This information is about parenting a child—if you have a child with another person and you have separated or are about to separate, or if you have never lived together as a couple but you have a child together.
Family law is complicated. It is important to learn about family law and how it may apply to your situation. It is important to speak with a lawyer to get legal advice before you make a major decision that will affect your family, and before you enter into a written agreement or a consent court order.
The broad term ‘parenting arrangements’ is often used to include decision-making responsibility, parenting time, custody, contact, or a combination of these terms.
Parenting arrangements do not have to be written down. Some parents prefer to have a written agreement. They might do a written Parenting Plan that talks about decision-making responsibility and parenting time. Other parents, who are not able to work together (for reasons such as family violence), or who are unable to agree on parenting arrangements, use the court process to get a Parenting Order (court order).
A Parenting Plan or Parenting Order may cover things like:
- where the child will live
- each parent’s decision-making responsibilities
- the time the child will spend time with each parent and other important people in the child’s life
- how the children will communicate with one parent when spending time with the other parent
- how the parents will communicate with each other about the child
- who has the right to ask for and get information about the child’s health, education and well-being
- how disputes will be resolved
- rules about relocating with a child.
Best interests of the child
Family laws in Canada (Divorce Act) and Nova Scotia (Parenting and Support Act) expect parents to make decisions that are in their child’s “best interests”. Each law lists factors to consider when making a decision about a child. This is called the “best interests test”, and the factors to consider will change slightly depending on the law that applies to your children and your family’s situation.
If a parenting issue goes to court, judges must only consider the best interests of the child when they make decisions about children.
Here are some of the specific factors a judge must look at when deciding what is in a child’s best interests:
- the child’s needs, keeping the child’s age and developmental stage in mind
- the child’s relationship with each parent
- the child’s relationships with siblings, grandparents and other important people in their lives
- the child’s care arrangements before the separation
- future plans for care of the child
- the child’s views and preferences, if child is mature enough and if it is appropriate
- the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
- the impact of any family violence (see more information on family violence below).
Other factors the judge must look at 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.
In every case the court must give priority to the child’s safety, security and well-being. 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.
If there has been family violence, the 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 learn more about the types of family violence people may experience and help that is available see the specific information on Family Violence.
You can learn more about best interests of the child at nsfamilylaw.ca
If you are thinking about separating from your spouse, or you are in a relationship with someone and it is not healthy for you, get support.
Nova Scotia has a number of helpful resources you can connect with to talk about your relationship, the challenges you are experiencing and the impact on your children. Some couples can work these issues out. Other times they cannot.
Many employee assistance programs (EAP) offer private personal and/or couples’ counselling to help you work through difficult times, including working on your relationship. If you have one, contact your EAP to see what is available for you. You may also be able to access your spouse’s EAP plan. If you do not have an employee assistance program speak with your health care provider or contact 211, 811, or Nova Scotia Mental Health services near you.
Choosing to stay or leave a relationship is a personal decision. If you are experiencing violence within your family situation then you may need to contact the police or child protection agency for immediate help.
To learn about the types of family violence people may experience and help that is available to you see the specific information on Family Violence.
After deciding to separate
The law expects parents to think first about their child—to take a child centred approach that focuses on their child’s best interests. Parents are expected to make sure their children’s basic needs for shelter, food and schooling are met. They must also make sure their child has a safe and healthy relationship with the other parent, siblings and other important people in their lives.
If you separate it is important to let your child know this in a healthy way. How you present this information and how you speak about the other parent, or important people, will help the transition go better.
Remember that the circumstances of the parents and their children change. Sometimes needs change quickly after a separation. Sometimes plans stay the same for a long time. So it is important to think in stages (for example, what will happen when we separate and what may change after a few months) and know that different arrangements may be made as time passes and needs change.
If possible, have a temporary plan worked out with the other parent before you speak with your child about the separation. Being informed about basics such as where they will live, if they will continue at their same school, when they will see important people in their lives, if they can continue with extracurricular activities, etc. are important to a child’s sense of stability and security. Being able to share, in an age-appropriate way, some or most of this kind of information will help with the transition. If you don’t know an answer to a question, be honest and tell the child when you might have more information to share. Remember this is a time of transition so you will not know all of the details. Every family works through this process differently.
First think about what are the most important day-to-day issues that need to be planned, especially for your child, and then move to longer-term arrangements or events later. It generally takes a couple a years or longer to complete the separation process, so do not pressure yourself to have all of the details worked out right away.
Children have better outcomes when their parents and important people in their life are able to work together to make sure their basic needs are met, and their relationship with the other parent and important people is supported. This includes supporting your child in their extracurricular and other important events. These events may take place during ‘your time’ and it may be frustrating that your time is disrupted. Before you react to your child’s activity time, think about your own childhood and how you felt about participating in activities, parties or other events. What will the consequence be for your child if they only participate in half of the classes or practices? If they don’t attend all of the birthday parties they are invited to?
It is important to not say negative things about the other parent or other important people in the child’s life. You child’s day often includes spending time with their parents and other important people, teachers, daycare providers, coaches and friends. They will have good and bad days in their relationships and they will want you to support how they are feeling. They will ask you to help guide how they should respond to situations, and as a parent you need you to guide them appropriately. It is tough being a child. It becomes tougher when they have to hide their feelings or experiences with the other parent from you because you are negative. When you make hurtful comments about the other parent, you are also making hurtful comments about your child, because your child is a part of both of their parents, and arguably other important caregivers in their lives. Supporting the child’s relationship with the other parent will reduce anxiety your child may be feeling. It will also reinforce that you are able to share and support your child’s experiences, relationships and happiness.
