Title Insurance Nova Scotia: What Every Homebuyer Should Know

Purchasing residential property in Nova Scotia often involves new terms and concepts. One of the most important is "title." Understanding title is key to understanding title insurance, which is a common part of real estate transactions in this province.

Many first-time homebuyers hear about title insurance from their real estate lawyer, lender, or real estate agent. Title insurance relates directly to the legal ownership of the property you are purchasing.

Before learning about title insurance, it is helpful to know what "title" actually means in the context of real estate, which we describe in greater detail below.

• What Is Title?
• What Is Title Insurance?
• Is Title Insurance Mandatory in Nova Scotia?
• What Title Insurance Covers for Nova Scotia Buyers
• Common Exclusions to Know Before You Buy
• Title Insurance Cost in Nova Scotia
• Lender Policy vs. Owner Policy
• How Title Fraud Happens and How Insurance Helps
• Risks in Nova Scotia That Make Coverage Valuable
• Why a Lawyer's Opinion on Title Still Matters
• Next Steps for Peace of Mind on Your Closing Day
• FAQs About Title Insurance Nova Scotia

What Is Title?

Title is the legal term for the right to own and control a property. Having title to a property means having the full legal right to use, sell, mortgage, or transfer that property.

A deed is the document that transfers title from one property owner to another. Title, however, is broader than just the deed—it includes all legal rights and interests attached to the property, such as the right to occupy, lease, or make changes to the land or buildings.

In Nova Scotia, a clear title confirms that there are no claims, liens, or disputes affecting the owner's rights to the property.

What Is Title Insurance?

Title insurance is a type of insurance policy that protects property owners and lenders against hidden problems with the ownership, or "title," of a property that existed before the date the insurance was purchased.

This insurance covers issues from the past, such as mistakes in public records, old unpaid debts attached to the property, or claims that someone else owns part of the property. It does not cover events or problems that happen after the policy is in place.

Key difference from other insurance: Title insurance provides backward-looking coverage for problems that already exist but haven't been discovered yet. Regular home insurance covers future events that might happen.

Is Title Insurance Mandatory in Nova Scotia?

Title insurance is not legally required when buying property in Nova Scotia. However, most mortgage lenders require buyers to have title insurance before they will provide financing.

It has become standard practice in most real estate transactions for title insurance to be included. Even when a buyer is not borrowing from a lender, many lawyers recommend title insurance as part of the closing process.

What Title Insurance Covers for Nova Scotia Buyers

Title insurance in Nova Scotia covers specific risks that relate to the ownership and legal status of a property. The policy addresses issues that existed before the purchase but were not discovered during the buying process.

Common coverage areas include:

• Unknown liens: If the previous owners have unpaid debts (such as property taxes, contractor bills, or utility charges), these outstanding items could become the new owner's responsibility
• Boundary or survey errors: Pre-existing mistakes in property lines, measurements, or legal descriptions can lead to title disputes with neighbours
• Unregistered easements or encroachments: Situations where a neighbour's structure crosses onto the property or where utility access rights aren't shown in public records
• Title fraud and forgery: Protection if someone falsely claims ownership of the property or if documents affecting the property's title have been forged
• Zoning or permit violations: Coverage when previous owners made changes to the property without the required permits or if the property doesn't meet zoning rules

Common Exclusions to Know Before You Buy

Title insurance policies in Nova Scotia have exclusions—specific situations or problems that the policy does not cover.

Standard exclusions to title insurance include:

• Known title defects: If a problem with the property's title is found and disclosed before the purchase, title insurance will not cover that issue
• Environmental issues: Problems such as soil contamination, hazardous materials, or environmental cleanup costs
• Indigenous land claims: Claims by Indigenous groups regarding land rights
• Matters not in public records: Issues that aren't discoverable through a standard title search, such as unrecorded liens or private agreements

Title Insurance Cost in Nova Scotia

Title insurance in Nova Scotia is paid for with a single payment at the time of purchase or refinancing. The cost typically ranges from $250 to $500, depending on the property value and type of policy.

Once paid, the policy remains in effect for as long as the owner has an interest in the property. There are no annual fees or renewal charges for this coverage.

Lender Policy vs. Owner Policy

Title insurance policies in Nova Scotia come in two types, each serving a different purpose:

Policy Type	Who It Protects	Coverage Amount	When Required
Lender policy	The mortgage company/lender	Up to the mortgage amount	Usually required by lenders
Owner policy	The property owner	Up to the purchase price	Optional for buyers (but highly recommended)

A lender policy protects the financial institution that provides the mortgage, and its coverage ends when the mortgage is paid off. An owner policy protects the homebuyer for as long as they own the property.

