Understanding the Law

Transcription

1 Understanding the Law A Guide for Women in Nova Scotia 4th edition Edited by Cynthia L. Chewter and Renée Hartleib

2 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 or toll free at Copyright 2002 Nova Scotia Association of Women and the Law (NSAWL) ISBN 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: NSAWL is a provincial caucus of the National Association of Women and the Law (NAWL). For more information about NAWL, visit Production Credits Editing: Cynthia L. Chewter and Renée Hartleib Layout: Brenda Conroy Printing: Transcontinental Printing Web Atlantic Ltd. Printed and bound in Canada Nova Scotia Association of Women and the Law P.O. Box Scotia Square Halifax, Nova Scotia B3J 3S1

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

4 Acknowledgements 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.

5 Contents f Contents Preface to the Fourth Edition...9 Families and Relationships Introduction...10 The Terms Used in this Guide...10 Contracts and Relationships...10 Cohabitation Agreements...10 Separation Agreements...10 Independent Legal Advice...10 Marriage Taxation...11 Inheritance...11 Survivor Benefits...11 Spousal Support...11 Custody, Access, and Child Support...11 Property Division...11 Debts...12 The Marriage Licence and Ceremony...12 Changing your Name or Not...12 Common Law Relationships Name Change...13 Taxation...13 Inheritance...13 Survivor Benefits...13 Spousal Support...14 Custody, Access, and Child Support...14 Property Division...14 Registered Domestic Partnerships Establishing a Registered Domestic Partnership...15 Name Change...15 Taxation...15 Inheritance...15 Survivor Benefits...15 Spousal Support...15 Custody, Access, and Child Support...16 Property Division...16 Ending a Registered Domestic Partnership...16 Lesbian Relationships Homophobia and Discrimination...17 Spousal Relationships...17 Children...17 Challenging Discriminatory Laws...18 Separation Reaching a Separation Agreement or Going to Court.19 Hiring a Lawyer or Mediator or Both?...20 The Lawyer s Role...20 Collaborative Family Law...20 The Mediator s Role...21 Courts...21 Divorce Grounds for Divorce...22 Who Can Apply for Divorce?...22 Do You Need a Lawyer?...22 If You Can t Afford a Lawyer...22 Reconciliation and Counselling...23 Filing for Divorce...23 Uncontested Divorce...23 Contested Divorce...23 Annulment...24 Division of Property The Matrimonial Property Act The Matrimonial Home...25 Business Assets...26 Debts...26 How the Division of Property Works...26 Equal Division of Matrimonial Assets...26 Unequal Division of Matrimonial Assets...27 Pension Division...27 Valuing a Pension...27 Canada Pension Plan (CPP) and Registered Retirement Savings Plans (RRSPs)...27 Division of Property for Common Law Couples...28 Protecting Yourself and Your Property...28 Status Indians and their Families...28 Indian Status...28 Division of Property on a Reserve...29 Spousal Support What Factors Does the Court Consider?...30 Married Spouses Who Have Petitioned for Divorce 30 Married Spouses Who Have Not Petitioned for Divorce, Registered Domestic Partners, and Common Law Spouses...30 If You Are on Social Assistance...31 Variation of Spousal Support Orders...31 Children of Separated Parents Custody...32 The Best Interests of the Children...32 Types of Custody...33 Sole Custody...33 Understanding the Law: A Guide for Women in Nova Scotia, 4th edition 5

6 f Contents Joint Custody...33 Shared Custody...33 Split Custody...34 Variation of Custody...34 If You Plan to Move Away...34 Access...34 Problems with Access...35 If You Were Abused...35 If the Non-Custodial Parent Fails to Exercise Access 35 Denying Access...35 Variation of Access...36 When Others Apply for Custody or Access...36 Guardianship of Your Children if You Die...36 Child Support The Child Support Guidelines Add-On Expenses...37 Undue Hardship...38 Variation of Child Support...38 Paternity Suits...38 Enforcement of Child and Spousal Support...38 Children Your Child s Name...40 Child Care...40 Adoption...40 How to Adopt...40 Private Adoptions...40 Agency Adoptions...41 International Adoptions...41 If You Place Your Child for Adoption...41 Consent to Adoption...41 Dispensing with Consent...42 Finding Your Family Members After Adoption...42 Children in Need of Protection What is Child Abuse?...43 Child Protection Agencies...43 The Duty to Inform Authorities...43 Protective Services...43 If You go to Jail...44 Voluntary Temporary Care...44 Children Taken into Care...44 The Stages of a Child Protection Hearing...44 The Interim Hearing...44 The Protection Hearing...45 The Disposition Hearing...45 Orders for Temporary Care...45 Orders for Permanent Care...45 Parents Rights...46 Family Violence What Is Abuse?...47 Signs of Abuse...47 The Cycle of Violence...47 Spousal Abuse affects Children...48 Assault and the Criminal Law...48 If You or Your Children Have Been Assaulted or Threatened...48 After Your Spouse Is Arrested...48 Being a Witness in Court...49 Victim Impact Statements...49 Sentences for Spousal Assaults...49 Peace Bonds...50 How to Apply for a Peace Bond...50 The Peace Bond Hearings...50 Drawbacks of Peace Bonds...51 Emergency Protection Orders...51 Getting Help From Shelters or Other Organizations...52 Stalking and Harassment...52 Sexual Assault Where To Get Help and Support...53 Making a Complaint to Police...53 The Medical-Legal Examination...54 The Sexual Assault Nurse Examiner Program...54 Who Represents You in Court?...54 A Sexual Assault Trial...55 Consent or No Consent...55 Counselling and Therapy Records...55 The Outcome of the Trial...56 Suing the Person Who Assaulted You...56 Women in Conflict with the Law Your Rights...57 If You Are Arrested...57 Getting a Lawyer...58 Support for Women Going to Court...59 Aboriginal Women...59 Types of Offences...59 Your First Court Appearance...59 The Bail Hearing...59 If You Are Arrested on the Weekend...60 Entering Your Plea...60 Plea Bargaining...60 If You Plead Guilty...61 If You Plead Not Guilty...61 The Trial...61 A Criminal Record...62 Adult Diversion...62 A Discharge...62 A Pardon...63 Types of Sentences Understanding the Law: A Guide for Women in Nova Scotia, 4th edition

