Decision-making responsibility and Parenting time - Legal Information Society of Nova Scotia

Children have a right to spend time with each parent or guardian, as long as the contact is safe and reasonable. Whether the Parenting and Support Act (provincial law) or Divorce Act (federal law) applies to your situation, parenting arrangements like decision-making responsibility and parenting time may be set out in an agreement, parenting plan, or a parenting court order.

The broad term ‘parenting arrangements’ is often used to include decision-making responsibility ( used to be called 'custody'), parenting time (used to be called 'access'), 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 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.

Which law applies to your situation

What the parenting words mean

Parenting schedules

Parenting time is the time a child spends with a parent or guardian, under an agreement or a court order. Generally, parenting time is a child's right to visit and have contact with their parents who do not live together. Parents can make a parenting agreement, or the court can make an order outlining when parenting time will happen.

Children have a right to spend time with each parent, as long as the contact is safe and reasonable. The law does not say that a child’s time should be shared between the parents. Generally, children benefit from a relationship with both parents. Parenting time will only be denied if a judge is satisfied that the child would be harmed if there is contact. This is rare because of the importance of a child’s relationship with each parent. But judges may order safeguards to make sure a child is safe during the parenting time and that the relationship with that parent may be maintained.

Broadly, a parenting schedule may include:

Flexible time: There is no set schedule so the parents must be able to agree on the times each parent will spend with the child. As there is no set schedule, it allows the parents to make their own flexible arrangements. This kind of arrangement works best when the parents are getting along reasonably well and have a positive relationship and can work out parenting arrangements between them, or when either parent can't commit to a regular schedule because they work out of province or have a work schedule that frequently changes.

Specified time: Provides regular set times that a parent may have parenting time with the child. The parenting schedule may be set out in a court order, separation agreement or other written agreement between the parents. For example, an arrangement might be that on every second weekend the parent will pick up the child on Friday after work and return the child to the primary parent on Sunday afternoon. A shared parenting arrangement is when the child’s time is shared equally between the parents.

Supervised time: This type of parenting time provides that time spent by the parent with the child must be in the presence of another adult. The schedule may be set out in a court order, separation agreement or other written agreement between the parents. This type of arrangement is made if the parents agree, or the court believes it is necessary to make sure the child is safe during time with the parent. Examples of times when this may be appropriate include: introducing a parent to a child who has been away for a long time, when a parent has problems with anger management, or has serious mental health or addiction concerns. Some areas of the province offer a supervision service. Sometimes supervised exchange will address the concern. Contact the court office in your area for more information about supervised parenting or exchange, or see: veithhouse.com/supervised-access. You'll also find information about supervised time ('access') online at nsfamilylaw.ca

Parenting arrangements must be based on the child's best interests

When a judge makes a decision about a child, the judge must always 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 interests. Parents or those in a parenting role should also be guided by what is in the child's best interests when working out parenting arrangements.

Both the federal Divorce Act and Nova Scotia's Parenting and Support Act provide a specific list of factors a judge must look at in deciding what is in the child's 'best interests'.

Some of these factors are:

Who took care of the child's physical, emotional, social and education needs in the past, and who has done so since separation? Is this arrangement working for the child?
Is each parent willing to support and maintain the child's relationship with the other parent?
Each parent's ability to communicate and cooperate on issues affecting the child
How strong and stable is each parent's relationship with the child?
What are each parent's future plans for taking care of the child?
The child's wishes, if the child is old enough and it is appropriate
The child's cultural, linguistic, religious and spiritual upbringing and heritage
The impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed to it.

A judge looks at similar factors in deciding what is in the child's best interests under the federal Divorce Act, which applies to divorcing or divorced parents.

Both the Parenting and Support Act and the Divorce Act recognize the importance of hearing from children, providing it is appropriate to do so.

In some cases, if the parties cannot agree, either party may request, or a judge may order, a Decision making Responsibility or Parenting time Assessment, or for older children, a “Voice of the Child Report/wishes assessment.” A trained professional prepares the assessment and makes a recommendation to the court. The assessment may be considered by the court. Parents are usually expected to contribute to the cost of the assessment based on their income and number of dependents. You will find information about assessments online at nsfamilylaw.ca

Family violence is a factor in determining parenting arrangements

Both Nova Scotia's Parenting and Support Act and the federal Divorce Act say that a judge must look at the impact of family violence, abuse or intimidation in deciding on a child's best interests.

Family violence includes:

physical abuse
sexual abuse
harassment, stalking
threats of harm to people, pets and property or actually causing that harm
coercive and controlling behaviour
psychological abuse, and
financial abuse.

The behaviour does not have to be a crime to be considered family violence under family laws.

The judge must look at factors like:

the type and seriousness of the family violence
how recently it happened
how often it happened
how it has harmed the child
any steps the person causing the family violence has taken to stop it from happening again
if 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 where there has been family violence
any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child
anything else the judge thinks is relevant.

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 the other parent abused the child, a judge may deny them time with the child or order supervised parenting time depending on the circumstances and the risk of further abuse.

If the other parent abused you but not the children, the judge will try to make an order that is safe for you. For example, the judge might order that the other parent have no contact with you, that a third person, such as a relative or neighbour, supervise while your children go with the other parent, or that the other parent remain in the car at the curb while you send the children out. Sometimes this ends the abuse. If the abuse continues, you can ask the court to make an order that the other parent have no time with the children at all. It is harmful to children to see a parent abused, even if the children are not abused themselves.

Go here for more information on family violence, and visit www.nsfamilylaw.ca

When can parenting time be denied?

Generally, it is very rare for a court to deny parenting time to a parent. In very extreme circumstances parenting time will be denied if contact would put the child at serious risk of physical or emotional harm. In these circumstances’ child protection would likely be involved. If they are not a referral may be appropriate if the risk or harm is serious.

The court recognizes that sometimes parents harm their children, or they create situations where serious harm may happen. However, to reduce the risks courts will order the parent’s time with the child be supervised by an adult. Supervision generally stays in place until the difficulty the parent is experiencing, which poses risk to the child, has been addressed.

One parent cannot deny the other parent time with the child unless there are serious concerns that the child may be harmed if visits takes place.

For example, a parent may be justified in refusing parenting time if the parent exercising parenting time appears impaired by alcohol or drugs when the parent arrives to pick up the child, or threatens to immediately take the child out of the county, or is clearly taking the child to a place where the child may be in danger.

A parent cannot deny the other parent time with the child because the parent is not paying child or spousal support. Or because they are angry at the parent for a personal reason. Parenting time, child and spousal support are separate issues, and you cannot use one to bargain for the other. Denying parenting time cannot be seen as revenge.

Denying a child’s time with a parent has a serious impact on a child. It is difficult to protect a child from the conflict that happens from a denial of parenting time. Children identify with both of their parents and when one parent intentionally hurts the other parent the child often experiences that hurt too.

A parent who feels that the other parent should be permanently denied parenting time, and there is an order or agreement in place, must apply to the court to ask that the order be changed. Or, both parents must agree to change the written agreement.

If you are being denied parenting time then you may apply to court to request court ordered time with your child. You should do that as quickly as possible as the court process is slow and this is a serious issue to address.

Can parents be forced to spend time with their children?

Where do I go to get a court order dealing with parenting arrangements?

Can an agreement or court order be changed?

For more information

Last reviewed: February 2023
Reviewed for legal accuracy by: Lawyer Shelley Hounsell-Gray, KC

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