How Title Fraud Happens and How Insurance Helps

Title fraud is a risk in Nova Scotia real estate. It involves someone using deception or forged documents to interfere with the legal ownership of a property.

Common fraud schemes include:

• Identity theft scams: Criminals use stolen personal information to pose as the property owner and sell or mortgage the property without the real owner's knowledge
• Fake discharges or mortgages: Forged documents claiming a mortgage has been paid off when it hasn't, or registering fraudulent new mortgages
• House-stealing schemes: Complete property transfer through identity theft and forged documents

Title insurance covers financial losses and legal costs if fraud results in problems with property ownership. The title insurance company works to defend the interests of the true owner and to restore their legal title.

Risks in Nova Scotia That Make Coverage Valuable

There are several risks specific to Nova Scotia that make title insurance particularly valuable to property owners:

• Proximity to coastline: The proximity of your property to Nova Scotia's coastline can pose unique challenges. For instance, coastal erosion and storm damage can change property boundaries over time. Disputes sometimes occur regarding ownership of wharves, docks, or other waterfront structures.

• Private road access rights: Rural parts of Nova Scotia often include properties accessed by private or shared roads. The legal right to use these roads may not be clearly recorded, which creates uncertainty about property access.

• Historic deed gaps: Some properties have ownership records going back many years. Older properties may have missing, incomplete, or unclear documentation that can result in questions about legal ownership or boundaries.

Why a Lawyer's Opinion on Title Still Matters

Title insurance protects against certain risks that existed before the property was bought. However, it does not replace a lawyer's review of the title.

Namely, a lawyer conducts a detailed review of the property's title—first by searching public records and checking for anything that could affect ownership or use of the property. This review can identify problems such as liens, easements, or restrictive covenants that may not be covered by insurance.

LM Legal Solutions handles real estate transactions by reviewing title documents, explaining findings to buyers, and addressing any defects or issues that appear in the title search. This process helps clarify what title insurance covers and what it does not.

Next Steps for Peace of Mind on Your Closing Day

Title insurance in Nova Scotia addresses ownership risks that may not be obvious when buying a property. It protects against issues like unknown liens, boundary mistakes, and title fraud, but it does not cover every possible problem.

In Nova Scotia, title insurance is not a legal requirement, but lenders often require it for mortgage approval. Homebuyers can choose between a lender policy and an owner policy, or choose to purchase both.

A real estate lawyer reviews the title, explains what is covered by insurance, and addresses all issues before closing. To discuss the specifics of title insurance for your situation, contact LM Legal Solutions.

FAQs About Title Insurance Nova Scotia

Can I cancel my title insurance policy and get a refund?

Title insurance cannot be cancelled after it is issued because the policy covers events that happened before the date it was purchased.

Does title insurance cover condominiums differently than houses?

Title insurance for condominiums provides protection for the individual unit, such as issues with the unit's title or boundaries. Problems involving shared areas managed by the condominium corporation are not covered.

What happens if I discover a title problem after buying my home?

If you have title insurance and discover a covered problem, the first step is to contact the insurance company's claims department. They will investigate the issue and may cover legal costs or financial losses according to your policy terms.

Do I need both a survey and title insurance when buying property?

A survey shows exact property boundaries at a specific point in time, while title insurance provides ongoing protection against various title-related risks. Many buyers choose to obtain title insurance instead of ordering a new survey, as most lenders accept title insurance as an alternative.

A Real Estate Lawyer’s 2025 Guide to Purchasing Property in Nova Scotia

Purchasing real estate is an exciting endeavor, but it's crucial to understand the legal landscape to navigate the process smoothly. From understanding property rights to ensuring a clear title a Nova Scotia Real Estate Lawyer will play an important role in protecting your interests as a buyer. In this brief overview, we'll highlight some of the essential legal considerations when purchasing property in Nova Scotia, including:

• The Agreement of Purchase and Sale

• Due Diligence

• Title Insurance

• Closing Process

The Agreement of Purchase and Sale

The foundation of any real estate transaction is the contractual agreement between the buyer and seller. In Nova Scotia, offers to purchase are typically presented using standard forms provided by the Nova Scotia Real Estate Commission. Your Realtor will assist you in negotiating the terms of the Agreement and preparing the appropriate documents.  These agreements outline key terms such as the purchase price, deposit amount, closing date, and any conditions that must be met before the sale can proceed. It's crucial to review these agreements carefully and seek legal advice if needed to ensure your interests are protected.  The real estate lawyer review condition gives your lawyer time to review the contract and ensure your interests are protected.

