Custody vs Decision-Making Responsibility in New Brunswick

If you are separating, you may keep hearing the word custody from friends and family, yet your paperwork talks about decision-making responsibility and parenting time. It is natural to wonder whether these are the same thing with new names, or something different.

This article explains what each term means in New Brunswick, how they fit together, and why the difference matters when you negotiate an agreement or ask a court for an order.

This article covers the law of New Brunswick.

Why the words changed

Under the Family Law Act, decision-making responsibility and parenting time replace the older terms custody and access. The change is more than cosmetic. Custody tended to bundle together who the child lived with and who made the decisions. The newer terms separate those two ideas so each can be dealt with on its own.

What each term means

The federal Divorce Act uses similar language. Decision-making responsibility may be allocated to one spouse, to both spouses, or to others.

Big decisions versus day-to-day decisions

In a divorce proceeding under the Divorce Act, the person with parenting time has exclusive authority to make day-to-day decisions affecting the child during that time, unless the court orders otherwise. In practice, that points to things like meals, bedtime and routine activities belonging to whoever is caring for the child at that moment. How this applies if you were never married depends on your situation, so it is worth confirming with a lawyer.

Significant decisions are different. Health, education, culture and religion, and significant extra-curricular activities fall under decision-making responsibility. A parent can have lots of parenting time and still share the big decisions, or the reverse can apply, depending on what is agreed or ordered.

How the default rules and orders work

Unless it is otherwise agreed by written agreement or ordered by the Court, where a child has more than one parent, the parents share parenting time and decision-making responsibility. That is a starting point, not a fixed schedule, and the best-interests test governs how time and responsibility are actually allocated.

On application by a parent or a person standing in a parent's place, the Court may make a parenting order dealing with parenting time or decision-making responsibility. An order can be for a definite or indefinite period, or until a specified event.

• Married parents in a divorce proceeding are dealt with under the Divorce Act.
• Parents who were never married, or who are not in a divorce case, rely on the Family Law Act.
• A written agreement can set the arrangement instead of the default.
• The Court may make or vary a parenting or contact order if the child is habitually resident in New Brunswick when the application begins.

The best-interests test sits behind every label

In making a parenting order or contact order, the Court takes into consideration only the best interests of the child, with primary consideration given to the child's physical, emotional and psychological safety. The Divorce Act takes the same approach, and family violence and its impact are a listed factor.

The terms also affect later events. For example, a parent with parenting time or decision-making responsibility who intends to relocate must give written notice to others with parenting time, decision-making responsibility or contact, generally at least 60 days ahead under the Divorce Act. Unmarried parents have a parallel process under the Family Law Act, where shorter notice requires reasons.

What to do next

• Make a list of the significant decisions you expect (school, health care, religion, activities) and how you would like them handled.
• Write out a realistic weekly and holiday schedule for parenting time.
• Gather any existing agreements or court orders.
• If you reach an agreement, put it in writing and ask a lawyer how it fits your situation before you sign.
• Speak with a lawyer if you disagree about the arrangement or have safety concerns.

Frequently asked questions