Address: 10 Albert St., Moncton          Telephone: (506) 384-1128          Fax: (506) 384-3735          jo-annemoore@jo-annemoorelawoffice.ca

Q: "My wife and I separated last year and our two children live with her. She recently told me she's moving to B.C. with our children to live with her new boyfriend. Can I stop her?"

A: You can't stop your ex from moving but you can apply to the Courts to ask that he or she be ordered not to take the children. Generally, if this is something that is sprung on you suddenly and the pending move is within weeks you can make an emergency motion to the Court and they will hear you before the planned move.

These are called "mobility" cases and they are complex and multi-faceted. A Court has to look at many factors such as the existing custody arrangement, prior orders or agreements, the reason the custodial parent wants to move and most importantly, whether the move is in the children's best interests. The case that all lower courts refer to is a Supreme Court of Canada decision called Gordon v. Goertz [1996] 3 S.C.R. 783.

Q: "My common law partner and I have separated after seven years of living together and we lived in a home that I owned before we met and only my name is on the title and mortgage. Can he make a claim against me for equity in my home?"

A: Ironically, more couples in Canada these days live in common-law relationships than in traditional marriages but here in New Brunswick the Marital Property Act which governs how property will be divided if a couple separate only speaks to married couples. There is no provincial legislation that governs how common-law couples should divide property they've accumulated.

If you are in a common-law relationship it is always a good idea early in the relationship to have a frank discussion with your partner about how you would anticipate dividing large assets like a home, cottage, land or investments if you were to separate and then have those terms written into a domestic contract. If you agree to put both your names on a deed to property or on a bank account or investment account, there is a legal presumption that you both own that asset and a legal presumption of survivorship i.e. if one of you passes away the other person owns that asset outright.

In the example above a court would look at principles of unjust enrichment which have been established by the Supreme Court of Canada in cases like Kerr v. Baranow 2011 SCC 10 to determine what if any contributions your partner has made to the maintenance and upkeep of the property: Has he or she helped with mortgage payments or the property tax or insurance payments? Has he or she paid for renovations or helped with renovations that have increased the value of the property? Did he or she perform many tasks around the house that helped to maintain it so that its value has increased? If so, a court may decide that they have established an interest in the property and to deny them a share of the equity would be to unjustly enrich the other party who has had their benefit of their contributions to the property.

Matters like these can be complicated and they always come down to the evidence you can provide. If you live in a home with your partner, you're not married, have no domestic contract and you're not on the deed, it's a good idea to keep well-documented records of your contributions to upkeep and maintenance of the home, financial or otherwise.

A New Brunswick case that dealt with issues such as these is Burt v. Burt 2012 NBQB 100. Even though the couple were married in this instance, the wife's name was not on the deed to the marital home and the husband had purchased the home with his own money and put a family member on the deed with him. The court considered the wife's contributions to the home over the years they were married.

Q: "My husband and I are divorcing after being separated for many years and we have no custody, support or property issues - it's just a simple divorce. Can I file my own divorce petition?"

A: Yes, you can file a petition for divorce requesting a divorce and assuming it's uncontested, your spouse doesn't need to file documents. Or, you can and your spouse can file a joint petition. There are rules to observe though procedurally and it can be complicated and result in documents being returned to you to be refiled because one step was overlooked or there are errors in the documents.

The Divorce Act and Rules of Court should be reviewed before you prepare your documents. If you don't have time to do this, it is probably a good idea to pay the money to have one consultation with an experienced family lawyer to get some basic instruction on how to file your documents. You will require your original marriage certificate if you are the petitioner. An important last step often overlooked by self-represented litigants is writing to the Registrar to request your divorce certificate once your divorce has been granted. That certificate is your legal proof of divorce.