Due Diligence

Conducting due diligence is a critical step in the real estate purchasing process, allowing buyers to uncover any potential issues or risks associated with the property. This may include obtaining a property survey to verify boundaries, conducting a title search to ensure clear ownership, and inspecting the property for structural defects or environmental concerns. Working with a qualified real estate lawyer can help ensure that due diligence surrounding title is completed thoroughly and effectively. When reviewing title, your lawyer will be looking for things such as liens, easements effecting the property or restrictive covenants that could impact your intended use of the property.  You will work with other professionals such as your mortgage broker and home inspector to ensure other conditions are satisfied. 

Title Insurance

Title insurance provides protection against losses arising from defects in the title of the property. Obtaining title insurance is a common practice to safeguard against risks such as unknown liens, encroachments, or legal disputes. While title insurance is not mandatory, it offers peace of mind to both buyers and lenders by providing financial protection against unforeseen title issues that may arise after the purchase.

For a detailed breakdown of what title insurance covers, common exclusions, costs, and risks specific to Nova Scotia, read our full guide: Title Insurance Nova Scotia

Closing Process

The closing process is the final step in completing your real estate transaction. On closing day, funds are exchanged, and legal ownership of the property is transferred from the seller to the buyer. Your real estate lawyer will oversee the closing process, ensuring that all legal requirements are met, and facilitating the transfer of keys and possession of the property. It's essential to be prepared for closing costs, which may include legal fees, land transfer taxes, and other miscellaneous expenses.

Navigating the legal aspects of purchasing real estate in Nova Scotia requires diligence, attention to detail, and expert guidance. By understanding property rights, reviewing contractual agreements, conducting due diligence, obtaining title insurance, and completing the closing process, buyers can confidently navigate the complexities of the real estate market. 

Want to better understand how title insurance protects Nova Scotia homebuyers? See our in-depth resource here: Title Insurance Nova Scotia

With the guidance of our experienced real estate practitioner, Jennifer Chiasson at LM Legal Solutions, you can rest assured that the process of purchasing property in Nova Scotia can be a rewarding and fulfilling experience for all parties involved. Book an initial consultation below or call 902-466-2200 to talk to our real estate lawyers about all your residential and commercial real estate needs.

LM Legal Solutions at the Spring Ideal Home Show – Meet Our Team!

We’re excited to announce that LM Legal Solutions will be attending the Spring Ideal Home Show from March 28-30 at the Halifax Exhibition Centre! Whether you’re looking for guidance on estate planning, family law, or real estate matters, our experienced team of lawyers and staff will be available to introduce themselves to you. 

Why Visit LM Legal Solutions at the Home Show? 

Many people delay legal planning because they don’t know where to start. We’re here to make the process easy! Stop by our booth to discuss: 

Estate Planning – Secure Your Future 

Planning for the future is essential, no matter your stage in life. Whether you need a will, trust, power of attorney, or other estate documents, our team will help you create a plan that protects your loved ones. You can even schedule an on-site consultation to get started! 

Family Law – Support Through Life’s Changes 

Family law matters can be overwhelming, but you don’t have to navigate them alone. If you have questions about divorce, child custody, spousal support, or other family law issues, our team is here to provide guidance and help you move forward with confidence. 

Real Estate – Legal Support for Buyers & Sellers 

Buying or selling a home is a big investment, and legal issues can arise at any stage. Whether you’re reviewing contracts, handling property disputes, or navigating a real estate transaction, we’re here to ensure everything goes smoothly. 

Schedule a Consultation at the Home Show 

We’re making it easy for you to connect with our legal team! At the Spring Ideal Home Show, you’ll have the opportunity to schedule an appointment with one of our lawyers to discuss estate planning, or real estate matters, and we can provide you with information on how to schedule a family law consultation.

Let’s Connect! 

Don’t miss this opportunity to meet our friendly team, ask questions, and take the first step toward protecting your family, home, and future. 

Visit LM Legal Solutions at the Spring Ideal Home Show – March 28–30, 2025 

Visit springideal.ca for home show hours and location.

Everything You Should Know About a Will, Personal Directive and Power of Attorney

At LM Legal Solutions, we understand that life is full of uncertainties, and one of the best ways to protect your loved ones and your assets is through proper estate planning. Today, we'd like to explain, in simple terms, why having a Will, a Personal Directive and a Power of Attorney is crucial. We will be covering:

• What Is a Will?

• Understanding The Role of Power of Attorney in Managing Your Affairs

• How a Personal Medical Directive Can Guide Your Healthcare Decisions

What Is a Will?

A Will is a legal document that allows you to appoint a person or people who will manage your estate and specify how your assets should be distributed after you pass away, thus protecting your wishes. Without a Will, the province’s laws dictate the distribution of your assets, which may not align with your wishes. By creating a Will, you can ensure your loved ones are taken care of financially, appoint a guardian for minor children, and leave a lasting legacy by supporting causes that are important to you, while also considering how your enduring power attorney will take effect.  Having a Will prepared by an experienced estate planning lawyer can help minimize disputes among beneficiaries and ensure your wishes are honoured.

