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Custody

For more comprehensive family law information go to:

nsfamilylaw

Q - What is Custody?

A - Custody refers to an arrangement for the care and control of a child by his or her parents. This includes the right to direct the child's activities and make decisions regarding the child's upbringing. When parents separate or divorce, they may agree on the arrangements for custody of the children. They may set out the agreement in a separation agreement. Generally such agreements are not enforceable unless each parent obtained separate legal advice before signing the agreement. You should consult a lawyer before you sign a custody/access agreement. If parents cannot agree, either may apply to court to have a judge decide on custody and access. The judge's decision will be based on the best interests of the child. Please visit NSFamilyLaw.ca for a legal definition of a child's best interest.

Q - What is joint custody?

A - Joint custody is an arrangement where both parents continue to share in major decisions that affect the child. Usually, the child lives with one parent for the majority of the time (especially during the school year), and that parent makes day-to-day decisions for the child. The other parent will usually have access, that is, a right to visit with the child and to share in major decisions that affect the child.

Q - What is sole custody?

A - Sole custody means that one parent is responsible for the care of the child and decisions affecting the child and usually the child lives with that parent. The other parent will usually have access to the child and may ask to be consulted before a major decision affecting the child is made. Where both parents maintain their relationship with the child, the courts encourage consultation and may order it.

Q - What are shared and split custody?

A - 'Shared custody' and 'split custody' are terms used in the Federal Child Support Guidelines. Custody arrangements make a difference in how the Federal Child Support Guidelines tables are used. Briefly, under the Federal Child Support Guidelines:

  • Sole custody means the children live with one parent at least 60% of the time.
  • Shared custody means the children live at least 40% of the time with each parent during the course of the year. This type of arrangement may affect the amount of child support.
  • Spilt Custody means each parent has custody of one or more of the children. This type of arrangement may also affect the amount of child support.

For more information our page on child support or visit NSFamilyLaw.ca.

Q - Who can have custody?

A - In Nova Scotia, regardless of whether they are married, the father and mother of a child are joint legal guardians of the child unless a court orders otherwise. The mother and father can sign a written agreement about custody or ask a court to make an order.

While most often it is parents who seek custody, others may also apply for custody. Examples are grandparents, other relatives, a step-parent, or a common law, gay or lesbian partner who has cared for the child but who is not the child's biological parent. They must first get leave (permission) from the court to make the application for custody.  See our page on 'grandparents' rights' for more information.

A child protection agency such as the Children's Aid Society may take a child into care if the child is in need of protective services. Within five days of taking the child into care they must either return the child to the parent or apply to a court for custody of the child. A judge may order that the child to be returned to the parents or that the child remain in the care of the agency until the judge makes a final decision on who should look after the child.  See our page on the child protection process for more information.

Q - Who decides who gets custody?

A - The parents can have a verbal or written agreement setting out who shall have custody and the arrangements for access. To avoid future disputes it is best to have a written agreement. The agreement can have a clause allowing it to be registered with the Supreme Court (Family Division) in Halifax Regional Municipality and Cape Breton or in Family Court in other areas of the province. Before signing the agreement each parent should talk with a lawyer. They should not use the same lawyer.

If the parents cannot come to an agreement, either can apply to court for a judge to decide on custody. In making an order for custody, the judge will decide what is best for the child.

Q - How does the judge make a decision on who gets custody?

A - Whenever a judge is making, changing or enforcing a custody order or agreement he or she must be guided by what is in the child's best interests. All parties will have an opportunity to provide information on what they feel is in the child's best interest.

In determining the best interests of the child, the judge will look for the living arrangement that is the least disruptive and most supportive and protective for the child. Other factors the judge must look at are:

  • who took care of the child’s physical, emotional, social and education needs in the past, and who has done so since the separation? Is this arrangement working for the child,
  • how strong and stable is each parent’s relationship with the child,
  • wishes of the child (if the child is old enough),
  • religious and spiritual guidance for the child,
  • time and availability of the parent for the child,
  • cultural development of the child,
  • physical and character development of the child and the emotional support to assist in a child developing self-esteem and confidence,
  • financial contribution to the welfare of the child,
  • support of extended family,
  • willingness of a parent to facilitate contact with the other parent, and
  • interim and long range plan for the welfare of the child.

Additionally, a judge will examine the impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed to it when determining a child's best interest. The Nova Scotia Maintenance and Custody Act states a judge must look at:

  • the nature and frequency of the family violence;
  • how recently it happened;
  • how it has harmed the child;
  • any steps the person causing the family violence has taken to stop it from happening again;
  • has the family violence affected the ability of the person who caused it to care for and meet the child’s needs?
  • whether it is appropriate to require cooperation between parents on parenting issues where there has been family violence;
  • anything else the judge sees as relevant to deciding on the impact of any family violence.

