Custody/Access

Frequently Asked Questions About Custody & Access

1. What do the words ‘custody’ and ‘access’ mean?

Custody is the term used to describe where the children live, and who makes decision for or about the children.

Access, also called ‘visitation’ or ‘parenting time,’ refers to the time the children spend with the parent that they do not live with.

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2. What does ‘best interests of the child’ mean?

This is the test that the court uses to make decisions about custody of and access with children, or parenting arrangements of any kind, where the children’s needs and well-being are always the most important factors. The judge must decide what is best for the children, not what is best for the parents.

In February 2013, Nova Scotia’s Maintenance and Custody Act was changed. The Act now includes a list of factors that judges must consider when making decisions about the best interests of a child. Judges will consider all relevant circumstances – they are not limited to considering only the factors on the list.

The factors that judges must consider are:

“(a) the child’s physical, emotional, social and educational needs, including the child’s need for stability and safety, taking into account the child’s age and stage of development;

(b) each parent’s or guardian’s willingness to support the development and maintenance of the child’s relationship with the other parent or guardian;

(c) the history of care for the child, having regard to the child’s physical, emotional, social and educational needs;

(d) the plans proposed for the child’s care and upbringing, having regard to the child’s physical, emotional, social and educational needs;

(e) the child’s cultural, linguistic, religious and spiritual upbringing and heritage;

(f) the child’s views and preferences, if the court considers it necessary and appropriate to [gather this information] given the child’s age and stage of development and if the views and preferences can reasonably be [gathered];

(g) the nature, strength and stability of the relationship between the child and each parent or guardian;

(h) the nature, strength and stability of the relationship between the child and each sibling, grandparent and other significant person in the child’s life;

(i) the ability of each parent, guardian or other person in respect of whom the order would apply to communicate and co-operate on issues affecting the child; and

(j) the impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed, including any impact on

(i) the ability of the person causing the family violence, abuse or intimidation to care for and meet the needs of the child, and

(ii) the appropriateness of an arrangement that would require co-operation on issues affecting the child, including whether requiring such co-operation would threaten the safety or security of the child or of any other person.”

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3. Does the court have to consider family violence when making decisions about parenting (custody/access)?

Yes, when the Maintenance and Custody Act is the law being applied. This Act changed in February 2013, and a list of factors for determining the best interests of a child was added. This list says that judges must consider the impact of any family violence on the child(ren) when deciding what arrangements are in the child(ren)’s best interests. These factors must be considered, whether or not the child was directly exposed to the violence.

The Act states that when the court is determining the impact of any family violence, abuse or intimidation, they must consider:

“(a) the nature of the family violence, abuse or intimidation;

(b) how recently the family violence, abuse or intimidation occurred;

(c) the frequency of the family violence, abuse or intimidation;

(d) the harm caused to the child by the family violence, abuse or intimidation;

(e) any steps the person causing the family violence, abuse or intimidation has taken to prevent further family violence, abuse or intimidation from occurring; and

(f) all other matters the court considers relevant.”

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4. What is ‘legal custody’?

 ‘Legal custody’ refers to who makes decisions on issues involving the children. It refers to major decisions, such as:

  • religious upbringing
  • education
  • medical and dental care decisions

It does not include the day‑to‑day decisions involving the child, for example, when the child goes to bed, what the child eats for breakfast, etc. Those decisions are usually made by the parent who has the child in their care at that time, although parents are encouraged to discuss these daily routines.

Decision‑making can be described in agreements or court orders as both parents having "joint custody" of the children, or one parent having "custody" of the children. Sometimes when one parent has custody, it can be described as "sole" or "full" custody, but the court does not impose this type of custody very often anymore.

If one parent has custody, then they make all the major decisions in the life of the child; however, the other parent may have some input on those decisions. The other parent would often still have access to all of the child's records (report cards, medical reports, etc.), and be able to speak with and receive information from any professionals involved with the children (teachers, doctors, etc.).

If both parents have joint custody, they must make all major decisions in the life of the child together. If parents are having difficulty making a joint decision, they may use another method of resolving their dispute, like mediation. If parents are still unable to come to a decision, one or both of the parents may apply to the court, and the court will impose a decision on them.

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5. What is ‘physical custody’?

Custody can also refer to where the children are living at any given time. This is sometimes referred to as "physical custody."