Understanding The Role of Power of Attorney in Managing Your Affairs

A Power of Attorney is a document that designates someone to make financial and legal decisions on your behalf if you become unable to do so. A Power of Attorney has become an essential tool in today’s world.  A Power of Attorney allows you to appoint an individual that you trust to ensure your affairs are managed as you age.  This will help ensure your bills, taxes and investments are managed effectively and in your best interests and avoid costly court proceedings to appoint a guardian in the event of your incapacity.

How a Personal Medical Directive Can Guide Your Healthcare Decisions

A Personal Medical Directive, also known as a Living Will or Advance Healthcare Directive, allows you to outline your medical preferences if you can't make these decisions for yourself. This document, known as a Power of Attorney, allows someone to make decisions on your behalf regarding financial matters if you become incapacitated. This helps doctors and family members understand your treatment choices and gives you control over life-sustaining medical procedures. Having a Medical Directive in place can relieve your loved ones from having to make difficult decisions during a difficult time.

Contact Us for Personalized Estate Planning

By having a Will, Power of Attorney, and Personal Medical Directive in place, you can take control of your future and provide your family with peace of mind. At LM Legal Solutions, our experienced estate planning attorneys are here to assist you in creating these essential documents, such as your Will, personal directive and power of attorney customized to your unique circumstances.

To get started or review your existing estate plan, please contact us at 902-466-2200, email jennifer@lmlegalsolutions.ca or submit the contact form below. We are committed to making the estate planning process as easy and stress-free as possible.

The Intersection Between Family and Estate Law

Family and estate law often overlap as parents and spouses begin to plan for their future. A Will is a document that outlines how you wish to distribute your property after your death. A Will does not affect your assets until death and can only distribute what a person owns at death.

A Will can also provide guidance on how you want any children under the age of majority to be cared for. Wills are very important instruments to have for setting out your affairs and making sure your family is protected. We will be covering:

• Impact of Family Changes on Wills

• Legal Effects of Divorce and Marriage on Wills 

• Marital Changes and Your Will 

Impact of Family Changes on Wills

There are many ways in which a Will can intersect with family law. The first, and likely most important, is how it can affect the custody of your children if you pass away before they reach the age of majority. This can become particularly complex if you are divorced or separated and do not want the other parent to assume custody of your children on your death. Appointing a guardian for your children in your Will is not legally binding, and can be challenged by the other parent, or another family member. It will be important for you to consult with a lawyer experienced in Wills and estates on this issue, given the impact your divorce documents and the law has on your wishes.

Legal Effects of Divorce and Marriage on Wills

 

Wills are also impacted by a separation or divorce. Wills are not changed because you separate and if you have appointed your former spouse as your Executor, that does not change until you change your Will. Separation Agreements can include clauses that require you to name the other spouse on life insurance or other benefits and you must provide both your lawyer and your employer with the details of your Agreement as it can alter issues of pensions and ownership of assets. It is important to discuss any changes to your family, including Court orders and Separation Agreements with a lawyer experienced in the area of wills and estates.

Even a divorce does not void a Will. Following a divorce, if a new Will was not created, the old Will survives, and the Courts then treat the former spouse as if they died before you so they do not inherit twice. This would mean that the old Will is still valid but if the former spouse was appointed executor, they would not be able to act and the alternate executor would step in. Also, any gifts to the former spouse would not happen.

Marital Changes and Your Will

Marriage can also alter a Will. Generally speaking, your Will is revoked upon marriage under the Wills Act. One exception to this is if your Will is made in contemplation of marriage and states that you are making a Will because you intend to marry your soon-to-be spouse, who must be named.

Accordingly, whether you are contemplating marriage, separation, or planning for your children’s future, it is important to remember that you need to review your estate plans as they will be impacted by these decisions.

Consult with LM Legal Solutions Estate Lawyers

The knowledgeable team at LM Legal Solutions is equipped to help you navigate the complexities of family and estate law. With our dedicated expertise in these areas, we are committed to providing you with the guidance you need to make informed decisions about your future. We encourage you to reach out for a personalized consultation to discuss how we can assist with your specific legal needs in family and estate law.

For more information, complete the form below:

Exciting News! Lenehan Musgrave LLP Is Rebranding

Legal solutions. Sensible approach. These are the words that we at Lenehan Musgrave LLP have echoed as our motto. Living up to this, we have always been known for the knowledgeable lawyers we employ and the exceptional client services we provide. 

However, as we move forward into the future, Lenehan Musgrave LLP is evolving and rebranding to change with the needs of our clients. Rest assured, our core values remain the same. We are committed to providing exceptional client services with open and efficient communication and utilizing our knowledge of the law to advocate for our clients. 

