Do I have a right to see my grandchild?

Most of the time, grandparents have a good relationship with their family and can spend time with their grandchildren through one or both parents. But the law does not say parents must allow their child to spend time with their grandparents.

What is the difference between custody, access, contact time, and interaction?

Custody means having the responsibility to care for the child, and to make the major decisions about the child’s health, well-being, and upbringing. Custody can also mean who the child lives with. Usually the child lives with the person who makes the major decisions about their care and upbringing.

Access usually refers to the child’s legal right to visit or spend time with a parent or guardian. It is also called parenting time. Children may also   have access to grandparents or other family members. Access by anyone other than a parent or guardian may also be called contact time. Access may be set out in a court order or agreement. It could mean weekly or monthly visits, overnight stays, or holiday time together. The federal Divorce Act uses the term “access.”

Parenting time is the time a child spends with a parent or guardian because of a court order or agreement. It is a term used in Nova Scotia’s Parenting and Support Act.

Contact time is the time a child spends with someone other than their parent or guardian because of a court order or agreement. This can be a grandparent, or anyone else who is close to the child. It is a term used in Nova Scotia’s Parenting and Support Act. Contact time is sometimes alsocalled access.

Interaction means communicating with a child outside of parenting
time or contact time. It includes:

• phone calls, emails, or letters
• sending gifts or cards
• attending the child’s school activities or other activities
• receiving copies of report cards or school photos
• video chats with the child.

Do I have custody of my grandchild if my teenage child becomes a parent?

No. If your child becomes a parent while under the age of 19, the Department of Community Services decides if they are able to care for their child. If your child still lives at home, you have a duty to support them. However, they have the right to make decisions about their own child. If you want custody of your grandchild, you must ask the court for leave to apply for it.

Can I apply to court for custody of my grandchild or to spend time with them?

If you wish to apply for custody of your grandchild, or parenting time, you must ask for the court’s leave. Leave is permission from the court to apply for custody. When you ask for leave, you must explain to the court why you are asking to have custody of your grandchild, and what role you play or have played in your grandchild’s life. You can apply to court for contact time or interaction with your grandchild without asking for the court’s leave.

A judge will always do what they feel is in the child’s best interests, or what is best for the child. This is not always what you feel is best. A judge will let you have contact time or interaction with your grandchild if they think it is best for the child. Even if the court gives you leave to apply for custody of your grandchild, it might not give you custody.

It is a good idea to talk to a lawyer if you are considering going to court.

It is also important to look at other options first to resolve the dispute, such as mediation or negotiation.

How does the court decide what is in the child's best interests?

To decide what is in the child’s best interests, a judge will think about:

• the child’s needs
• the parents’ or guardians’ ability to care for the child
• how the parents or guardians care for the child
• the plan proposed for care of the child
• the child’s cultural, linguistic, religious, and spiritual heritage
• what the child wants, if appropriate
• the relationship between the child and their parents or guardian
• the relationship between the child and their grandparent(s)
• how well the adults in the child’s life talk with each other
• whether there is family violence and its effects

In cases about contact time or interaction with grandparents, a judge will also think about:

• whether the child’s parents or guardians are willing to support contact
  time
• whether an order for contact time is needed to allow the child to see
  their grandparent(s)

Could the court give joint custody to a grandparent?

Joint custody means that two or more people make the big decisions about the child together. An order for joint custody between a child’s parents and grandparents will probably only happen if both agree. For example, if the child’s parents are very young, they may have trouble deciding what is best for their child and want help from the child’s grandparents.

It is possible for a court to order joint custody with a grandparent if the judge believes it is best for the child. However, it is not common.

What are some ways to reach an agreement without court?

Negotiation. A less formal process of discussing the issues the child’s parents and grandparents do not agree on to try to reach an agreement.
You can try to negotiate with your grandchild’s parents on your own or with someone else’s help, such as a lawyer.

Mediation. An alternative or assisted dispute resolution (ADR) process where a mediator helps parties reach an agreement. A mediator is a neutral, independent, and objective third party who is trained in ADR.

If the child’s parents and grandparents cannot reach an agreement on custody, contact time, or interactions, mediation is an option. A mediator will meet with the people involved, discuss the issues, and help them come to an agreement. Mediation is voluntary, and everyone must feel comfortable with the process.

Private mediation services are listed online or in the telephone book. You can also find a mediator through Family Mediation Canada (fmc.ca), or through the Legal Information Society of Nova Scotia’s Mediator Referral Service. You might be referred to a mediator through the family court process.

Collaborative law. A process where lawyers trained in collaborative law help participants work together to reach an agreement. Everyone must
agree at the beginning to work together without going to court. You can find a trained collaborative family lawyer and get more information about collaborative family law online at collaborativefamilylawyers.ca.

No matter what approach you take, it is always a good idea to get legal advice if you are trying to reach an agreement. If you reach an agreement, it is important to get independent legal advice from your own lawyer before you sign the agreement.