To simplify, the behaviour must be deliberate, carried out against a family member, and could be one incident or a pattern of abuse, including:

  • physical or sexual abuse;
  • forced confinement;
  • depriving someone of the basics, like food, shelter and clothing;
  • emotional or psychological abuse showing a pattern of coercive or controlling behaviour.  For example, threatening to hurt a family member or pets, stalking, or damaging property on purpose.

However, please note The Nova Scotia Maintenance and Custody Act may not apply to legally married couples going through a divorce. In this case a judge will take family violence into account when awarding custody, but may not follow the specific family violence factors listed above. 

In some cases, if the parties cannot agree on custody and access, a judge may order a Custody/Access Assessment. A trained professional prepares an assessment of the parenting plan or a parenting assessment of the individuals and makes a recommendation to the court.

Parents will be expected to contribute to the cost of the assessment, based on their income and number of dependents.

Q - What is interim custody?

A - Interim means a temporary order or agreement. Parents may reach an interim agreement regarding custody and access, or the court may make an interim order for custody and access. The interim order stays in place until further written agreement between the parents or a new order from the court. An interim order is usually made until a final hearing on custody and access can be held.

Q - What happens if a parent with access refuses to return the child after a visit?

A - If a child is removed from a parent's care without that parent's consent, there are a number of steps the parent can take to have the child returned to his or her care. Which steps are appropriate will depend on a number of factors, including whether the parent has an order for sole custody or joint custody, who took the child, and the circumstances of each case.

In some circumstances, it may be appropriate to complain to the police and ask to have the person who took the child charged with abduction. The parent must be able to show that the child was removed without consent, and that he or she was the person lawfully caring for the child. It is important to contact the police if the child may be in danger or if a person who took the child may try to leave the province or country.

A parent with a custody order may go back to court and ask for the order to be enforced.

If a child protection agency takes the child, they must either return the child to the parent or apply to the court for a hearing within five working days.  See our page on the child protection process for more information.

Q - Can a child choose which parent he/she will live with?

A - No. Where a child lives is a decision made by either the parents or the court. The child's preference may however be taken into consideration. The older the child, the more weight will be given to his or her wishes.

For more information please visit NSFamilyLaw.org.

Q - Where do I go to get a court order for custody?

A - If you live in Halifax Regional Municipality or Cape Breton you go to the Nova Scotia Supreme Court (Family Division). In other areas of the province, you take custody and access issues to either the Family Court (usually if you are not getting a divorce) or the Nova Scotia Supreme Court (usually if you are getting a divorce).

The Nova Scotia Supreme Court (Family Division) has Court Officers (sometimes referred to as Conciliators) who can help you identify your options. The Family Division offers a number of services including mediation, assessment, and parent education programs for parents who are dealing with issues such as custody and access.

For more information on the services offered by the Nova Scotia Supreme Court (Family Division) please see the following link.

Family Court has case workers who can provide information on making an application for a court order for custody and access. The page on Family Court gives more information about Family Court services.

Q - Can a court order for custody be changed?

A - Yes. Either parent can apply to have a written agreement or court order for custody or access changed.

The parent making the application must show that there has been a change in circumstances one of one or both parents, or the child, significant enough to justify a change in the order or agreement. The parent must also show that the change is in the best interests of the child.

For more information please visit NSFamilyLaw.ca.

Q - Can I take my child out of the province?

A - If you have custody you may take the child out of province temporarily, for example on vacation within Canada. You may need a letter of permission for international travel. If you have access, you may need the permission of the parent with custody. It is best to get the permission in writing. A parent with custody who wants to permanently take the child to live somewhere else may need to get the consent of the other parent or the court depending on the agreement or court order. See our page on children and travel or visit NSFamilyLaw.ca for more information.

One of the more common reasons why a parent may seek a change in custody is if the custodial parent is planning to move to a different city or town far enough away that the move will significantly affect the other parent's access. Often the parent with custody wants to move to take up a new job, or to be with a new spouse, or to be closer to extended family that live elsewhere.

If the non-custodial parent does not agree with the move, he or she can apply to the court to prevent the children from moving. Parents may move wherever and whenever they want, but the court can order that the children remain where they are, if that is what is in their best interests. The court can do this either by changing custody to the other parent or ordering that custody will change only if the custodial parent chooses to move.

Sometimes the parent who does not have custody will ask for a condition in the initial custody agreement or order that prevents the other parent from moving or requires that notice be given before a move. In this way, the non-custodial parent will have time to apply to the court to prevent the move if she or he does not agree with it.

If you have custody of your children and you want to move away, you should inform the other parent in writing before you move. Keep a copy of the letter. Give the other parent as much advance notice as possible. If the other parent agrees with the move, ask him or her to sign a letter consenting to the move. If the other parent refuses to sign the letter or does not consent to the move, you should see a lawyer as soon as possible.

Q - Where can I get more information?

A - Family Courts are listed in the blue pages in the back of the phone book under 'Courts', or visicourts.ns.ca for court contact information.

For more information on custody please visit NSFamilyLaw.ca.

Mediation information:

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