Parenting Arrangements FAQ's

Frequently Asked Questions About Parenting Arrangements:

The words custody and access are no longer used in the Divorce Act (federal) or the Parenting and Support Act (provincial).  The main parenting words used now are decision-making responsibility and parenting time.  The words focus on parents’ responsibilities for their children.

Decision-making responsibility is about who will make significant decisions about the child’s well-being, based on the child’s best interests.  This includes decisions about issues like the child’s:

  • medical and dental care

  • education

  • culture, language, religion and spirituality

  • significant extra-curricular activities.

  • other important decisions about the child.

More than one person may have decision-making responsibility.

'Parenting time' means the time a child spends with a parent or person who has a parenting role.  It includes time when that parent is primarily responsible for the child, but the child is not actually with them. For example, when the child is in school or daycare.

'Contact' means time spent with people who are important in the child’s life, but who are not the child’s parents or in a parenting role. 

The term ‘parenting arrangements’ is often used to include decision-making responsibility, parenting time, contact time, or interaction, or a combination of these terms.

Parenting arrangements like decision-making responsibility and parenting time may be set out in an agreement, parenting plan, or a parenting court order.

To learn more, go to Parenting Terms: What do the words mean?

This is the test that the court uses to make decisions about children. The judge must decide what is best for the children, not what is best for the parents.

The Divorce Act (federal law) and the Parenting and Support Act (provincial law) include 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 because decisions must be made based on each child’s needs. 

The list of factors that judges must consider in the Divorce Act (federal) and Parenting and Support Act (provincial) are similar, but not exactly the same.  Generally, a judge must consider the child’s:

  • needs, given their age and stage of development, such as the need for stability and safety;

  • relationship with each parent;

  • relationships with siblings, grandparents and other important people in their lives;

  • care arrangements before the separation;

  • future plans for care of the child;

  • views and preferences, if appropriate based on the child’s age and stage of development and the circumstances of the case;

  • cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage.

Other factors the judge must consider include each parent’s ability and willingness to:

  • care for the child;

  • support the child’s relationship with the other parent;

  • cooperate and communicate about parenting issues.

When a parent is seeking to relocate with a child there are additional best interest considerations. Click here to learn about relocation.

A judge must also consider family violence, including:

  • any family violence and its impact on:

    • the ability and willingness of any person who did the family violence to care for and meet the child’s needs, and

    • whether it would be appropriate to make an order that would require people to cooperate on issues affecting the child

  • any existing civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.  Examples are a peace bond, emergency protection order, criminal charges for violent offences.

If there is family violence the court must look at things like

  • the nature and seriousness of the family violence;

  • how recent it is;

  • how often it happened;

  • if there is a pattern of coercive and controlling behaviour;

  • the harm caused;

  • any steps the person causing the violence has taken to stop;

  • anything else the court thinks is relevant.

For more on family violence click here.

Divorce Act 

Parenting and Support Act

Yes.  The Divorce Act (federal) and Parenting and Support Act (provincial) recognize the impact of family violence on a child, and the parents.

The laws require a judge to consider the presence and impact of violence when determining the best interests of a child.

Family violence must be considered, whether or not the child was directly exposed to the violence.

The Divorce Act (federal law) family violence means conduct that:

  • is violent;

  • is threatening;

  • is a pattern of coercive and controlling behaviour;

  • causes a family member to fear for their own safety or that of another person. 

It includes situations where a child is exposed to family violence, directly or indirectly. 

Family violence includes:

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property;

The Parenting and Support Act (provincial law) defines “family violence, abuse or intimidation” as:

“deliberate and purposeful violence, abuse or intimidation perpetrated by a person against another member of that person’s family in a single act or a series of acts forming a pattern of abuse, and includes

i. causing or attempting to cause physical or sexual abuse, including forced confinement or deprivation of the necessities of life,

ii. causing or attempting to cause psychological or emotional abuse that constitutes a pattern of coercive or controlling behaviour including, but not limited to,

 

a.       engaging in intimidation, harassment or threats, including threats to harm a family member, other persons, pets or property,

b.       placing unreasonable restrictions on, or preventing the exercise of, a family member’s financial or personal autonomy,

c.       stalking, or

d.       intentionally damaging property, but does not include acts of self-protection or protection of another person.”

