|Civil Procedure Rules of Nova Scotia|
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NSSC Family Division Practice Memorandum
|Part 1 - Scope and application of Rules|
|1.01||This Practice Memorandum applies to any proceeding started, dealt with, and heard in the Supreme Court (Family Division), unless a judge directs otherwise.|
|1.02||The Nova Scotia Civil Procedure Rules, and Rule 59 - Family Division Rules in particular, apply to all of the documents and procedures provided in this Practice
|1.03||Any reference in this Practice Memorandum to a particular rule number means that Rule contained in the Nova Scotia Civil Procedure Rules.|
|1.04||Brackets are used in the forms in this Practice Memorandum to indicate that guidance is being provided on how to complete a blank part of the Form, and italicized words in brackets are used to indicate recommended wording.|
|1.05||The brackets and guidance information contained within them, other than the applicable recommended wording, must be deleted from the version of the document or order prepared for filing.|
|Part 2 - Documents|
|Filing, format, and content requirements|
|2.01||(1)||The following documents are provided in this Practice Memorandum and must be filed by the parties as required under Rule 59 and the applicable legislation:|
|(a)||statement of contact information and circumstances;|
|(b)||parenting statement, if custody, parenting time, contact time or interaction is claimed;|
|(c)||statement of income, if child or spousal support is claimed;|
|(d)||statement of special or extraordinary expenses, if child support including support for special or extraordinary expenses is claimed;|
|(e)||statement of undue hardship circumstances, if child support is claimed and a party claims the amount of support should be increased from, or decreased from, the table amount on the basis that child support in the table amount would cause undue hardship;|
|(f)||statement of expenses, if spousal support is in issue, or child support is claimed and a party claims an amount that is different from the table amount, or the table amount plus special or extraordinary expenses;|
|(g)||statement of property, if spousal support is in issue or there is a claim for division of assets;|
|(h)||motion for directions, and affidavit supporting a motion for directions, if a party seeks to proceed to a hearing under Rule 59.37;|
|(i)||request for a date assignment conference, if a party seeks to proceed to a divorce trial under Rule 59.41;|
|(j)||waiver of financial statements, if the parties agree to waive, and meet the requirements under either Rules 59.21(3) or 59.47(3);|
|(k)||affidavit supporting an uncontested divorce under Rule 59.47(1)(e).|
|(2)||The format and content for each document are mandatory as set out in the Forms listed in the following table, unless a judge orders otherwise prior to a hearing or trial of any motion or proceeding:|
|Part 3 - Settlement Conferences|
|3.01||(1)||The purpose of the settlement conference is to effect an early and inexpensive
resolution and this requires full and frank disclosure of the merits and weaknesses
of the respective cases.
|(2)||Rule 10.16 addresses the confidentiality of communications, recordings and documents in a settlement conference.|
|(3)||To encourage participation in these settlement techniques, and to avoid the parties
being concerned that they might be prejudiced by a settlement conference if the case goes to trial, the judge conducting the settlement conference will not be the trial judge.
|3.02||A judge who conducts a settlement conference at which the parties reach agreement is responsible for advising the court officer who scheduled the proceeding of the effect the agreement may have on the requirements for trial or hearing dates.|
|Part 4 - Orders|
|4.01||This part 4 of the Practice Memorandum provides standards for clauses in orders.|
|4.02||These standards comply with the requirements of the Guidelines for the corollary relief of child support, and for child support in family proceedings.|
|4.03||This Part also provides notes to explain in greater detail the content of the clauses,
and provides a list of alternative clauses to assist parties in preparing orders.
|4.04||In this Part 4,|
|"Guidelines" means the Federal Child Support Guidelines or the provincialChild Support Guidelines or both, as the context requires;|
|"order provision" means a written statement of an order being made by a judge, which may include directions and rulings;|
|"payor" means the party paying support;|
|"recipient" means the party receiving support;|
|"recital" means a written factual statement that provides required background information for the provisions of an order;|
|"table amount" means an amount of child support determined under section 3
of the Guidelines using the tables provided in Schedule I of the Guidelines;
|"variation order" means an order made to vary, rescind, or suspend another
order made under the Divorce Act or the Parenting and Support Act.
