not already married or in another registered domestic partnership. Registered domestic partners may be of the same or opposite sex but must be in a spousal relationship.

No specific ceremony is required by law, but registered domestic partners may choose to have a ceremony of their own design. The registered domestic partnership is created when both partners sign a declaration in the prescribed form in the presence of at least one witness and register it with the Nova Scotia Vital Statistics office. To register a domestic partnership, you must provide the following documents for both spouses to your local Vital Statistics office: proof of age, proof of residency or proof of ownership of a home or land, proof of previous divorce (if applicable) or a death certificate (if widowed), and the completed, signed and witnessed declaration.

Other provinces, the Federal government, or other countries may not recognize your registered domestic partnership. However, you may be treated as common law spouses if you meet the legal requirements of those places.

Name Change

Registered domestic partners can use the Change of Name Act if they wish to change their names when they become spouses or to return to a previous name if they separate. For more information, see the section in this Guide on Common Law Spouses.

Taxation

The Federal Income Tax Act does not yet recognize registered domestic partnerships. Registered domestic partners are treated the same as common law spouses once they have cohabited (lived together) for at least 12 months or if they have a child together.

Inheritance

Registered domestic partners are treated like married spouses for inheritance purposes in Nova Scotia. If you die without a will, your registered domestic partner (and your children, if any) will inherit your property. The Federal government and other provinces or countries may not recognize registered domestic partnerships, so if you move outside Nova Scotia or own property outside Nova Scotia, you should speak to a lawyer to ensure that your property will go to the people you have chosen.

If you enter into a registered domestic partnership, you should make a new will to reflect your change in family status.

Survivor Benefits

Registered domestic partners are now entitled to survivor benefits under a number of Nova Scotia laws. Outside Nova Scotia and with the Federal government, registered domestic partners may be entitled to survivor benefits as common law spouses if they have cohabited (lived together) at least as long as required by the particular law (usually one to three years).

Spousal Support

The Maintenance and Custody Act gives registered domestic partners the same right to apply for spousal support and the responsibility to support a spouse as common law couples, with one difference. Common law couples do not acquire a right to support until they have cohabited (lived together) for two years, but registered domestic partners acquire the right to support as soon as they become spouses, just like married couples.

Custody, Access, and Child Support

Registered domestic partners have all of the same rights and responsibilities as common law couples under the Maintenance and Custody Act.

Property Division

Registered domestic partners are treated the same as married spouses under Nova Scotia's Matrimonial Property Act. All of the property that each brought into the registered domestic partnership and all of the property that the spouses acquire during the partnership is called "matrimonial property" and will be shared equally between the spouses when they separate, unless one spouse can prove in court that it would be unfair to divide the property equally. Not all property is "matrimonial property." See the section of this Guide on Division of Property for more information.

Ending a Registered Domestic Partnership

A registered domestic partnership ends at the earliest of the following events:

the partners are separated for more than a year (proof in the form of a sworn, written statement is required);
the partners sign a written separation agreement under the Maintenance and Custody Act (proof of the agreement is required);
the partners file a "Statement of Termination" with the office of Vital Statistics;
one of the partners marries someone else.

When a registered domestic partnership ends, the former spouses may have to pay spousal or child support. Either spouse may apply for a division of property using the Matrimonial Property Act. Like married and common law spouses, registered domestic partners can settle these issues with a separation agreement or by going to court.

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Lesbian Relationships

Homophobia and Discrimination

"Homophobia" is prejudice against (fear and dislike of) lesbians and gays. Homophobic behaviour is discrimination.

Lesbians may face barriers because of their sexual orientation. Sexual orientation is not an expressly protected characteristic or "ground" under the Charter of Rights and Freedoms. However, the courts and governments treat the law as if sexual orientation was included because, like race or gender, it is a personal characteristic for which lesbians and gays have suffered a history of discrimination. Since the Charter applies to government action, lesbians who are discriminated against by laws or government actions can seek a remedy using the Charter. This requires bringing a lawsuit or raising the challenge as part of another case. The lesbian and gay couples who are challenging the laws that prevent them from marrying are using the Charter to do so. (See the section on the Charter of Rights and Freedoms for more information about your rights).

The Canadian Human Rights Act and the Nova Scotia Human Rights Act do include sexual orientation as a protected ground. This means that lesbians benefit from the same rights of access to employment, services and so on as heterosexual women. If a lesbian suffers discrimination, she can complain to the appropriate Human Rights Commission (see the section on Human Rights).

The laws against "hate crimes" do not presently protect lesbians in Canada. However, the Criminal Code does provide for stiffer sentences for personal crimes that were influenced by hatred towards a particular group. For example, if someone assaults you because you are gay, the law considers the assault more serious. If you think that a crime against you was motivated by hatred towards lesbians, tell the police when you report it and ask them to include it in their report. Then it can be raised in court as part of the trial or sentencing.

Spousal Relationships

Lesbian couples may become registered domestic partners and many Federal and Provincial laws consider them common law spouses if they have cohabited (lived together) for the necessary amount of time. (See the sections of this Guide pertaining to Common Law Spouses and Registered Domestic Partners). The law is changing rapidly in this area.

Children

Lesbians can adopt children alone or as common law spouses. If the child's father is known and alive, he must generally consent to the adoption. If it is in the best interests of the child, a court can order that the adoption proceed without the father's consent. For more information about adoption, see the section of this Guide on Children.

Some lesbian couples have children through alternative insemination (previously known as "artificial insemination"), from either an anonymous or a known donor. The legal concerns are the same as for heterosexual women. The birth mother's spouse would have to adopt the child to become the child's parent.

