Family law

As a result of the enactment of the new Family Law Act in New Brunswick, as well as changes to the Divorce Act federally on March 1, 2021, what used to be called custody has changed to different wording of "parenting time" and "decision making responsibility". These changes show up in Parenting Plans, Separation Agreements and court orders.

Parenting time takes into account the time a child spends with each parent. 

Decision making responsibility generally sets out who has authority to make decisions impacting the best interests of the child (either jointly or with someone having full say or overriding decision making authority). These types of authority provisions include numerous types of decisions and can vary across each family's circumstances. These can include decisions touching on education, healthcare, religion, and many others.

Many divorced or separated parents have equal, shared parenting time with their children. What "shared" actually means for each family may vary and the details of your plan or order are important in reflecting what it may actually mean.

Shared Parenting Time can refer to a shared custody arrangement where the child or children split their time equally, or close to equally, between the separate homes of their parents or it may mean something somewhat less than a true equal arrangement.

Ideally, and in a perfect world, parents will agree who between them will have final decision making authority on the issues affecting their children. Often this may be the parent with whom the children reside most of the time. Some parents may agree to share the decision making responsibilities. For example, one parent might have final say on education and while the other parent might have final say on healthcare. At other times, the parents will be left to find another means to reach a decision on a decisive issue, such as through negotiation, mediation, collaborative law, or ultimately, failing all else, a court order.

The court must always determine where a child spends his or her time based on what is in the child’s best interest. If parents are unable to agree on this through negotiation, mediation, or the collaborative law process, and are seeking court intervention to decide residential care and parenting time, the parents are not likely to be seen as an entirely objective judge of what is in the child’s best interest. When caught in the middle of a court battle and conflicting loyalties, children will often tell each parent what they want to hear during the separation.

If your child is old enough to talk about their feelings (at least school age), it may be appropriate to arrange counseling with a neutral therapist, psychologist, or school counselor. The child’s views and preferences might then be expressed through this person to the court, if required.

When a child is at least 12 years and older, the courts will generally give weight to the child’s wishes where they can reasonably be determined, provided the child’s preference does not conflict with the child’s best interest. A court will also take into account the wishes of a younger child. 

A court will not give all the weight of determining what is best for a child to either the child or the psychologist or counsellor providing the court with information on what a child may want. It is only part of the information a court may take into account. Ultimately if you as the parents or guardians cannot agree and are in the court system, a judge will make the final decision on what appears to be the best arrangement for your child after looking at all of the available information, including what the child may indicate he or she would like.

Time with parents is a right that belongs to the child, not the parent. Even if your ex refuses to pay child support, you cannot deny parenting time or contact rights. Your child has a right to have a relationship with their other parent and this is not something that is conditional on whether or not that parent is paying child support.

Unless you have evidence that the other parent is a serious danger to the child, you must allow parenting time with the other parent. This type of evidence of a parent being a danger to the best interest or safety of a child could be through police reports, witnesses to threats or violence, or written documentation from professionals.

Even when the court accepts that there is a real concern for the children, often limits on parenting time will be imposed based on each circumstance, such as daytime visits only or supervised access, rather than prohibiting contact outright. Each family has case - specific issues that will be considered by a court in these circumstances.

Every parent has an obligation to support their children. Typically, the parent who does not have the day to day care of the child will pay a monthly sum to the other parent to assist in financially meeting the child’s needs.

The Federal Child Support Guidelines set out the amount of child support to be paid for the number of children requiring support in accordance to the paying parent’s income. There are different tables for each province and territory which take into consideration the various differences in provincial and territorial tax rates. Child support is calculated by determining the paying parent’s annual income and using the appropriate table for the paying parent’s province of residence, finding the set rate for the number of children to be supported. For example, a paying parent in New Brunswick with a gross (before tax) annual income of $35,000.00 would pay $280.00 per month for one child, $508.00 per month for two children, and $691.00 per month to support three children.

If the children are living with both parents equally, or if the children are in a shared parenting time arrangement (where one parent has at least 40% parenting time), child support calculations start with calculating the support each parent would pay to the other for the corresponding number of children in the other parent’s care. In a shared parenting arrangement, only the difference, or off-set amount of child support, is paid by the parent with the higher support obligation to the other parent. However, in a shared parenting arrangement, the court also has the discretion to award a different amount of support to compensate for the added costs a shared custody arrangement can create.