How do I apply for custody, contact time, or interaction?

You can start an application for custody, contact time, or interaction with a lawyer’s help, or on your own. If you cannot afford a lawyer, you can apply to Nova Scotia Legal Aid at their website, nslegalaid.ca, or call your nearest Legal Aid office. It is listed under Legal Aid in the telephone book.

Or, you can hire a lawyer in private practice who does family law.

If you do not have a lawyer, you can ask court staff for information about the documents you must file, or go online to nsfamilylaw.ca/custody-access/information-grandparents for information about where to start. You can find an online guide to making a court application at nsfamilylaw.ca/guide-making-application-court. You can also make an appointment to see the Summary Advice Lawyer. The Summary Advice Lawyer provides free, brief legal advice to anyone who has a family law issue but does not have a lawyer. There are no income criteria. Call the family court for contact information, or go online to nsfamilylaw.ca under “Getting legal advice and finding a lawyer.”

Intake is a session at family law courts you must go to. You will get information about starting a court application or settling a family law matter outside of court. Intake can happen at the court or online.You must do an intake session before court staff will look at your application.

Once you have given the court your application and you have gone to an intake session, you may attend conciliation. This is a form of dispute resolution. A court officer will help decide what issues you need to sort out. They will make sure everyone gives the court the needed documents. And they will help negotiate a settlement if they can. The conciliator may speak with both sides together or separately.

If you cannot settle your matter, you can ask the court for a formal hearing.

Where do I apply for custody or contact time?

Generally you must apply to the family law court closest to where the child lives.

Is financial support available for grandparents with custody or care of a child?

Anyone, including a grandparent, who has custody of a child can apply to court for child support.

Grandparents who care for their grandchildren may also qualify for government tax benefits, like the Canada Child Benefit. You can get information about the Canada Child Benefit from the Canada Revenue Agency, at canada.ca/en/revenue-agency.html or by calling 1-800-387-1193.

What if the person with care of my grandchild will not follow a court order for contact time?

If the person with care of your grandchild prevents your court orderedcontact time or interaction, you should first try to work out an arrangement with them. You should avoid involving police or the court if possible. If this is not possible, you can apply to court to take steps to enforce the order. It is best to speak with a lawyer before you do that. You can ask a lawyer about section 41 of Nova Scotia’s Parenting and Support Act, which is a part of that law that may help with enforcement.

Can I apply to change a court order?

You can apply to vary, or change, a court order if there has been an important change in circumstances since the court order was made.

This could include:

• a change in custody or parenting arrangements
• an address change affecting your ability to visit your grandchild
• a change in your grandchild’s schedule that affects contact time or
  interactions.

What should I do if I suspect a child is being neglected or abused?

If you believe that any child is being neglected or abused, you have a legal duty to report it to the Department of Community Services.

Contact the department using these toll-free numbers:

• Weekdays, 8:30 a.m.–4:30 p.m.: 1-877-424-1177
• Weekends or holidays: 1-866-922-2434

If my grandchild is taken into care, what will happen next?

If a child is abused or neglected, the Department of Community Services will try to keep them in their home and to offer services to the parents and child. However, this is only as long as the child is safe. If a child is in serious danger, the department may remove them from their home and take them into care.

“Taken into care” means the child is removed from the home and is cared for in a foster family’s home or in another place. A “plan of care” is the Nova Scotia government’s term for arrangements that are made about the child. Care can be temporary or permanent. If a child is taken into care, the department must take the matter to court for a judge to review. This must happen within five days or the child will be returned to their home.

When the department decides that a child will be placed in care, the Children and Family Services Act says that the child must be placed with a relative if possible. A judge may decide not to place a child with relatives if that is not in the child’s best interests. If a child is not placed with relatives, the child can still visit family, relatives, and friends unless the court says that this may be harmful to the child.

A child in care may be adopted if the court agrees that is in their best interests. A grandparent who wants to adopt their grandchild must ask the court for leave to apply. Once a child is adopted, the Department of Community Services is no longer involved, and the parents who adopt the child will make decisions about contact with the child’s birth family.

Here is more information about child protection.

 

Where can I find more information about grandparents’ rights?

Nova Scotia Legal Aid. Your local Legal Aid office is listed under Legal Aid
in the telephone book or you can find them online at nslegalaid.ca.

A lawyer in private practice who does family law. You can go to
legalinfo.org, under Lawyers and Legal Help, for ways to find a lawyer.

Family Law Nova Scotia. The website at nsfamilylaw.ca offers information
for grandparents under “Custody and Access.”

Legal Information Society of Nova Scotia. Legal information
line: 902-455-3135 or 1-800-665-9779 (toll-free); online at legalinfo.org;
The Legal Information Society of Nova Scotia may also be able to refer you to a lawyer or mediator.

NS Child Welfare Services
Online: novascotia.ca/coms/department/contact/ChildWelfareServices.html

You can also find information about grandparents’ rights advocacy and support groups online or by contacting NS 211.