Lenehan Musgrave LLP will now be known as LM Legal Solutions. We feel that this new name is reflective of:

• Our Message: Our core values and mission remain unchanged, but our messaging will be clearer and more aligned with our clients’ needs.

• Our Services: While our legal expertise remains top-notch, we’re enhancing our service offerings to better serve you. We have added additional legal services that will help us to serve more of your needs

• Our Growth: Our firm has grown, and our rebranding reflects our evolution.

As LM Legal Solutions, we will now offer a more varied array of services to help our clients with their everyday legal needs. We will continue to offer our family law services, but will also now offer:

• Corporate Law: From small business incorporation to purchase and sale of business assets, we provide a broad range of corporate legal services.

• Real Estate Law: Our expertise covers residential and commercial real estate transactions, leasing, and property development.

• Personal Injury: Whether it be a slip and fall or a motor vehicle accident, we are dedicated to negotiating a fair settlement for your client.

• Estate Planning: Protecting your clients’ legacies through wills, trusts, and estate administration.

We are excited to move into this new era, offering a more fulsome array of services with the same quality of work we are known for. We look forward to continuing to serve you with excellence.

Adoption in Nova Scotia: A Brief Overview

Adoption in Nova Scotia is governed by the Children Family Services Act and requires both the approval of the Court and the provincial Department of Family Services.  

Types of Adoption

There are different types of adoptions, which can include, but are not limited to:

●     Private Adoptions (Stepparents adopting step children, family members adopting children, etc.);

●     International Adoptions (adopting a child who is living outside of Canada); and

●     Public Adoptions (children in the care and custody of the Department of Community Services).

In all circumstances, adoptions must first have the approval of the Department of Community Services, and depending on the type of adoption, the approval requires that a home study be completed, which can take several months.

The Adoption Procedure in Nova Scotia

Once the approval is provided by the Department of Community Services, the parents can then begin the process of filing with the Court to have an Order of Adoption. 

In private adoptions and with international adoptions, several consents must be obtained before a court will grant an adoption.  First, the parents of the child must consent to the adoption. “Parent”  under the Children Family Services Act  can include:

●     The mother of the child

●     The father of the child by marriage or relationship

●     An individual having custody of the child, not including a foster parent

●     An individual with access or support obligations to the child

●     An individual who has acknowledged the parentage of the child

In addition to the parent or guardian’s consent, if the child to be adopted is over the age of 12, their consent must be obtained. In the case of adult adoptions, if the person being adopted is married, their spouse must also consent to the adoption.

Consent and Legal Implications

In some cases, it may not be appropriate, or possible, to obtain one of the consents needed. In those cases, you can apply to the court to dispense with that person’s consent ;– if successful, you can move forward without the consent.

Adoptions have permanent and long-lasting effects on many different rights and responsibilities as they relate to the person being adopted. Once an adoption has been processed, the person who has applied for the adoption becomes the child’s legal parent. This can have effects on your estate, and a separation (if the adoptive parents separate).

Legal Guidance

It is important to consult with a lawyer if you are intending to pursue an adoption. The knowledgeable lawyers at Lenehan Musgrave Law can assist you navigate the complex requirements of completing an adoption in Nova Scotia.

The Legal Implications of Void and Voidable Marriages

When a marriage is declared void, it is as if the marriage never existed in the first place. A marriage can also be voidable, which is a type of marriage that valid until a party asks the court to declare them void, and that request is granted. This is sometimes referred to as an annulment. Annulments are very rare, and few marriages qualify for this relief.

Often people confuse the concept with short marriages. Many believe they can obtain an annulment after having been married for only a short period– sometimes as short as even a few days or weeks. But this is not the case. A short marriage is not always a void or voidable marriage. Unless your marriage is declared void, you are required to follow the regular divorce process.

Property Division in Void Marriages

A void marriage has different implications on property division than a valid marriage. As noted above, a void marriage is as if the marriage never took place. Therefore, the Matrimonial Property Act (“MPA”), would not apply, and the presumption of the equal division of property between married couples would not occur.

The only exception to this is noted under s. 2(g)(iii), which indicates the MPA will apply to a couple who has gone through a form of marriage in good faith that is void, and are living together, or have lived together, within the preceding year. To qualify for relief under the MPA by this section, the person seeking relief needs to establish that the marriage occurred in “good faith” – that is, they married the other person with the belief that they had the capacity to marry. You cannot deceive someone into marrying you knowing you do not have the capacity to marry and then seek the protections and advantages the MPA offers.

Capacity to Marry and Legal Considerations

It is also worth noting that when we say “capacity to marry,” we generally mean a person who is the required age to marry, of sound mind, not currently married, marrying of their own free will, and not blood-related to a certain degree.