 

If there is family violence the court must look at things like:

  • the nature and seriousness of the family violence;

  • how recent it is;

  • how often it happened;

  • if there is a pattern of coercive and controlling behaviour;

  • the harm caused;

  • any steps the person causing the violence has taken to stop;

  • anything else the court thinks is relevant.

If you or your child has experienced family violence then you may have a duty to report the violence to the Police or the Department of Community Services.  Click here for more information on child protection.

Family Violence

Legal Information Society of Nova Scotia 

Interaction means direct or indirect association with a child, outside of parenting time or contact time. Interaction includes communications with a child other than ‘in person’ time – like, for example:

  • phone calls, emails, or letters

  • sending gifts or cards

  • attending the child’s school activities or extracurricular activities

  • receiving copies of report cards or school photos

  • Skyping with the child

To learn more about parenting terms, visit Parenting Terms: What do the Words Mean? 

Split parenting time is when parents have two or more children together, and each parent has one or more of those children with them for 60% of the time or more. 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 parenting time arrangement.

Split parenting time is a term used for child support purposes.  It does not describe who may make decisions about the children. 

Split parenting time used to be called split custody under the Federal Child Support Guidelines.  The term split custody is no longer used. 

To learn more about parenting terms, visit Parenting Terms: What do the Words Mean?

Shared parenting time is when each parent has the child or children with them for at least 40% of the time in a 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 parenting time arrangement.

Shared parenting time used to be called shared custody under the Federal Child Support Guidelines.  The term shared custody is no longer used.

Shared parenting time is a term used for child support purposes.  It does not describe who may make decisions about the child.

For information about how shared parenting time may affect how child support is worked out, and may affect your income tax and other government benefits, visit the following:

“How does our parenting arrangement affect our child support arrangements?”

“We have a shared parenting arrangement. Does this affect our income tax?”

No.

Shared parenting time, previously called shared custody, refers to how much time a child spends with each parent for child support purposes.  It does not describe who has the responsibility to make major decisions about the child. 

Joint decision-making responsibilities, previously called joint custody, refers to who is responsible for making major decisions about the child. The word ‘joint’ means that they are both responsible for making major decisions about the child.

The Federal Child Support Guidelines are rules for calculating how much child support will be paid.  The Guidelines include tables that show how much the paying parent will pay every month. There are also Provincial Guidelines that are the same as the Federal ones.

The basic child support amount paid is called the table amount. The table amount 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 spend most of the time with one parent, and the other parent pays support.

View the federal child support calculator here.

In split or shared parenting time arrangements, the rules for calculating child support are a bit different.

Split parenting time is where parents who have separated or divorced have:

  • more than one child together, and

  • each parent has one or more of their children with them more than 60 percent of the time over the course of a year.

In split parenting time arrangements, the Guidelines say that child support is calculated by looking at what the table amount would be for each parent.  The parent who has the higher table amount will pay the difference between each parent’s table amount to the other parent. For example, if Jane and Michael each have one child living with them full-time, the court may look at what Jane would pay Michael for one child based on her income, and what Michael would pay Jane for one child based on his income. If there is a difference in these amounts, it is the difference that may be paid as child support. This is often called the set off amount. 

Shared parenting time is when your children spend at least 40 percent of the time with each parent in a year.

For shared parenting time arrangements many parents use the same set-off process as for split parenting to figure out the net child support payable. However, this is only part of it. The Guidelines and court decisions say you must also look at:

  • increased costs of shared parenting time, and

  • the condition, means, needs and other circumstances of each parent and child.

Learn more about child support here.