If your donor is someone you know, the legal issues become more complex because the donor could change his mind and make a claim for custody or access in relation to the child. Some couples have attempted to avoid this possibility by entering into agreements with the donor to the effect that he will not apply for custody or access and in return will not be asked to support the child financially. There are not enough cases involving this type of agreement to know whether it will be enforced in court. There is more certainty if the donor consents to the child being adopted by the birth mother's spouse.

The nature of the relationship between parents is not important in the laws that regulate child support. A parent who has custody of a child can apply to the court to obtain child support from anyone who is a biological parent of the child or who once took a parental role towards the child. The court will look at the nature of that person's previous and continuing relationship with the child to determine if support should be paid.

Lesbians continue to be concerned about whether they will be discriminated against in relation to custody of and access to their children. When a court decides parenting issues, the court's decision must be based on what is in the child's best interests. This is a subjective decision by a judge, taking into account all of the evidence presented in the case. While there are court decisions stating that sexual orientation is not a deciding factor in determining custody or access, there are so many factors involved in the court's decision, it can be hard to know whether sexual orientation may have been inappropriately considered.

If you are a lesbian facing a battle over custody or access, you should consult with a lawyer experienced in advocating for gay and lesbian parents. You can find the names of lesbian-positive lawyers by picking up a copy of Wayves, a free monthly lesbian and gay magazine in Nova Scotia, the Pride Guide, or by consulting one of the lesbian-positive community organizations listed in the Resources section at the back of this Guide.

Challenging Discriminatory Laws

Some lesbians have been able to get benefits for their same sex partners by challenging exclusionary laws and benefit programs in court.

If your partnership or family does not fit into the definitions set out in a particular law or policy and you want to be eligible for benefits similar to those received by other families, here are some steps you may want to take:

ask for a copy of the definition into which you have been told you do not fit;
discuss your situation with the employer or civil servant who has the final authority to make a decision;
apply for the benefits and, if you are denied, ask for a written decision; and
after you receive the written decision, talk to a lawyer or to the appropriate Human Rights Commission about further steps you could take.

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Separation

Whether you are married, in a registered domestic partnership, or in a common law relationship, you have the right to live separately from your spouse and to legally end your relationship. If you are thinking about separating, it is useful to plan in advance how you will take care of yourself and your children, and how you will deal with family property. If you have to leave in a hurry and do not have time to plan, it is important to begin to take action as soon as possible.

Here are some issues you may want to consider at the time of separation or soon afterwards:

who will live in the family home and who will find somewhere else to live;
who will have financial responsibility for the home (e.g., mortgage payments and repairs, or the responsibility for the lease on a rented apartment);
what will happen to cash in joint bank accounts;
how you will make sure you have enough cash to meet your immediate needs;
custody of, financial support for, and access with your children;
financial support for each other;
who will keep which assets (e.g., the car, furniture, savings, cottage, stereo);
who will pay insurance premiums, and who will be the beneficiary of any insurance policy or RRSP;
who will be responsible for any debts;
who will be responsible for taxes related to certain income or property; and
a method of adjusting the terms of your agreement if circumstances change.

You should get advice about your rights and responsibilities from a lawyer before you speak with your spouse about these issues, if possible.

Reaching a Separation Agreement or Going to Court

If you and your former spouse cannot agree on the terms of your separation, you may need to go to court and let a judge decide any issues on which you cannot agree. Another option is to seek the assistance of a mediator, who can help you and your former spouse reach an agreement.

If you cannot speak the language used in court (usually English or French), translation and interpretation services are available through Nova Scotia's Department of Justice.

If you require translation or interpretation services, tell your lawyer and the court. You can also contact the Metropolitan Immigrant Settlement Association (MISA) for assistance in finding a translator or interpreter.

Because things tend to happen very quickly when you first separate, you may want to make only an "interim" agreement, or get an "interim" custody, access, or support order from the court. "Interim" means "temporary" and this agreement or order will usually only take care of the most crucial things.

Even though the order or agreement is meant to be only temporary, it is still very important that you make sure you can live with it in the long term if necessary. An interim agreement or order applies until you agree on something else or until a judge changes the order, which could be months or even years later. Unless your interim agreement or order is not working (and you can prove in court that it is not working), a judge may decide to make your final order the same as your interim agreement or order.

After you've had time to get settled into your new circumstances, you can try to reach a final agreement or go to court to get a final order. Both spouses have a right to appeal the judge's decision, if they do so within 30 days of the date of the decision or order.

Even "final" custody, access, and support orders can be varied if there is a significant change in circumstances. Property is only divided once. Your division of property cannot be varied, no matter how your circumstances or your former spouse's circumstances change. However, if you signed a very unfair agreement, if you did not have independent legal advice, or if your spouse was dishonest or if she or he did not reveal all of her or his assets, you may be able to get a judge to re-open your division of property. Judges will interfere with a signed agreement only in very limited circumstances.

Even if you and your spouse agree on the details of the separation, the agreement should be in writing, signed by both spouses, and each spouse's signature should be witnessed. This is especially important if you have children or if you own land or a house. You can then have the separation agreement registered with the court, which will ensure it is enforceable like a court order.

There are some legal requirements in relation to separation or divorce that you and your former spouse cannot avoid simply by reaching an agreement. For example, you cannot simply agree that your spouse will not deduct spousal support from her or his taxable income and you will not declare it as income. If the payments meet the requirements for spousal support, the law says the spouse paying support must deduct it and the spouse receiving support must declare it on their respective income tax returns. Similarly, you and your husband cannot agree to waive the requirement of one year's separation before a divorce is finalized.