Sometimes, parents may have a shared or split custody arrangement. Split custody and shared custody are defined in the Child Support Guidelines, because certain parenting arrangements can affect how child support is paid.

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6. What is split custody?

Split custody is when parents have two or more children together, and each parent has physical custody of one or more of those children for 60% of the time. For example, Jane and Michael have 2 children – Tim and Tom. Tim lives with Jane most of the time, and Tom lives with Michael most of the time. This is a split custody arrangement.

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7. What is shared custody?

Shared custody is when one parent has the child living with them for at least 40% of the time over the course of the year. For example, Sandy and Dale have 1 child, Billie. They have a week-on, week-off parenting schedule – Billie lives with Sandy for a week, then with Dale for the next week, and so on. This is a shared custody arrangement.

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8. Are shared custody and joint custody the same thing?

No, although they often go together. Shared custody deals with where the children are physically living. Joint custody indicates that the parents make major decisions about the children together. Usually, if the parents share physical custody of the children, they will also share decision-making, or ‘legal custody,’ in relation to the children.

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9. How does our parenting arrangement affect our child support arrangements?

The Federal Child Support Guidelines are rules for calculating how much child support will be paid, and these Guidelines include tables that show how much the paying parent will pay every month. There are also Provincial Guidelines that mirror the Federal ones. The basic amount paid is called the table amount. It is based on the paying parent’s gross (before tax) yearly income, the province or territory where the paying parent is living, and the number of children they are paying support for. The table amounts are based on situations where the children live most of the time with one parent, and the other parent pays support.

In split or shared custody arrangements, child support arrangements can work differently – but, the Guidelines do not give an exact formula for how child support should work in shared custody arrangements. There may still be support paid by one parent to another, even with these custody arrangements.

The court may look at what the table amount would be for each parent to see if one parent would pay more than the other. For example, if Jane makes $100 000 a year, and Michael makes $50 000, and each of them has one child living with them full-time, Jane might pay a monthly support amount to Michael based on the extra $50 000 of income she earns, for the one child living with Michael. This is called using a ‘set-off’ amount. This is the method used to determine child support in split custody situations and may be used in shared custody situations as well.

If both parents' incomes, and therefore their table amounts, are about the same, there may not be any support ordered, but this will all depend on the particular facts of their case.

For shared custody arrangements, the increased cost of having a shared custody arrangement, and the condition, means and needs of both parents and their children, may also be considered.

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10. What is a ‘primary caregiver’?

Primary caregiver is a term that is often used in agreements and court orders; however, it is not one that is defined anywhere in the law. Sometimes, the term used is 'primary residence' or the phrase 'the children reside primarily with Y.'

This term is used to make the wording of an agreement or order easier to understand. It does not mean that the primary caregiver has any extra authority or decision-making power over the other parent.

It is often easiest to say that the child lives with one parent primarily, and then set out the detailed schedule for the child's time with the other parent.

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11. What does ‘primary care and control’ mean?

This is another term that can be used in an agreement or court order, and means that the children live with one parent most of the time. That parent makes the day-to-day decisions about the child most of the time. 

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12. What are the different types of access?

There are three basic types of access, or ‘visiting,’ arrangements. They are:

Reasonable Access: a term in a court order or parenting plan that allows the child to visit or spend time with a parent at times arranged and agreed upon by both parents. Using the term ‘reasonable access’ gives parents flexibility to make their own arrangements without having the specifics outlined in the order or parenting plan.

Specified Access: a term in a court order or parenting plan that sets out certain times for the child to be able to visit with each parent. The terms can be open‑ended  ('every second Tuesday'), or specific ('every second Tuesday at 6 pm, to be picked up at Tim Hortons on 123 Main Street').

Supervised Access: a term in a court order or parenting plan that means a child only spends time with that parent with another adult present. Supervised access is generally ordered in unusual situations where there is some risk to the safety of the child, for example, where there are addiction problems, long absences, risk of abduction, or untreated mental health issues.

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13. Which type of access is best in my situation?

That depends on your particular circumstances, and the needs and best interests of your child(ren). If you are unsure what is best in your situation, you should speak with a lawyer for advice.

Generally, reasonable access will only work if both parents get along reasonably well, and are able to work out parenting arrangements without conflict. Both parents will have to communicate with each other to figure out access arrangements on an ongoing basis.

