Family Law

Basically, Family Law involves issues in relation to Separation and Divorce. Arising out of these two major issues include issues of custody and access to children, child support, spousal support, and the division of marital property or common law relationship property.

Domestic Contract / Separation Agreement:

It is important to note that the Domestic Contract or Settlement Agreement is an important document which can be used to settle the above noted issues. These agreement documents are powerful tools and if the parties, upon separation are able to agree to terms in relation to the issues of separation and divorce they will save a great amount of cost and freedom from stress in these times of difficulty.

The Domestic Contract can include all the issues which will eventually be addressed in the Petition for Divorce. The Domestic Contract will be attached to the Petition for Divorce and be used as evidence to complete the final divorce proceedings and the parties will not have to go to court.

The Domestic Contract is usually prepared by one of the party's lawyers and once agreed upon the other party will take the document before their lawyer for independent legal advice. This second lawyer will explain the separation agreement to one the parties and clearly outline the rights and responsibilities of the parties in the agreement. This ensures that both parties understand the agreement and prevents one party taking advantage of the other party.

It is a benefit to the parties if they can reach an agreement by use of a Domestic Contract at the beginning of separation.

Issues Arising out of Separation and Divorce:

The most common issues which will have to be resolved are:
    Custody of children
    Access to children for the non-custodial parent
    Child Support payments and Special Expenses
    Spousal Support payments
    Division of Martial (or Common Law Relationship) Property

Custody:

Upon separation, both parties have joint custody of the children, until it is either agreed otherwise or a court orders otherwise. In practice, there is little difference between Joint Custody and Sole Custody. In either situation, one parent is the custodial parent, the "primary caregiver" and the other parent is the "access parent". The access parent is most often the parent required to pay child support. A distinction between sole custody and joint custody is that the access parent in a joint custody situation has a certain amount of input on major issues in the children's lives, such as education, health care and religion.

The other main type of custody arrangement is called Joint Shared Custody. This occurs when both parties have custody of the children at least 40% of the time. In this situation, child support is adjusted so that the parent with the greater income pays child support to the other parent, less what the parent with the lesser income would have paid for the children if they did not have custody.

If Custody is contested, the Court will award custody based on "the best interests of the children".

Access:

In most cases, the custody arrangement is either joint custody or sole custody. In either of these cases, one parent will be awarded "primary care and control of the children". The other parent becomes the "access parent". An access schedule should be arranged for this parent. An access schedule can be as informal as "reasonable access upon reasonable notice", or as formal as setting out specific days and time access will be exercised. This will depend on the particular circumstances of each case and again is based on "the best interests of the children".

Child Support and Special Expenses:

Child Support is paid to the parent with primary care and control of the children by the other parent. The amount paid is determined by the Child Support Guidelines. The guidelines set out the amount to be paid for a particular number of children based on the payor's gross annual income. The annual income is determined by income tax figures, unless it is shown that this figure does not accurately reflect the payor's income.

The Child Support Guidelines also set out special expenses that the payor may be responsible to pay. The most common special expenses are child care, health/dental costs and insurance fees, educational and extracurricular activities expenses. For any valid special expense, the parties split the cost proportionally based on their income. For example, if parent A has an income of $50,000.00 and parent B has an income of $25,000.00, parent A will pay for 2/3 (two thirds)of special expenses while parent B will pay 1/3 (one third).

There is no relationship between access and child support. If the access parent is not having as much access as he or she would like, it does not mean that child support can be reduced. This is true even if access is contained in a Court Order. Child Support and Access to children are for the benefit of the children, not the parents. The parents cannot withhold or prevent access to a child so as to collect child support and vice versa.

Spousal Support:

Spousal Support may be paid by one party to the other upon separation. It is payable to the party that suffers an "economic disadvantage due to the marital breakdown".

Section 15.2 of The Divorce Act sets out certian factors to consider when determining Spousal Support payments:

	(4)	...the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
	(a)	the length of time the spouses cohabited;
	(b)	the functions performed by each spouse during cohabitation; and
	(c)	any order, agreement or arrangement relating to support of either spouse.

Section 15.2 (6) sets out the objectives of a spousal support order:

	(a)	recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
	(b)	apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
	(c)	relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
	(d)	in so far as practicable, promote the economic self sufficiency of each spouse within a reasonable period of time.

Generally speaking, in making a Spousal Support Order the court attempts to recognize any disadvantage a party might suffer as a result of the marriage breakdown. The Court will endeavor to promote self-sufficiency in both parties as soon as possible. Again, the Court will look at the particular circumstances of each case to determine how to best achieve the above goals.