Hiring a Lawyer or Mediator or Both?

Lawyers and mediators have different roles and it is often useful to have the assistance of both a lawyer and a mediator when you separate.

The Lawyer's Role

A lawyer can help you reach an agreement with your spouse. Your lawyer will give you advice about your rights and responsibilities and tell you whether any proposed separation agreement is fair and reasonable. Your lawyer can also negotiate with your spouse (or the other lawyer) and can prepare your case for court if you cannot reach agreement. The same lawyer cannot represent you and your spouse. You should each have your own lawyer.

You should not sign a separation agreement prepared by your spouse's lawyer without first reviewing it with your own lawyer. Even if you agree with it and feel that it is fair, it is important to review it with your own lawyer. This is called getting "independent legal advice." If one or both spouses did not get independent legal advice, a court may not enforce the agreement later.

If you hire a private lawyer, the lawyer may ask you to pay part of the fee in advance. This is called a "retainer" and protects the lawyer from people who decide not to pay after they have received legal advice or services. Your lawyer should tell you how much she or he charges per hour and be able to give you a rough estimate of how much the total cost could be, depending on the problem you want solved. She or he may also be able to tell you how likely you are to be successful and whether it might be to your advantage to negotiate now to save costs later. Your lawyer should treat you with respect and keep any information you give her or him confidential. It is important to be comfortable with your lawyer, especially in family law matters where you will be required to make important decisions that could affect your life for a long time. Ask friends, neighbours or relatives if they know of a lawyer that they would recommend to you. Identify two or three lawyers and ask for a free initial consultation with each one, to determine who you would be most comfortable with and who is best able to handle your case. Not every lawyer will give a free consultation, but it is worth asking.

If you want to change lawyers, you will have to pay the first lawyer's bill before she or he will release your file to you or to your new lawyer. If you have any concerns about a lawyer's behaviour, contact the Nova Scotia Barristers' Society, which is the professional body that regulates lawyers. Contact information is listed int he Resources section of this Guide.

If you can't afford to hire a lawyer, you may still be able to get legal advice through legal aid. You may qualify for legal aid, even if you own a home or other property, if you do not work outside the home or if your income is low. Contact your local legal aid office for an application. The telephone numbers for all Nova Scotia Legal Aid offices are listed in the Resources section of this Guide.

Collaborative Family Law

The process of separating and dealing with issues such as custody, access, child and spousal support, and division of property can create bad feelings and resentments that last for many years, particularly where spouses cannot reach agreement and have to go to court. Collaborative family law was developed in an effort to find an approach that would be less stressful and harmful to all involved. It began as an experiment in Minnesota in 1990 and has since spread throughout the United States and Canada. A number of lawyers in Nova Scotia have specialized training in collaborative family law.

Collaborative family law uses a cooperative approach rather than the traditional adversarial approach taken in court. Each spouse signs an agreement that she or he will participate in the collaborative process with a lawyer rather than going to court. The lawyers and spouses work together as a team, sharing all relevant financial and other information and the costs of any professionals involved, such as property appraisers or child counsellors. The focus is on communication and cooperation rather than conflict. The spouses and their lawyers continue to meet together until all the issues are settled. The goal is to reach a "win-win" agreement that leaves both spouses satisfied, instead of each spouse attempting to get her or his own way as much as possible. Both spouses must agree not to go to court or threaten court as a way of forcing settlement. If one spouse decides to end the collaborative process and go to court, both spouses must hire new lawyers and start again from the beginning.

Collaborative family law only works if both spouses are committed to settling their differences in an honest, respectful way. If your spouse is dishonest or if he or she has ever abused you or your children physically, sexually, verbally, emotionally, or financially, then collaborative family law is probably not appropriate for your case and you should not agree to it.

The Mediator's Role

Mediation is another way of negotiating an agreement. In mediation, both spouses seek the assistance of a third person to help them come to an agreement. The third person is neutral (does not favour one spouse or the other) and is selected by agreement between you and your spouse. Some mediators are lawyers, but your mediator should not be a lawyer who has advised you or your spouse. The mediator can also be a trained professional or volunteer who is not a lawyer. The mediator will help you communicate and focus on reaching an agreement that addresses the major concerns of both sides.

A mediator does not give legal advice, even if he or she happens to be a lawyer. Spouses often have their own lawyers as well as a mediator. Sometimes the lawyers will attend the mediation sessions but to keep costs down, often the meeting includes just the spouses and the mediator. You and your spouse should meet with separate lawyers before you start mediation. Most people do not reach agreement in one mediation session, so the mediation may take place over a period of weeks or even months. You will likely want to meet with your lawyer from time to time as the mediation progresses. You should meet with your lawyer once the mediation is done so that you can review the proposed agreement with your lawyer before it is finalized.

Things that are said by spouses involved in mediation cannot usually be used as evidence in court if the mediation doesn't work. This rule helps the parties speak more freely during mediation negotiations. Negotiations that cannot be mentioned in court are called "without prejudice" negotiations. Most of the negotiations between your lawyer and your spouse's lawyer would also be "without prejudice," meaning that neither side could mention the negotiations in court until after the judge has decided the case.

Your mediation agreement can be registered with the court once you and your spouse sign it, or can be incorporated into a divorce order.

Like collaborative family law, mediation is not for everyone. For mediation to work properly, both spouses must respect each other and genuinely want to reach agreement. If your spouse is dishonest, or has ever been abusive to you or your children physically, sexually, verbally, emotionally, or financially, then mediation is not appropriate. Mediation is also inappropriate if your spouse made all the decisions in the relationship or if you do not feel like you could stand up for yourself. Mediation is always voluntary and both spouses must consent to it. You should not agree to mediation unless you feel comfortable with it.

