Frequently Asked Questions about Access/Visitation

1. What is ‘access’?

Under the Federal Divorce Act, custody and access refers to the parenting arrangements made for the children when their parents are divorced or divorcing. Under the provincial Parenting and Support Act, the following terms are used:

  • Custody
  • Parenting time
  • Contact time
  • Interaction

These terms can be broadly referred to as ‘parenting arrangements.’

The test that the court uses to make decisions about custody and parenting arrangements is called ‘the best interests of the child,’ 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.

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2. What are parenting time, contact time, and interaction?

Parenting time is the time a child spends with a parent or guardian, under a court order or agreement.

Contact time is the time a child spends with someone other than a parent or guardian, under a court order or agreement. This can include a grandparent or other family member.

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

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3. Which type of parenting arrangement 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, flexible parenting arrangements 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 flexible parenting times, or you want something more specific in your order, you can ask for specific dates and times for parenting time or interaction. 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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4. 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 principle of ‘maximum contact.’ This principle is found in both the Divorce Act and the Parenting and Support Act. 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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5. What if my child won’t go for their 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 the 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. 
  • Don't misinterpret the child's refusal to transition to your home as the child not loving you. Even children 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, or have them call the other parent to let them know you are on your way.
  • 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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6. 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 registered separation agreement or not. If you do not have a court order for custody 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. Policing agencies have their own rules and policies around what they will and will not enforce.

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7. If I am being denied time with my child, do I still have to pay child support?

Yes. In law, time with your child and the obligation to pay child 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 time with that child.

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 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 access’
  • 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.

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

Yes. In law, child support and parenting time 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 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.

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9. 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 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 you can get in your order. 

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 access’
  • 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.

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10. Where do I go to make a court application for parenting time?

Usually when you are applying to the court to get a court order for parenting time, 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 Amherst, but the children live in Truro, you will likely have to contact the court in Truro 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 access as part of a divorce proceeding, though, this may work differently. If you are not sure where to file your application for parenting time, you should speak with a lawyer or court officer. 

These 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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11. How do I get a court order for parenting time?

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. For more information on Legal Aid, click here.

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12. How does a judge decide when parents do not agree on custody and parenting arrangements?

The following video was made available through the Public Legal Education and Information Service of New Brunswick and Family Law NB.

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