|Filing, format, and form requirements|
|4.05||(1)||The following orders are provided in this Practice Memorandum and must be drafted and settled as required under Rule 59, Rule 78 - Order, and this Part 3:|
|(a)||interim order for child support made by a judge or court officer under Rule 59.33;|
|(b)||divorce order and corollary relief order under Rule 59.48;|
|(c)||final order for an original proceeding other than a divorce proceeding and for a motion under Rule 59.53;|
|(d)||order for paternity testing made by a court officer under Rule 59.55.|
|(2)||A judge may give directions on the format and content of an order at any time prior to the order being made.|
|(3)||The form for orders listed in the following table are provided in this Practice Memorandum, and the format and content of each form of order are recommended:|
|Corollary relief order|
|4.06||(1)||The Federal Child Support Guidelines set out specific requirements for the contents of a corollary relief order made under the Divorce Act.|
|(2)||Form FDO 3 is to be used for a corollary relief order made for child support at the table amount under the Federal Child Support Guidelines, or for child support at the table amount plus special or extraordinary expenses.|
|(3)||Additional clauses from the list of alternative clauses provided in this Part 4, or as otherwise required, may be added to the corollary relief order to address the other situations in which a child support order is made.|
|(4)||Form FDO 3 also provides clauses for corollary relief relating to custody, parenting time, contact time, or interaction, and spousal support, as well as property division.|
|Order (family proceeding)|
|4.07||(1)||The provincial Child Support Guidelines set out specific requirements for the contents of an order for child support made under the Parenting and Support Act.|
|(2)||Form FDO 4 is to be used for an order made for child support at the table amount under the provincial Child Support Guidelines, or for child support at the table amount plus special or extraordinary expenses.|
|(3)||Additional clauses from the list of alternative clauses provided in this Part 4, or as otherwise required, may be added to the order (family proceeding) to address the other situations in which a child support order is made.|
|(4)||Form FDO 4 also provides clauses for relief relating to custody, parenting time, contact time or interaction and spousal support, as well as property division.|
|4.08||(1)||The variation order is entitled variation order and either Form FDO 3 or FDO 4 may be used as the standard recital and order provisions.|
|(2)||The variation order must refer to the order or orders being varied and provide the date of the order or orders being varied in the recitals.|
|(3)||Additional clauses from the list of alternative clauses provided in this Part, or as otherwise required, may be added to a variation order to address the other situations in which a child support order is made.|
|Order notes and alternative clauses|
|4.09||The remainder of this Part 4 provides the following:|
|(a)||General note for orders;|
|(b)||Notes on standard clauses for recitals in orders;|
|(c)||Notes on standard clauses for order provisions;|
|(d)||List of alternative clauses with notes for recitals and order provisions.|
|General note for orders|
|Using the name of the party rather than “applicant”, “petitioner” or “respondent” is simpler and less prone to error. Although full names are used in the heading, it is generally recommended that only the first given name and the surname be used in the recitals and provisions of the order, for ease of reading.|
|Notes on standard clauses for recitals in orders|
Titles for clauses are not necessary in the recitals. They are used in this section for ease of reference. The information provided in this section applies to the corresponding recitals used in Forms FDO 3 and FDO 4.
|Child’s name and birthdate|
Section 13(a) of the Guidelines requires that the order provide the name and birth date of each child to whom the order relates.
Section 13(b) of the Guidelines requires that the order include “the income of any spouse whose income is used to determine the amount of the child support order”.
|There are different definitions of income, used for different purposes within the Guidelines. The recitals must be clear on what income has been determined and for what purpose, for example:|
|•||The recitals need only mention the payor’s annual income for the “table amount only” version of the orders.|
The incomes of both parties are required to determine the sharing proportions for special or extraordinary expenses and both incomes must be stated pursuant to ss. 7 and 13(b) of the Guidelines in the “table amount plus special or extraordinary expenses” version.
|Effect of spousal support on income|
|Spousal support paid by one party to another must be deducted from the payor’s “table” income and added to the recipient’s income, before calculating the respective proportions. [Reference: Guidelines, Schedule III, s. 3(2)]|
|Notes on standard clauses for order provisions|
Titles provide easy reference for the order provisions found in the body of an order and they are recommended. The headings provided in this section correspond to the headings used in Forms FDO 3 and FDO 4.
|Child support payments|
The table amount is to be specified or, when another amount is used, one of the alternative clauses provided in this Part 4 is to be used to describe the amount and circumstances. [Reference: Guidelines, s. 13(c)]
Specific information concerning "special or extraordinary expenses" must be included in the order. [Reference: Guidelines, s. 13(e): "the particulars of any expense described in subsection 7( I), the child to whom the expense relates, and the amount of the expense or, where that amount cannot be determined, the proportion to be paid in relation to the expense"]
The Director of Maintenance Enforcement prefers that an actual amount for special or extraordinary expenses be stated, and not just the proportions, for enforcement purposes.
