Decision-Making Responsibility vs Parenting Time in New Brunswick

If you separated years ago, you may still think of "custody" and "access". Those words no longer appear in New Brunswick's Family Law Act. The law now splits a child's care into two ideas: who makes big decisions, and who has the child in their care and when.

Understanding the two terms helps you read an agreement or court order and know what you can decide on your own. This article explains each one, the default rule, and which court and law apply to you. It does not replace advice about your own family.

This article covers the law of New Brunswick.

What replaced custody and access

The Family Law Act (SNB 2020, c. 23) defines "decision-making responsibility" as responsibility for making significant decisions about a child's well-being. That includes health, education, culture and religion, and significant extra-curricular activities.

It defines "parenting time" as the time a child spends in the care of a parent or a person standing in a parent's place. These two terms replace "custody" and "access".

Who decides what, day to day and long term

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. Think of meals, bedtime and ordinary routines while the child is with you.

Decision-making responsibility is separate. It may be given to one spouse, to both spouses, or to others. So a parent can have parenting time without having sole say over major decisions, and the reverse can also be true.

• Day-to-day choices: usually the parent who has the child at that moment.
• Significant choices such as health, schooling and religion: whoever holds decision-making responsibility.
• Both can be shared, split or given to one parent, depending on the agreement or order.

The default rule and what it does not mean

Under the Family Law Act, unless a written agreement or a court order says otherwise, a child with more than one parent has parents who share parenting time and decision-making responsibility.

This is not a presumption of an equal-time schedule. The child's best interests govern how time is actually allocated. The "maximum contact" idea is also a guide only: a child should have as much time with each parent as is consistent with the child's best interests, not a guaranteed 50/50 split.

How the court decides and who can apply

A parent or a person standing in a parent's place can apply for a parenting order about parenting time or decision-making responsibility. The order can last for a definite period, an indefinite period, or until a specified event.

In making a parenting order, the court considers only the best interests of the child, giving primary consideration to the child's physical, emotional and psychological safety. Under the Divorce Act, the same approach applies, and family violence and its impact are a listed factor.

Which law and court apply, and what to do next

Married parents dealing with a divorce use the Divorce Act. Unmarried parents, and cases that are not part of a divorce, use the Family Law Act. In the Family Law Act, "Court" means the Court of King's Bench of New Brunswick. Its Family Division handles divorce, Family Law Act matters such as parenting and support, and related family proceedings.

For the Family Law Act, the Court may make or vary a parenting order if the child is habitually resident in New Brunswick when the application begins. It may also act where the child is present and would likely suffer serious harm otherwise.

• Find your current agreement or order and see which terms it uses.
• Note who holds decision-making responsibility and what the schedule says.
• Check whether your agreement is in writing, since a written agreement can change the default.
• Write down where the child has lived, as habitual residence matters for jurisdiction.
• Talk to a lawyer before changing arrangements, especially if safety is a concern.

Frequently asked questions