You can find a mediator by looking in your Yellow Pages under "Mediation Services" or by calling Family Mediation Canada at (519) 585-3118. Most mediators charge an hourly rate. The Supreme Court (Family Division) has a list of trained mediators. If you are referred for mediation by the court, the mediation fee is based on each spouse's income and is available at no cost to low income earners. For more information, contact the (Supreme Court) Family Division, or write to Family Mediation Nova Scotia.

Courts

Three different courts deal with family law cases in Nova Scotia. In most of the province, the Family Court handles custody, access, child, and spousal support cases for all couples (married, common law, and registered domestic partners), except married couples who have petitioned for divorce. Divorce Petitions are only heard in the Supreme Court, so once a Petition for Divorce is filed, custody, access, child, and spousal support applications of married couples are heard in the Supreme Court.

All couples (married, common law and registered domestic partners) seeking a division of property after separation must apply to the Supreme Court. Since April 1999, a special division of the Supreme Court called the Supreme Court (Family Division) handles all family law cases in the Halifax, Sydney, and Port Hawkesbury areas.

If you are uncertain as to which court will handle your case, you can telephone the court closest to your home to find out more. The telephone numbers are listed in the Resources section at the back of this Guide. Whichever court hears your case, it is always recommended that you have a lawyer represent you or, at the very least, that you consult with a lawyer for legal advice about your case.

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Divorce

Grounds for Divorce

Canada has a "no fault" divorce law, meaning that you do not need to show that your spouse was at fault to obtain a divorce. Spousal "misconduct" (wrongdoing), such as spousal abuse or having an affair, will not affect a spouse's right to seek support or a division of property.

To obtain a divorce, you must "petition for divorce" in the Supreme Court and show that there has been a breakdown of your marriage (sometimes called "grounds for divorce"). There are three grounds for divorce in Canada:

you and your spouse have lived separate and apart for at least a year;
your spouse has committed adultery (has had voluntary sexual relations with somebody else); or
your spouse has treated you with such physical or mental cruelty that it impossible for you to continue to live together.

If you are seeking a divorce based on adultery or cruelty, there is no year-long waiting period and the divorce can be obtained immediately. Even where there has been adultery or cruelty, in Nova Scotia, most people do not finalize a divorce until they have signed a separation agreement, which can take many months to negotiate. If you are seeking a divorce based on a year's separation, you can file the Petition for Divorce at any time after you separate, but the divorce will not be granted until you have been separated for at least one full year.

If you and your husband agree on the divorce and have settled all issues by signing a separation agreement, this is known as an "uncontested" divorce. If your divorce is uncontested, you may choose to petition for divorce jointly.

Who Can Apply for Divorce?

The grounds for divorce are the same for men and women; it doesn't matter which spouse decides to end the marriage. Either spouse may petition for divorce without the consent of the other. The spouse who petitions for divorce must have lived in the province where she or he petitions for divorce for at least one year before the petition is filed, and must have been physically present in the province for at least ten months of that year.

Do You Need a Lawyer?

It is recommended that you seek the advice of a lawyer when you are divorcing. You will find lawyers who deal with family law matters listed in the Yellow Pages of your telephone book or you can call the Lawyer Referral Service of the Legal Information Society of Nova Scotia at (902) 455-3135. Another way to find a lawyer is to ask friends or family members for a referral to a lawyer they know. Local women's groups may be able to direct you to a lawyer who has a special interest in women's rights or in issues such as child custody and division of property.

If You Can't Afford a Lawyer

If you do not work outside the home or if you have a low income, you may qualify for legal aid. Contact your local legal aid office for more information. The telephone numbers are listed in the Resources section of this Guide.

If you cannot afford a lawyer and you do not qualify for legal aid, you can do the necessary paperwork and represent yourself in court. The Petition for Divorce and other required forms do not have to be prepared by a lawyer. If you want to do the paperwork yourself, you can purchase an inexpensive kit with all of the forms and instructions on a computer disk or on paper. The paperwork is quite complicated and most people choose to hire a lawyer rather than do the paperwork themselves. The kit is available from the Supreme Court (Family Division) or the Legal Information Society of Nova Scotia. The Halifax telephone number for the court is (902) 424-3990. The telephone number for the Legal Information Society is (902) 455-3135. Before finalizing your divorce with this kit, you should review the completed paperwork with a lawyer. The Legal Information Society of Nova Scotia provides referrals to lawyers who will provide a 30 minute consultation for $20.00+HST. This may not be sufficient time to review all of your paperwork. If necessary, you can arrange with the lawyer to pay for additional time, as required.

Reconciliation and Counselling

When you see a lawyer about a divorce, she or he will likely ask you whether there is any possibility of reconciliation (getting back together). If you feel that there may be a possibility of reconciliation, you can ask your lawyer to refer you to a marriage counsellor. The law does not require you to try to reconcile. As long as one spouse feels that there is no possibility of reconciliation, a divorce will be granted.

Filing for Divorce

The first step in filing for divorce is to prepare and file a document called a Petition for Divorce with the Supreme Court closest to your home. In your Petition, you will state the grounds for the divorce and state what else you are seeking (for example spousal support, custody, child support, a division of property, etc.) A filing fee of about $250 must be paid. You should sign and bring five copies of the Petition to court. The court clerk will keep one Petition and return the other Petitions for Divorce to you. You will need one copy for your spouse and possibly others if either or both of you retain a lawyer. The person who files for divorce is called the "Petitioner" and the other spouse is called the "Respondent." If you file for divorce jointly, you are called "Co-petitioners."

