Do You Need a Separation Agreement in Nova Scotia?

When a relationship ends, one of the first questions is whether you have to put everything in writing. Many people assume a signed agreement is a legal step you must take. Others hope an informal arrangement will be enough.

This article explains what a separation agreement generally settles, how it relates to a divorce, and what can happen if you never sign one. It is general information for Nova Scotia, not advice on your situation.

This article covers the law of Nova Scotia.

Is a separation agreement legally required?

A separation agreement is a written deal between you and your former partner about how you will handle life after the split. The divorce rules we describe below do not turn on having one. A court may grant a divorce on the sole ground that the marriage has broken down, and that is usually shown by living separate and apart for at least one year immediately before the divorce is decided.

So an agreement is not what starts the clock. Spouses are treated as living separate and apart for any period when they lived apart and either of them intended to live separate and apart, so one spouse's intention is enough. Whether you need an agreement is really a question about whether you want certainty and a record of what was decided.

What an agreement can settle

Most agreements cover the same four areas that a court would otherwise have to decide.

• Parenting: decision-making responsibility and parenting time, which the Supreme Court of Nova Scotia (Family Division) hears when parents cannot agree.
• Child support: the amount, and whether extra expenses such as child care or extracurricular activities are shared.
• Spousal support: whether it is paid, how much and for how long.
• Property and debts: who keeps what, including the family home. The Family Division also hears division of matrimonial assets and debts.

The details of property rules depend on your facts, such as whether you were married and what each of you owned, so this is a point to confirm with a lawyer before you sign anything.

What happens if you never sign one

If you and your former partner cannot agree, you can ask the court to decide. For children, the court considers only the best interests of the child, giving primary consideration to the child's physical, emotional and psychological safety, security and well-being. It also applies the principle that a child should have as much time with each spouse as is consistent with the child's best interests.

For child support, the starting point for a child under the age of majority is the table amount for the payor's province, and the court can add section 7 amounts, such as child care or extraordinary school costs, if they are requested. That starting point can change: where each parent has the child at least 40% of the time over a year, the court looks at both parents' table amounts and the added costs of shared parenting, and it is not an automatic set-off. With two or more children where each parent has the majority of time with at least one, the order is the difference between the amounts each would pay. A court can also set a different amount if a parent or child would otherwise suffer undue hardship. Spousal support depends on each spouse's condition, means, needs and other circumstances, and fault is not considered.

Going to court usually takes more time and gives you less control over the result than an agreement you shaped yourselves. An agreement can also leave open issues that a court order would have to answer.

How an agreement connects to a divorce

If you agree on everything, the paperwork can be simpler. Nova Scotia's Family Division has a Joint Application for Divorce (Form 59.46) and an Application for Divorce by Agreement (Form 59.45), and under a joint application where the spouses agree on all issues, the file can go to a judge without a hearing.

Be careful about how the agreement is reached. The court must satisfy itself that there has been no collusion in relation to the divorce application. Reaching a genuine agreement about your own affairs is different from staging facts for a court, and a lawyer can explain the line.

If you try to reconcile, you do not necessarily lose your year. Resuming living together for no more than 90 days in total, where the primary purpose was a reconciliation attempt, does not interrupt or end the one-year separation.

What to do next

• Write down the date you and your partner began living apart, and keep any messages that confirm it.
• List your children's current routines, your incomes, and the assets and debts each of you holds.
• Decide which issues you already agree on and which are still open.
• Get legal advice before you sign. A signed agreement can be hard to undo.
• If support is part of the deal, ask a lawyer how it would be collected if payments stop. The Maintenance Enforcement Program helps with court-ordered maintenance, and enrolling an order is optional. It cannot enforce an order that is not enrolled. Whether it can help with an agreement that is not a court order depends on your situation.
• If cost is a worry, ask Nova Scotia Legal Aid whether you qualify. Its family coverage includes separation agreements.

If your ex-partner is unsafe to deal with, do not negotiate alone. Tell a lawyer, and in an emergency, contact the police or Victim Services.

Frequently asked questions