|When child support payments are due|
The payment schedule must be stated, including either lump sum or periodic payments and the date or dates when payments are to be made. [Reference: Guidelines, ss. 11 and I 3(f)]
|Child support through health plan|
Section 6 of the Guidelines provides for insurance coverage to be a term of child support. Any affidavit relating to child support should provide information to the court indicating whether or not such coverage exists or is to be acquired, in order for the court to include this term. [Reference: Mannett v. Mannett (1992), 111 N.S.R. (2d) 327 and Robski v. Robski, [ 1997], N.S.J. No. 444]
|Ongoing disclosure for child support|
If the order is for the table amount only, ss. 21 and 25 of the Guidelines require the disclosure of only the payor’s income. Annual production is ordered here instead of requiring a written request from the recipient each year, under section 25 of the Guidelines.
Disclosure by the recipient is only required when the order provides for an amount other than the table amount, as in the following cases under the Guidelines: special or extraordinary expenses [s. 7], split custody [s. 8], shared custody [s.9], children 19 or over [s. 3(2)(b)], incomes over $150,000 [s. 4(b)], undue hardship [s. 10], and spousal support when ordered or not ordered by reason of priority to child support. The version of this order provision for the mutual exchange of income tax returns is to be used, because the annual incomes of both parties must be disclosed.
If spousal support is to be paid, the payment schedule must be stated, including either lump sum or periodic payments and the date or dates when payments are to be made.
|Director of Maintenance Enforcement|
|The method of payment preferred by the Director is for the payor to provide postdated cheques for one year. If the preferred method of payment is adopted, the clauses should read:|
All support payments must be made by way of post-dated cheques for a period of one year. The cheques must be made payable to [name of party receiving support]
The post-dated cheques must be sent by [name of party paying support] to the Office of the Director of Maintenance Enforcement, PO Box 803, Halifax, Nova Scotia, B3J 2V2, while the order is filed for enforcement with the Director.
Under section 9 of the Maintenance Enforcement Act, all maintenance orders are filed with the Director of Maintenance Enforcement and enforced by the Director, unless the parties opt out or withdraw the order from enforcement. The court cannot order that the parties "opt out" of the Maintenance Enforcement Program. Parties wishing to opt out must do so in accordance with section l 0 of the Act, which requires that a written consent signed by both parties must be filed with the Director. Parties may make reference in the terms of the order to an existing written consent signed by them and filed with the Director. In some circumstances, a party may apply to the Director under s. 12 to have the order "withdrawn from enforcement".
The current designated addresses of both parties, provided under Rule 59 .15, are to be sent by a court officer with the order to assist with registration in the Maintenance Enforcement Program.
Section 42 of the Maintenance Enforcement Act requires parties to maintain current addresses with the Director of Maintenance Enforcement and also advise on any changes in employment. Parties must provide the information regarding a change in address or employment within ten days from the date of the change.
|List of alternative clauses with notes for recitals and order provisions|
This section provides a list of alternative clauses to assist litigants in the preparation of an order. The purpose is to maximize standardization and uniformity of clauses, as well as compliance with the detailed requirements of the Guidelines.
Each new clause has a heading and is immediately followed by either recital notes or order provision notes depending on the type of alternative clause.
|Imputation of Income|
|[name] has failed to provide income information when required by the [order/notice] dated and [his/her] annual income is imputed to be $ [amount] for the purpose of determining the amount of child [support] .|
Recital Notes: If a party has not provided the necessary income information, this recital clause may be used to give the background for the necessary imputation, made under ss. 19( l )( t), 21 and 22 of the Guidelines. The party must have failed to provide income information "when under a legal obligation to do so", before income can be imputed under section 19(1 )(t), and a reference is made to the order or direction that requires the disclosure. Section 21 sets out the information to be disclosed and section 25 sets out the continuing obligation to disclose.
|Rounding-Up of Table Amount|
|[name] must pay child support to [name] pursuant to the [Federal Child Support Guidelines/provincial Child Support Guidelines] and in excess of the Nova Scotia table, the amount of $ [amount] per month payable on the first day of each month, and commencing [date].|
Order Provision Notes: The parties may agree to "round up" the table amount, e.g. from $478 to $480 or $500, or agree to fix child support at an amount higher than the table amount, rather than detail some small amount of special or extraordinary expenses. In either case, this alternative clause in the order provisions identifies that the "basic amount" is in excess of the table amount. The Guidelines set a floor for child support purposes and parties are free to agree to a higher amount.
|3||[name], resident of Nova Scotia, has an annual income of $ [amount] and his/her spouse [describe relationship of person in household sharing expenses], [name], has an annual income of $ [amount] for the purpose of determining the table amount of child [support] and [his/her] household standard of living.|
|[name] has an annual income of $ [amount] and his/her spouse/ [describe relationship of person in household sharing expenses], [name], has an annual income of $ [amount] for the purpose of determining his/her household standard of living.|
Recital Notes: The bolded heading is not required in recitals. For undue hardship, the incomes are set out in the recitals that are used in the calculation of the respective household standards of living, under s. 10(3) of the Guidelines. Incomes of all relevant members of the household should be identified, using Schedule II for guidance as necessary.
