BILL NO. 75
1st Session, 58th General Assembly
Nova Scotia
49 Elizabeth II, 2000
Law Reform (2000) Act
The Honourable Michael G. Baker, Q.C.
Minister of Justice
First Reading: November 6, 2000
Second Reading: November 14, 2000
Third Reading: November 30, 2000 (WITH COMMITTEE AMENDMENTS)
Explanatory Notes
Clause 1 sets out the short title of the Act.
Clause 2 amends the long and short titles of the Family Maintenance Act.
Clause 3 adds to the Family Maintenance Act a definition of "common-law partner" that applies regardless of the sex of the partners and consequentially amends its definition of "spouse".
Clauses 4 to 8 amend various provisions of the Family Maintenance Act to extend the application of the Act to common-law partners.
Clauses 9 to 12 amend various provisions of the Income Tax Act to make them apply to "common-law partners", which is a term incorporated by reference from the Income Tax Act (Canada) as amended by the Modernization of Benefits and Obligations Act (Canada) and which means two persons, regardless of sex, who have cohabited continuously in a conjugal relationship for at least twelve months.
Clause 13 sets out transitional provisions relating to common-law partners for the 2000 taxation year.
Clause 14 provides that the division of pensions or pension benefits under the Pension Benefits Act applies to the common-law partners of members of the House of Assembly.
Clause 15 amends the definition of "spouse" in the Pension Benefits Act by removing the reference to "husband and wife" in the subclause dealing with "common-law" relationships and substituting a reference to a "conjugal relationship" and adds a definition of "common-law partner".
Clause 16 repeals Section 61 of the Pension Benefits Act, which deals with the division of pension benefits on marriage breakdown, and replaces it with a new Section that provides that a spouse or common-law partner shall not receive more than one half of the pension or pension benefit earned during the marriage or cohabitation.
Clause 17 adds a provision to the Pension Benefits Act providing for garnishment or attachment of pension benefits, retirement savings or annuities pursuant to the Maintenance Enforcement Act.
Clause 18 amends the regulation-making power in the Pension Benefits Act in relation to division of pensions and pension benefits on the breakdown of a marriage or common-law partnership and adds regulation-making powers in relation to the division of benefits.
Clause 19 amends various provisions of the Pension Benefits Act to extend the application of that Act to same-sex partners.
Clause 20 amends the Provincial Court Act to provide that the common-law partner of a Provincial Court or Family Court judge will receive the same pension benefits as would a spouse.
Clauses 21 to 33 make a variety of amendments to the Vital Statistics Act to provide for the registration of domestic-partner declarations, provision of copies, registration of terminations and the keeping of statistics.
Clause 34 adds a new Part II to the Vital Statistics Act that provides
(a) for the making and registration of domestic-partner declarations;
(b) that after registration the domestic partners have the rights and obligations equivalent to people who are married; and
(c) for the termination of domestic partnerships.
Clause 35 provides the effective dates for the Parts of the Act.
An Act to Comply with Certain Court Decisions
and to Modernize and Reform
Laws in the Province
Be it enacted by the Governor and Assembly as follows:
1 This Act may be cited as the Law Reform (2000) Act.
PART I
FAMILY MAINTENANCE ACT
2 (1) The long title of Chapter 160 of the Revised Statutes, 1989, is changed from "An Act Respecting Family Maintenance" to "An Act Respecting the Maintenance of Spouses, Common-law Partners and Dependants".
(2) Section 1 of Chapter 160 is repealed and the following Section substituted:
3 Section 2 of Chapter 160, as amended by Chapter 3 of the Acts of 1997 (2nd Session), is further amended by
(a) adding immediately after clause (a) the following clause:
(b) repealing clause (m) and substituting the following clause:
4 (1) Subsection 3A(1) of Chapter 160, as enacted by Chapter 3 of the Acts of 1997 (2nd Session), is amended by adding "or common-law partner" immediately after "spousal" in the third line.
