Frequently Asked Questions
Getting or Changing the Decision-making Responsibilities and Time with a Child:
In family law ‘custody’ has been used to describe how decisions are made for a child, and ‘access’ has been used to describe time the child would spend with their parents or caregiver.
Family laws have changed.
The words custody and access are no longer used in the Divorce Act (federal law) or Parenting and Support Act (provincial law). The main parenting words used now in that law are decision-making responsibility and parenting time. The words focus on parents’ responsibilities for and relationships with 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.
Parenting arrangements like decision-making responsibility and parenting time may be set out in an agreement, parenting plan, or a parenting court order.
An agreement or court order that uses the old terms, ‘custody’ or ‘access’, to describe the parenting arrangements will continue until it is changed (varied) with a new agreement or court order. You do not need a new agreement or court order just because the language of parenting has changed.
The term ‘parenting arrangements’ is often used to include decision-making responsibility, parenting time, contact or contact time, or interaction, or a combination of these terms.
Parenting issues usually have to be dealt with in the court nearest to where the children are living. These issues are dealt with at Supreme Court (Family Division) locations across Nova Scotia.
If your children do not live in Nova Scotia, you will probably have to contact the court where they are living to find out how to make an application there.
If you are addressing issues like parenting time and decision-making responsibilities as part of an ongoing (not yet final) divorce proceeding, you will deal with this issue wherever the divorce was filed. Once the divorce is finalized, and you apply to change your court order, you will likely have to make that application wherever the children are living at that time.
You can start your application through a lawyer, either one that you hire privately (retain), or get assigned to you through Legal Aid, if you qualify. You can visit Legal Aid’s website for more information. For more information on how to get help from a lawyer, click here. Many of these resources are free or low-cost.
You can also start a court application without a lawyer.
If you do not have a lawyer, you can start most court applications yourself by contacting the appropriate court, and asking what processes they have for starting an application. The Supreme Court (Family Division), has an intake process, where you can get help from a court officer to start your application.
For contact information for the Nova Scotia courts, click here.
Many forms for starting applications are available online, as well. You should get advice from a lawyer or speak with court staff to make sure you are filing the right documents for your case.
If you are addressing parenting issues as part of an ongoing (not yet final) divorce proceeding, you will deal with these issues wherever the divorce was filed. Once the divorce is finalized, and you apply to change your order, you will likely have to file your application wherever the children are living at that time.
You can click here for information about urgent or emergency court applications. These applications are usually processed differently than other types of applications. The court has specific definitions about what might be urgent or an emergency. Your application will not proceed on an urgent or emergency basis just because you've filed it as such. How your application will proceed depends on your particular situation. It is strongly recommended that you speak with a lawyer for help with this type of application.
You can apply to change, or ‘vary,’ your court order if you have a material change in circumstances. This means that something important in your situation, the other party’s situation, or your child’s situation, has changed since your last order, and you need to change something in your order as a result.
Generally, the same process applies for changing an order as it does for getting an order in the first place.
Parenting issues usually have to be dealt with in the court nearest to where the children are living. These issues are dealt with at the Supreme Court (Family Division) located across the province.
For contact information for the Nova Scotia courts, click here.
If your children do not live in Nova Scotia, you will probably have to contact the court where they are living to find out how to make an application there.
If you first addressed parenting as part of a divorce proceeding, you probably dealt with this issue wherever the divorce was filed. If your divorce is now final, and you are applying to change the parenting arrangements in your order, you will likely have to make that application wherever the children are living now.
For a variation application (an application to change a court order), you must be able to show that there has been a material change in circumstances since the last order was made.
A material change in circumstances, sometimes called a ‘substantial’ change in circumstances, means that something important has changed in your situation, or your ex-partner’s or children’s situations, since your last order was made. As a result of this change, you feel you need to change your order. The change needs to be substantial, and not just a minor change.
For applications to change the parenting arrangements, examples of a substantial change in circumstances could include:
-
the children are now living with a different parent
-
the parenting arrangements have changed (for example, you now have a shared or split parenting arrangement)
-
one of the parents moved, and the parenting arrangements will be affected
-
the arrangements need to be updated because the children’s schedules have changed
-
other reasons appropriate to the child’s circumstances.
If you are looking to start a court application for parenting 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 on urgent or emergency court applications, please click here.
There are different ways to get, or change, a court order.
You may wish to negotiate an agreement and have the terms of the agreement written down to make sure everyone is clear on the parenting arrangements.
The court in your area may offer services to help parties negotiate an agreement. For example, by going to conciliation and having a trained court officer help you and the other party reach an agreement and to prepare the order to confirm the agreement.
You might wish to hire a lawyer to help you negotiate and prepare the order.
You may also prepare the order yourselves if you feel confident that you can do this properly. Preparing court orders properly is not easy so you should get advice from a lawyer. It is a good idea to at least get independent legal advice. That means you each have a separate lawyer look at the draft document to make sure it is done properly and give you advice about it before it is finalized.
If you have an agreement or court order prepared, on your own or with a lawyer, you may wish to have it registered with the court. During the registration process a judge will review the terms of the agreement or court order, and if approved, it will become an enforceable court order.
Yes, it is possible to be charged with kidnapping. Whether or not you could be criminally charged will depend on your particular situation. Either way, it is a serious matter to move a child without permission. Click here to visit the relocation section.
You should speak to a lawyer and get advice before making a decision to move with your child.