David H. Dunsmuir, Licensed Professional Corporation - serving the legal needs of the Fredericton Ormocto area of NB. New Brunswick's finest legal cousel for Family law, Real Estate dealings, Civil Litigation and a wide variety of other areas. Check out our web page about Value-Based billing! Click here to contact David H. Dunsmuir, serving Fredericton New Brunswick's legal needs, and providing advice and counsel in Business Law, Civil Litigation, Elder Law, Family Law, Immigration, Real Estate, Wills and Estates.
David Dunsmuir has been practicing law since 1992, and specializes in business law, elder law, civil litigation, family law, immigration, wills and estates, power of attorney, personal injury law, and real estate law. David H Dunsmuir, Fredericton's leading barrister and solciitor, attorney at law. Value-based billing allows us to provide you with an easy, affordable and calculable way to take care of your legal needs. It enables you to have the best lawey available in the Fredericton area, and know in advance what you can expect to pay for standard legal services. If you are in fredericton new brunswick and engaged in any kind of civil litigation, David H. Dunsmuir should be your first choice in NB attorneys, barristers or solicitors.
Visit David H Dunsmuir Licenced Professional Corporation, serving Fredericton NB in the areas of Civil Litigation, Family Law, Real Estate Law and Immigration Law
David H. Dunsmuir provides expert advice in the area of Business Law, as well as expert advice in Family Law and Civil Litigation
For Civil Litigation Law, David H. Dunsmuir, Licenced Professional Corporation, is the best available resource for you!
Elder Law is a complex and delicate field. Why trust yourself to anyone else? David H. Dunsmuir is Fredericton's expert in all areas of Elder Law.
David H. Dunsmuir is Fredericton New Brunswick's best resource for Family Law, whether you're dealing with divorce, custody, adoption or any other subject related to Family Law.
Are you trying to immigrate to Canada? If you're immigrating to Canada, David H. Dunsmuir provides excellent immigration advice and legal services.
If you're buying or selling your home, business or other real estate, David H. Dunsmuir is an expert in all legal aspects affecting realty. When it comes to Real Estate law in Fredericton NB, David H. Dunsmuir Licensed Professional Corporation is who you need to consult.
There is no more delicate a time than when a loved one passes. For all your needs regarding wills, probate and estate law, David H. Dunsmuir is the legal advisor for you. Whether you're drafting your own will, or require help executing or understanding the will of a friend or family member, David will provide exceptional legal advice in the areas of Wills and Probate Law and Estate Law.

Family Law

Overview

At Dunsmuir Law, we recognize that the breakdown of a marriage or personal relationship is one of the most stressful life events that can occur to people, and is a life event in relation to which you need objective and sound legal advice, to protect your interests and promote those of your significant others, including children.

Our commitment to you as a client is to provide to you with legal advice as it pertains to your situation and circumstances, including realistic advice as to your rights and obligations.

Many persons have concerns about the open-ended nature of legal services, and the unpredictable cost that this basis of payment for services may entail for the client.

Our commitment to you in writing is to provide representation of you in family law matters on a value-based or fixed rate fee.

Value-based or fixed rate fees are based on a defined scope of services, such as the attainment of an objective such as a securing an order for custody and/or access to children, or support for either a spouse and/or children.

The fee quoted covers the costs of the defined scope of services, regardless of the amount of time spent by your lawyer in completing the defined services.

Such service-defined fixed-fee arrangement gives you the peace of mind of knowing in advance how much our service will cost you.

We offer free initial consultations to discuss your family law needs, and to assist you with defining a scope of services to meet those needs, in relation to which we confirm in advance and in writing the costs.

 

Divorce

Divorce in Canada is within the jurisdiction of the Federal Government and is governed by the Divorce Act.

In addition to legally ending the marriage, the Divorce Act can also address entitlement to spousal support, custody and support of, and access to, children of the marriage.

Rights of persons legally married to each other to a division of marital property are solely within the jurisdiction of the Provinces and may be pursued in New Brunswick by an application before the Courts under the Marital Property Act, which claims may be pursued separately or in conjunction with a family law proceeding along with any ancillary issues such as divorce and/or custody and support of, and access to children, or spousal support.

While it is not a requirement to file for divorce in order to seek relief as to matters of division of marital property, and custody and support of, and access to children, or spousal support, if either party to the marriage wishes to legally end the marriage, any relief sought incidental thereto, as to custody and support of, and access to children, or spousal support, takes precedence over any determination of such matters that might be sought under Provincial legislation, the Family Services Act.

For persons have suffered the breakdown of a personal relationship but who are not legally married, or have not as yet decided whether to end the marriage by application for a divorce, but who are experiencing concerns respecting custody and support of, and access to children, or spousal support, may seek to have such issues resolved by an application under the Family Services Act.

Division of assets owned by persons who cohabit without being married are determined under the Rule of Court dealing with partition and sale of assets which are legally registered in joint names, as well as the common law respecting constructive and resulting trusts, an illustration of the application of which principles can be found in the New Brunswick Court of Appeal case of S.M. v. R.S. 2003 NBCA 6 (CanLii).

Some practical information about the legal implications of co-habitation versus marriage in New Brunswick can be found at the Public Legal Education and Information Service of New Brunswick.

 

Separation

In circumstances of a breakdown of a marriage or personal relationship, a couple may choose to legally disentangle their affairs by seeking resolution of such concerns as: Division of assets, apportionment of responsibility for repayment of family debts, determination of custody and support of, and access to children, or spousal support.