(2) Subsection 3A(2) of Chapter 160, as enacted by Chapter 3 of the Acts of 1997 (2nd Session), is amended by adding "or common-law partner" immediately after "spousal" in the first and in the last line.
5 Clause 4(l) of Chapter 160, as amended by Chapter 3 of the Acts of 1997 (2nd Session), is further amended by adding "or common-law partner's" immediately after "spouse's" in the second line.
6 (1) Clause 6(2)(b) of Chapter 160 is amended by striking out "spouses" in the second line and substituting "common-law partners".
(2) Clause 6(3)(c) is repealed and the following clause substituted:
7 Clause 29(1)(a) of Chapter 160, as enacted by Chapter 3 of the Acts of 1997 (2nd Session), is amended by adding "or common-law partner" immediately after "spousal" in the second line.
8 Chapter 160 is further amended by adding
(a) "or common-law partner" immediately after "spouse" wherever it appears in Chapter 160, except in clause 2(m); and
(b) "or common-law partners" immediately after "spouses" wherever it appears in Chapter 160, except in clause 6(2)(b).
PART II
INCOME TAX ACT
9 (1) Clause (a) of the description of B in subsection 10(1) of Chapter 217 of the Revised Statutes, 1989, the Income Tax Act, as enacted by Chapter 4 of the Acts of 2000, is amended by
(a) adding "or a person who is in a common-law partnership" immediately after "person" in the third line;
(b) adding "or common-law partner" immediately after "spouse" in the fourth, in the fifth, in the fifteenth and in the seventeenth lines;
(c) adding "or common-law partnership" immediately after "marriage" in the sixth and seventh lines and in the twentieth line;
(d) adding "or common-law partner's" immediately after "spouse's" in the twentieth line; and
(e) adding "or in a common-law partnership" immediately after "married" in the twenty-first line.
(2) Subclause (b)(i) of the description of B in subsection 10(1) of Chapter 217 is repealed and the following subclause substituted:
(B) a person who is married or in a common-law partnership who neither supported nor lived with their spouse or common-law partner and who is not supported by that spouse or common-law partner,
(3) Paragraph (d)(ii)(B) of the description of B in subsection 10(1) of Chapter 217, as enacted by Chapter 4 of the Acts of 2000, is amended by adding "or common-law partner" immediately after "spouse" in the sixth line.
10 Clause (a) of the description of D in Section 12 of Chapter 217, as enacted by Chapter 4 of the Acts of 2000, is amended by adding "or common-law partner" immediately after "spouse" in the second line.
11 Subsection 19(4) of Chapter 217, as enacted by Chapter 4 of the Acts of 2000, is amended by adding "or common-law partner" immediately after "spouse" in the fourth line, in the seventh line of subclause (a)(ii) and in the seventh line of subclause (b)(ii).
12 (1) Paragraph 36(1)(c)(iii)(A) of Chapter 217, as enacted by Chapter 4 of the Acts of 2000, is amended by adding "or common-law partner" immediately after "spouse" in the seventh line.
(2) Clause 36(2)(b) of Chapter 217, as enacted by Chapter 4 of the Acts of 2000, is repealed and the following clause substituted:
(3) Subclause 36(3)(a)(ii) of Chapter 217, as enacted by Chapter 4 of the Acts of 2000, is repealed and the following subclause substituted:
(4) Subsection 36(5) of Chapter 217, as enacted by Chapter 4 of the Acts of 2000, is amended by
(a) adding "or in a common-law partnership" immediately after "married" in the second line; and
(b) adding "or common-law partner" immediately after "spouse" in the third line.
13 (1) If the proposed sections 130 to 142 of the Modernization of Benefits and Obligations Act (Canada) apply in respect of the 2000 taxation year to a taxpayer and a person who would have been the taxpayer's common-law partner in that year had those sections of that Act applied in that year, clause (a), subclause (b)(i) and paragraph (d)(ii)(B) of the description of B in subsection 10(1), clause (a) of the description of D in Section 12, subsection 19(4) and Section 36 of the Income Tax Act apply to the taxpayer and that person in respect of the 2000 and subsequent taxation years.