Justice Canada information on child support

Primary caregiver is a term that is often used in agreements and court orders just to make the agreement or order easier to understand. It is not a term that is defined in the Divorce Act or Parenting and Support Act, and 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. Sometimes, the term used is ‘primary residence’ or the phrase ‘the children reside primarily with Y’, or ‘parent with the majority of parenting time’. 

Supervised parenting time is a term in a court order or parenting plan that means a child only spends time with the parent who has supervised parenting time with another adult present. Supervised parenting time is generally ordered in unusual situations where there is some risk to the safety of the child, for example, where there are addiction problems, risk of abduction, untreated mental health issues, or in situations where the parent does not have contact with the children often.

There are organizations in most areas of Nova Scotia that provide professional supervised parenting time services. These organizations may also provide supervised exchange services. Supervised exchange is where the transfer of the child between parents for their visits is supervised, but the actual visit is not. This may be necessary when, for example, parents have an order preventing them from having contact with one another or where there is a risk of family violence happening during the exchange. For more about supervised parenting time and exchange, click here.

Parenting time is the amount of time a child will spend with each parent. The amount of time spent depends on your particular circumstances, and the needs and best interests of your child. If you are not sure what is best in your situation, you should speak with a lawyer, mental health professional or community support person for help and advice.

Generally, flexible parenting arrangements, whether informal or written in an agreement or court order, 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 parenting arrangements on an ongoing basis.

If you think the other parent may not communicate well enough with you to arrange for flexible parenting times, or you want something more specific in an agreement or court order, you can set out a detailed parenting arrangement in an agreement or court order.

If you cannot agree you can ask a judge to make a decision about what the parenting arrangements will be based on the best interests of your children.

Go to the following links to get ideas about what to put in a parenting plan, including the time the child will spend with each parent and with other important people in the child’s life:

Parenting Plans

Department of Justice Canada

Supervised parenting time 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 parenting time 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 parenting time, 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 visits – check with your court to find out if this service exists in your area.

There are no specific rules around how much time a child should spend with each parent because all parenting decisions regarding children are to be made based only the best interests of the particular child. Every situation is different, and every child is different. There are no legal starting points (presumptions) in either the Divorce Act (federal) or the Parenting and Support Act (provincial) about parenting arrangements.   

For example, the law does not have a rule that parents should each have an equal amount of time with their children. 

However, as a general guide, the Divorce Act and the Parenting and Support Act both have a principle 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. Click here to learn more about some of the factors the court must look at to decide on the child’s best interests. 

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

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!

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 decision-making responsibility or parenting time, 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 at specific times. Policing agencies have their own rules and policies around what they will and will not enforce.

Yes. In law, time with your child and the obligation to pay child support are two different things. You cannot use the other parent's action in denying contact as a reason to not meet your obligation to pay support.

It is the child’s right to be financially supported by both parents. You cannot deny the child’s rights to have financial support because you are being denied time with that child. Enforcement of your child support order or agreement will continue. 

If you are being denied time 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 time with the child already, there may be ways for you to change or enforce that order.

Under the Parenting and Support Act, there are court applications that can be made when someone denies parenting time, contact time, or interaction as set out in a court order or registered agreement. These applications must be filed no more than twelve months from the date of the denial.

Under these applications, a judge may order any of the following:

  • counseling or programming for the parties or the child, which may have to be paid for by one or both of the parties;

  • additional parenting time, contact time, or interaction;

  • that the person failing to exercise time with the child reimburse the applicant for any expenses incurred as a result of the failure

    • for example, if the applicant had paid for transportation to bring the child to the visit, and the visit didn’t take place

  • that the transfer of the child for parenting time or contact time be supervised

    • this is sometimes called ‘supervised exchange’

  • that parenting time, contact time, or interaction now be supervised

    • this is sometimes called ‘supervised parenting time’

  • the payment of costs or the payment of up to $5000 to be held in trust for the child

  • further court appearances

If the judge believes that the order will not be followed, they may also order that the respondent:

  • post security with the court

    • this means the respondent would leave a designated item or amount of money with the court

  • report to the court or to a person named by the court

    • this means the respondent would have to check in with the court or a person named in the order to show that they are following the order

If the judge finds that the parenting time, contact time, or interaction has been denied, without reasonable excuse, this may be considered a material change in circumstances. This means the judge may change the order for parenting time, contact time, or interaction. The judge can do this even if the applicant did not apply for the change.