After the Petition for Divorce is filed with the court, the original Petition (the one with the red seal) must be "served" on your husband (i.e., personally given to him). Spouses are not allowed to do this themselves, so most people do this through their lawyers or hire a "process server" or "bailiff." A process server's job is to find people and give them legal documents that require "personal service." After this happens, the process server will provide you with a sworn, written statement called an "affidavit of service" to prove to the court that the Petition was served on your husband. If you have a lawyer, your lawyer will arrange for service of the Petition on your husband. If your husband has a lawyer, his lawyer can serve him with the Petition. If you do not have a lawyer, you will have to arrange for service yourself. Look in your Yellow Pages under "Bailiffs" to contact a process server in your area.

Once your husband is served with the Divorce Petition, he then has 20 days (or more if he lives outside Nova Scotia) from the day he was served with the Petition to decide whether to contest the divorce or its terms by filing with the court and serving you with a document called an "Answer" to the Petition.

If you are the one who is served with a Petition for Divorce, you should contact a lawyer as soon as possible, since your "Answer" must be filed with the court within 20 days if you and your husband live in Nova Scotia. If you or your husband lives outside Nova Scotia, you will have more time to file and serve your Answer.

Uncontested Divorce

If your husband does not challenge your Petition for Divorce or any of your claims (for custody, division of property, etc.) the divorce is "uncontested." You or a lawyer will prepare the required paperwork to finalize the divorce and file it with the court. If there are any children, the court must approve the terms of the divorce. If there are no children, the court only needs evidence that one of the three grounds for divorce is established. In Nova Scotia, uncontested divorces are processed in a judge's office and there is no need for you or your husband to go to court. It usually takes one to three months for the divorce to be processed. Once it is processed, you will receive two court orders: a "Divorce Judgment" (which grants your divorce and can include a paragraph changing your name) and a "Corollary Relief Judgment" (which deals with custody, access, support and the division of your property).

Once a Divorce Judgment is granted, it does not become final for 30 days so that a spouse who disagrees with the judgment or its terms has time to appeal. If no one appeals, the divorce takes effect on the 31^st day after the date on the Divorce Judgment and either spouse may apply to the court for a Certificate of Divorce. You will need this Certificate if you want to remarry. If your divorce is uncontested and you cannot wait 31 days for the divorce to become final (for example, if one of you plans to remarry right away) you can explain your special circumstances in a sworn written statement called an "affidavit" and ask the judge to waive the 31 day waiting period.

Contested Divorce

Divorces are contested if the spouses cannot agree on all of the terms. As long as there is at least one issue (such as custody, access, support, or division of property) that you and your husband cannot agree on, there must be a trial for the judge to decide that issue.

In a contested divorce, it may take more than a year before your case goes to trial. Both spouses usually testify at the trial. The spouse who petitioned for divorce will have to testify first, to prove that grounds for divorce exist. If you have been separated for more than a year, it is usually just a matter of telling the judge under oath that you have been separated for more than a year and that there is no possibility of reconciliation.

If you divorce is contested, you should hire a lawyer to represent you.

Annulment

When a marriage is annulled, it is considered to have never existed. Annulments are very rare. You should talk to a lawyer if you want a legal annulment. Some of the reasons accepted by law for getting an annulment are:

if a spouse was already married to someone else (has more than one wife or husband at the same time);
if a spouse could not give a valid consent to the marriage because she or he did not understand the meaning or implications of the marriage ceremony because of severe drunkenness or mental disability;
if one spouse was under 19 years of age and the consent of both parents or the court was not given;
duress (being forced to marry someone); and
if a spouse is unable to have sexual intercourse because of a physical or psychological problem that existed at the time of the marriage.

Either spouse can file for an annulment. If your marriage is legally annulled, you have all the same rights as other separating couples to custody, access, division of property, spousal support, and child support for any children of the marriage.

A legal annulment is not the same as a religious annulment that lets you remarry within your Church. If you want a religious annulment, contact your Church.

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Division of Property

In Nova Scotia, legally married couples and registered domestic partners can apply in the Supreme Court or the Supreme Court (Family Division) under the Matrimonial Property Act to have their property divided when the relationship ends. Different rules apply to common law couples. The rules for common law couples are discussed at the end of this section and in the section on Common Law Relationships.

The Matrimonial Property Act

Under the Matrimonial Property Act, "matrimonial assets" are presumed to be divided equally between the spouses at the end of the relationship. In Nova Scotia, the law defines matrimonial assets as any property obtained by either spouse before or during the marriage, with some exceptions.

The following are some examples of matrimonial assets:

the family home, if you and/or your spouse own it;
any other real estate the spouses own, as long as it is not a business asset;
an apartment lease;
cash on hand or in a bank;
cars and furniture;
RRSPs (Registered Retirement Savings Plans);
pensions;
a severance payment received by either spouse or paid after separation (in some circumstances); and
stocks, shares, and bonds, including mutual funds.

The types of property that are not matrimonial assets are:

gifts, inheritances or trusts received from someone other than your spouse, except to the extent that they are used for the benefit of the family;
money awarded to one of you by a court after a trial, except in relation to a matrimonial asset;
money paid to one of you under an insurance policy, except in relation to a matrimonial asset;
reasonable personal possessions such as clothing (but cars and furniture are matrimonial assets);
business assets (see below); and
property acquired after you and your spouse separate (unless it was purchased with money saved during the relationship).