(2) Clause (a), subclause (b)(i) and paragraph (d)(ii)(B) of the description of B in subsection 10(1), clause (a) of the description of D in Section 12, subsection 19(4) and Section 36 of the Income Tax Act apply to the 2000 taxation year, except those provisions shall be read without reference to "or common-law partner" and without reference to "or common-law partnership" for that taxation year unless a valid election is made by the taxpayer under section 144 of the Modernization of Benefits and Obligations Act (Canada) that the Income Tax Act (Canada) apply to the taxpayer in respect of that taxation year.
(3) Section 146 of the Modernization of Benefits and Obligations Act (Canada) applies for the purpose of this Section.
PART III
MEMBERS' RETIRING ALLOWANCES ACT
14 Section 24 of Chapter 282 of the Revised Statutes, 1989, the Members' Retiring Allowances Act, as recommended by the Nova Scotia Commission of Inquiry on Remuneration of Elected Provincial Officials for 1999, is amended by
(a) adding "(1)" immediately after the Section number;
(b) adding "or common-law partner" immediately after "spouse"; and
(c) adding the following subsection:
PART IV
PENSION BENEFITS ACT
15 Section 2 of Chapter 340 of the Revised Statutes, 1989, the Pension Benefits Act, is amended by
(a) adding immediately after clause (g) the following clause:
(b) adding "or" immediately after subclause (aj)(ii);
(c) striking out ", or" immediately after subclause (aj)(iii) and substituting a semicolon; and
(d) repealing subclause (aj)(iv).
16 Section 61 of Chapter 340 is repealed and the following Section substituted:
(a) a petition for divorce is filed;
(b) an application is filed for a declaration of nullity; or
(c) the member or former member and that person's spouse or common-law partner have been living separate and apart and there is no reasonable prospect of the resumption of cohabitation,
the pension or pension benefit earned during the marriage or the cohabitation of common-law partners may be divided in accordance with the regulations between the member or former member and that person's spouse or common-law partner by an order of the Supreme Court of Nova Scotia, or in such other manner as is prescribed in the regulations.
(2) Notwithstanding subsection (1), the spouse or common-law partner of the member or former member shall not receive more than one half of the pension or pension benefit earned during the marriage or cohabitation of common-law partners.
17 Chapter 340 is further amended by adding immediately after Section 71 the following Section:
(a) money payable under a pension plan to a former member or a person as a result of a division under Section 61 or payable from a prescribed retirement savings arrangement or life annuity that results from a purchase or transfer under Section 50, 51 or 56 or subsection (2) of Section 78 is subject to a garnishment pursuant to the Maintenance Enforcement Act and the prescribed requirements under that Act respecting garnishment;
(b) a deferred pension or pension benefit of a former member or of a person that results from a division under Section 61 or a deferred life annuity or prescribed retirement savings arrangement of a person that results from a purchase or transfer pursuant to Section 50, 51 or 56 or subsection(2) of Section 78 is subject to attachment by the Director of Maintenance Enforcement in accordance with the Maintenance Enforcement Act and the prescribed requirements under that Act respecting attachment of a pension entitlement.
(2) Where an amount has been attached by the Director of Maintenance Enforcement as described in clause (b) of subsection (1), the administrator shall deduct from the commuted value of the deferred pension, pension benefit or the deferred life annuity or from the money transferred to a prescribed retirement savings arrangement,
(a) the cost of complying with the attachment calculated in the prescribed manner;
(b) the total amount of taxes, if any, that are required to be deducted or withheld as a result of the attachment; and
(c) the lesser of
(ii) the remainder of the commuted value of the deferred pension, pension benefit or deferred life annuity or the remainder of the money transferred to a prescribed retirement savings arrangement.
