Family Law Overview
At Dunsmuir Law, we recognize that the breakdown of a marriage or personal relationship is a hugely stressful life event that requires objective and sound legal advice to protect your interests and the interests of any children.
Our commitment to you as a client is to provide legal advice as it pertains to your situation, as well as realistic advice regarding your rights and obligations.
We’re proud to offer value-based pricing for our family law services, which covers the costs of the defined scope of services, regardless of the amount of time spent by your lawyer in completing them.
We offer an initial fixed fee consultation to discuss your needs and to assist you with defining a plan to guide you through the process of resolution of your family law matter, including a realistic and objective evaluation of your rights and obligations, and a plan of action that will being about resolution of your situation in the most cost-effective way possible.
Divorce in New Brunswick
Divorce falls within the jurisdiction of the Federal Government and is governed by the Divorce Act.
Besides legally ending the marriage, the Divorce Act can also address entitlement to spousal support and parenting arrangements for and support of 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.
For persons who have suffered the breakdown of a personal relationship with concerns respecting parenting arrangements and support of children may seek to have such issues resolved by an application under the Family Law Act.
Separation
During a breakdown of a marriage or relationship of cohabitation by unmarried couples, 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 child custody.
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.
Child Care and Parenting Arrangements
As of March 1, 2021 neither the Divorce Act nor the Family Law Act refer to “custody” and “access” of children, instead directing parenting orders be made that address parenting time, decision-making responsibility, and contact, based on what is in the “best interests of the child(ren).”
The Family Law Act defines the best interests of the child based on a consideration of the following factors:
(a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including First Nations upbringing and heritage,
(b) the child’s needs, including the need for stability, given the child’s age and stage of development,
(c) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life,
(d) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent,
(e) the history of care of the child,
(f) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained,
(g) any plans for the child’s care,
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child,
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child,
(j) any family violence and its impact on, among other things,
- (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
- (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child, and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
When considering these factors, the Court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
The criteria for determining the “best interests of the children” under the Divorce Act is similar.
Child Support
In New Brunswick, the determination of the appropriate amount of child support in most cases is a combination of the non-custodial parent’s total taxable income, and application of guidelines which are prescribed by statute. The simplified child support tables under the Federal Child Support Guidelines 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 deductible under the Income Tax Act by the payor or included by the recipient as taxable income.
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 described above. Besides this amount, they may also receive an additional amount for child-care costs such as daycare or special expenses such as orthodontic treatment.
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 Law Act or the Divorce Act. The purpose of spousal support under both statutes is mainly to redress economic self-sufficiency and any disadvantage possibly arising from the roles the spouses adopted in the relationship.
Spousal support entitlement, quantum, and duration of payment is a function of both the means and needs of the spouses, considered in conjunction with un-legislated but commonly applied Spousal Support Advisory Guidelines.. each case bring largely determined by the unique facts of individual cases.
Owing to this nuanced approach to the determination of spousal support, a consultation with a lawyer is essential to determine the rights and obligations regarding spousal support.
Adoptions
Adoptions in New Brunswick are governed by Part V of the Family Services Act.
In New Brunswick, any child, whether under the age of majority or an adult, may be adopted. Any adult may apply to adopt any child, which adopting adult may be a new married spouse, a common-law spouse, and include adoptions by other family members such as grandparents, or siblings of the biological parents (i.e. uncles or aunts).
Private adoptions by immediate family members is governed by different procedures and protocols in comparison with adoptions that occur through the agency of the Department of Social Development and applications for adoption by persons other than immediate family members.
A consultation with a lawyer is essential to determine whether a private adoption is appropriate for your situation and circumstances.
Appointments can be pre-booked through our website and are available in office, by telephone, or by Zoom on-line meeting.