[name] ’s household has a higher standard of living than [name] ’s household.
[name] would suffer undue hardship by reason of [set out undue hardship circumstance] if required to pay child suppor pursuant to the [Federal Child Support Guidelines/provincial Child Maintenance Guidelines] and in accordance with the Nova Scotia table in the amount of $ [amount] per month.[name] must therefore pay child support to [name] in the amount of $ [amount] per month, payable on the first day of each month, and commencing [date].
Order Provision Notes: If allowed, undue hardship changes the table amount which would otherwise be ordered. The table amount and the new amount must be stated in the order provisions as required bys. 13(c) of the Guidelines. Any subsequent review or variation is then clear on what would have been ordered and what was actually ordered.
|Child 19 or Over|
|3||[name] has an annual income of$ [amount] , and [name] has an annual income of $ [amount], and the child [name] has an annual income of $ [amount] for the purpose of determining child support for the child [name], born [date].|
Recital Notes: The bolded heading is not required in recitals. The parties may agree, or a judge may decide, that the "table amount plus special or extraordinary expenses" is "inappropriate" under s. 3(2)(b) of the Guidelines. Alternative ways of determining support include using the older method of working out a child's budget and sharing it proportionately between the
|Child 19 or Over|
|3||[name] must pay to [name /the child, name,] pursuant to section 3(2)(b) of the [Federal Child Support Guidelines/provincial Child Support Guidelines] the amount of $ [amount] per month for the support of the child [name] , payable on the first day of each month, commencing [date].|
Order Provision Notes: Parties have the option to agree that the child receive the monthly payments directly.
|3||[name 1] , resident of Nova Scotia, has an annual income of $ [amount] and [name 2], resident of Nova Scotia, has an annual income of $ [amount], for the purpose of determining the table amount of child support.|
Recital Notes: The bolded heading is not required in recitals. For consistency in the order provisions, the party who will be paying child support is "name 1" and the other party is "name 2". The party paying support is often the party with the higher income. However, if one party has fewer children than the other, that party may be the one to pay support.
|3||[name 1] would otherwise pay to [name 2] for the support of the [child/children name/names] the table amount of $ [amount], and [name 2] would otherwise pay to [name 1] for the support of the [child/children name/names] the table amount of $ [amount].|
|[name 1] must therefore pay child support to [name 2] in the amount of $ [amount] per month, payable on the first day of each month, and commencing [date].|
Order Provision Notes: Section 8 of the Guidelines provides for the net difference to be paid in split custody situations. It may be necessary in some circumstances to include not just table amounts, but also special or extraordinary expenses in the calculation of the net difference, which should then be reflected in alternative clauses.
A standard clause for child support in a shared custody situation under Section 9 of the Guidelines has not been included as there are a wide variety of possible shared custody arrangements in practice. It may be possible to modify some of the alternative clauses to fit the particular shared custody situation.
|Waiver of Financial Disclosure|
|6||By agreement of the parties, [name] and [name] are not required to file financial statements in this proceeding.|
Order Provision Notes: This clause may be used ifthere are no children of the marriage and both parties agree to waive the filing of the financial statements. This would include cases in which the parties are not seeking relief regarding spousal support or matrimonial property, or the parties have reached an agreement regarding spousal support and matrimonial property and they have also agreed to waive the filing of the financial statements. This clause cannot be used where there are any dependent children, even if child support has been agreed upon, due to the requirements under s. 21 of the Guidelines.
|Reduced Spousal Support|
|7||No spousal support shall be paid by [name] to [name] as a result of giving priority to child support.|
|7||[name] shall pay spousal support to [name] in the amount of $ [amount] per month, payable on the first day of each month, and commencing [date], which amount is less than it otherwise would have been as a result of giving priority to child support.|
|Order Provision Notes: Section 15.3(1) of the Divorce Act requires that the court give priority to child support over spousal support. Where that priority eliminates, or reduces the amount of, spousal support, the order should so note, consistent with the duty to record reasons in s. 15.3(3).|