If you and your former partner are unable to agree on issues involving parenting of children, child support, spousal support, or division of property, then you may very well end up before a Judge who will make those tough decisions for you.
In the Annapolis Valley we have different Courts that deal with these issues. The choice of Courts can sometimes be confusing, as there is some overlap.
If the parents are not married they are in the Family Court. The Family Court has jurisdiction over sole and joint custody, parenting arrangements for children, child support, and spousal support. The Family Court cannot deal with issues of division of property, nor can it deal with matters involving adoption.
If the parents are married but have not yet commenced a divorce proceeding, then they can proceed in the Family Court. However, the local practice is that once a divorce has been commenced, proceedings are transferred to the Supreme Court, where divorces can be granted. The Supreme Court can also deal with issues involving joint and sole custody, parenting schedules, child support and spousal support. The Supreme Court can also deal with issues involving the division of property.
For example, if there is a matrimonial home and one spouse wants the other spouse to leave, the Supreme Court has the jurisdiction to grant an Order for “exclusive possession”. The Family Court cannot do this. If one spouse wants the house sold and the other spouse does not, the Supreme Court has the jurisdiction to order a sale. Further, the Supreme Court can divide pensions, RRSPs, investments, and other items of property. The Court can also apportion debt between the parties.
There is evolving case law which gives the Supreme Court jurisdiction over “unjust enrichment” for common law couples.
There may be strategic considerations in deciding which Court to make an application. For example, if married parents have little in the way of property to divide, it may make most sense to proceed in the Family Court to have issues involving children and support addressed, and then incorporate those arrangements in any subsequent divorce Order. However if the main issue is going to be the division of assets, it may make most sense to start the matter in the Supreme Court to have those addressed as quickly as possible, and also deal with children and support issues.
Proceedings in the Family Court are closed to the public. Those in the Supreme Court are open to the public. This may be a consideration, depending upon concerns about privacy or issues of sensitivity.
Speaking with a family and divorce lawyer about the jurisdictions in each Court will help you navigate the Court system, and give you a better understanding of what the Judge can and cannot do.