How Custody Works in Newfoundland and Labrador After Separation

When parents separate, the first worry is often the children. In Newfoundland and Labrador, two laws can apply: the provincial Children's Law Act and the federal Divorce Act, depending on whether a divorce proceeding has started.

This article explains the basic rules, how decisions are made, and what happens if you and the other parent cannot agree.

This article covers the law of Newfoundland and Labrador.

The starting point 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's express or implied consent, the other parent's right to exercise custody is suspended until a separation agreement or order provides otherwise, but access rights are not suspended. Parents living apart must encourage and support the child's continuing relationship with the other parent. Access includes the right to visit the child and to receive information about the child's health, education and welfare.

In the Act, the word court means the Trial Division or the Provincial Court. In a judicial area designated under section 43.5 of the Judicature Act, it means the Trial Division – Family Division. In areas where the Family Division does not operate, the General Division of the Supreme Court also exercises jurisdiction over some family matters.

Custody, access and guardianship of property

Custody concerns the child's person. Guardianship of a child's property is separate and is dealt with in Part IV of the Act, where a parent has a preferential entitlement to be appointed.

A parent, or another person such as a person with a settled intention to treat the child as a family member, a grandparent or a person with actual care of the child, may apply for a custody or access order.

Child support is a separate question from custody and is not covered in this article. How it applies to you depends on your situation, so it is worth confirming with a lawyer.

How the best interests of the child are decided

• Under the Children's Law Act, factors include emotional ties, the child's views where reasonably ascertainable, time in a stable home, each applicant's ability to parent, the proposed plans and the permanence of the proposed home.
• The court must consider any violence by a person toward a spouse, child or household member.
• Under the Divorce Act, only the child's best interests are considered, with primary consideration to the child's physical, emotional and psychological safety, security and well-being.

The Divorce Act uses the terms parenting time and decision-making responsibility in place of custody and access. If a divorce proceeding starts, a Children's Law Act custody or access application is stayed unless the court grants leave, and parenting issues between married spouses are then decided under the Divorce Act.

If you cannot agree

Family Justice Services (FJS), a division of the Supreme Court, offers mediation and parent education to help resolve parenting and child support issues outside the courtroom. It is free and does not give legal advice. Both parties can submit a Request for Service, or an Originating Application raising a parenting issue is automatically forwarded to FJS.

Attendance at the Parent Information Program is mandatory for parents involved in family court applications. The Divorce Act also says parties should try family dispute resolution outside of court to the extent appropriate. A court can also appoint a mediator the parties choose, with the parties paying the fees.

The Parent Information Program is a group session called Living Apart…Parenting Together. It is described as three hours and free, held at FJS offices across the province, with each parent attending a separate presentation and children not able to attend. Parents who are not going to court are encouraged to attend. The format can change, so confirm current details with your nearest FJS office.

Which court hears your matter depends on where you live. The Family Division has exclusive jurisdiction in the East Coast and West Coast judicial areas, and shares it with the Provincial Court in the expanded service area from Holyrood to Port Blandford.

What to do next

• Write down the current routine and what you propose.
• Keep communication with the other parent respectful and child-focused.
• Contact your nearest FJS office about mediation and the Parent Information Program.
• Gather records about the child's health, school and care.
• Get legal advice before signing any agreement or filing an application.

Frequently asked questions