If you think the other parent may not communicate well enough with you to arrange for reasonable access times, or you want something more specific in your order, specified access may work in your situation. You can have specified access and reasonable access in the same agreement or court order. For example, you may have a specified time every week to see your children, and also additional parenting times as agreed between you and the other parent.

Supervised access is generally only used in cases where there could be a risk to the children’s safety if the visit is not supervised by another adult. Sometimes supervised access is also used to re-introduce a child to a parent who may not have seen them in a long time. If you are asking for supervised access, be prepared to tell the court who you think could act as a supervisor. This could be a friend or family member – but be sure to ask the friend or family member if they will agree to supervise. There may also be a community organization in your area who does supervised access visits – check with your court to find out if this service exists in your area.

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14. Are there guidelines for how much time a child should spend with each parent?

There are no specific rules around how much time a child should spend with each parent – every situation is different, and every child is different. There is a general rule of ‘maximum contact’ – this term is used in the Divorce Act, but judges may use the general rule in other situations too. This rule states that a child “should have as much contact with each [parent] as is consistent with the best interests of the child.” The best interests of the child will depend on that child’s specific needs and their situation.

In law, it is the child’s right to have contact with both parents, as long as this contact is safe and reasonable.

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15. What if my child won’t go for their access visit?

It is not unusual for a child to refuse to go to the other parent's home. Many children find these transitions difficult and may refuse to go, or if they go, may act out for a period of time after the transition.

Unless there are safety concerns with the other parent's home, parents are expected to take all reasonable steps to ensure that the child transitions to the other home. You would often deal with this in the same way you would if the child were refusing, for example, to go to school or go to child care. Some suggestions to make that transition go more smoothly are:

  • Don't misinterpret the child's refusal to go to the other parent's home as meaning there is something wrong going on at the other parent's home. This is probably not the case.
  • Don't misinterpret the child's refusal to transition to your home as the child not loving you. Even kids with a great relationship with a parent may sometimes refuse to transition into their care. 
  • Don't misinterpret the child's refusal to go to your home to mean that the other parent has been discouraging them from going with you. A refusal to transition into your care does not necessarily mean that the other parent is trying to discourage the child's relationship with you.
  • Be positive with the child about the time they are going to spend with the other parent.
  • Prepare the child for the transition by giving them age‑appropriate reminders ("tomorrow you will see your father"; "your mother will be here in ten minutes to pick you up").
  • Make sure that the child is not engaged in a fun activity (video game, TV show, etc.) when it is time to transition into the other parent's care.
  • Engage the child in the transition process. For example, have them help pack their overnight bag, have them call the other parent to let them know you are on your way, etc.
  • Allow the child to bring their favourite comfort items back and forth with them between houses (favourite blanket, video game, etc.)
  • Make sure that the transition times are as friendly and comfortable as possible. For example, although it may be a convenient time to discuss issues in relation to the child, if there is any chance the discussion will become uncomfortable or turn into a disagreement, hold off on the discussion for a time when the child is not present.
  • Make sure that the child has everything they will need for their time with the other parent so that there are no arguments during the transition time (homework, skates, etc.).

Children may not want to go with the other parent because they are worried about the parent they are leaving. Sometimes the transition is more difficult and traumatic for the parent than it is for the child.  Let the child know that you will be fine without them in your care. Be careful that you are not giving them any non‑verbal cues that you do not want them to go. Kids can understand body language!

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16. What if the other parent will not return the child after a visit?

What you are able to do in this situation will depend on your circumstances, and whether you have a court order or not. If you do not have a court order for custody or access, you can apply to the court for one. Usually you will make your application in the court nearest to where the child normally lives. If you have a court order, there may be court applications for enforcement that you can make, or you may apply to change your current order, depending on your situation. You should speak with a lawyer for advice about what to do. You may also speak to court staff about how to make an application in these circumstances.

Sometimes, police may get involved when a parent does not return a child. Generally, though, police may only get involved if the child is in danger, or if there is a court order in place that says which parent the child is supposed to be with. Policing agencies have their own rules and policies around what they will and will not enforce.

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17. If I am being denied access with my child, do I still have to pay child maintenance/support?

Yes. In law, access with your child and the obligation to pay child maintenance/support are two different things. You cannot use one against the other.