(3) Where an amount has been attached as described in clause (b) of subsection (1),
(a) the person whose entitlement has been attached has no further claim or entitlement to any pension or benefit respecting the amount attached;
(b) the entitlement of a person after the person's entitlement has been attached is calculated on the basis of the commuted value of the person's deferred pension, pension benefit or deferred life annuity after the deduction of the amounts referred to in subsection (2) or the entitlement is the remainder of the money in the prescribed retirement savings arrangement after the deduction of the amounts referred to in subsection (2); and
(c) neither the administrator nor the plan is liable to any person by reason of having made payment pursuant to an attachment referred to in clause (b) of subsection (1).
18 Clause 105(1)(l) of Chapter 340 is repealed and the following clauses substituted:
(la) respecting commencement of payment of a pension for the purpose of Section 61;
(lb) respecting circumstances in which Section 50 is applicable to a spouse or common-law partner of a member or former member for the purpose of Section 61;
(lc) respecting the entitlement to a pension or pension benefit divided under Section 61 upon the death of
(ii) a spouse or common-law partner of a member or former member;
(ld) prescribing limitations on fees that may be charged by administrators in relation to divisions made pursuant to Section 61;
19 Chapter 240 is further amended by adding "or common-law partner" immediately after "spouse" wherever it appears in Chapter 240.
PART V
PROVINCIAL COURT ACT
20 (1) Subsection 23(1) of Chapter 238 of the Revised Statutes, 1989, the Provincial Court Act, is repealed and the following subsection substituted:
(a) "common-law partner" of an individual means another individual who has cohabited with the individual in a conjugal relationship for a period of at least three years;
(b) "spouse", "child" and "dependant" have the same meaning as in the Public Service Superannuation Act.
(2) Clause 23(2)(c) of Chapter 238 is amended by adding ", common-law partner" immediately after "spouse" in the first line.
(3) Clause 23(3)(c) of Chapter 238 is amended by adding ", common-law partner immediately after "spouse" in the first line.
(4) Subsection 23(5) of Chapter 238 is amended by adding ", common-law partner" immediately after "spouse" in the sixth line.
PART VI
VITAL STATISTICS ACT
21 Section 2 of Chapter 494 of the Revised Statutes, 1989, the Vital Statistics Act, as amended by Chapter 8 of the Acts of 1998, is further amended by adding immediately after clause (h) the following clause:
22 Chapter 494 is further amended by adding the heading "PART I" immediately after Section 2.
23 Chapter 494 is further amended by adding immediately after Section 16 the following Sections:
16B Where a domestic-partner declaration is not registered within one year from the date it was signed by the parties, if application for its registration is made by any person to the Registrar in the prescribed form, verified by statutory declaration and accompanied by the prescribed fee and by a statement in the prescribed form respecting the domestic partnership and such other evidence as may be prescribed, the Registrar, if satisfied of the truth and sufficiency of the matters stated in the application and that the application is made in good faith, shall register the domestic partnership.
24 Subsection 26(5) of Chapter 494 is amended by adding ", domestic partnership" immediately after "marriage" in the fourth and fifth lines.
25 Subsection 27(3) of Chapter 494 is amended by adding ", domestic partnership" immediately after "marriage" in the second line.
26 (1) Clause 35(1)(c) of Chapter 494 is amended by adding ", domestic partnerships" immediately after "marriages" in the fourth and fifth lines.
(2) Subsection 35(3) of Chapter 494 is amended by adding ", domestic partnership" immediately after "marriage" in the second line.
27 (1) Clause 36(1)(a) of Chapter 494 is amended by
(1) adding ", domestic partnership" immediately after "marriage" in the second line; and
(b) adding ", termination of domestic partnership" immediately after "name" in the third line.
(2) Subsection 36(2) of Chapter 494 is amended by
(a) adding ", domestic partnership" immediately after "marriage" in the third line; and
(b) adding ", termination of domestic partnership" immediately after "name" in the third line.