The Matrimonial Home

The Matrimonial Property Act treats the matrimonial home in a special way. Both spouses are equally entitled to live in the matrimonial home even if only one spouse is named on the deed. Spouses cannot sell or mortgage the matrimonial home without the written consent of the other spouse. If you and your spouse cannot agree on who will remain in the matrimonial home after you separate, you can apply to the court for "exclusive possession" of the matrimonial home. This order requires one of you to leave the matrimonial home and find somewhere else to live. A judge can order that your spouse continue to make the mortgage payments on the matrimonial home, even if you and the children have exclusive possession of the home.

Often, one parent and the children will remain in the matrimonial home after separation, if the family can afford it. If finances allow, it is also possible for one spouse to buy out the other's interest in the matrimonial home. This interest is called "equity." Equity is the amount of money you and your spouse would have if you sold the house and paid the mortgage and all of the expenses of the sale, such as real estate fees and legal fees.

To calculate the "equity" in your matrimonial home you need to know the value of the property: what it would sell for if put on the market. For example, if your home is valued at $100,000 and you have a mortgage of $60,000 and do not plan to sell the home, the total "equity" in the home is $100,000 - $60,000 = $40,000, so each of you has $20,000 in equity and it will cost you $20,000 to buy out your spouse's interest in the home.

The assessed value or bank appraisal may or may not accurately reflect the current value of the property. You should consider obtaining an appraisal of your own to be sure of the value.

If you and your children are living in the matrimonial home but you cannot afford to buy your spouse's interest right away, and you don't want the children to have to move, your spouse can "postpone his equity" in the matrimonial home, meaning that you will agree on the value of his share of the home but he will not actually receive the money for a set number of years or until the home is sold, whichever comes first. Sometimes this amount is paid with interest, sometimes not, depending on the circumstances.

If you cannot agree who will keep the matrimonial home, a judge can order that one of you buy out the other's interest or that the home be sold and the equity divided between you after the sale closes.

Business Assets

"Business assets" are not considered matrimonial assets and are not divided between the spouses after separation, though there are some exceptions. Usually, each spouse keeps any business assets she or he has acquired. A business asset is any asset you or your spouse owns in order to generate revenue, make a profit, and obtain an income. Any property that belongs to a business, such as a delivery vehicle, or real estate, is probably also a business asset. If a business owner does not keep business money and personal money separate (e.g., in different bank accounts), all the money may be considered a matrimonial asset.

A spouse who has put unpaid or underpaid "work, money, or money's worth" into the other spouse's business may apply to the court for a share of the business asset. The court can order the business-owning spouse to pay fair compensation to the other spouse for the contribution, or can award the other spouse a share of the business. This is a complicated area of the law. If you feel that you made this type of contribution to your spouse's business, you should speak with a lawyer.

Debts

Matrimonial debts can be divided after separation just like matrimonial assets. Matrimonial debts may remain with the spouse who incurred the debt, be divided between the spouses, or become the sole responsibility of the other spouse. There is no set rule that matrimonial debts will be shared equally.

Not every debt that spouses have when they separate will be considered a matrimonial debt. A loan may not be considered a matrimonial debt if the original loan was acquired before the relationship began, if the loan was for one spouse's business, or if the loan was not used to benefit the family. In these cases, the spouse who incurred the loan will probably be responsible to pay it back.

The court may also order one spouse to be responsible for debt incurred by the other spouse during the relationship, in order to ensure a fair division of property.

When the court is deciding whether and how to divide the debts between you and your spouse, the court will consider, among other factors, whether the debt goes with a particular asset and who has possession of the asset, who incurred the debt and whether it was reasonable, and who can best afford to pay the debt now that you are separated.

Having a significant debt load is a consideration that can be raised by your spouse to avoid paying full child support (see the section on Child Support). Your spouse will not automatically get an exemption from child support payments just because she or he has debt. The judge will first compare the spouses' standards of living.

You are not responsible to pay debts in your spouse's name just because you are (or were) spouses, unless you co-signed for the loan or a judge orders you to be responsible for the debt.

How the Division of Property Works

When you or your spouse make an application for division of property under the Matrimonial Property Act, each of you will have to file with the court a complete, sworn list of all the property you owned at the time you separated. If either of you has not revealed all the property you owned, the court can order further disclosure of financial records or even re-open a property division that has already occurred.

Sometimes it is difficult to determine the value of items. You and your spouse may be able to agree on a value, or you may decide to pay a professional appraiser to estimate the value of your property. If you can't agree, the judge may order an appraisal or determine a value based on the evidence you both provide. If the value of the asset varies over time, this creates another issue. Assets are usually given the value they had on the separation date, but there are some exceptions.

Equal Division of Matrimonial Assets

The general rule is that all matrimonial property will be divided equally. Once all of your property has been valued, the court will compare each spouse's list of property. Rather than divide every single asset, the court will add up the total value of each spouse's matrimonial assets and subtract the total of that spouse's matrimonial debts (non-matrimonial debts are not counted). After these adjustments are made, if one spouse has matrimonial assets with a higher value than the other spouse, the judge will generally order that an "equalization" payment be made from one spouse to the other so that each spouse has matrimonial assets of exactly the same value. A judge is more likely to order a "lump sum" equalization payment rather than payment over time, if the payment can be made all at once.

If the payment is not made as ordered, you can go back to court for enforcement or have a sheriff help you collect. For more information, contact a lawyer.