It is the child’s right to have contact with each parent, and it is also the child’s right to be financially supported by both parents. You cannot deny one of the child’s rights (to have financial support) because you are being denied access with that child.

If you are being denied access with your child, you should speak with a lawyer for advice on what to do. If you do not have a court order, you may apply for one. If you have an order for access already, there may be ways for you to change or enforce that order.

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18. The other parent isn’t paying child support/maintenance. Do I still have to let my child visit them?

Yes. In law, child support/maintenance and access (visitation) are two different things. You cannot use one against the other.

It is the child’s right to have contact with each parent, and it is also the child’s right to be financially supported by both parents. You cannot deny one of the child’s rights (to have access with both parents) because you are not receiving child support.

If you are not receiving child support from the other parent, you should speak with a lawyer for advice on what to do. If you do not have a court order, you may apply for one. If you have an order for child support already, you can have this order enforced through the Maintenance Enforcement Program.

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19. What if the other parent doesn’t visit the children when they are supposed to?

Unfortunately, it is very difficult to make someone visit their children. If the other parent is supposed to have specific access visits with the children and is not exercising this access, keep track of the days and times when this happened, and what the circumstances were.

Sometimes things come up – if the other parent becomes ill or is called into work, there may be nothing they can do, other than letting you know they cannot visit that day. If the other parent misses many visits for no good reason, you should seek legal advice about what to do.

If the access arrangements are set out in a court order, you may be able to apply to change that order; however, it is considered the child’s right to have contact with both parents (as long as this is safe and reasonable), so asking for the other parent to have no access at all may not be something you can get in your order. Again, a lawyer can help you decide what you should do in your situation, and whether or not there is a court application you can make that may help you.

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20. Can I sign away rights to my child? If I do, will I still have to pay child support?

Again, contact with both parents and financial support from both parents are the child’s legal rights. You cannot make the decision to deny the child either of these rights. If you are asking to sign away your rights to your child, or to have the other parent sign away their rights, you need to speak with a lawyer for advice.

If you agree to not have access or visitation with your child, you will likely still have to pay child support, as one issue has nothing to do with the other.

One exception to this is adoption. If your child is adopted by someone else, this will completely cut the legal tie between you and your child. You should seek legal advice if you are thinking of applying for someone to adopt your child, or are going to consent to your child being adopted by someone else.

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21. Where do I go to make a court application for custody and access?

Usually when you are applying to the court to get a court order for child custody or access, you must apply to the court closest to where the children are living. This is so that the court is allowed, or ‘has jurisdiction,’ to process that application.

For example, if you live in Kentville, but the children live in Port Hawkesbury, you will likely have to contact the court in Port Hawkesbury to make your application. If your children do not live in Nova Scotia, you will probably need to contact the court nearest to where the children are living to find out how to make an application there. If you are dealing with custody and access as part of a divorce proceeding, though, this may work differently. If you are not sure where to file your application for custody or access, you should speak with a lawyer or court officer. 

Custody and access issues are dealt with in Family Court, or in the Supreme Court (Family Division) if you are making an application in Halifax, Sydney, or Port Hawkesbury. If you are divorced, you will usually make your application in the Supreme Court if you are applying outside of the Halifax Regional Municipality or Cape Breton.

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22. How do I get a court order for custody and access?

Once you have figured out which court is closest to the children (which court will have jurisdiction to process the application), you will need to contact that court, and ask about their process for starting an application. There may be more than one way to start the application process. For example, the court may have an intake process you can use, or you may be able to file documents on your own or with a lawyer’s help.

If you have a lawyer, you should speak with your lawyer before beginning any court process. Your lawyer will likely help you fill out the required court forms and help you start your application. If you have a low income, you may qualify to get a lawyer through Nova Scotia Legal Aid. Contact your local Legal Aid office to see whether you might qualify for their service.

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23. What if my situation is urgent or an emergency?

If you are looking to start a court application for custody or access on an urgent or emergency basis, you can ask court staff about this process. You should also speak with a lawyer for advice on whether or not your application may be considered urgent or an emergency by the court.

An ‘emergency’ application may be filed where there is a likelihood of danger to those involved, either one of the parties or a child. For example, if there is a risk of violence or immediate harm, or the child is on the way to the airport and may be taken out of the country, this may be considered an ‘emergency.’ A judge will decide whether your situation will be treated as an emergency.