The Division of Property:

If the parties are married, property division is governed by the Marital Property Act. Upon a marriage breakdown the general rule is that marital property is divided equally between the parties. Furthermore marital property takes into account marital assets and marital debts which again are to be divided equally.

Let's take a look at the meaning of marital property. Marital property includes "family assets ". A family asset means property acquired by one or both of the spouses and ordinarily used or enjoyed for shelter or transportation or for household, educational, recreational, social or for aesthetic purposes by both spouses or one or more of their children while the spouses were living together or in cohabitation. Family assets include the marital home and household goods. It includes money in a bank account. Family assets include assets found in Registered Retirement Savings Plans and employment pension plans.

Property may be excluded from being marital property if the parties have agreed by a domestic contract or agreement not to include it as a family assets. Furthermore the parties may wish to devide the marital property unequally or in the manner they choose, and it is best to do this by written agreement.

Remember... marital debts acquired during the marriage are the responsibility of both spouses and are also divided equally.

If the parties are not married, the general rule is that the property that has been accumulated during the relationship is to be divided equally.

Documents:

The following are some of the documents that a lawyer will need when opening a file for separation or divorce:

    Marriage Certificate
    Financial documents including the most recent Notices of Assessment from the Canadian Revenue Agency
    Pay stubs showing the most recent employment income.

Legislation:

In New Brunswick, there are three primary sources of law which must be considered upon separation and divorce:

(1)	Divorce Act - This is a Federal Act, whereby all provinces and territories in Canada are governed by this Act. The Provincial courts have the jurisdiction under the Divorce Act to grant the divorce. Obviously, this Act is used only when the parties have been married. The Divorce Act governs the issues of Custody, Access and Child Support and Spousal Support.
(2)	Family Services Act - This is a Provincial Act, meaning it only governs the province of New Brunswick. The Family Services Act is used on separation when the parties have not been married. It also governs the issues of Custody, Access and Support. This Act also governs the Minister of Family and Community Services and the social workers employed in New Brunswick.
(3)	Marital Property Act - This is also a Provincial Act. It governs the division of property in cases where the parties are married. In cases where the parties were not married, the division of property is governed by previous case law in similar situations and the law often referred to as "Constructive Trust". All previous case law may be referred to as the "Common Law".

Divorce:

In Canada, a divorce is granted when there has been a marital breakdown. There are three grounds upon which a court will grant a divorce. There must be evidence of at least one of these required "grounds for divorce", they are:

	(1)	Separation; the parties have lived separate and apart for one year;
	(2)	Adultery; divorce is claimed against the party alleged to have committed voluntary sexual intercourse with a third-party. If the parties agree on the facts and the claim can be proven, the court will grant the divorce on the grounds of adultery.
	(3)	Cruelty; divorce may be granted on the grounds of physical or mental cruelty, and no waiting period is required.

The most commonly used ground for divorce is Separation, that is " living separate and apart for one year". The parties can live separate and apart while continuing to live in the same household. The Divorce Act (s.8) states that the separation period begins when the parties form the intention to live separate and apart. The Divorce Act also allows parties to attempt reconciliation for a period of up to three months without affecting the starting date of living separate and apart.

To commence a divorce proceeding one party, the "Petitioner" will file a Petition for Divorce. This document formerly requests a divorce and also asks the court to settle issues arising out of the divorce which may include custody and access to children, child support and spousal support and the division of marital property. When the parties are not in agreement with issues and we have a contested divorce, the "Respondent" will file an Answer and possibly a Counter-Petition.

When parties decide to separate, they should attempt to come to an agreement on all of their issues. If they are successful, it will save both parties money, frustration and probably hard feelings. An agreement between the parties should be taken to a lawyer to create a Domestic Contract or Separation Agreement.(see above)

Uncontested Divorce:

If parties sign a separation agreement, they can avoid a costly appearance in Court.

After the separation agreement has been signed, one party will file a Petition for Divorce and attach a copy of the separation agreement to the Petition. The filing fee is $100.00 to file the Petition and another $10.00 to request a Clearance Certificate. The other party, the Respondent is then served with a copy of the filed Petition. After receiving the Clearance Certificate, which may take four to six weeks, and after waiting twenty or thirty days after serving the Respondent with the filed Petition, the party who filed the Petition can file a "Trial Record", which contains all the documents needed by the judge to grant a divorce. If everything is in order, the judge will grant the divorce according to the terms of the separation agreement.

Common-law Relationship and Separation:

Generally speaking the same issues are involved when parties who have not been married are separating. In this case, the separation is governed by the Family Services Act and Common Law.

Parties can still enter into a Separation Agreement if they have not been married. Otherwise, a Court appearance could be necessary.