Factors Considered by the Court for Void Marriages

In determining whether a marriage is void, the Court can consider (but is not limited to) the following factors:

●     Whether the parties are related to each other by blood;

●     Whether one or both parties had the capacity to marry, which includes being too intoxicated to understand the vows;

●     Whether one or both parties were under the age of majority (19) at the time of the marriage and did not have a parent’s permission to marry;

●     Whether one or both parties consented to the marriage;

●     Whether one or both parties were married to another person at the time of marriage—not divorced, or seeking to be married to more than one person.

Different factors may be considered when determining whether the marriage is voidable.

Void and voidable marriages can be complicated to navigate. We encourage anyone with questions about whether this form of relief is right for their case to contact the lawyers at Lenehan Musgrave Law  to discuss this, or complete the form below to book a consultation.

Family Violence in Canada's Divorce Act

With the amendments to the Divorce Act in 2021, we saw a legislative emphasis on the concept of family violence for legally married couples. Family violence was previously known as “domestic violence.” It has now been defined under the Divorce Act as:

Family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct and includes:

• Physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person.

• Sexual abuse.

• Threats to kill or cause bodily harm to any person.

• Harassment, including stalking.

• The failure to provide the necessaries of life.

• Psychological abuse.

• Financial abuse.

• Threats to kill or harm an animal or damage property.

• The killing or harming of an animal or the damaging of property; (violence familiale)

How Family Violence Impacts Parenting Decisions

With this definition, the Court is tasked with considering the impact of family violence in relation to the “best interests of the child” test under s. 16(3)(j) of the Divorce Act. It is this test that the Court considers when making determinations on the decision-making and parenting of a child. The Divorce Act goes even further with the concept of family violence, outlining at s. 16(4) several factors relating to it that the Court may consider, including:

• The nature, seriousness and frequency of the family violence and when it occurred.

• Whether there is a pattern of coercive and controlling behaviour in relation to a family member.

• Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence.

• The physical, emotional and psychological harm or risk of harm to the child.

• Any compromise to the safety of the child or other family member.

• Whether the family violence causes the child or other family members to fear for their own safety or for that of another person.

• Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

• Any other relevant factor.

The inclusion of these provisions in the Divorce Act outlines the seriousness that the federal government wants the Court to take regarding family violence and the impact it has on children. Our provincial legislation, the Parenting and Support Act, has also adopted a definition of family violence that applies to families that are not legally married.  The best interests of the children are now required to be considered based on the impact of family violence, regardless of the family structure.

The idea that family violence has no impact on children, and no impact on the ability to parent, is no longer a reasonable assumption.

Contact Us

Accordingly, family violence can be a significant concern in the best interests test and is something the Court takes very seriously. If your matter involves family violence, please contact our office to discuss the options available to you in addressing parenting and decision-making.

Voice of the Child Report

The focus of the Supreme Court (Family Division) in matters involving children will always be, “What is in the child’s best interests?” It is generally accepted that it is not in the child’s best interests to testify in matters involving their parents. As such, it is extremely rare for children to be called as witnesses.

This presents a unique challenge to the Court, and to parents, when a child is old enough, or mature enough, to tell their preferences in parenting arrangements or on parenting issues. Under both the Divorce Act and the Parenting and Support Act, the child’s views and preferences can be a consideration in determining their best interests. So how has the Court adapted to this unique challenge?

There is a process available through litigation known as a “Voice of the Child Report.” When conducted, a third-party professional will interview the child and will advance their views and preferences in a written report to be filed with the Court. This allows the professional to be called as a witness instead of the child.

When Should a Voice of the Child Report Be Ordered?

A Voice of the Child Report is not a mandatory step to take, and is is not automatic. Parents may disagree as to whether one should be ordered for a variety of reasons – maybe the child, although older, is not as mature as their age, maybe the child has been coached or is the subject of parental alienation (link to blog on parental alienation). In cases where parents disagree as to whether a Voice of the Child Report should be ordered, the presiding justice will need to make that determination based on a variety of factors and considerations. These can include, but are not limited to:

1. The nature of the contentious issues

2. The age and stage of development of the child

3. Maturity of the child

4. Whether the views can be reliably ascertained

E.P. v. S. P., 2016 NSSC 173, para 27

A Voice of the Child Report can be helpful in litigation, but they are not always appropriate in the circumstances. Our lawyers at Lenehan Musgrave can assist you in determining whether this is something that would be of help to your case, and whether or not it would be reasonable to pursue one. Contact us today at (902) 466-2200 or submit the form below to book your family law consultation.