An ‘urgent’ application may be filed when your situation is not an ‘emergency’, but may be time-sensitive, or needs to be heard quickly because of special circumstances. A judge will decide whether your situation will be treated on an urgent basis.

For more information about urgent or emergency court applications, please click here.

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24. What happens when one parent dies?

Usually, if one parent dies, the other will get custody of the children. You and the other parent may want to say this in your wills, or in your separation agreement, if you have one, to be clear what your wishes are.

If you have custody of your children, and you do not want the other parent to have custody if something should happen to you, you can state this in your will, and you can specify who you want as your children’s guardian. The other parent, though, may disagree with this, and may apply to the court to have custody of the children. The other parent will usually be given custody of the children, unless a judge decides that they are not a suitable parent or cannot look after the children safely. You should speak to a lawyer to get advice on this issue.

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25. My name is not on my child’s birth certificate. Can I still apply to the court for custody or access?

Yes. If you are a biological parent to a child, you can make an application to the court for custody or access, and you do not need any special permission to do this. 

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26. How do I get my name added to or removed from a child’s birth certificate?

You can apply to the court under the Vital Statistics Act to ask to have your name added to your child’s birth certificate, or to ask to have your name removed from a child’s birth certificate. You will have to fill out certain court documents and will likely have to pay a filing fee for your application.

These applications are made in Supreme Court, or at the Supreme Court (Family Division) if you are filing in Halifax or Cape Breton.

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27. How long should I wait to introduce my new partner to my children?

Children generally need time to adjust to their parents’ separation before they are introduced to either parent’s new partner.  Introduce your child to a new partner only when you know the relationship is serious and your child seems to have adjusted to the separation. A general rule is that you should be with your new partner for at least 6 months before they are introduced to your children, but every child and every situation is different. Give children time to get to know the person before they are expected to spend long periods of time together. Children need time to adapt and it takes time to develop closeness, affection, friendship and trust.

Continue to spend time with your child or children without your new partner present. Finding extra time for your child while seeing a new person can be difficult, but it is important. You must continue to put the needs and best interests of your child first even as you develop new intimate partner relationships.

Clear and sensitive communication is the key to helping children cope with the adjustment of a new partner. It is important to give your child permission to talk about their feelings and be prepared to accept them. Respect that your children may not feel the same way you do about the new partner. 

Children can very much benefit from a healthy and positive relationship with their parent’s new partner. A new partner can be a very special friend and a wonderful support for children whose parents are no longer together.

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28. Should my children still have contact with the other parent’s family?

When parents separate, children may need their extended families more than ever. The grandparents on both sides of the family and the extended families on both sides can be a resource for the parents and the children. Sometimes, because of strong feelings about a former partner, parents are tempted to exclude the former ‘in-laws’ from their lives and the lives of their children.  Sometimes the extended family discontinues contact with the parent and their children.

Existing positive relationships with other family members should be encouraged and continued – relationships that are safe and reasonable in your circumstances. Failure to do so can result in another loss for the children.

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29. When is a child old enough to decide where they want to live?

This depends on your child and your situation. The law does not say at what age a child can make this decision. Generally, if the child is still a minor (under 19), it is up to their parents to decide the child’s living arrangements, though older children may want to have a say too. Parents can discuss arrangements with older children, if this is reasonable and the child is mature enough to address this issue.

If parents cannot agree on the parenting arrangements and end up going to court on this issue, the child may have some input during the court process, but this is not usually the case. Whether or not the child will be involved at this stage will depend on their age and maturity, and the circumstances. It will be up to a judge to decide if the child will have any input.

Sometimes, the child’s wishes can be presented to the court through a Child’s Wishes Assessment. This is a court-ordered process where the child or children are interviewed by a professional to determine their preferences in parenting arrangements. The assessor will make sure that the child has not been coached or persuaded by anyone or anything to make a certain decision, and will ensure that the child is mature enough to have a say in the proceedings. The assessor will make it clear that the child does not have the final say in the decision, as putting children in the position of ‘choosing’ between their parents puts enormous pressure on a child.  Assessments cost money, and can only be ordered by a judge.

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30. Do I bring my kids to court with me?

