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 ('custody'), parenting time ('access'), 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 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 situationParenting and Support Act (provincial law) Nova Scotia's Parenting and Support Act applies to couples who are not married, couples who never lived together, and married couples who are separating but who are not seeking a divorce. It also applies to grandparents and other people connected to the child.
Divorce Act (federal law)
The federal Divorce Act applies if you are divorcing or divorced. The words for describing parenting arrangements in the Divorce Act changed on March 1 2021.
What the parenting words mean
The words for describing parenting arrangements under Nova Scotia's Parenting and Support Act changed in 2017. The word "access" is no longer used. The Parenting and Support Act uses the following terms to replace "access":
- parenting time: the time a parent or guardian spends with a child, under an agreement or a court order
- contact time: the time someone who is not the child's parent or guardian spends with a child, under an agreement or a court order
- interaction: direct or indirect association with a child. Interactions cover things outside of parenting or contact time, like
- keeping in touch with a child by email, text, phone, letter, online, etc.
- going to a child's school events, or outside school activities
- giving or getting gifts from the child
- getting information about a child's health, school and overall well-being, including photos
The Parenting and Support Act still uses the word custody to talk about where the child lives, responsibility for the child's care, and rights and responsibilities to make decisions about the child's care and upbringing.
As of March 1, 2021, the words custody and access are no longer used in the Divorce Act (federal) to talk about parenting. The main parenting words used now are decision-making responsibility and parenting time. The words focus on relationships with children.
Decision-making responsibility is about who will make significant decisions about the child’s well-being, based on the child’s best interests. This includes decisions about issues like the child’s:
- medical and dental care
- culture, language, religion and spirituality
- significant extra-curricular activities, and
- other important decisions about the child.
More than one person may have decision-making responsibility.
Parenting time means the time a child spends with a parent or person who has a parenting role. It includes time when that parent is primarily responsible for the child, but the child is not actually with them. For example, when the child is in school or daycare.
Contact means time spent with people who are important in the child’s life, but who are not the child’s parents or in a parenting role.
Go here for more definitions of family law words.
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 time, or in the Halifax area see: veithhouse.ns.ca. 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 Custody and/or Parenting time (formely 'access') 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 (formerly 'access') 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.
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?
No, but they might lose parenting time as a result. Sometimes a parent who has parenting time will not visit their child. This is called "not exercising parenting time" and it can hurt your child, especially if the child expects to see the other parent at a certain time and the parent does not show up, or cancels at the last minute. If this happens on a regular basis, you should explain to the other parent how a “no show” affects the child. For example, the child may believe they did something to cause the parent to lose interest in spending time with them.
Courts will sometimes order that a parent go to counselling or take parenting classes and you can ask for this in court if the other parent has a history of not exercising parenting time. If the parent still fails to exercise parenting time, there is little you can do except try to help your children deal with it. Counselling may help the children to understand that it is not their fault. Go to nsfamilylaw.ca for information about parenting after separation or divorce, including information about protecting children in difficult situations.
Some parents who fail to exercise parenting time will later claim that parenting time was denied. If you are concerned about this, you should keep a record of requests for time and visits so that you can show that you did not deny parenting time to the other parent.
If you are being denied parenting time you may wish to file an application with the court to have your parenting time set out in a court order. If you have an order for parenting time, you can ask the court to help you see your child.
Where do I go to get a court order dealing with parenting arrangements?
Parenting arrangements like decision-making responsibility and parenting time usually have to be dealt with in the court nearest to where the children are living. The Nova Scotia Supreme Court (Family Division) deals with all family law matters in the province. This includes child protection, parenting (decision-making responsibility, parenting time), child support, spousal support, and property division. You'll find more information about which court to go to, and how to apply to court, online at nsfamilylaw.ca
All courts in Nova Scotia have staff who can help you identify what your options are, and the programs and services for parents.
Can an agreement or court order be changed?
Yes. Either parent can apply to have a written agreement or court order changed.
If the parents don't agree the change should happen, the parent applying to court must show that there has been a change in circumstances for the child or one of the parents significant enough to justify a change in the order or agreement. The parent must also show that the proposed change(s) is in the best interests of the child.
As the child grows older, parents may need to review parenting time arrangements. Children outgrow parenting time arrangements the same way they outgrow clothes and toys. An arrangement that works for a toddler may not work for the same child in elementary school. Parenting time that worked well for a child in junior high may not suit a teenager.
Teenagers may want to decide for themselves how often they see each parent. There is no specific age when a child can choose which parent they will live with, or the time they spend with the other parent. Generally speaking, younger children need shorter, more frequent periods of parenting time, while older children and teens can do well with longer periods with each parent and more time between periods. Younger children tend to need more routine (for example, to know that they spend Wednesdays and every other weekend with the other parent), while older children may prefer more flexibility.
More information about changing a parenting arrangement court order is online at nsfamilylaw.ca
For more information
- Tips for parenting after separation
- Mediation and Collaborative Family Law (family dispute resolution without court)
- Families Change: a website to help kids, teens and parents deal with a family break-up
- www.nsfamilylaw.ca- general 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 has more information about family law and the Divorce Act, including fact sheets on:
Last reviewed: March 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.