Unequal Division of Matrimonial Assets

Sometimes an equal division of matrimonial assets would be unfair to one spouse, for example:

if one spouse brought significantly more assets into a marriage or registered domestic partnership that only lasted a short time;
if one spouse wasted assets belonging to both spouses;
if one spouse was able to build up a valuable business asset because the other spouse took responsibility for the home or for child care;
if one spouse contributed to the education or career potential of the other spouse;
if one spouse would suffer significant tax consequences because of the division of assets.

It is up to the spouse who feels that an equal division of matrimonial assets would be unfair to prove it in court, otherwise the matrimonial assets will be divided equally.

If the court finds that an equal division of matrimonial assets would be "unfair," the court can divide the matrimonial assets unequally or divide assets that are non-matrimonial in order to make the division fair to both spouses.

Pension Division

Apart from the family home, an employment pension may be one of the most significant matrimonial assets. A pension is not like other property because you cannot sell it for cash. Instead, it is a right that the pension holder has to be paid an income after retirement. Pensions are considered matrimonial property because the family could have used the money contributed to the pension instead, and because the pension would have provided retirement security for both spouses had they not separated. If you did not work outside the home but your spouse did, the work that you did to care for the children and the household allowed your spouse to earn the pension.

Nova Scotia's Pension Benefits Act and its Federal counterparts allow a pension to be divided "at source" (e.g. by the former employer before it is sent to the pensioner) so that each spouse receives one half of the pension earned during the relationship. You are entitled to half the pension your spouse earned during the time you were living together, but not the portion earned before that or the portion earned after the separation. (Similarly, your spouse is entitled to half the pension you earned during the same period). When you apply for a division, the pension plan administrator calculates what portion of your spouse's pension you are entitled to and puts it in a separate account for you. When your spouse becomes eligible for the pension, you begin getting your pension. If your spouse dies first, you will continue to get your share of the pension for as long as you live.

If your spouse is already receiving a pension when you separate, it may not be possible to divide the pension. In that case, the court can order that your spouse pay you half of the pension when it arrives each month.

If your spouse dies before you are divorced and the pension is not divided, or if your spouse is already receiving a pension when you separate, you may be entitled to a "survivor's pension" which could be more or less than what you would have received if the pension had been divided.

Valuing a Pension

Often today, both spouses work in jobs where they earn a pension. However, one spouse's pension will often be smaller than the other's. For example, a woman's pension may be smaller than her spouse's if she took time away from the workforce to raise children or if her job paid less than her spouse's job. All pensions are not of equal value.

The value of a pension is not the same as the value of the contributions plus interest. If you are considering taking other matrimonial assets instead of a share of the pension or waiving your interest in your spouse's pension, you should have an actuary value the pension before you decide, so you can make an informed decision. Your lawyer can refer you to an actuary.

Canada Pension Plan (CPP) and Registered Retirement Savings Plans (RRSPs)

There are other types of after-retirement entitlements that have value and need to be taken into account when matrimonial assets are divided.

Workers have a right to the Canada Pension or Quebec Pension through their payroll deductions. Married couples and common law couples that lived together for at least a year can apply to the Canada Pension Plan to have their CPP credits split after the separation. Common law couples must wait one year after the separation to apply for a credit division and must apply within four years after separation.

RRSPs can be divided between spouses after separation. If both spouses have RRSPs, they can be equalized. It is not usually a good idea to cash out or collapse your RRSPs in order to divide them. The Canada Customs and Revenue Agency (CCRA) permits separating married and common law spouses to do a tax-free RRSP "rollover" from one spouse to another as part of a division of assets. The necessary forms are available through your lawyer or any CCRA office.

Division of Property for Common Law Couples

Common law couples (including same sex partners) cannot apply for a division of property under the Matrimonial Property Act. In a case called Walsh v. Bona, the Nova Scotia Court of Appeal recently held that this exclusion discriminates against common law spouses. The case was appealed to the Supreme Court of Canada and a final decision is expected by early 2003.

Common law spouses do not benefit from a legal presumption that their property will be divided equally, like married spouses or registered domestic partners. Instead, each common law spouse is entitled to keep all the assets she or he purchased or that are registered in her or his name. This may or may not be fair to both spouses. If the relationship was a long one or if one spouse had most of the assets registered in her or his name, it might be very unfair.

Common law spouses who put unpaid or underpaid "work, money or money's worth" into their spouse's assets or who provided home-making or child-rearing services can make a claim in court against specific assets using the "common law." This type of claim is called a claim for "constructive trust" or "unjust enrichment" because one spouse is unjustly enriched by the contributions of the other. The more evidence you can present to show that your relationship had the same level of commitment as a marriage, the stronger your claim.

More and more laws now recognize common law relationships and treat common law spouses the same as married spouses. After two years of cohabitation (living together), common law spouses have the same rights and obligations as married spouses or registered domestic partners under these Nova Scotia Acts as well as a number of Federal Acts:

Fatal Injuries Act allows a spouse to sue for compensation where the other spouse has been killed in an accident;
Health Act allows a spouse to consent to the use of medical records if the other spouse is incapacitated;
Hospitals Act permits a spouse to consent to treatment for the other spouse if she or he is incapacitated;
Income Tax Act (Nova Scotia) makes Nova Scotia law the same as the Federal law and gives common law spouses access to the Home Ownership Savings Plan Tax Credit;
Insurance Act ensures common law spouses are included in each other's insurance coverage and benefits;
Maintenance and Custody Act allows common law spouses to obtain spousal support from the other spouse;
Members Retiring Allowance Act provides survivor allowances for common law spouses of MLAs;
Pension Benefits Act gives common law spouses the right to pension division and survivor benefits;
Provincial Court Act provides benefits for common law spouses of judges.