In most cases, no. Parents should not bring children to court except in rare situations. It is important that children be kept out of the middle of disputes, especially those that involve court. Children should not know the details of your court case. Allowing them to come to court involves them in the conflict and is likely to be emotionally damaging to them. You should speak to a lawyer in any unusual situation where you think you might want your child to come to court, for example, to act as a witness.

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31. How do I get paternity testing done?

If you and the other parent or potential parent(s) agree to have paternity testing done, you can arrange testing yourselves through an agency that offers this service. If the other parent or potential parent will not agree to this testing, you can make an application to the court to get an order requiring that this testing be done. You should speak with a lawyer for advice if this is your case.

There is a cost for paternity testing, and the costs are usually paid by the person who wants the testing done.

For more information on findings of paternity and paternity testing, click here.

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32. How do I get information about my child from their school, doctor, or other professionals (‘third parties’)?

If you and the other parent are separated, then you usually need a clause in your court order or separation agreement that says that you have the right to get that information before third parties will give it to you. Third parties generally do not want to get into the middle of disputes and will want to be sure that the person giving consent or accessing information in relation to a child has the right to receive that information or give consent. Third parties could get into legal problems if they give information to people who are not supposed to have it. There are different kinds of wording about this issue that may work in a court order or agreement. Speak with a lawyer for advice if you have these concerns so that your order or agreement can deal with this issue.

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33. What if the other parent won’t sign my child’s Passport application or allow them to travel with me?

If you are planning to travel with your child, or to allow your child to travel with someone other than the other parent, like a grandparent, it is best to work out these issues ahead of time. In most cases, you will need the other parent to sign a consent form allowing you to get your child’s Passport if your child is under 16. Once the child is 16, they can apply for their own Passport.

If you have a court order or registered separation agreement that says you have custody of your children, and that the other parent does not have access visits with the children, you may not need the other parent to sign anything to get your child’s Passport. You should check with your local Passport Office, though, to determine what documents they need from you.

If the Passport Office needs you to get the other parent’s consent, and the other parent will not sign the form or you do not know where the other parent is, you may be able to make an application to the court to get an order allowing you to get the Passport without the other parent’s consent. You can also apply for the order to say that you can travel with the child without the other parent’s consent. Speak to the court nearest you on how to do this. It is also a good idea to get advice from a lawyer on this issue.

For more information from the Canadian Bar Association about Passports for Children Under 16, click here.

You can also visit Passport Canada's website for information about Passports for children, including the requirements for a child's Passport application.

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34. What documents should I bring with me when I’m traveling with my children?

You should bring certified (stamped by the court) copies of the court order (s) that relate to your children with you. These would be any custody or access orders, and any orders that relate to you being allowed to travel with your children.

If the other parent has consented to the travel, you should also have a letter stating that they agree to the travel, and this letter should be notarized by a lawyer. This letter should say where you are going, and how long you will be gone (from this date to this date). Click here for a sample consent letter.

For more information on passports for children under 16, click here.

For more information about traveling with children, click here.

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35. Do lawyers represent children?

In Nova Scotia, lawyers do not usually represent children. Lawyers represent the parents or guardians of children. In some special cases, children may have lawyers assigned to represent them, but this is rare, and usually only happens in child protection cases.

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36. Do I have to apply to the court to get custody of or access with our grandchildren?

Most grandparents do not have to go to court to get access with their grandchildren, as this is worked out privately among the grandparents and parents.

Even if you are having difficulties, you may not need a court order for access with your grandchildren, if you can agree on visiting arrangements with the parents. There are services available that may assist you with getting an agreement without having to go to court, such as negotiating with the help of a lawyer, using a collaborative law process, or going to mediation.

If your grandchild lives in the Halifax Regional Municipality or Cape Breton, and you have filed an application with the court, you may have the option of going to court-assisted ADR ('conciliation'). This service may also be available in other family courts. The issues between the parties may be resolved with a court officer/conciliator who will help the parties negotiate a settlement, without having to go to court.

If you cannot come to an agreement with the parents, and wish to apply to the court for an order, you will need to apply for permission to make a court application (called ‘leave’ or ‘permission’ of the court). You will also need to apply for the specific type of custody and/or access arrangement you are seeking. Applying for leave and the different types of custody and access are described below.

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Last updated on April 24, 2014 - 11:53am
Crafted by Gesso Communications
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