- Under the Children's Law Act, the father and mother of a child are equally entitled to custody, subject to Part III.
- Guardianship in the Act's Part IV concerns the child's property and is separate from custody, which covers the child's person.
- The Divorce Act replaced custody and access with parenting time and decision-making responsibility.
Custody, guardianship, access, parenting time and decision-making responsibility sound similar, yet they are not interchangeable. Which words apply depends partly on whether you were married and whether a divorce has started.
This article sets out how the terms work in Newfoundland and Labrador and how to find the right process.
This article covers the law of Newfoundland and Labrador.
Custody under the Children's Law Act
The father and mother of a child are equally entitled to custody, subject to the other provisions of Part III. A person with custody has parental rights and responsibilities and must exercise them in the child's best interests.
If a child lives with one parent with the other parent's express or implied consent, the other parent's right to exercise custody is suspended until a separation agreement or order provides otherwise. Access rights are not suspended.
Access and guardianship
Access includes the right to visit the child and to receive information about the child's health, education and welfare. Parents living apart must encourage and support the child's continuing relationship with the other parent.
Guardianship in the Children's Law Act is a different idea. Part IV deals with guardians of the child's property, and a parent has a preferential entitlement to be appointed property guardian. This is separate from custody, which covers the child's person.
| Term | Plain meaning |
|---|---|
| Custody | Parental rights and responsibilities, exercised in the child's best interests |
| Access | Visiting the child and receiving information about health, education and welfare |
| Guardianship of property | Part IV appointment concerning the child's property |
The Divorce Act's newer terms
A court may make a parenting order providing for the exercise of parenting time or decision-making responsibility. These terms replaced custody and access in the federal Act.
A custody or access application under the Children's Law Act is stayed once a divorce proceeding starts under the Divorce Act, unless the court grants leave. Parenting issues between married spouses are then decided under the Divorce Act. The Divorce Act applies only to married spouses.
How the court decides, and who can apply
Under the Children's Law Act, applications are decided on the child's best interests. Factors include the child's emotional ties, the child's views where reasonably ascertainable, time spent in a stable home and each applicant's ability to act as a parent. The court must consider any violence by a person toward a spouse, child or household member.
Under the Divorce Act, the court takes into consideration only the best interests of the child, with primary consideration to the child's physical, emotional and psychological safety, security and well-being.
Under the Children's Law Act, a parent, or another person listed in section 69(4) of that Act, may apply to a court for an order about custody, access or an aspect of custody. Those persons include a person with a settled intention to treat the child as a member of their family, a grandparent, and a person with actual care of the child.
What to do next
- Work out whether you were married, and whether a divorce has started.
- Look at Family Justice Services, which offers free mediation and parent education and does not provide legal advice.
- Know that attendance at the Parent Information Program is mandatory for parents involved in family court applications.
- Get legal advice on which court and which Act apply to you.
Frequently asked questions
Is guardianship the same as custody?
No. In the Children's Law Act, Part IV deals with guardians of the child's property, while custody covers the child's person.
Do both parents have custody after separation?
Both parents are equally entitled to custody, subject to the Act. However, if the child lives with one parent with the other's consent, the other's right to exercise custody is suspended until an agreement or order provides otherwise.
Does the other parent lose access?
Access rights are not suspended when a child lives with one parent. Access includes visiting and receiving information about the child.
Which court handles these applications?
It depends on where you live. The Family Division has exclusive jurisdiction in the East Coast and West Coast judicial areas, and in the expanded service area residents can choose either it or the Provincial Court for Children's Law Act parenting orders.
Sources
- Children's Law Act, RSNL 1990 c C-13 — assembly.nl.ca
- Divorce Act, RSC 1985, c 3 (2nd Supp) — Justice Laws (federal)
- Supreme Court of Newfoundland and Labrador – Family Division Jurisdiction — court.nl.ca
- Supreme Court of Newfoundland and Labrador – Family Justice Services — court.nl.ca
- Government of Newfoundland and Labrador – Family Justice Services Division: Parent Information Program — gov.nl.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a family law question
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