1. Where do I apply for a court order for custody or parenting arrangements?

Custody and parenting issues usually have to be dealt with in the court nearest to where the children are living. These issues are dealt with in Family Court, or in the Supreme Court (Family Division) if the children live in Halifax or Cape Breton. 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.

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 custody and access 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 order for custody or access, you will likely have to make that application wherever the children are living at that time.

Return to Top

2. How do I apply for a court order for custody or parenting arrangements?

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. Many courts, like the Family Court and Supreme Court (Family Division), have 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. You will usually have to file several documents to start an application.

If you are addressing child custody or access 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.

Return to Top

3. I already have a custody or parenting order. How do I change it?

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.

Custody and parenting issues usually have to be dealt with in the court nearest to where the children are living. These issues are dealt with in Family Court, or in the Supreme Court (Family Division) if the children live in Halifax or Cape Breton. 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.

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 custody and access 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 divorce order for custody or access, 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.

Return to Top

4. What is a ‘material change in circumstances’?

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 custody or 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 custody 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

Return to Top

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

If you are looking to start a court application for custody or 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.

Return to Top

6. If the other parent and I agree on the parenting arrangements, can we write our own court order?

There are different ways to get or change a court order. The court in your area may offer services to make this easier, for example, by going to conciliation and having a trained court officer prepare the order.

You might wish to hire a lawyer to prepare the order, so that both of you can sign it showing that you agree.

You may prepare the order yourself 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. Have a lawyer review your draft documents to make sure that they are prepared properly and can be enforced.

If you have a new order prepared, on your own or with a lawyer, that order needs to be filed with the court for it to become 'official,' and you may also have to file other court documents and pay a fee for this.

Return to Top

7. If I move away with my child, can I be charged with kidnapping?

Yes, it is possible to be charged with kidnapping. Whether or not you could be criminally charged, though, will depend on your particular situation. Either way, it is a serious matter to move a child without permission. You should speak to a lawyer and get advice before making a decision to move with your child.

Return to Top