Understanding Parental Alienation

Parental alienation is a concept that the Court does not take lightly and is a label that is not easily achieved. It involves a finding of fact and will depend on the unique circumstances of each case. It is more than just name-calling by a parent. The Honourable Justice Chiasson, in Her Ladyship’s decision of Williams v Power, 2022 NSSC 156, at paragraph 72 adopts a definition of parental alienation which includes:

“One parent systematically, through a variety of physical, emotional, verbal, contextual, relational set of maneuvers systematically reduces the value, love, commitment, relationship, involvement of the other parent by minimizing, criticizing, devaluing that parent’s role. It can involve children having their sense of history being “re-written” by a parent’s redefinition of history, reframing things, repetitively talking about things. It can involve sometimes very subtle and sometimes not so subtle suasion, coercion, direction, misrepresentation and so on.”

Proving Parental Alienation in Custody Disputes

The person alleging alienation bears the burden to prove it has occurred, and it is a high burden to prove. It is notable that parental alienation will not always be found in every situation where children resist contact with a parent. It is also not found in every high-conflict situation. Individuals must therefore be careful in advancing this claim.

The Impact of Parental Alienation: Legal Guidance and Support

Because of its very nature, parental alienation can be severe and destructive. It can have significant, long-lasting, damaging effects. Families experiencing parental alienation may be wondering what their options are, and how to best navigate the challenges it can present. Contact our lawyers at Lenehan Musgrave LLP to assist you in preparing to move forward in addressing parental alienation issues. You can book a family law consultation by completing the form below or giving us a call at (902) 466-2200.

Jennifer Chiasson Joins Lenehan Musgrave LLP

Lenehan Musgrave Law is excited to announce that Jennifer Chiasson has joined the firm as our newest Associate Lawyer as of April 2024. Jennifer brings more than 10 years of general practice experience in the areas of family law, small business, real estate, and estate planning.

Jennifer is a practicing member of the Nova Scotia Barristers’ Society, as well as a member of the Canadian Bar Association, and the Real Estate Lawyers Association of Nova Scotia.

Her diverse practice experience expands Lenehan Musgrave’s overall service offerings to additional areas that complement our existing Family Law services.

You can reach Jennifer at (902) 466-2200 or at jennifer@lenehanmusgravelaw.ca

View Jennifer’s BIO

Congratulations and Well Wishes to Noelle Yhard!

The lawyers and staff at Lenehan Musgrave LLP offer well wishes to Noelle Yhard, an associate with the firm, as she leaves for an eight (8) month maternity leave. Commencing December 14th, 2023, Noelle will be moving to “non-practicing” status until she returns to the firm in September 2024. In the interim, the lawyers at Lenehan Musgrave LLP are ready to assist Noelle’s past, present and future clients with their family law matters.

Since her call to the bar in 2015, Noelle has gained considerable knowledge in the area of family law, and has used this knowledge to advocate on behalf of her clients. Noelle brought this knowledge to the Lenehan Musgrave LLP team in 2020, where she has continued to assist her clients in reaching resolutions with her practical approach to the practice of family law. Noelle will be missed during her maternity leave, but the team will be excited to welcome her back at its conclusion.

Lenehan Musgrave LLP offer their congratulations to Noelle, and until she returns to the office, we encourage anyone seeking Noelle’s representation to contact our office so that your matter can be referred to one of our other knowledgeable lawyers.

Separation Under One Roof: Legal Implications

Spouses can be separated as defined in the Divorce Act, or the Parenting and Support Act, even while still living under the same roof. Our family lawyers know that this is a fairly common situation, especially immediately after separation when individuals need time to figure out the logistics of their separation. However, whether this the case in your circumstances will depend on the facts of your specific situation.

Separation vs. Divorce: Determining the Date of Separation in Marriage or common law relationships

The Divorce Act requires that a couple be separated for one year before they can apply for a divorce. The Parenting and Support Act requires the parties be separated at the time of commencing an application. Separation begins when one party decides that they want to permanently end the spousal relationship.

Sometimes there is a specific conversation or incident that allows for a precise date of separation. Other times separation is a more gradual process, where it is more difficult to determine a precise date of separation. The date of separation can be very important if the spouses are dividing property, because many types of property are valued as of the date of separation.

Factors to Consider When Determining Separation Under Shared Residence

Separation under s. 8(2) of the Divorce Act requires that the parties be living “separate and apart”, however there is substantial case law deciding that spouses can be separate and apart while living under the same roof. The case law also is applicable to common law couples. Often this means that one spouse is sleeping in a separate room, and that their routines are distinct.

If there is disagreement over when the parties separated, the courts have laid out a number of factors to consider in determining if a couple has genuinely separated. These include:

●       Having meals together

●       Attending social events together

●       Having sexual relations

●       Representations to the outside world

●       Vacations together

●       Exchanging gifts

●       Continuing to attend family functions together

●       Separation of finances

This is not a definitive list and no one factor is conclusive of whether spouses living together are separated or not. However, if a court must determine when spouses living under the same roof separated, these are the types of specific facts they will use to make that determination.