28 Section 37 of Chapter 494 is amended by adding immediately after subsection (11) the following subsections:
(a) the names of the parties to the domestic partnership;
(b) the birth dates of the parties to the domestic partnership;
(c) addresses of the parties to the domestic partnership;
(d) the date of registration of the domestic partnership; and
(e) the serial number of the registration.
(13) A certified copy, photographic print or certificate of the full particulars of the registration of a domestic partnership shall not be issued except to
(a) a party to the domestic partnership;
(b) a person upon the authority in writing of the Minister; or
(c) a person upon the order of a judge or court.
29 (1) Subsection 40(1) of Chapter 494 is amended by adding ", domestic partnership" immediately after "marriage" in the second line.
(2) Subsection 40(3) of Chapter 494 is amended by adding ", domestic partnership" immediately after "marriage" in the third line.
30 Section 41 of Chapter 494 is amended by
(a) adding ", domestic partnerships" immediately after "marriages" in the third line; and
(b) adding ", terminations of domestic partnerships" immediately after "name" in the third line.
31 Section 43 of Chapter 494 is amended by
(a) adding ", domestic partnerships" immediately after "marriages" in the fourth line; and
(b) adding ", terminations of domestic partnerships" immediately after "name" in the fifth line.
32 Section 48 of Chapter 494 is amended by adding ", domestic partnerships" immediately after "marriages" in the third line.
33 Subsection 51(1) of Chapter 494, as amended by Chapter 8 of the Acts of 1998, is further amended by
(a) repealing clause (f) and substituting the following clause:
(b) adding ", domestic partnership" immediately after "marriage" in the second and third lines of clause (j).
34 Chapter 494 is further amended by adding immediately after Section 51 the following headings and Sections:
PART II
DOMESTIC PARTNERS
(a) "domestic partner" means an individual who is a party to a registered domestic-partner declaration made in accordance with Section 53 and does not include a former domestic partner;
(b) "former domestic partner" means an individual who becomes a former domestic partner pursuant to subsection 55(1);
(c) "register" means the register maintained by the Registrar.
53 (1) Subject to this Section, two individuals who are cohabiting in a conjugal relationship may make a domestic-partner declaration in the prescribed form.
(2) The domestic-partner declaration shall be signed by both parties and witnessed by one or more people.
(3) A person may not make a domestic-partner declaration if the person is a minor.
(4) A person may not make a domestic-partner declaration if the person is not ordinarily resident in the Province or the owner of real property in the Province at the time of the registration of the declaration.
(5) A person may not make a domestic-partner declaration if the person is married.
(6) A person may not make a domestic-partner declaration if the person is a party to another subsisting declaration while the other party to that declaration is still alive.
(7) A domestic-partner declaration executed by two persons who intend to revoke it is invalid.
54 (1) In accordance with this Act, either party may submit a domestic-partner declaration made under Section 53 to the Registrar for registration together with
(a) prescribed registration fees; and
(b) such proof as the Registrar may require that the parties are eligible to make a domestic-partner declaration.
(2) Upon registration of a domestic-partner declaration, domestic partners, as between themselves and with respect to any person, have as of the date of the registration the same rights and obligations as
(a) a spouse under the Intestate Succession Act;
(b) a spouse under the Maintenance and Custody Act;
(c) a spouse under the Matrimonial Property Act;
(d) a spouse under the Members' Retiring Allowances Act;
(e) a spouse under the Pension Benefits Act;
(f) a spouse under the Probate Act;
(g) a spouse under the Provincial Court Act;
(h) a widow or widower under the Testators' Family Maintenance Act,
and those Acts apply mutatis mutandis to the domestic partners.
(3) A domestic-partner declaration that is not registered is
(a) effective as between the parties to it, during their joint lifetimes, to confer on each of them the status, rights and obligations of domestic partners; and
(b) with respect to a competition with or a claim against another individual, evidence that the parties are domestic partners.