Protecting Yourself and Your Property

If you are in a common law relationship, there are some things that you can do to protect yourself. Whenever you or your spouse acquire property that is meant to belong to both of you, it should be registered in both names if possible. For example, both of your names should appear on the deed when you buy a home together. If you want one spouse to inherit the other's interest in the property, you should buy your home as "joint tenants." If you each want to give your share of the property to someone other than your spouse when you die, you should buy your home as "tenants in common." During the relationship, you should keep records and receipts indicating who paid for what assets and expenses, especially in relation to large purchases like land or a business, no matter how title to each asset is registered.

Another way to protect your interest in property is to have a cohabitation agreement. If one or both spouses had significant property before the relationship or if one spouse acquires property during the relationship that is to belong only to her or him, then it is best to put this in writing with a cohabitation agreement.

Status Indians and their Families

The general laws relating to marriage and relationships apply to Status Indians and to women in spousal relationships with Status Indians, with some differences.

Indian Status

Aboriginal women must have "Indian Status" under the Indian Act in order to receive benefits under the Indian Act or the Constitution. (The Indian Act does not apply to Métis or Inuit people). Any person whose father, mother, or both, are Status Indians is also a Status Indian. Having Indian Status affects your legal rights.

Over the years, the Indian Act legally stripped Aboriginal people of their Indian Status for many reasons, such as earning a university degree, becoming a priest or doctor, voting in an election, or marrying someone other than a Status Indian. Before 1985, the Indian Act provided that any Status Indian woman who married a non-Indian would lose her Status and none of her children would be Status Indians. This was not true for Status Indian men who married non-Indian women. Men who were Status Indians could keep their status and their children would be Status Indians as well. The Federal government changed the law in 1985 after a long legal battle by Aboriginal women. Many Aboriginal women who lost Status by marrying non-Indians before 1985 are now eligible to get their Status back. Their children will also be eligible to get Status. For more information about your Status, contact your band or the Department of Indian and Northern Affairs at 1-800-299-8750 or visit their website at http://www.ainc-inac.gc.ca.

Division of Property on a Reserve

One significant difference in family law for women in spousal relationships with Status Indians relates to the division of property after a marriage or registered domestic partnership breaks down. A married woman or a woman in a registered domestic partnership can use the Matrimonial Property Act to have off-reserve property divided.

However, land on a reserve is exempt from the Matrimonial Property Act. The Federal government has constitutional responsibility for "Indians and Land Reserved for Indians" and the courts have ruled that the Matrimonial Property Act, a law made by the Provincial government, cannot have any effect on land on a reserve.

Property on a reserve is exempt from seizure, which makes it difficult for Status Indians to obtain financing and difficult for women separated from Status Indians to enforce a division of property and child or spousal support. The court may recognize her rights but the law may not give her any means of enforcing them on a reserve.

If you are separated from a Status Indian and are concerned about whether you will be able to obtain support or your share of the family property, you should see a lawyer.

Back to The Table of Contents

NSAWL
Nova Scotia Association of Women and the Law

P.O. Box 34040 Scotia Square
Halifax, Nova Scotia B3J 3S1

NAWL
National Association of Women and the Law

303 - 1066 Somerset Ouest/West, Ottawa, ON, K1Y 4T3
Telephone: 613-241-7570
Fax: 613-241-4657
e-mail: info@nawl.ca

Understanding the Law A Guide for Women in Nova Scotia 4th edition

Edited by Cynthia L. Chewter and Renée Hartleib

A Note To Readers

Production Credits

Dedication

Contents

Preface to the Fourth Edition

Introduction

The Terms Used in this Guide

Contracts and Relationships

Cohabitation Agreements

Separation Agreements

Independent Legal Advice

Taxation

Inheritance

Survivor Benefits

Spousal Support

Custody, Access, and Child Support

Property Division

Debts

The Marriage Licence and Ceremony

Changing your Name or Not

Name Change

Taxation

Inheritance

Survivor Benefits

Spousal Support

Custody, Access, and Child Support

Property Division

Establishing a Registered Domestic Partnership

Name Change

Taxation

Inheritance

Survivor Benefits

Spousal Support

Custody, Access, and Child Support

Property Division

Ending a Registered Domestic Partnership

Homophobia and Discrimination

Spousal Relationships

Children

Challenging Discriminatory Laws

Reaching a Separation Agreement or Going to Court

Hiring a Lawyer or Mediator or Both?

The Lawyer's Role

Collaborative Family Law

The Mediator's Role

Courts

Grounds for Divorce

Who Can Apply for Divorce?

Do You Need a Lawyer?

If You Can't Afford a Lawyer

Reconciliation and Counselling

Filing for Divorce

Uncontested Divorce

Contested Divorce

Annulment

The Matrimonial Property Act

The Matrimonial Home

Business Assets

Debts

How the Division of Property Works

Equal Division of Matrimonial Assets

Unequal Division of Matrimonial Assets

Pension Division

Valuing a Pension

Canada Pension Plan (CPP) and Registered Retirement Savings Plans (RRSPs)

Division of Property for Common Law Couples

Protecting Yourself and Your Property

Status Indians and their Families

Indian Status

Division of Property on a Reserve

NSAWL Nova Scotia Association of Women and the Law

NAWL National Association of Women and the Law

© NAWL 2002 - Disclaimer

Understanding the Law
A Guide for Women in Nova Scotia
4th edition

Edited by
Cynthia L. Chewter and Renée Hartleib

NSAWL
Nova Scotia Association of Women and the Law

NAWL
National Association of Women and the Law