Talk to a lawyer to find out what is best in your situation, and if making an application to the court is appropriate.

Yes. In law, child support and parenting time are two different things. You cannot use the other parent's failure to pay support as a reason to deny contact.

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 time 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

Unfortunately, it is very difficult to make someone visit their children. If the other parent is supposed to have specific visits with the children and is not exercising this time, 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 parenting 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 parenting time at all may not be something that will be ordered. 

Under the Parenting and Support Act, there are applications that can be made when someone fails to exercise parenting time, contact time, or interaction as set out in a court order or registered agreement. These applications must be filed no more than twelve months from the date of the failure.

Under these applications, a judge may order any of the following:

  • counseling or programming for the parties or the child, which may have to be paid for by one or both of the parties

  • additional parenting time, contact time, or interaction

  • that the person failing to exercise time with the child reimburse the applicant for any expenses incurred as a result of the failure

    • for example, if the applicant had paid for transportation to bring the child to the visit, and the visit didn’t take place

  • that the transfer of the child for parenting time or contact time be supervised

    • this is sometimes called ‘supervised exchange’

  • that parenting time, contact time, or interaction now be supervised

    • this is sometimes called ‘supervised parenting time’

  • the payment of costs or the payment of up to $5000 to be held in trust for the child

  • further court appearances

If the judge believes that the order will not be followed, they may also order that the respondent:

  • post security with the court

    • this means the respondent would leave a designated item or amount of money with the court

  • report to the court or to a person named by the court

    • this means the respondent would have to check in with the court or a person named in the order to show that they are following the order

If the judge finds that the parenting time, contact time, or interaction has been not been exercised, without reasonable excuse, this may be considered a material change in circumstances. This means the judge may change the order for parenting time, contact time, or interaction. The judge can do this even if the applicant did not apply for the change.

Talk to a lawyer to find out what is best in your situation, and if making an application to the court is appropriate.

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 time 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.

Usually when you are applying to the court to get a court order for decision-making responsibility, parenting time, contact time, or interaction, 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 parenting arrangements as part of a divorce proceeding, though, this may work differently. If you are not sure where to file your application for parenting arrangements, you should speak with a lawyer or court officer. 

Decision-making responsibility and parenting issues are dealt with in the Supreme Court (Family Division).

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. Even if you do not meet the low-income requirements to be represented by Legal Aid, you may be able to have a short consultation with a Legal Aid lawyer as a starting point. Contact your local Legal Aid office to see whether you might qualify for their service.

If you are looking to start a court application to confirm the parenting arrangements 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 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.

Usually, if one parent dies, the other will have care of the child. 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 about what your wishes are.

If you have sole decision-making responsibility for your child, and you do not want the other parent to have care of the child if something should happen to you, you can state this in your will, and you can specify who you want as your child’s guardian. The other parent, though, may disagree with this, and may apply to the court to have care of the child, including decision-making responsibility. The other parent will usually be given care of the child, 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.

Yes. If you are a biological parent to a child, you can make an application to the court for an order for decision-making responsibility or parenting time, and you do not need any special permission to do this. 

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 the Supreme Court (Family Division).

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.

When parents separate, children may need their extended families more than ever. Grandparents and other extended family members on both sides can be a resource and support 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.

The Divorce Act (federal law) and Parenting and Support Act (provincial law) recognize the importance of grandparents and extended family members to a child.

A grandparent, or someone else important to the child, must get the court’s permission (leave) to apply to court for contact with a child under the Divorce Act. A court can make a contact order where it is not possible for contact to take place during a parent’s parenting time, and it is the child’s best interest to have contact with another person.