55 (1) A domestic partner becomes the former domestic partner of another person after the earliest of the following events occur:
(a) the parties file with the Registrar an executed statement of termination in the prescribed form;
(b) the parties live separate and apart for more than one year and one or both parties has the intention that the relationship not continue;
(c) one of the domestic partners marries another person; and
(d) the parties make a written agreement that would qualify as a separation agreement under Section 52 of the Maintenance and Custody Act.
(2) For the purpose of clause (1)(a) and subsection 53(4), a period during which parties have lived separate and apart is not considered to have been interrupted or terminated
(a) by reason only that either party has become incapable of forming or having an intention that the relationship not continue if it appears to the court that the separation would probably have continued if the party had not become so incapable; or
(b) by reason only that the parties have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.
(3) Where a circumstance listed in subsection (1) occurs terminating the domestic partnership, subject to the provisions of any other statute expressly addressing the rights of domestic partners, each of the former domestic partners has the same rights and obligations under the statutes referred to in subsection 54(2) that accrue to former spouses after a marriage has ended by separation, separation agreement or court order, as the case may be.
56 (1) A domestic-partner declaration made in accordance with Section 53 is binding until terminated in the circumstances listed in Section 55 whether or not
(a) there is valuable consideration for the domestic-partner declaration; or
(b) one or both parties had independent legal advice.
(2) Registration of an invalid domestic-partner declaration does not validate the declaration.
(3) A person who makes a domestic-partner declaration intending to revoke it is liable in damages to compensate
(a) a person who is not a party to the domestic-partner declaration for pecuniary loss incurred in reliance on the declaration; and
(b) an innocent person with whom the domestic partnership is claimed for pecuniary and non-pecuniary loss incurred as a consequence of the domestic-partner declaration.
(4) A domestic-partner declaration is invalid if it was obtained by fraud, duress or undue influence or in circumstances under which a marriage could be annulled.
(5) Where a person
(a) purports to make a domestic-partner declaration in circumstances under which the person is not permitted to do so by Section 53; or
(b) uses a domestic-partner declaration to claim a domestic partnership with another person who has not signed the declaration, or whose signature has been obtained in the circumstances referred to in subsection (4),
the invalid domestic-partner declaration is, where relevant, evidence of a marriage-like relationship with the other party to the declaration, and the person is liable in damages to compensate
(c) a person who is not a party to the domestic-partner declaration who suffers pecuniary loss incurred in reliance of the invalid domestic-partner declaration; and
(d) an innocent party with whom the domestic partnership is claimed for pecuniary and non-pecuniary loss incurred as a consequence of the invalid domestic-partner declaration.
57 The Registrar shall note on the register the termination of a registered domestic-partner declaration upon the payment of the prescribed filing fees and upon receipt of
(a) a statement of termination in the prescribed form signed by both domestic partners;
(b) an affidavit in the prescribed form swearing or affirming to the fact that the domestic partnership has ended under clause 55(1)(a) by reason of the parties having been separated for more than one year and one or both parties has the intention that the relationship not continue;
(c) a true copy of the certificate of marriage of the domestic partners or of one of the domestic partners to another person; or
(d) a written agreement between the parties to the domestic-partner declaration that would qualify as a separation agreement under Section 52 of the Maintenance and Custody Act.
58 For greater certainty, the Partnership Act does not apply to the relationship created by the making of a domestic-partner declaration.
59 (1) The Governor in Council may make regulations
(a) providing for the registration of domestic partnerships or registration of the termination of domestic partnerships, in cases not otherwise provided for in this Part;
(b) prescribing the forms to be used under this Part;
(c) prescribing the registration fees to be paid under this Part.
(2) The exercise by the Governor in Council of the authority contained in subsection (1) is regulations within the meaning of the Regulations Act.
PART VII
EFFECTIVE DATES
35 (1) Part I and Parts III to VI have effect on and after June 4, 2001.
(2) Part II has effect on and after January 1, 2001.
This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 2000 Crown in right of Nova Scotia. Created December 1, 2000. Send comments to legc.office@gov.ns.ca.