7 Contents f Absolute or Conditional Discharge...63 Fine or Restitution...63 Probation...63 Suspended Sentence...63 Conditional Sentence...63 Intermittent Sentence...64 Provincial Jail Sentence...64 Federal Jail Sentence...64 Prostitution...64 Shoplifting...64 Money Matters Taxes...65 Spousal Support and Child Support...65 Child Care Expenses...66 Personal Tax Credits...66 Child Tax Benefit...67 HST Credit...67 Income Tax Changes...67 Status Indians...67 Credit, Debts and Loans...67 Getting Credit...67 Your Credit History...67 Discrimination...68 Co-Signing a Loan...68 Shared Financial Arrangements...68 Small Claims Court...68 Borrowing Money...69 Buying on Time...69 Collection Agencies...69 If You Owe More Than You Can Pay...69 Debtor Assistance Program...69 Debt Consolidation...69 Consolidation Order...70 Consumer Proposal...70 Orderly Payment of Debts Program...70 Bankruptcy...70 Poverty and the Law Introduction...71 Social Assistance...71 Are you Eligible?...71 What Can Make You Ineligible?...72 Housing Renting an Apartment...73 Being Accepted as a Tenant...73 The Landlord-Tenant Relationship...73 Notice to Quit...74 Security of Tenure...74 Rent Increases...74 Filing a Complaint...74 Co-op Housing...75 Buying a Home...75 Public Housing...76 Non-Profit Housing...76 Emergency Housing...76 Employment Federal and Provincial Labour Standards Codes...77 Nova Scotia Labour Standards Code...77 Minimum Wage...77 Pay Equity...77 Vacations...77 Paid Holidays...77 Pregnancy and Parental Leave...78 Losing Your Job...78 Complaint Procedure...79 Bringing a Civil Lawsuit...79 Employment Insurance...80 Appealing an EI decision...81 Workers Compensation...81 Canada Pension Plan Disability Pensions...81 Employment Counselling for Women...81 Self-Employment...81 Sexual Harassment...82 What Can You Do About Sexual Harassment?...82 Retirement...83 Human Rights Introduction...84 Direct or Indirect Discrimination...84 Exceptions...85 The Nova Scotia Human Rights Act Complaint Procedure...85 The Canadian Human Rights Act Complaint Procedure...87 Employment Equity...87 The Charter The Court Challenges Program of Canada...88 The Right to Vote Health Choice, Consent, Confidentiality...90 Minors...90 Birth Control...90 Pregnancy...90 If You Are Considering an Abortion...90 If You Are Considering Adoption...91 Reproductive Technology...91 Home Births and Midwifery...91 Sexually Transmitted Infections...92 HIV/AIDS...92 Understanding the Law: A Guide for Women in Nova Scotia, 4th edition 7

8 f Contents Living Wills and Powers of Attorney...92 Medical Consent Appointment...92 Living Wills...93 Powers of Attorney...93 Disability Grant Programs and Financial Assistance...94 Children with Disabilities and Access to Schools...94 Disability, Access and Discrimination...94 Dependence and Abuse...94 Aboriginal Women The Indian Act, Property and Wills...96 Aboriginal Rights and the Constitution...96 Other Laws...97 Immigration Refugees...98 Skilled Workers...98 Members of the Family Class...98 Business Class...99 Live-In Caregiver Program...99 Inadmissibility...99 Immigrant Women and Domestic Violence...99 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 Victims Services The Right to Vote Other Understanding the Law: A Guide for Women in Nova Scotia, 4th edition

9 Preface f 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 part- nerships in 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. Understanding the Law: A Guide for Women in Nova Scotia, 4th edition 9

10 f Families and Relationships 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. 10 Understanding the Law: A Guide for Women in Nova Scotia, 4th edition

11 Marriage f 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. Understanding the Law: A Guide for Women in Nova Scotia, 4th edition 11

12 f Marriage 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 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. 12 Understanding the Law: A Guide for Women in Nova Scotia, 4th edition

13 Common Law Relationships f 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 or toll free at 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. Understanding the Law: A Guide for Women in Nova Scotia, 4th edition 13

14 f Common Law Relationships 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. 14 Understanding the Law: A Guide for Women in Nova Scotia, 4th edition

15 Registered Domestic Parnerships f 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). 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. 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. 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. Understanding the Law: A Guide for Women in Nova Scotia, 4th edition 15

16 f Registered Domestic Parnerships 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. 16 Understanding the Law: A Guide for Women in Nova Scotia, 4th edition

17 Lesbian Relationships f 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 ad- Understanding the Law: A Guide for Women in Nova Scotia, 4th edition 17

18 f Lesbian Relationships vocating 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. 18 Understanding the Law: A Guide for Women in Nova Scotia, 4th edition

19 Separation f 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 Understanding the Law: A Guide for Women in Nova Scotia, 4th edition 19

20 f Separation 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. 20 Understanding the Law: A Guide for Women in Nova Scotia, 4th edition