Grandparents do not need the court’s permission (leave) to apply to court for contact or interaction with a child under the Parenting and Support Act. Other people who are important to the child must first get the court’s permission to apply to court for contact or interaction with a child.

There are special considerations before a judge will make an order for contact or interaction time. Please see click here for more information.

Sometimes extended family apply to court to care for a child most of the time.  This can be complicated and follow a different process depending upon the law that the application is made under. Generally, extended family must get the court’s permission (leave) first to do that.   Please speak with a lawyer about this.

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 make decisions about 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. Whether the child will be involved 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. The judge will look at many different factors to determine best interests, including the child’s views and preferences, if appropriate based on the child’s age and stage of development and the circumstances of the case. The child’s physical, emotional and psychological safety, security and well-being come first.

As Canada is a Party to the United Nations Convention on the Rights of the Child it is important for our laws to recognize that children who are capable of forming their own opinions have the right to participate in decisions that affect their lives.

There are different ways a court may hear from a child. In Nova Scotia the most common way a court will hear from a child is through a Voice of the Child Report. This is a court-ordered process where the child or children are interviewed by a professional to determine their preferences in parenting arrangements. The professional will see that the child has not been coached or persuaded by anyone or anything to make a particular decision, and will make sure that the child is mature enough to have a say in the proceedings. The professional 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.  These reports cost money, and can only be ordered by a judge.

In most cases, no. Parents should not bring children to court except in rare situations. It is important that children be protected from conflict and 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.

Here is more information about the duties parents have to protect children from family law conflict, as set out in the Divorce Act and Parenting and Support Act. 

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 situation.

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.

An agreement or order for parenting arrangements generally includes a term that the parents or guardians have the ability to ask for and receive information about the child’s health, education, and general welfare unless the order or agreement says otherwise. This means, for example, that the parent or guardian in a parenting role who has parenting time, can ask the child’s school for information about the child, or can receive copies of the child’s report cards. This also means that the parent or guardian with parenting time can speak to the child’s doctor about the child’s medical appointments and health, unless the order or agreement says something different.

You may wish to consider having a clause in your court order or separation agreement that specifically identifies these abilities. Third parties may not understand that parenting time comes with the ability to access this information. 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.

If you are planning to travel with your child, or to allow your child to travel with someone who is not the other parent, like a grandparent, it is best to work out these issues well 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 the decision-making responsibility of your children, and that the other parent does not have parenting time 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 first though to find out what documents they will 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 ask 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.

If you think a dispute over who may care for your child might happen after you leave or the the other parent leaves Canada with the child, you should get legal advice before your child leaves Canada. Other countries may not recognize your parenting arrangements. See International Child Abductions: A Manual for Parents for more information.

Do not make firm travel plans until you have all required documents and consents.  Plan your trip well in advance, and give yourself enough time to deal with any possible complications.

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

You should bring certified copies of the court order(s) that relate to your children with you. These would be any agreement or court order that speaks about the parenting arrangements, decision-making responsibilities, parenting time, contact, or interaction, and any agreement or order(s) that relate to you being allowed to travel with your children. 

A certified copy is a document from a court file, like an order, that is authorized as a true copy of the original. Court staff will put a stamp and signature on the copy to show that it is certified.

Double-check any court orders and agreements between you and the other parent to make sure there is nothing in the order or agreement that puts restrictions on taking your child out of the province or country. If you are unsure, get legal advice.

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.

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.

Most grandparents do not have to go to court to get contact time 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 time 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 you have filed an application with the court, you may have the option of going to court-based ADR ('conciliation'). The issues between the parties may be resolved with a trained court officer 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, you may need to apply for permission to make a court application. This is called asking for ‘leave of the court.'

You must get the court’s permission if you want to apply for:

  • care of your grandchild under either the Divorce Act or Parenting and Support Act, or

  • contact with your grandchild, if you are applying under the Divorce Act.

You do not need to get the court’s permission to apply for contact time or interaction with your grandchild under the Parenting and Support Act.

For more information for grandparents, click here.

Was this page helpful?