The consequence is that two spouses could be living under the same roof, but meet the legal definition of separated. The date of separation impacts how property of the marriage is valued, and when the parties are able to file for divorce. As with all family law issues, the date of separation is very specific to your individual circumstances, and an experienced family lawyer at Lenehan Musgrave can help you determine your situation and options. Contact our office or submit the form below to schedule a consutlation

Family Lawyers Discuss Spousal Support – Amount and Duration

Definition of Spousal Support

As family lawyers in Nova Scotia, we often get asked about spousal support. Spousal support, or spousal maintenance, is a monthly payment that one spouse pays to another when their relationship ends. You may be familiar with this concept through the American term “alimony”. Spousal support is the Canadian term used. 

Entitlement to Spousal Support

You can refer to our previous blog post for a more depth explanation of entitlement, but there are three basic reasons why a court may award spousal support. The first is compensatory support, where spousal support is awarded to compensate a spouse for some sacrifice or burden they have taken on for the sake of the family. Often this is when one parent was a stay-at-home parent or made a major career sacrifice for the family. 

The second reason is non-compensatory spousal support, which is a needs-based award. It is awarded not to compensate a party for the roles adopted during the relationship. It can also be awarded to ensure a party does not suffer an immediate and major decrease in their standard of living upon separation. The court may award non-compensatory spousal support to give the spouse some time to become financially independent. 

The third reason is the court can also find that an entitlement to spousal support based on a prior contract or agreement between the parties.

Amount or Quantum of Spousal Support That Is Awarded

The amount that a court will award for spousal support is up to the discretion of the court, and typically less predictable than child support. With spousal support, the court can reference the Spousal Support Advisory Guidelines, which are a tool to determine the relevant ranges for spousal support. However, the court is not required to follow these guidelines.

In determining both quantum and duration, the court will consider the factors listed in s. 15.2 (4) of the Divorce Act. These include:

• length of the relationship;

• Functions performed by each party;

• Any order or agreement relating to the support of either spouse.

The Parenting and Support Act also offers guidance on this issue at s. 4.

Duration of Spousal Support

Usually, the longer the relationship between the spouses, the longer the duration for spousal support. In cases of longer relationships, the court can award spousal support for an indefinite time and reassess the situation after a period. For medium to short length relationships, a common rule of thumb is that the duration of support is usually awarded for a period between half the length of the relationship to the full length of the marriage. For example, an award for spousal support for a 12-year relationship may be for anywhere from 6 years to 12 years, depending on the surrounding factors. If the relationship was short, and there was no economic disadvantage to either spouse, the court may determine that no spousal support should be paid.

Spousal support is extremely fact specific and requires clear advocacy of your position. Our experienced family lawyers at Lenehan Musgrave are more than happy to help determine if there is an entitlement to spousal support, and if so, what amount and time period are fair. We encourage anyone who may have issues with spousal support to contact our office or submit the form below to arrange for an initial consultation to explore the options that may be available to you.

Property Division in Common Law Relationships in Nova Scotia

At Lenehan Musgrave LLP, our family lawyers in Nova Scotia often deal with property division between separated couples. When it comes to married couples and registered domestic partners, the Matrimonial Property Act dictates how property is divided. The Matrimonial Property Act does not apply to common law relationships; in fact, there is no applicable legislation that governs property division for common law couples in Nova Scotia. For more information on the difference between common law and married couples, see our Difference Between Common Law and Marriage blog.  

What is Unjust Enrichment in Common Law Relationships?

Because the Matrimonial Property Act is not applicable to common law couples, to be able to establish whether an asset or assets should be divided upon separation, common law couples must look to the common law for remedy. One such remedy is the concept of “unjust enrichment.” Unjust enrichment requires the person making the claim to prove: 

• Their former partner received a benefit; 

• They suffered a loss corresponding in some way to the benefit; and 

• There was no juristic reason for the benefit and the loss 

The spouse alleging unjust enrichment may also be successful in their claim if they can successfully demonstrate that a ‘joint family venture’ existed, as the basis for their unjust enrichment claim. 

A joint family venture can exist when both spouses contribute to the family wealth during their relationship. The Court will determine the existence of a joint family venture by examining certain aspects of the relationship, such as economic integration, the intention of the spouses, the mutual efforts of the parties, and the priority of the family.   

We recognize that property division in any form of a relationship can be complicated. Should you require assistance with dividing property after a common law separation, contact us today, or complete the form below to schedule a consultation with one of our family law lawyers to discuss your options.