Federal Child Support Guideline

Child support is meant to cover expenses such as rent, food, clothing, and extracurricular activities such as dance lessons and sports.

Child support does not cover child care expenses (to allow the other parent to work or attend school), medical, dental or other healthcare expenses, or post-secondary expenses. These expenses fall into the category of “special expenses” which typically result in an additional payment of support.

Special expenses are generally shared between the parents so that each parent assumes a share of the expense in proportion to his or her income. If the mother earns twice the father’s income, she will pay two-thirds of the cost of the special expenses while he contributes one third, even if the children reside with her most of the time. You may hear these extra expenses referred to as Section 7 Special Expenses, referring to section 7 of the Federal Child Support Guidelines. 

Spousal Support may be awarded where one spouse has lost or has a reduced ability to earn income as the result of a decision during the marriage to stay home to care for the children. Spousal support is intended to assist the disadvantaged spouse during the period of transition resulting from the marital breakdown until the disadvantaged spouse can regain a measure of self-sufficiency. Spousal support is not intended to equalize the incomes between the two parties.

Spousal support can only be awarded if the disadvantaged spouse can demonstrate the need to receive support and the other spouse has the means to pay support. Many factors are considered before the court makes an award of spousal support, including the length of the marriage, the roles each spouse assumed in the marriage, the ages of children, the financial means of each spouse, the age of each spouse, and the amount of child support being paid if any. Spousal support may be awarded for a set period of time, such as the time required for the receiving spouse to complete an educational course, it may be reviewable after an initial period of time to determine if the further support is required, or it may be awarded for an indefinite period of time, particularly when the receiving spouse is over the age of 50 years and the parties had a lengthy, traditional marriage.

Unlike child support, spousal support is considered as taxable income for the spouse who receives it, while the paying spouse can claim a tax deduction. While there are now Spousal Support Guidelines, these calculations do not produce mandatory numbers the court must accept, but rather suggest a range of support and timelines as options.

If you were married, you each have a right to half of all property that you and your partner acquired during the marriage, regardless of who actually paid for things. You are both also responsible for half of all the marital debts. If you lived in a common law relationship, the answer is not quite so straightforward.

In a marriage, not every asset can be considered a marital asset. Items acquired before the marriage, as well as gifts and inheritances are typically excluded, depending on the circumstances and how those assets may have been used during the marriage. The marital home is generally the exception even if it was owned by one spouse before the marriage and became the family residence after the marriage.

Generally the value of all the marital assets, including the marital home, vehicles, savings, investments, pensions, furniture, and sometimes jewelry needs to be calculated and divided equally between the spouses. The marital debts also need to be divided between the parties. Generally, both parties will end up with the same net value of assets.

Common law divisions are not an automatically divided 50/50 as they are often assumed to be such as the starting point in a marriage breakdown, Common law assets are most often based on contribution. But, keep in mind, there is a wide range of arguments to be made in various circumstances.

First, is it really your stuff? If it was yours before your relationship, then you may have a right to get it back, depending on how or if it was used or treated during the relationship.

If you got the item during the relationship, then you may need to negotiate with your ex-partner about it being gioven to you. If you were married, you are entitled to half of its value. This does not mean they have to give you the item, just half of what it is worth.

If at all possible, try to negotiate with your ex-partner about all of the property that you shared, including the house, cottage, savings, and furniture. If you cannot agree on how to divide property, particularly the household contents, it can become costly for you very quickly to have lawyers arguing over who gets which set of dishes or living room furniture.

Family law matters are rarely simple, quick or straightforward. The breakdown of a relationship involves many emotions, emotions which sometimes cloud usually sound judgment. While one spouse may be ready to split all the assets and debts and move past the relationship, the other spouse may not be so ready. Unless both spouses are ready to deal with all the issues and co-operate in sorting out what should happen, it may take some time to negotiate a reasonable resolution to the issues.

If there is no consensus on the issues of parenting time, support, division of property, and debts, a court application takes time. Unfortunately, the more time your lawyer must devote to your file to resolve your issues, the more it will end up costing you. Simply put, the longer you and your spouse argue over the issues, the more it will cost you. The more you can agree on, the less time and money will potentially be involved in doing that for you.

This does not mean that you should accept an unfair settlement just because your spouse says that is their offer. But it does mean that if you are refusing to resolve the issues out of spite, or a desire to “punish” the other spouse, you will have to be prepared to finance that battle.