It is the legal resolution of such matters that are sometimes referred to euphemistically as a “legal separation,” and may be accomplished either by consensual agreement of the parties which is reduced to a written legal contract, referred to as a separation agreement, or by application to the Court under either the Divorce Act, the Family Services Act, the Marital Property Act, or sometimes the Rule of Court governing partition and sale of jointly registered assets.

 

Separation Agreements

Written agreements which reduce to writing the terms of settlement of matters arising from the breakdown of either marriage or personal relationships are referred to as “separation agreements.” These may be prepared by a lawyer, or at times, may be drawn up by the parties themselves, using blank forms obtained from various sources such as stationary or business supply stores.

The effectiveness of a written separation agreement in legally resolving matters arising from the breakdown of either marriage or a personal relationship has less to do with the form of the agreement or who prepared it, as the extent to which the agreement is based on full financial disclosure, so as to ensure that signature to the agreement by each party is on the basis of their respective informed consent.

Separation agreements based on a lack of informed consent may become the subject of challenge after the fact based on material non-disclosure of such matters as the nature and extent of assets or income.

The best assurance of the enforceability of separation agreements is to ensure that each party has the benefit of independent legal advice from a lawyer before signing such a document.

 

Custody and Access

Custody of and access to children may be determined either under the Divorce Act, or the Family Services Act, but in circumstances where a claim is brought concurrently under both statutes, paramountcy is given to the application under the Divorce Act as this is a Federal statute. Section 117 of the Family Services Act mandates that any Court application for custody or support previously commenced under this statute is stayed in favour of any filed court application for divorce.

Under both the Divorce Act, and the Family Services Act the test for determining custody of and access to children is a determination of what arrangements are in the “best interests of the child(ren).” The Family Services Act defines this in terms of the following:

“Best interests of the child” means the best interests of the child under the circumstances taking into consideration:

(a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both;

(b) the views and preferences of the child, where such views and preferences can be reasonably ascertained;

(c) the effect upon the child of any disruption of the child’s sense of continuity;

(d) the love, affection and ties that exist between the child and each person to whom the child’s custody is
entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child;

(e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with his parents;

(f) the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and

(g) the child’s cultural and religious heritage;

The criteria for determining the “best interests of the children” under the Divorce Act is similar.

 

Child Support

Since May 1, 1997, in both New Brunswick and throughout the rest of Canada, the determination of the appropriate amount of child support in most cases is a function of the non-custodial parent’s gross income, and determined by guidelines which are prescribed by statute. The simplified child support tables under the Federal Child Support Guidelines and their provincial counter-parts, are designed to ensure that the amount of child support is predictable, consistent, and certain.

Child support ordered payable after May 1, 1997 under the child support guidelines are neither deductable under the Income Tax Act by the payor or included by the recipient spouse as income on their respective tax returns.

Court orders or support paid pursuant to the terms of a separation agreement entered into prior to May 1, 1997, for which variation of such order is sought after May 1, 1997, may, at the mutual agreement of the parties, remain subject to previous tax rules of deductibility by the payor and inclusion in income by the recipient spouse if an election to retain the old tax rules is filed using Form T1157 and provided that the requirements for such election, pursuant to sections 3 and 4, subsection 56.1(4) and 248(1) and paragraph 56(1)(b) of the Income Tax Act, are met. Persons contemplating retention of prior tax rules as part of variation of a child support order after May 1, 1997 are strongly advised to consult with a professional such as lawyer or accountant in relation to such variation.

Minor children, and sometimes young adults who are unable to withdraw themselves from the care of a parent due to infirmity or while pursuing post-secondary education, are typically entitled to receive child support in a monthly amount, as determined by the simplified tables, as well as an additional amount, based on the ratio of the payor and recipient parent’s incomes, for child-care costs such as daycare, or special expenses such as orthodontic treatment and special expenses for extra-curricular expenses

The duration of payment of child support is determined not by the attainment of the child(ren) of a particular age, but is a question of fact as to when the child(ren) is no longer reasonably in need of support so as to be able to live independently from their parent(s).

In many cases, this date will be the date when the child(ren) attain the age of majority where after the child(ren) live(s) independently of the parent(s) after such date. In other cases, the continuing obligation of a payor parent to support their children, may continue past a date when such child(ren) have attained the age of majority. Payment of child support for children over the age of majority is a matter for which consultation with a legal professional is highly advisable.

 

Spousal Support

Entitlement to spousal support is determined based on either the provisions of the Family Services Act or the Divorce Act. The purpose of spousal support under both statutes is to promote the economic self-sufficiency of the spouse claiming entitlement, and to redress economic disadvantage arising from the roles the spouses adopted in the relationship. Generally speaking, spousal support entitlement is a function of both the means and needs of the spouses. The amount and duration of spousal support is discretionary, and based on the facts of each individual case, including the age of the parties, the length of the relationship, and the educational and work history of the spouses.

Although not having the authority of a statute, spousal support advisory guidelines have been created to serve as a guide as to amounts of support, once the threshold issue of entitlement has been determined. The guidelines contain two formulas, one based on situations where a child support obligation exists, and another formula where child support is uninvolved. The guidelines were intended to as a normative guide to awards of spousal support under the Divorce Act, but have also been applied in certain circumstances to spousal support awards under Provincial legislation such as the Family Services Act, albeit with some qualification, including the impact of existing or prior agreements that otherwise purport to limit or exclude entitlement to spousal support.

As entitlement to, quantum and duration of spousal support, is largely dependent on the facts of each individual case, a consultation with a lawyer is essential to determine rights and obligations to spousal support.

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