Remember it is not healthy to pass blame on anyone. The old saying ‘if you can’t say anything nice then don’t say anything at all’ is good advice when talking with your children about the other spouse, or extended family. Try not to place your child in the middle. This means don’t ask your child to be a messenger between you and the other spouse. Do not discuss information about your financial circumstances and concerns with your child. If you and the other parent are not getting along, or if it not safe for you to have contact ask a neutral person (such as a family member) to help with transitions and communication until long term arrangements can be made.
Children do poorly when they are exposed to violence. This includes verbal abuse and other behaviours that are directed to or about the other parent or the child. It is important to understand the types of violence people sometimes experience, especially during or upon the breakdown of a relationship.
The law recognizes that family violence is harmful. Parents, legal advisers and judges are required to ask about and consider the impact of family violence that children may be exposed to or are experiencing when giving advice or making a decision for a child, and to reduce family violence when setting up the parenting arrangements.
It is important to establish clear expectations and boundaries around parenting, entering the family home, use of family money etc. It helps to have a way to communicate with each other that is not intrusive or too frequent. Parents who text message often find the other parent is intruding upon their time with their child or their personal time because with text messaging there is an immediate interruption and an expectation of a response right away. Many separating couples use emails to communicate instead of text messaging, as this helps to maintain a healthy boundary between them. They know that their email messages will be seen and responded to once a day. This gives everyone some time to think before an email is sent or a response is given.
A child's reaction
Some children are immediately comfortable with the transition from one to two homes. Other children need time to adjust. Sometimes a counsellor for the child may help them talk about their feelings to help each parent be supportive and helpful when they talk with their child, and each other.
Sharing toys and clothing between the two homes is important. Children need to have their belongings with them when they travel between homes, especially a soft toy or blanket that provides comfort. Don’t try to control your child’s belongings. Listen to what your child’s needs are at this time, and do your best to support the simple ones.
Some children have a hard time transitioning. Sometimes parents assume this is because the child doesn’t want to see or spend time with the other parent. But there may be other reasons why the child is struggling. For example, maybe they have a hard time with transitions between home and childcare or school. Going to a parent’s house may get a similar reaction. Talk to the child’s care providers to see if there are things you can do to make the transitions easier. Talk to a counsellor to help you and your child if things do not improve.
Children often have views and preferences about the parenting arrangements. In family law there is no specific age when a child may choose where they will live or when they will spend time with the other parent. Each parent has a duty to make sure the child has a relationship with both parents, as long as it is safe and in their best interests. It is important to have an open relationship with your child about how they are feeling, including the parenting arrangements. Remember a child should never be told to choose between their parents or important caregivers.
Judges will listen to what a child has to say about their parenting arrangements when it is age appropriate. Older children should have more input than younger children. In court, a child’s views about their parenting arrangements or what is important to them may be shared through what is called a voice of the child report. Outside of court a child’s voice is sometimes shared during joint counselling sessions. In child protection cases a child’s voice is often communicated through a guardian ad litem (litigation guardian) who is appointed by the court.
When an older child refuses to see the other parent counselling is the best option for everyone. A counsellor can help the child identify their feelings and help the parent(s) understand why contact is being refused. A counsellor may suggest strategies to help reconnect a parent and child. Parental alienation is very complex. The reasons why a child may refuse to see another parent are not always clear, and there are no easy solutions. Experts in this field strongly recommend counselling.
Parents have a legal obligation to follow court orders. As a parent, refusing to follow a court order or an agreement could result in a fine or even a change to the parenting arrangement. In some cases, a parent who refuses to permit court ordered parenting time will have their children placed with the other parent.
Talk to a lawyer if your child is refusing parenting time, or if you have concerns about the child’s safety with the other parent. You may need to ask the parent to take a break from exercising parenting time until the reasons for this are sorted. Or, you may need to make an emergency application to the court to ask a judge to make a new order that will keep your child safe. Go to nsfamilylaw.ca for information about changing a court order (variation application) and emergency applications to court.
Ways to get more family law information and legal help
Canada's Department of Justice has two publications to help parents who are dealing with a separation or divorce. 'Making Plans: A guide to parenting arrangements after separation or divorce', covers a range of topics, from parents' emotions in dealing with separation, to what the kids may be experiencing when their parents split, protecting the kids from conflict, and options for putting together the type of parenting plan that may be best in your situation.
The second publication is a 'Parenting Plan Tool' that, together with 'Making Plans', gives practical guidance, including sample clauses and wording, on specific parenting plan issues such as how and who makes decisions about the kids, scheduling parenting time, vacations, childcare, and relocations.
Both publications are available in English and French, online at:
- Making Plans: canada.justice.gc.ca
- Faire des plans - canada.justice.gc.ca
- Parenting Plan Tool: canada.justice.gc.ca
- Échantillon de clauses pour un plan parental - canada.justice.gc.ca
You will find a list of other parenting resources under "Ways to Help My Kids" at www.nsfamilylaw.ca
Also check out Families Change, a great web resource for kids, teens and parents dealing with a family break up.
Other helpful resources:
- www.nsfamilylaw.ca- family law information on many topics, including divorce, separation, parenting arrangements, spousal support and child support
- Contact the Legal Information Society of Nova Scotia to connect with a legal information counsellor and get free legal information
- Contact Nova Scotia Legal Aid for family law legal information and legal advice
- Contact a lawyer in private practice (lawyer you would pay) who does family law
- Free and low-cost legal help in Nova Scotia.
- The Department of Justice Canada's website has more information about family law and the changes to the Divorce Act, including fact sheets on:
Last reviewed: April 2021
Reviewed for legal accuracy by: Lawyer Shelley Hounsell-Gray, QC
Thank you to Justice Canada for funding to help update our legal information on divorce.